Introduction

“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”*

Of all the police field operations that deter and thwart crime, and result in the apprehension of criminals, the investigative detention is, by far, the most commonplace. After all, detentions occur at all hours of the day and night, and in virtually every imaginable public place, including streets and sidewalks, parks, parking lots, schools, shopping malls, and international airports. They take place in business districts and in “nice” neighborhoods, but mostly in areas that are blighted and beset by parolees, street gangs, drug traffickers, or derelicts.

The outcome of detentions will, of course, vary. Some result in arrests. Some provide investigators with useful—often vital—information. Some are fruitless. All are dangerous.

To help reduce the danger and to confirm or dispel their suspicions, officers may do a variety of things. For example, they may order the detainee to identify himself, stand or sit in a certain place, and state whether he is armed. Under certain circumstances, they may pat search the detainee or conduct a protective search of his car. If they think he just committed a crime that was witnessed by someone, they might conduct a field showup. To determine if he is wanted, they will usually run a warrant check. If they cannot develop probable cause, they will sometimes complete a field contact card for inclusion in a database or for referral to detectives.

But, for the most part, officers will try to confirm or dispel their suspicions by asking questions.“When circumstances demand immediate investigation by the police,” said the Court of Appeal, “the most useful, most available tool for such investigation is general on-the-scene questioning.”2

Because detentions are so useful to officers and beneficial to the community, it might seem odd that they did not exist—at least not technically—until 1968. That’s when the Supreme Court ruled in the landmark case of Terry v. Ohio 3 that officers who lacked probable cause to arrest could detain a suspect temporarily if they had a lower level of proof known as “reasonable suspicion.”4

In reality, however, law enforcement officers throughout the country had been stopping and questioning suspected criminals long before 1968. But Terry marks the point at which the Supreme Court ruled that this procedure was constitutional, and also set forth the rules under which detentions must be conducted.

What are those rules? We will cover them all in this article but, for now, it should be noted that they can be divided into two broad categories: (1) Grounds (i.e., justification) to detain and (2) Procedure.

Sidebar

The rules for constitutional investigative detentions are separated into "two broad categories":

1. Grounds to detain: Officers must have had sufficient grounds to detain the suspect; i.e., reasonable suspicion.

2. Procedure: The procedures that officers utilized to confirm or dispel their suspicion and to protect themselves must have been objectively reasonable.

Taking note of these requirements, the Court in Terry pointed out that “our inquiry is a dual one— whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 5

One more thing before we begin: In addition to investigative detentions, there are two other types of temporary seizures. The first (and most common) is the traffic stop. Although traffic stops are technically “arrests” when (as is usually the case) the officer witnessed the violation and, therefore, had probable cause, traffic stops are subject to the same rules as investigative detentions.6 The other type of detention is known as a “special needs detention” which is a temporary seizure that advances a community interest other than the investigation of a suspect or a suspicious circumstance.

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Footnotes

Attributions and Licensing

Unless otherwise indicated, this page's content is adapted from the following source: 4.1 Investigative Detentions by Larry Alvarez, used under CC BY 4.0. This page is licensed under CC BY 4.0.