Prior to the Stop: Requirements and Justifications for Investigative Detentions
Introduction
While detentions constitute an important public service, they are also a “sensitive area of police activity”7 that can be a “major source of friction” between officers and the public.8 That is why law enforcement officers are permitted to detain people only if they were aware of circumstances that constituted reasonable suspicion. In the words of the United States Supreme Court, “An investigative stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”9
Reasonable suspicion is similar to probable cause in that both terms designate a particular level of suspicion. They differ, however, in two respects. First, while probable cause requires a “fair probability” of criminal activity, reasonable suspicion requires something less, something that the Supreme Court recently described as a “moderate chance.”10 Or, to put it another way, reasonable suspicion “lies in an area between probable cause and a mere hunch.”11 Second, reasonable suspicion may be based on information that is not as reliable as the information needed to establish probable cause. Again quoting the Supreme Court:
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable.12
Although the circumstances that justify detentions are “bewilderingly diverse,”13 reasonable suspicion ordinarily exists if officers can articulate one or more specific circumstances that reasonably indicate, based on common sense or the officers’ training and experience, that “criminal activity is afoot and that the person to be stopped is engaged in that activity.”14 Thus, officers “must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.”15
This does not mean that officers must have direct evidence that connects the suspect to a specific crime. On the contrary, it is sufficient that the circumstances were merely consistent with criminal activity. In the words of the California Supreme Court,“[W]hen circumstances are consistent with criminal activity, they permit—even demand—an investigation.”16
The propriety of the officers’ conduct throughout detentions depends on two things. First, they must have restricted their actions to those that are reasonably necessary to, (1) protect themselves, and (2) complete their investigation.17 As the Fifth Circuit explained in United States v. Campbell, “In the course of [their] investigation, the officers had two goals: to investigate and to protect themselves during their investigation.”18
Second, even if the investigation was properly focused, a detention will be invalidated if the officers did not pursue their objectives in a prudent manner. Thus, the Ninth Circuit pointed out that “the reasonableness of a detention depends not only on if it is made, but also on how it is carried out.”19
Although officers are allowed a great deal of discretion in determining how best to protect themselves and conduct their investigation, the fact remains that detentions are classified as “seizures” under the Fourth Amendment, which means they are subject to the constitutional requirement of objective reasonableness.20 For example, even if a showup was reasonably necessary, a detention may be deemed unlawful if the officers were not diligent in arranging for the witness to view the detainee. Similarly, even if there existed a legitimate need for additional officer-safety precautions, a detention may be struck down if the officers did not limit their actions to those that were reasonably necessary under the circumstances.
The Requirements
To conduct an investigative detention of a person, an officer must have reasonable suspicion that criminal activity is afoot. The officer does not have to know that a crime is being committed, or even that he or she is stopping the right suspect. In allowing investigatory detentions, Terry accepts the risk that officers may stop innocent people. While reasonable suspicion is a lower standard than “probable cause,” the officer must still have explainable (articulable) reasons to justify a temporary seizure of a person. “Criminal activity is afoot” means that the officer must reasonably suspect that:
A crime is about to be committed;
A crime is being committed; or
A crime has been committed.
Some courts have disallowed investigative detentions for completed misdemeanors, unless some ongoing danger to the public still exists (e.g., recent reckless driving). However, if there is no other way to identify the subject who committed a misdemeanor, the court may still find the detention reasonable. Detentions to prevent or stop a misdemeanor from occurring are, of course, permissible with reasonable suspicion. When an officer has reasonable suspicion that a piece of personal property, such as luggage, contains contraband or evidence of a crime, he or she may detain it in the same manner that the officer may detain a person.
To determine whether reasonable suspicion exists, courts look at the totality of the circumstances of each case. An officer must be able to articulate facts establishing the possibility that the person stopped is connected to criminal activity. The totality of the circumstances includes an officer’s specialized training and experience, which together with the facts, might lead the officer to a conclusion that an untrained person would not reach. For example, the officer may observe conduct that he or she believes is consistent with “casing” a store for a robbery. In such a situation, the officer’s training and experience allows him or her to determine that reasonable suspicion of criminal activity exists, even though all of the suspect’s conduct might appear perfectly innocent to an untrained observer.
Establishing Reasonable Suspicion
Law enforcement officers may use a variety of different investigative techniques to obtain enough information to establish reasonable suspicion to detain a person. For example, an officer’s personal observations may establish reasonable suspicion to conduct an investigative detention. Courts give a great deal of deference to an officer’s personal observations. Additionally, officers may establish reasonable suspicion from information provided by other law enforcement officers, sometimes referred to as “collective knowledge.” Information from an identified third party, such as a victim or witness, can also provide the facts to establish reasonable suspicion. Finally, officers may use information provided by reliable informants to establish reasonable suspicion for an investigative detention.
Often, informants or anonymous sources provide the information to establish reasonable suspicion. While this is permissible, an officer sometimes needs to corroborate the informant’s information. The reliability of a tip provided by an informant depends on both the “quantity” and “quality” of the information. A tip from a confidential informant with an established, positive track record is usually considered reliable enough to establish reasonable suspicion with little or no corroboration. An anonymous tip can be insufficient, especially when the source’s truthfulness and basis of knowledge (i.e., how did the source acquire the information?) is unknown. In determining whether a tip contains enough verifiable information to establish reasonable suspicion, courts look to and rely upon the following factors:
The amount of detail the source provided;
Whether the source accurately predicted the suspect’s future behavior;
Whether and to what extent law enforcement officers corroborate the source’s information;
Whether the information is based on the source’s first-hand observations;
Whether, by providing the information, the source is putting his or her anonymity in jeopardy;
Whether the source provided the information in a face-to-face encounter with law enforcement officials; and
The timeliness of the source’s report, that is, whether the information is “stale.”
Reasonable suspicion is a lower standard than probable cause, both as to the amount of evidence needed [“quantity”] as well as how strongly it establishes that criminal activity is afoot [“quality”]
Factors Justifying Investigative Detentions
The officer must be able to explain to a court why he or she decided to conduct an investigative detention of a suspect (i.e., what the officer heard, saw, or learned that led the officer to reasonably suspect that criminal activity was afoot). Many factors can justify an investigative detention. Even seemingly innocent or wholly lawful conduct can, in appropriate instances, establish reasonable suspicion that criminal activity is afoot. For example, an officer may reach different conclusions about the legal purchase of a crowbar by a person with an extensive criminal record for burglary than the same purchase by a carpenter with no criminal record. Some common factors officers can use to justify investigative detentions include, but are not limited to:
A suspect’s nervous behavior, although this factor alone is of limited value and the officer should consider it in conjunction with the surrounding circumstances;
A suspect’s criminal history, although standing alone, this factor will not establish reasonable suspicion;
An officer’s knowledge of recent criminal conduct;
The time and location of the situation;
A suspect’s flight upon observing law enforcement officers, at least when combined with other factors;
A suspect’s presence in a high crime area, at least when combined with other factors; and
A suspect’s non-responsive behavior.
From the Courts to the Street
[B]ased on a police member’s individualized, objective, and articulable reasonable suspicion that the subject(s) has committed a crime, is in the process of the commission of a crime or may commit a crime. Reasonable suspicion, as defined in section 085.05, is more than a hunch. A “hunch”, for the purpose of this section, is an intuitive feeling or premonition “gut feeling” and therefore, on its own, is not legal justification to conduct a Terry stop.
A. JUSTIFICATION FOR CONDUCTING A FIELD INTERVIEW (TERRY STOP)
The following points may be considered, on their own or in combination with one another or other factors in establishing individualized, objective, and articulable reasonable suspicion (these are not all inclusive, and one or more or even other circumstances may be present when formulating justification).
a. The actions of the subject suggest that he or she is engaged in a criminal activity.
b. The subject is carrying a suspicious object.
c. The subject is located in proximate time and place to an alleged crime.
d. The individual flees at the sight of law enforcement.
The following points may be considered in combination with other factors in establishing individualized, objective, and articulable reasonable suspicion:
a. The appearance or demeanor of an individual suggests that he or she is part of a criminal enterprise or is engaged in a criminal act.
b. The hour of day or night is out of the ordinary for the subject’s presence in the area.
c. The subject’s presence in a neighborhood or location is out of the ordinary.
d. The police member has knowledge of the subject’s prior criminal record or involvement in criminal activity.
e. The subject’s clothing bulges in a manner that suggests he or she is carrying a weapon.
B. PROCEDURES FOR INITIATING A FIELD INTERVIEW (TERRY STOP)
Police members may initiate the stop of a suspect if he/she has individualized, objective, and articulable reasonable suspicion to believe that criminal activity has been, is being, or is about to be committed by a specific person or people. The following guidelines shall be followed when making an authorized stop to conduct a field interview.
When approaching the suspect, the police member shall clearly identify himself/herself as a law enforcement officer by announcing his/her identity and displaying departmental identification to include a badge except in exigent circumstances (e.g., special circumstances that demonstrate an urgent need).
Police members shall be courteous at all times during the contact.
Police members shall maintain caution and vigilance to determine if circumstances provide reasonable suspicion that the individual is armed and dangerous or that there is probable cause to support a search or arrest.
Before approaching more than one suspect, at a particular location, individual police members should determine whether the circumstances warrant a request for backup assistance and whether the contact can and should be delayed until such assistance arrives.
Police members shall confine their questions to those necessary to resolve the police member’s suspicions. The questioning may only be for a reasonable length of time. This will vary in different circumstances, but will include enough time to call in a stolen vehicle inquiry or a wanted check.
Police members are not required to give suspects Miranda warnings to question a person during a Terry stop unless the person is in custody and about to be interrogated.
During the course of the field interview (Terry stop), the police member may demand the person's name and address and an explanation for his/her conduct. However, if the person states, they do not wish to speak with the police member and there is no further information or facts which could lead the police member to "probable cause", the police member must allow the person to go on his/her way. Responding loudly to an officer or refusing to answer a police member’s questions in and of itself is not "obstructing an officer."
The temporary detention for questioning must be in the vicinity of the initial stop. It may, for example, be out of the rain, but not at the police station six miles away.
Police members shall return any property temporarily seized (outside of what would be considered contraband) from a detainee as soon as it is reasonable to do so.
[Of course, officers must also document the facts of the encounter in a detailed report based on departmental policies as well.
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