In general, if a reasonable person in the suspect’s shoes wouldn’t feel free to leave an encounter with the police, then there’s been either a detention or an arrest. Determining which can be tough—and sometimes crucial.
Suppose, for instance, that an officer has reasonable suspicion to detain someone but not probable cause to arrest them. In the course of the encounter, the officer discovers incriminating evidence. In this situation, if the defense attorney persuades the court that, instead of merely detaining her, the officer arrested the suspect without probable cause, then the evidence may be inadmissible in court.
(For information about the level of suspicion police officers must have in order to detain or arrest, see What’s the difference between an arrest and a detention or “stop and frisk”?)
Sometimes it's clear someone is under arrest—for instance, when the officer specifically says so and then handcuffs the person. But not all situations are that clear. Because it can mean the difference between incriminating evidence being admitted or not in a case, a judge may have to decide.
An officer’s “brief and cursory” holding and questioning of someone is a detention. An example is a cop stopping someone who is behaving suspiciously in order to ask a few questions. The suspect isn’t free to leave, but he also isn’t under arrest, at least until the officer develops probable cause. Another common example is an officer pulling over a driver for some kind of traffic or equipment violation.
An arrest, on the other hand, involves the police taking someone into custody through a more significant restraint on movement. The quintessential example involves the use of handcuffs and an advisement that the suspect is under arrest. (See How do I know if I’ve been arrested?)
Investigatory stops (or “detentions”) must be no longer than necessary and officers must investigate with the least intrusive means that are reasonably available. When an officer prolongs a detention beyond what is brief and cursory and broadens it, then the detention may turn into a de facto arrest—that is, an actual but not official arrest.
If a reasonable person in the suspect’s position would have considered the police’s behavior to constitute the kind of restraint that’s typical of formal arrest, then an arrest has occurred. Some courts phrase the issue as depending on whether, after brief questioning, a reasonable innocent person would have felt free to leave—if not, there’s been an arrest. (Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159 (9th Cir. 2013).)
Courts consider a variety of factors in determining whether a detention has ripened into an arrest, among them:
(U.S. v. Vargas, 369 F.3d 98 (2d Cir. 2004), In re Hoch, 82 A.3d 1167 (Vt. 2013).)
Although the extent to which officers restrain and intrude upon the suspect are key to the determination, there’s no bright line indicating the point at which a detention becomes an arrest. For instance, the use of handcuffs doesn’t automatically signal an arrest where there are concerns for officer or public safety.
In one case, officers handcuffed a suspect and placed him in the back of a squad car while they searched a house he had just visited. The appeals court held that their actions didn’t turn the detention into an arrest because they needed to avoid an escape attempt and to take precautions against potential violence. The court also found that it made sense to take the suspect back to the house because they knew that the search they were about to begin could implicate him. (United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011).)
If you have questions regarding a police encounter, talk to a criminal defense attorney. An attorney can help you understand the law and how it applies in your case.
]]>Reasonable suspicion is a standard lower than probable cause, and it doesn’t require anywhere near 50% certainty that the detainee has done something illegal.
]]>REASONABLE SUSPICION IN ACTION
Officer Haulk is downtown, wearing plain clothes at 2:30 in the afternoon. He notices two men, Joe and Calvin, standing at a street corner. Something about them doesn’t seem right to him, so he continues to watch them from a distance. He sees Calvin walk down the street, past some stores. Calvin pauses and looks in a store window, then turns around and rejoins Joe. Joe then walks to the same store window, looks in, and returns to Calvin. Joe and Calvin trade off walking to the same window and looking in it until each has done so six times.
Officer Haulk sees a third man walk up to Calvin and Joe and engage them in conversation, then walk away. Calvin and Joe continue their pacing for another ten minutes, then walk in the direction of the third man.
Suspecting that they are “casing a job” before committing a robbery, Officer Haulk approaches the three men and identifies himself as a police officer. He asks for their names and receives a mumbled, unintelligible response. Haulk then grabs Calvin, spins him around, and pats him down; he finds a pistol in Calvin’s jacket pocket. He also pats down the other two men, finding another gun on Joe.
Before Calvin’s trial for gun possession, his lawyer brings a motion to suppress evidence of the gun in his jacket. The court rules that Officer Haulk was entitled to approach the men and ask them their names. It further finds that, because he limited his search to a pat-down and had a reasonable suspicion that Calvin was armed and dangerous, Haulk was justified in grabbing and searching him. Accordingly, the court denies the motion to suppress. (Terry v. Ohio, 392 U.S. 1 (1968).)
A frisk qualifies as a Fourth-Amendment “search,” but it’s more limited than your typical hunt for evidence. It’s a protective search for weapons.
Police officers are allowed to stop someone they reasonably suspect of criminal activity. They may follow up the stop with a frisk (or pat-down) if they have reason to suspect that the person is armed and dangerous. A frisk in this context is supposed to be a limited search of the person’s outer clothing—for weapons.
An officer conducting a proper frisk who feels something that seems to be a weapon may reach into the suspect’s clothing to seize it. An officer who feels something that is clearly contraband may seize that, too.
An all-out search, on the other hand, involves the officer probing for evidence. The officer isn’t confined to screening for weapons.
Example: Officer Mace stops a man on the street who resembles a person wanted for bank robbery. Officer Mace frisks the man. He feels a soft packet in the man’s back pocket. With the packet still in the man’s pocket, Mace pokes a finger through the packaging into the packet, rubs powder from the packet onto his finger, removes his finger, and decides from the powder’s appearance and smell that it is an illegal drug. Officer Mace removes the packet and arrests the man for possession of illegal drugs. The contents of the packet are not admissible in evidence. The officer probably had reasonable grounds for detaining and frisking the man (a potentially armed and dangerous suspect). But he didn’t have probable cause for arrest or a full-blown search. Therefore, all Officer Mace could do was frisk the driver and seize either a weapon or contraband in plain feel. Because the soft packet could not reasonably have been mistaken for a weapon, and Officer Mace had to manipulate the packet before believing it contained illegal drugs, the frisk became an illegal search.
Example: Same case, except that Officer Mace, when frisking the man, felt, then seized, a packet of little pebbles that felt like rock cocaine. Under these circumstances, the rock cocaine is likely admissible in evidence. The officer could tell from a plain feel that the packet contained illegal drugs.
Whether an officer's probe is a mere frisk or a more invasive search depends on the facts of the case. Plus, the law can vary somewhat from one jurisdiction to another. If you have a case, make sure to consult an experienced criminal defense lawyer, who should be able to explain the applicable law and guard your rights.
]]>Fourth Amendment protections depend on the level of government intrusion involved. The greater the intrusion is, the greater the proof of wrongdoing must be in order to justify the officer's actions.
Even without suspicion of wrongdoing, a police officer can approach someone and begin a conversation without violating the Fourth Amendment. As long as the individual reasonably feels free to end the discussion and walk away, the officer has done nothing wrong.
The next level of police interaction is an investigatory detention or stop, which should be brief and only long enough for the officer to assess the situation.
Stop or detain. In order to stop or “detain” someone, the police must have “reasonable suspicion” of criminal activity—that is, an objectively reasonable basis to suspect that the detainee is or was involved in a crime. It's more than a hunch or distrust. This stop isn’t a full-blown arrest. Rather, it’s an interaction in which the citizen isn’t necessarily accused of a crime but also isn’t free to leave, at least until the officer indicates otherwise.
Stop and frisk. Even if police have reasonable suspicion to briefly stop someone, the officer can't frisk a detained suspect unless reasonable suspicion exists to believe that the person is armed and dangerous. But with that reason, an officer can pat down the suspect’s outer clothing in a search for weapons. If the officer happens upon contraband (like a bag of cocaine) when conducting a limited pat-down for weapons, that seizure will usually be found valid. In this scenario, the officer would likely transform the detention into an arrest by further restricting the suspect’s freedom by, for instance, using handcuffs and placing the suspect in a patrol vehicle. (For more information on stop-and-frisk, see Police Searches on the Street: Stop and Frisk.)
An officer can arrest someone only with either a warrant or probable cause to believe the person committed a crime. Probable cause is more than reasonable suspicion. The officer must be able to point to objective facts that make it reasonable to believe a person committed or is committing a crime. For example, say an officer hears an alarm and sees someone running from a bank with a bag of money, these circumstances give the officer probable cause. After the arrest, the officer can search the arrestee and the immediate surroundings.
A person doesn't need to be in handcuffs or brought to jail for an arrest to occur. If it's pretty clear the person is not free to go (say someone is surrounded by four officers or has been told to turn and face the car), an arrest has likely occurred. For more information on how to determine whether you’ve been placed under arrest, see Arrest vs. Detention.
An officer's level of suspicion as to criminal activity bears on whether the officer's subsequent actions are reasonable under the Fourth Amendment. While there's no bright-line rule, courts will evaluate all the circumstances surrounding the interaction.
If an officer has only reasonable suspicion of criminal activity but conducts a full-blown arrest and search (without probable cause), the search and seizure would be unconstitutional. And any evidence found during the unlawful search likely wouldn't be admissible in court (although exceptions may exist).
But know that not every interaction with an officer requires the officer to give a Miranda warning. If an officer stops someone on the street to ask a question and the person blurts out a confession, that confession will be admissible in court. When in doubt, it's usually best to err on the side of caution and not offer up anything other than your name and identification without first consulting with a lawyer.
If you have questions regarding an interaction with a police officer, consider speaking with a lawyer. An attorney can review the circumstances and help you evaluate what, if any, options you may have.
]]>Officers must confine these kinds of frisks to the suspect’s outer clothing—they can’t go rummaging through your pockets. If, however, the officer feels something like a weapon during the frisk, he or she can reach into your clothing and retrieve it. Even if the object isn’t a weapon, a court will consider it to have been lawfully discovered if it reasonably appeared to be a one. In fact, an officer who feels something during a Terry frisk that obviously isn’t a weapon, but is obviously contraband, can seize it.
On the other hand, if the officer can’t tell from a frisk what the object is—only that it isn’t a weapon, he or she can’t explore it further. For example, the officer can’t squeeze it, slide it around, and otherwise manipulate it. (Minnesota v. Dickerson, 508 U.S. 366 (1993).) That said, the officer may be entitled to ask the suspect about the object. (State v. Scott, 518 N.W.2d 347 (Iowa 1994).)
If an officer didn’t have a legal basis for a Terry frisk or went beyond the limits of such a search, the resulting evidence will be normally inadmissible in court—if the defense files a motion to suppress evidence.
FRISKY BEHAVIOR
Officer Sydnor receives a dispatch call informing him of a report of two men smoking some kind of narcotic in a nearby parking lot. He drives to the parking lot and sees two men, Johnny and Bubbles; they match the description of the smokers.
Officer Sydnor, dressed in uniform, gets out of his car and begins to walk toward Johnny and Bubbles, who happen to be walking in his direction. He asks for their identification, but they ignore him. As he gets closer, he requests their identification a second time, then notices the smell of burt marijuana coming from Johnny.
Johnny and Bubbles ignore Sydnor again and walk past him. Johnny turns around to face Sydnor, puts his hands in his front pockets, and walks backwards. Sydnor sees that Johnny is acting nervously and suspects that he might be hiding a weapon. He asks Johnny to remove his hands from his pockets, but Johnny refuses. Sydnor approaches Johnny, takes Johnny's hands out of his pockets, orders him up against a nearby wall, and tells him to assume the frisk position.
When Sydnor starts the frisk, Johnny refuses to separate his feet. Sydnor forces them apart and pats down Johnny’s left leg. He feels a hard object, about three inches wide and four or five inches long, in Johnny’s boot. Believing that the object might be a gun, Sydnor lifts up Johnny’s pant leg, revealing in the boot a package tightly wrapped in plastic. Still not sure that it isn’t a weapon, Sydnor reaches into the boot and grabs the package, which contains crack cocaine.
Officer Sydnor’s search was valid; the crack cocaine evidence will be admissible in court. He limited his initial search to a pat-down of Johnny’s exterior clothing (and shoes), he thought that the bulge might be a gun, and he was reasonable in still not knowing whether it was a gun immediately before grabbing it. (United States v. Harris, 313 F.3d 1228 (10th Cir. 2002).)
For more on the scope of Terry frisks, see The Difference Between a Police "Search" and a "Frisk."
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