 |
|
Copyright 1997 - 2018 Edward S. Armstrong, Jr.
All law enforcement officers must confer with their training officers, legal advisors and prosecutors regarding the following legal issues. State law can be more restrictive (pro-defendant) than Federal law. Federal circuit courts of appeal often disagree with other Federal circuit courts on issues not yet decided by the United States Supreme Court. Also, lower courts (State and Federal) sometime disagree on what a Supreme Court decision means. The following statements are not to be taken as legal advice.
I. STOP & FRISK
A. Fourth Amendment
1. Stop & Talk, No Reasonable Suspicion (RS) - Police may approach a person and ask if the person is willing to voluntarily stop and talk. If Police only have mere suspicion (no reasonable suspicion or probable cause) that a suspect is guilty of a crime, Police may not force the suspect to stop without the suspect’s permission, Terry v. Ohio (1968).
Some factors (relevant guidance) used to determine whether a Police - Citizen encounter was consensual or whether a seizure requiring RS or PC occurred:
Did the Police block or impede the citizen's path?
Did the Police retain the citizen's identification document?
How long did the Police encounter and questioning take place?
How many Police were present?
How many Police weapons were displayed?
Did the Police touch the suspect?
What was the Police language and tone of voice?
What was the citizen's age, intelligence, education?
2. Stop & Talk, RS - If Police have reasonable suspicion that a suspect is committing, has committed or is about to commit a crime, Police may forcibly stop (detain) the suspect on foot or in a vehicle, Terry v. Ohio (1968), Delaware v. Prouse (1979), Navarette v. California (2014)(911 call in this case provided RS to stop vehicle)
Reasonable Suspicion - Based on the totality of circumstances, an Officer has a particularized and
objective basis for suspecting a particular person of criminal activity, U.S. v. Cortez (1981).
3. Questions During Detention - Police may question the suspect but the suspect is not required to answer, Fifth Amendment, U.S. Constitution.
If a state law exists, Police may arrest a suspect during a lawful Terry Stop if he refuses to state or communicate his name, Hiibel v. District Court (2004).
The Miranda warning and waiver is not required during a Terry stop, Berkemer v. McCarty (1984).
But, during high risk Terry stops, several Federal Circuit Courts have held that the Miranda warning
and waiver is required, see below, B.3.
4. Plain Touch - During a frisk, if Police feel (plain touch) an object which is immediately apparent to be evidence, Police may go into the clothing and retrieve it, Minnesota v. Dickerson (1993).
5. Fingerprints - During this detention, Police may fingerprint the suspect if there is a reasonable belief
that it will prove or disprove the suspect’s connection to the crime, Hayes v. Florida (1985).
6. Container and Dog Sniff - If Police
have RS that a container has contraband inside, Police may
detain the container a reasonable amount of time for a trained
dog to sniff the container to determine Probable Cause. If the
dog does alert to the container (e.g., illegal drugs) , Police must obtain
Consent or a
Search Warrant to open the container, U.S. v. Place
(1983).
7. Detention is Limited - The Terry detention is temporary and limited to the location of the stop. Without probable cause, Police may not force the suspect to go to the Police station
unless the suspect consents, Dunaway v. New York (1979), Hayes v. Florida (1985).
8. No Probable Cause (PC) - If Police do not develop probable cause during the Terry stop/detention, Police must free the suspect, Terry v. Ohio (1968).
B. Officer Safety During Terry Detention
1. Frisk - Police may frisk a suspect, a vehicle or an unlocked container and retrieve any weapons if Police have RS the suspect is armed and dangerous, Terry v. Ohio (1968), Michigan v. Long (1983).
Automatic Frisks - Stops for
dangerous crimes, such as: murder, robbery (Terry v. Ohio),
burglary, dealing drugs and possession of firearm, (Adams
v.Williams, (1972), etc., allow automatic frisks.
Note: In Florida v. J.L. (2000), the Supreme Court suggested in dicta that an anonymous tip of a person with a firearm in a school or in an airport, or a person carrying a bomb would be sufficient to conduct a Terry Stop and Frisk.
Non-Automatic Frisks - In stops for non-dangerous
crimes such as traffic stops or shoplifting, Police must have
other reasons for conducting a frisk, such as: a
furtive movement, a bulge in the clothing which could be a
weapon, a suspect's history of carrying a firearm, or a suspect carrying
a large amount of
illegal drugs, LaFave, 9.4, 3rd Ed., Ringel 13.6.
If no RS exists, an Officer may ask Consent to frisk!
2. Use of Force - Police may use some degree of physical coercion or threat thereof to accomplish a
Terry stop and frisk, so long as the force is objectively reasonable, Graham v. Connor (1989).
Deadly Force - Kisela v. Hughes
(2018) Cites most cases!
3. Highly Intrusive Terry Stops - In Terry
stops for dangerous crimes such as murder, robbery, kidnapping,
shooting, etc., Police may draw their firearms, handcuff the
suspect, place the suspect in a Police car, or make the suspect
lie on the ground, without turning the stop into an arrest which
requires
probable cause, U.S. v. Miles, 247 F.3d 1009 (9th Cir. 2001).
Note:
Several Federal Circuit Courts of Appeal have held that
Miranda
warnings and waivers are
required during highly intrusive
Terry stops.