OFFICER SAFETY / SEARCH & SEIZURE LAWS
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 suspects 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 suspects 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
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
Deadly Force - Kisela v. Hughes
(2018) Cites most cases!
Several Federal Circuit Courts of Appeal have held that
warnings and waivers are