In some states, when an officer conducts an investigative stop, the person stopped is legally required to identify himself or herself. For example, Utah Code § 77-7-15 provides that an officer may “may demand the individual’s name, address, date of birth, and an explanation of the individual’s actions.” Stop and identify statutes were generally deemed constitutional in Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004), but North Carolina has never adopted one. Did a recent decision by the Court of Appeals turn North Carolina into a “stop and identify” state anyhow? Continue reading
Tag Archives: Terry stops
During a Terry stop, an officer who has reasonable suspicion that a suspect is armed and dangerous may frisk the suspect and may confiscate any weapons that the officer finds. Does an officer have the same authority during a traffic stop? In other words, if an officer reasonably suspects that a driver is in possession of a gun, even lawfully, may the officer confiscate the gun for the duration of the stop as a safety precaution? What about during a consensual encounter between an officer and a pedestrian? Continue reading →
When Reasonable Suspicion Is Dispelled
A traffic stop is valid if it is supported by reasonable suspicion. During a valid traffic stop, an officer may demand the driver’s license and registration, may run a computer check based on those documents, and so on. But what if the reasonable suspicion supporting the stop dissipates soon after the stop is made? Continue reading →
Case study: the Neenah stop. Recently in Neenah, WI, a woman called the police to report a man with a gun strapped to his back walking down the street. The call was placed to the non-emergency police number and the caller didn’t report that the man was doing anything threatening, but she did suggest that the police check on the situation. As a result, an officer stopped the man and his companion. The officer engaged in a protracted dialogue with the man, at one point telling the man that he would be shot in the head if he made any furtive movements. Other officers also responded, and at least one drew her weapon. The man who was stopped remained calm throughout the interaction and was eventually permitted to depart. The full 18-minute video of the stop is here. A local news article about the stop is here. It has generated quite a bit of controversy. Were the officer’s actions lawful and justified by public safety concerns? Or was it an unjustified response to lawful open carry? This post breaks down the legal issues.
Legality of open carry. From media reports and statements made by the officer during the stop, there appears to be no question that open carry is legal in Wisconsin. In fact, it seems that during a recent revision of its disorderly conduct statute, Wisconsin changed the law to protect open carry. Wis. Stat. § 947.01(2) (“Unless other facts and circumstances indicate a criminal or malicious intent . . . a person is not in violation of . . . this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.”)) As I noted in this prior blog post, open carry is generally legal in North Carolina as well.
Was the stop justified? A Terry stop requires reasonable suspicion that the subject of the stop is engaged in criminal activity. Carrying a gun openly isn’t criminal in itself. Nor, under most circumstances, is it particularly indicative of other criminal activity. In some instances, though, such as when there is a large group of armed individuals in an unusual location, or when an individual displays his or her firearm in a menacing manner, a Terry stop may be appropriate. There is limited case law in this area, and the few reported decisions aren’t always consistent. Consider the following:
- United States v. Black, 707 F.3d 531 (4th Cir. 2013) (“[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”)
- United States v. Williams, 731 F.3d 678 (7th Cir. 2013) (two judges found reasonable suspicion to support a Terry stop based principally on a 911 call reporting a group of about 25 people outside a rowdy bar, three or four of whom had their “guns out”; one judge would have found no reasonable suspicion in light of increasing legal support for open carry)
- Burgess v. Wallingford, 2013 WL 4494481 (D. Conn. May 15, 2013) (unpublished) (holding that a Terry stop was justified based on reports “that a man carrying a weapon [openly] on his person was pacing outside of a pool hall”; this provided reasonable suspicion of disorderly conduct; the court states that “[w]eapons cause unique concerns for the safety of the public and the police”).
- Banks v. Gallagher, 2011 WL 718632 (M.D. Pa. Feb. 22, 2011) (unpublished) (holding that an investigative detention was proper in light of “multiple fearful calls to 911 by concerned citizens, the unusual and unprecedented circumstance of nearly a dozen armed men in a family eating establishment refusing to explain their purpose,” and other factors)
- Schubert v. City of Springfield, 589 F.3d 496 (1st Cir. 2009) (holding, in connection with a 42 U.S.C. § 1983 claim, that an officer properly stopped a pedestrian who was wearing a holstered handgun and walking towards a courthouse; that the gun seems to have been somewhere between concealed and carried openly, so the case isn’t perfectly on point)
I tend to think that the Neenah stop was improper, as there wasn’t much to suggest criminal intent on behalf of the subject. But again, the law’s not completely settled in this area.
Scope of the stop. Assuming arguendo that the Neenah stop was lawful at its inception, I doubt that the officers were justified in detaining the subject for more than 15 minutes. Much of the stop consisted of the officer remonstrating with the subject about the Second Amendment. Investigative stops must be brief, and it was clear early on that the subject was calm, rational, and interested more in publicity than in criminal activity.
Alternatives for officers. None of the foregoing means that officers can’t respond to community concerns about people carrying guns openly, a phenomenon that is unsettling to many citizens. An officer can always seek to engage a person carrying a gun in a consensual conversation. That conversation may allay any concerns the officer has, or it may increase the officer’s concerns to the point that an investigative detention is justified.
Further reading. The Pennsylvania Chiefs of Police Association published this short paper for officers about dealing with people carrying guns openly. Some of it is specific to Pennsylvania, but much of it strikes me as sound advice for North Carolina officers as well. Michigan’s Law Enforcement Action Forum published this analysis of the legal issues officers face when dealing with open carry. If others are aware of other resources, please let me know or post a comment.
The Fourth Circuit Chastises the Government
The Fourth Circuit recently decided a very interesting case with a lot of North Carolina connections. The case is United States v. Foster, and it’s available here.
The facts were as follows. A police officer in Henderson, North Carolina was eating lunch at a restaurant with his wife. As he left the restaurant, he saw the driver of a parked SUV speak, at which point another man — the eventual defendant — sat up in the passenger seat from a crouching position. The defendant then moved his arms in what the officer believed was a furtive manner, though he couldn’t see the defendant’s hands. The officer was familiar with the defendant and knew that he had been arrested previously for a drug-related crime, so the officer spoke briefly to him, and the defendant said that he was “just chilling.”
After watching the SUV from across the street for fifteen minutes, the officer conducted a Terry stop, based on “(1) his prior knowledge of Foster’s criminal record; (2) Foster’s sudden appearance from a crouched position in a parked [SUV], immediately after the driver had apparently said something to him after seeing the detective walking towards them; and (3) Foster’s frenzied arm movements, including the movement of his arms down toward the floor of the car [as the officer neared].” The Terry stop led to the discovery of drugs, and to federal charges in the United States District Court for the Eastern District of North Carolina. The defendant moved to suppress, and when his motion was denied by Judge Boyle, entered a conditional guilty plea, reserving the right to appeal the denial of the motion.
Durham lawyer Scott Holmes represented the defendant in the Fourth Circuit, and the court reversed. (Another North Carolina connection: Judge Wynn was on the panel.) The court didn’t view the facts observed by the officer as being strongly indicative of criminal activity, especially given that the interaction took place in a low-crime area and that the defendant was not noticeably nervous. In particular, the court seemed to view the defendant’s arm movements as ambiguous — echoing a thread in North Carolina case law that distinguishes between movements that are clearly furtive and those susceptible to multiple interpretations.
Although the decision itself may not be terribly surprising, the strong language used by the court is striking. (Judge Gregory wrote the opinion, and Judge Motz joined it, along with Judge Wynn.) The panel admonished the prosecution by saying “[w]e also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity” and “we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception.” Some folks I’ve spoken to think that the quoted language just reflects the views of the particular judges on the panel, while others are inclined to see this decision as exemplifying a broader trend on the Fourth Circuit towards being less friendly to the prosecution. Anyone have any insights on that issue?
I used to answer this question “no.” But even though the United States Supreme Court recently said exactly that, see Maryland v. Shatzer, __ U.S. __, 130 S. Ct. 1213 (2010) (“[T]he temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop does not constitute Miranda custody.”), I think the correct answer is “sometimes.”
I’ll start off with why I’ve been saying “no.” I based my answer on cases like State v. Sutton, 167 N.C. App. 242 (2004) (“The mere fact that Officer Sojack performed an investigative stop of defendant and then patted him down did not result in defendant being ‘in custody’ for purposes of Miranda.”), and United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995) (holding that Terry stops do not amount to custody, and stating that “drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes”). Further, the United States Supreme Court has held that traffic stops generally are not custodial, Berkemer v. McCarty, 468 U.S. 420 (1984), and our appellate courts have held that this is so even when the driver is ordered out of his vehicle and frisked, State v. Benjamin, 124 N.C. App. 734 (1996). Given the similarity between Terry stops and traffic stops, this seemed to me to provide further support for the idea that Terry stops were categorically, or at least almost categorically, noncustodial.
My opinion now, however, is that some Terry stops are custodial, so answering the Miranda question requires examining exactly how a particular stop was conducted. Generally, a suspect is in Miranda custody if the suspect is under arrest or its functional equivalent. The mere fact that the suspect is not free to leave does not mean that the suspect is in custody. After all, a driver who is the subject of a traffic stop is not free to leave, but the cases are clear that such a person is not normally in custody. However, some Terry stops involve very significant restraints on freedom. The court of appeals has noted that “the permissible scope of a Terry stop has expanded in the past few decades,” allowing police to use handcuffs, detain suspects in police vehicles, and use “other forms of force typically used during an arrest.” State v. Campbell, 188 N.C. App. 701 (2008) (quoting Longshore v. State, 924 A.2d 1129 (Md. 2007)).
Against this backdrop, it is worth observing that the federal courts are divided about whether Terry stops can ever be custodial, though the affirmative view appears to be gaining ground. Compare Leshuk, supra (concluding that the answer is no, even for very forceful stops), with United States v. Newton, 369 F.3d 659 (2d Cir. 2004) (holding that a handcuffed suspect was in custody for Miranda purposes even though he was told that he was not under arrest, arguing that whether a detention is properly classified as a Terry stop is “irrelevant” to the Miranda analysis, and noting the split of authority on this issue), and United States v. Martinez, 462 F.3d 903 (8th Cir. 2006) (holding that a suspect who was frisked, handcuffed, and questioned was subject to a Terry stop and not arrested, yet was in custody for Miranda purposes).
The situation is somewhat clearer in North Carolina. Sutton notwithstanding, our appellate courts have decided several cases in which investigative stops have been found to be custodial. See State v. Washington, 330 N.C. 188 (1991) (defendant was in custody when, during a traffic stop, he was placed in the back seat of a police car; he could not leave the car, so he was effectively “incarcerated on the side of the road”); State v. Johnston, 154 N.C. App. 500 (2002) (defendant was in custody when he was “ordered out of his vehicle at gun point, handcuffed, placed in the back of a patrol car, and questioned by detectives” about a shooting, even though he was told that he was not under arrest). Cf. State v. Torres, 330 N.C. 517 (1992) (defendant in custody when, after shooting her husband, she was escorted to the sheriff’s office, kept under constant supervision, and not told that she was free to leave). The most recent case on point, and the one that got me thinking about this issue, is In re L.I., where the court of appeals held, following Johnston, that a juvenile was in custody when an officer placed her in “investigative detention,” in handcuffs, in his police vehicle.
The bottom line is one that you are not likely ever to see again on this blog: never mind what the Supreme Court just said, a Terry stop that is conducted in a way that is particularly restrictive may amount to custody under Miranda. The cases suggest that a finding of custody is more likely when the suspect is handcuffed, placed in a police vehicle, or subjected to an unusual display of force, such as the drawing of weapons or the involvement of a very large number of officers.
By Popular Demand
Once in a while, someone requests a post on a particular topic. Today’s post is in response to such a request — which, as I understand it, is not based on any particular pending case. It involves the following scenario: an officer who works in a college town sees a young person walking out of a grocery store with a case of beer. What can the officer do to investigate what she suspects is an underage purchase of alcohol?
If the buyer looks young enough, the officer can simply arrest him for a violation of G.S. 18B-302, which makes it illegal for a person under 21 to purchase beer. In the child pornography context, among others, courts have recognized that in appropriate circumstances, probable cause regarding a person’s age can be based on the person’s appearance. So if our hypothetical beer buyer is a Doogie Howser type, plainly far under 21, the officer can arrest him and then undertake whatever additional investigation is necessary to determine his age.
Presumably, though, it isn’t very often that an officer sees a ten-year-old leaving Harris Teeter with a case of Coors Light. More often, the beer buyer will be college-aged, and although the officer may suspect that he’s under 21, the officer won’t have probable cause based on the buyer’s appearance alone. More likely, the officer will have reasonable suspicion based on the buyer’s appearance, so one option is for the officer to conduct a Terry stop to investigate the possible underage purchase. Sometimes a stop and a few questions will resolve the matter: the buyer may admit to being under 21, or may be willing to produce identification that can confirm his age, or, more likely, that will be an obvious product of someone’s dorm-room inkjet printer and a Kinko’s laminating machine.
Suppose that the buyer is a tougher nut to crack, though, and claims (1) that he is old enough to buy the beer, and (2) that he isn’t required to produce any identification. The officer’s immediate options are limited. The buyer is right that he isn’t required to produce identification. But wait, you say, wasn’t there a Supreme Court case to the contrary a few years ago? No. In Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004), the United States Supreme Court upheld the constitutionality of a Nevada law that required people stopped by police to identify themselves. However, North Carolina has no similar stop-and-identify statute, and Hiibel did not create a free-standing requirement that detained persons identify themselves. So although the officer may be able to detain the beer buyer for a few minutes while attempting to verify his age — for example, by asking the store clerk who sold him the beer about the transaction — if the officer can’t make any progress within a reasonable time, the officer likely must let the buyer go.
A clever officer, though, will take a slightly different approach. Rather than stop the buyer as he leaves the store, the officer will wait until the buyer enters his car and begins to drive away. Then the officer will then conduct a Terry stop. But because it is a vehicular stop, the officer can compel the buyer to produce his license under G.S. 20-29. Of course, this won’t work if the buyer walked to the store, or if the buyer got a ride from a friend, but most of the time, it will enable the officer to check the buyer’s identification.
I’d be interested to hear about how these stops happen in the real world. My guess is that most college students, confronted by a uniformed officer shortly after making an underage purchase, will voluntarily produce their identification upon request, but maybe undergraduates are a tougher bunch than I think they are.