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Warrantless Stops 101 — Was the Stop Supported by Reasonable Suspicion?

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In my first Warrantless Stops 101 post, I offered these basic questions to frame the analysis:

  1. Did a seizure occur?
  2. If so and it was a stop, was it supported by reasonable suspicion or other valid basis?
  3. If reasonable suspicion supported the stop, was the officer’s subsequent conduct sufficiently limited in scope?
  4. If the seizure was an arrest, was it supported by probable cause?
  5. If the arrest was supported by probable cause, was the search permissible?

My first post focused on whether a seizure occurred. This one looks at whether the stop was supported by reasonable suspicion. If so, the stop itself is constitutional and the only remaining issue is whether the officer’s conduct exceeded the scope of the stop, a topic I’ll take up in a later post.

Reasonable Suspicion

The black letter law is that an officer may make an investigatory stop when the officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968). This standard is known by the shorthand, “reasonable suspicion,” although other terms such as “articulable suspicion” are sometimes used. The standard requires the officer to articulate more than an “inchoate and unparticularized suspicion or ‘hunch.’” Id. at 27. The determination is made from the officer’s perspective; basically, this means that the officer may make “inferences and deductions that might well elude an untrained person” and the evidence should be evaluated “as understood by those versed in the field of law enforcement.” United States v. Cortez, 449 U.S. 411, 418 (1981). The determination is an objective one, Terry, 392 U.S. at 21-22, that must consider the totality of the circumstances. Cortez, 449 U.S. at 417. Among the factors that may be considered are:

  • The officer’s personal observations. See, e.g., Terry, 392 U.S. at 30 (officer personally observed the suspicious behavior).
  • Information the officer received from others, including witnesses, informants, tipsters, and other law enforcement officers. See, e.g., Navarette v. California, 572 U.S. __, 134 S. Ct. 1683, 1688 (2014).
  • The officer’s corroboration of information provided by witnesses, informants and tipsters. See, e.g., Alabama v. White, 496 U.S. 325, 332 (1990) (anonymous tip plus officer corroboration provided reasonable suspicion).
  • The suspect’s presence in a high or drug crime area. See, e.g., lllinois v. Wardlow, 528 U.S. 119, 124 (2000).  However, a person’s presence in such an area, standing alone, won’t be enough. See Brown v. Texas, 443 U.S. 47, 52 (1979).
  • The suspect’s proximity to the crime scene near the time of the crime. See, e.g., United States v. Goodrich, 450 F.3d 552, 562 (3d Cir. 2006) (so holding and citing similar cases from other circuits). But this factor is unlikely to be enough on its own. See, e.g., State v. Campbell, 188 N.C. App. 701, 706-08 (1988).
  • The suspect’s reaction to the officer’s presence, including flight. While a refusal to cooperate with law enforcement officers during a consensual encounter, standing alone, can’t support a stop, Florida v. Bostick, 501 U.S. 429, 437 (1991), a person’s evasive behavior in response to officers’ presence can contribute to reasonable suspicion. Wardlow, 528 U.S. at 124 (so stating). In this respect, headlong flight “is the consummate act of evasion.” Id. at 124-25. But simply walking away from the location where an officer is present won’t do it. In re J.L.B.M., 176 N.C. App. 613, 617-22 (2006). On the other hand, attempting to hide something from an officer can contribute to reasonable suspicion. See, e.g., State v. Sutton, __ N.C. App. __, 754 S.E.2d 464, 472-74 (2014) (reasonable suspicion existed where the defendant was in a high crime area and grabbed at his waistband “to clinch an item,” which the officer interpreted as trying to hide something); In re I.R.T., 184 N.C. App. 579, 586 (2007) (reasonable suspicion existed where, among other things, the juvenile turned away from the officer and did not open his mouth while speaking, leading the officer to conclude that the juvenile was hiding drugs in his mouth).
  • The officer’s knowledge of the suspect’s prior criminal record. United States v. Sprinkle, 106 F.3d 613, 617 (1997) (while a prior criminal record is not, standing alone, enough to create reasonable suspicion, it can, “couple[d] . . . with more concrete factors,” provide a basis for a stop).
  • The officer’s knowledge of patterns or modes of behavior of certain types of criminals. See, e.g., Cortez, 449 U.S. at 417-18 (proper to consider the “modes or patterns of operation of certain kinds of lawbreakers”); United States v. Sokolow, 490 U.S. 1, 9-10 (1989) (defendant’s behavior was consistent with a drug courier).
  • The detainee’s similarity to a sought-for suspect. See, e.g., United States v. Seelye, 815 F.2d 48, 51 (8th Cir. 1987) (stop was justified where the officer “confirmed that [the defendant’s] appearance closely matched the description” of the suspect).

 

I often get asked about pretextual stops. The rule is that if a stop is supported by reasonable suspicion, the officer’s subjective motivation is irrelevant, Whren v. United States, 517 U.S. 806, 813 (1996); State v. McClendon, 350 N.C. 630, 636 (1999), except perhaps to the extent it’s pertinent to the officer’s credibility.

Other Reasons for a Stop

Although reasonable suspicion is typically offered to justify a stop, other valid reasons for a stop exist, including community caretaking and service of process.

Want more information on all of this? Check out my judges’ benchbook chapter on point here.

8 comments on “Warrantless Stops 101 — Was the Stop Supported by Reasonable Suspicion?

  1. Maybe I’m being nitpicky, but the Court in Terry did not say a policeman may lawfully make a stop under the circumstances you quoted. You left out the second half of the sentence you quoted. The second half contained the necessary second prong concerning the suspect being possibly armed and dangerous. The Court ruled that when both (or all three, if you separate the “armed” from the “dangerous”) prongs are met the officer may stop the suspect and frisk for weapons in order to protect himself and the public. The Court actually said “We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” The Court in the Terry case did not rule on the issue of whether the policeman may stop a person when only the first prong (reasonable suspicion of criminal activity) is met.

  2. Walter, you’re speaking of frisking, she is only speaking of stopping someone. The frisk is not discussed here.

  3. Most police officers, especially in urban areas, perform patdowns despite no evidence of weapons and no reasonable suspicion. They usually claim ” officer safety ” as if that is just cause for abrogating our rights.

    Since citizens are under no legal obligation to answer questions or converse in any way with an officer, and since refusal to cooperate in an interrogation is legal,many times officers will come up with inappropriate charges to show ” who is in charge “. Officers must have at least RS for a crime to demand ID,although in practice most cops insist on the production of ID anyway..passengers in cars for example. The photographers rights movement, which seeks to instill some respect for the rights of people filming in public, has scores of recorded examples of the police demanding ID from those who dare to document police actions. The police most always resist wearing camera’s that record their actions even though they feel free to record the public.

    If the police were universally required to wear body cam’s ( which they cannot turn off just prior to contact with the public ) we would no doubt see a dramatic drop in improper stops and searches. The camera does not lie..even though the police and the public can and do. If an officer has no way to embellish his claims of RS for stops and frisks, they will soon learn to obey the law.

  4. Simple observation:

    Police can escalate any interaction with the public based on hunches, they just can’t call them hunches anymore – the new PC term is “suspicious or evasive behavior” – in short nothing specifically illegal, just behavior the officer in question doesn’t like. A cursory perusal of Youtube provides plenty of examples where trying to assert your rights as a private citizen to be free of unreasonable search and seizure is in and of itself “suspicious behavior” to a officers in diverse geographic and political situations.

    Any concern you may have, for example on a traffic stop where you may be anxious about getting a speeding ticket, is also transmuted into “suspicious behavior” and leads frequently to searches of vehicles and persons – anything less than total cooperation often leads to further escalation – I have personally been handcuffed and thrown in the back of a police car for refusing to consent to a vehicle search – the official reason I was given was that the officer had reasonable suspicion “that my refusal of the search proved I was carrying drugs or guns or something else illegal I didn’t want the officer to find”…..nothing was found, but I still spent 3 hours in the back of police car while my friends and neighbors drove by my car being emptied and drug dogs tracked mud all through it. I was then released without so much as a “sorry” and told to pick my shit up off the side of the road before I got a ticket.

    Say what you want about the law – but what constitutes law in a courtroom has damn little to do with the law outside in the real world. These limitations listed above only come into play if the officer is completely honest and objective – while this mythical being may exist, little concrete evidence exists to suggest that they are common enough to be the officer standing in front of you and any given juncture.

    This quixotic notion of civil rights only applies after the fact if at all – and while evidence gathered in a demonstrably illegal way may not be admissible in court – you can be punished extensively before you ever see a judge or magistrate. Being handcuffed and physically assaulted, being detained and publicly humiliated, having your person and property searched often destructively, and of course the persistent record of being arrested even if the charges are dropped – all of these things constitute a pretty severe form of punishment and can and are used to punish people outside the purview of any court – what’s worse is that when these things happen it establishes a “record” of being non-cooperative with police, pretty much ensuring a repeat occurrence.

    Civil rights is a red herring used to make people think they have some reason to feel safe – but when the rhetoric is stripped away – what you are left with is nothing more than the hope that you won’t be singled out today…

    • One thing to add that often gets forgotten is that it’s up to you to exercise your rights not the officer to exercise them for you. People scream a out their rights all the time with no real understanding about what they are.

    • Son you messed up by the numbers. First off did you keep your mouth shut? You have that right under the Constitution. Did you give them permission to search? If not that is an illegal search and you can sue them for that. Did they arrest you? Did they have probable cause? If not they can not arrest you because that is a false arrest. You should have sued them white eyed. You only have your self to blame. If you take it they will surly hand it out. You first need to grow a back bone and maybe even a brain. No wonder you got shafted. Did they arrest you and take you to jail? NO! Then they had nothing but a full pledged law suit coming their way.

  5. What if the officer is driving with the windows down smells marijuana then stops gets out walks towards group of people to see if they are indeed smoking and sees one person walking aaway and chases that person down and beats him says he smells strongly of marijuana then finds drugs. But that person has witnesses that will testify that he did not run buy walked away. Probable cause hearings are not jury. Only judge. Did the officer violate the individual?

    • Probably not in the legal sense. The smell of cannabis gave the cop reasonable suspicion that someone present likely had contraband. The fact that one person walks away, no doubt when ordered to stop, is a contributing factor to the RS. You cannot ” chase ” someone unless they are fleeing, and ” headlong flight ” is another indicator of guilt. A strong smell is enough for a pat down and if drugs are found then it is a legit bust. The lesson is : Don’t hang out in public blazing and try to get away with the stash by fleeing when a cop smells you. You cannot get away with that in Amsterdam much less the USA! Of course in Holland the cops would shoo you into a coffeeshop with a mild scolding instead of a cage like here, but it is what it is. Unless the cop were proven to be excessively brutal in the arrest there would be no chance of a lawsuit over the arrest.

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