Terry stops

[CarmelHP]

If one of our choices is police asking for voluntary cooperation then I agree. However, it sounded like our choices were the police do nothing or they force him to explain himself. Of course, we want the police free to ask questions, take note of his description, etc., but in this country you are still free to walk around unmolested even if the police find it inconvenient.

 

[Episcopus]

Thanks Carmel. I'm just trying to add some info to see if I can understand where the line of a legal stop compared to illegal lies.

Episcopus, Let me try to clarify what I was asking. The break ins in this situation have been occurring over the past few days.

Probably a valid Terry Stop. INCREDIBLY fact sensitive though. There is no line showing the point at which a Terry Stop is valid.

In each situation, you have to look at the "totality of the circumstances," which include, among other things:
- The officer's training and experience
- The facts of the situation
- Any "reasonable inferences" drawn from those facts

If the "totality of the circumstances" would lead a reasonable officer to conclude that criminal activity was, is, or is about to be afoot, then the officer is jusitfied in stopping that person. If the "totality of the circumstances" would lead a reasonable officer to believe that there may be a weapon on the person, the officer can do a pat-down of the outer clothing to check for weapons, for the officer's safety during the encounter.

The threshold is so low that virtually any specific fact giving rise to suspicion is enough for a stop.

 

[Episcopus]

For the sake of discussion, let's pretend we live in an area where there have been a number of thefts from automobiles, yard barns, porches, etc. Based on reports made by victims and discussion among the neighbors you know they have all happened between 10PM and 6AM. Most of the residents in the area are aware of the crimes. Now......... you happen to come home around 3AM (of course you'll be sober ) and you see a guy in dark clothes, carrying a backpack, walking down the street. You've lived there for several years but you don't recognize the guy. Being the good citizen that you are, you call the police, give them the above information, and they tell you:

A. Walking down the street in dark clothing wearing a backpack at 3AM isn't a crime and they aren't sending anybody because there's nothing the police can do!

or

B. They'll dispatch officers right away and then ask if you have more information such as direction of travel, his height, his build, would you be able to ID him if you saw him again, stuff like that.

Pick one then answer that question about "serve and protect" again.

Not trying to start an argument but I think we tend to approach these things as if we were the guy the police are detaining. We know we aren't criminals so the police have no right to stop us, right? I wonder if our point of view might be different if we heard glass break at 3AM and, upon checking, found our car window busted and that new GPS unit gone. I don't know about you, but I want every SOB on the street stopped, then. And, if I happen to be out walking my dog or just taking a walk after dark and the police stop me and want to know what I'm doing and who I am, I guarantee my part of the conversation will end with "thanks for checking"!

I am not trying to be difficult, but there still isn't necessarily an answer other than "maybe" or "probably." This situation is a probably.

To throw another wrench in the works, are you a clearly identifiable good samaritan willing to leave your name, address and phone number, or are you an anonymous tipster? Are you a criminal informant? If so, have you worked with the police previously? If so, has your previous work been reliable? 4th Amendment law is really just that fact sensitive.

 

[DRob]

Force?

I think, under the circumstances, any reasonable person would expect him to have to explain himself. If he is some unlucky individual who just happens to be in the immediate vicinity where a rash of crimes has been occurring and has reason to be there, that should become evident fairly quickly. OTOH, having spent 26 years in a patrol car in Indy, I can tell you it will likely become evident fairly quickly if he was up to no good. And, assuming the officer has more than a few months on the assignment, he should have a pretty good feel for the area and the people in it. Officers do have a sworn duty to protect the community as a whole, hopefully without trampling on an individual's rights. It's a fine line to have to walk and one that is second-guessed constantly by people who will never have to do it but think they know how. So, it's damned if you do, damned if you don't. One of the absolutes about police work is that you repeatedly come in contact with the same people. Kinda' like the sheepdogs keep coming in contact with the wolves, ya' know! Hope you've seen that.

 

[DRob]

I am not trying to be difficult, but there still isn't necessarily an answer other than "maybe" or "probably." This situation is a probably.

To throw another wrench in the works, are you a clearly identifiable good samaritan willing to leave your name, address and phone number, or are you an anonymous tipster? Are you a criminal informant? If so, have you worked with the police previously? If so, has your previous work been reliable? 4th Amendment law is really just that fact sensitive.

Nor am I, and I agree. Police work, as a whole, can be pretty fact sensitive. While there are rules to be followed, it's a hard game when only one side has to play by them. I'm glad to be retired!

 

[Episcopus]

Officers do have a sworn duty to protect the community as a whole, hopefully without trampling on an individual's rights.

I don't know the specific oath that an officer takes, but I would change that to this:

Officers have a sworn duty to not trample individual rights, while hopefully keeping the ability to protect the community.

 

[CarmelHP]

I think, under the circumstances, any reasonable person would expect him to have to explain himself.

And if he doesn't want to? What then?

 

[Episcopus]

Nor am I, and I agree. Police work, as a whole, can be pretty fact sensitive. While there are rules to be followed, it's a hard game when only one side has to play by them. I'm glad to be retired!

Congrats on making it through until the end. Thanks for the years.

 

[jeremy]

Do you dislike the concept of Terry Stops, or do you just dislike law enforcement?

I am not necessarily opposed to "Terry Stops". We use a version of the “stop” in combat zones, for much the same reasons. I am definitely not opposed to law enforcement. I am pretty fortunate up here in that we have a very competent sheriffs department up here.

On that note I think that we are very close to violating the 4th Amendment, very close to it. I think a lot of young officers in fact push the envelope too hard on what a stop is with no repercussions seen. If the stop gets thrown out as being a bad stop, does this then get to become harassment? Does the citizen get an apology? What happens to the officer?
I as a soldier, I DO NOT have to worry about violating someone’s rights at all. At this time anyway. However that is an evolving animal for us as we now have an active duty brigade at the disposal of Homeland Security.

 

[Metro 40]

.

 

[Metro 40]

.

 

[RogerB]

for this thread, very interesting read.

 

[Episcopus]

I would hope that you would read the entire report or PC affidavit before dismissing it out of hand, just because you don't "believe" in consensual encounters. Contrary to your belief, the consensual encounter is a well established legal precedent. It would be ridiculous to think that a police officer can absolutely never talk to anybody unless he or she thinks that they have committed a crime. As long as I let someone know that they are free to go, I can talk to anyone I want. And if this develops into probable cause and evidence that a crime has been committed, I'll take it from there.

Now, if you've got an uber-liberal judge that personally doesn't like consensual encounters, then I could see why it would be pointless to take such a case before him or her. But your personal beliefs don't invalidate the concept of a consensual encounter in other jurisdictions.

Evidence obtained during consensual encounters is CLEARLY not suppressed in jurisdictions where the judge doesn't believe that everyone has the right to run naked down the street while shooting heroin and singing showtunes. Heck, Episcopus, you'll be postively apoplectic after you read this....a consensual stop with Miranda, a frisk, and a confession....and he STILL got convicted, upheld on appeal!

08-03 Impact of Miranda Warnigs & Frisk on Consensual Encounter

For every case that you could cite showing where evidence was thrown out, I could cite one where very similar circumstances resulted in a conviction which was upheld upon review of a higher court. The thing that the lay person can learn from this is that there is no definitive answer, because the legal world is a giant mess of arguing and bickering, with decisions going one way this time, and another way the next. Constant change is the norm, just like society in general.

1. If the whole thing is going to be thrown out because of a bad stop, why read past the bad stop? What happens after the stop doesn't matter.

2. The police should be able to talk to people, yes. However, if it leads to arrest, you had better have a better reason for talking to the person than just wanting to chat. The better question is "Isn't it ridiculous to think that an officer should be able to start asking me questions on the street for no reason at all, hoping to find evidence of a crime?" I would rather err on the cautious side of the 4th Amendment. The concept of a consensual encounter is strange. When police officers talk to someone, especially someone they are leary of, the tend to quarter away and put a hand on their gun. Police officers are also taught 'command voice' or something, which screams authority. Regardless of what the courts and police say, how many people do you think truly feel "free to leave at any time" when the encounter starts with an officer gruffly saying "What's your name?" or "What are you doing here in the middle of the night?" or "Why are you on my street at 3am?" How many people really just walk away? Did you know that you can begin a 'consensual encounter' with me, and then arrest me if one of my answers isn't true? What about the 'consensual encounters' that start with "What is your name and birthday?" where the person refuses to answer? Then, the officer says "in my training and experience, people who are not forthcoming with their name and/or birthdate are usually hiding something" and then proceed to detain the person. How is that not fishing for Terry suspicion? How come all 'consensual encounters' are initiated by the police? Police officers are authority figures and we are taught from our earliest days to respect and listen to authority figures. The disparity in levels of authority destroys the 'consensual' nature of the contact, to me. If you want to nod your head and ask someone how their day is going, have it at. If you want to ask how the neighborhood has been, knock yourself out. If you want to stop and chat about the weather, go for it. If your first question is "What's your name?" "What are you doing here?" "What's your birthdate" "Where are you heading?" or anything similar, you should have more reason than "because I wanted to. It was consensual!"

If a stop is found to be bad and I signed off on it, I am subject to more punishment than you. You might get sued, but your department has to (or should have to) indemnify you because you were acting within the scope of your employment. I have that same protection from lawsuits. However, I am not indemnified from disciplinary actions by the disciplinary commission. I am not indemnified against being disbarred. When the police make a mistake, it is attributed to the heat of the moment and the immediacy of the situation. When I make a mistake, I should know better and should have checked the situation out thoroughly before signing off on it. I am expected to know more the 1st day on the job than you are after your 30th year, justified or not.

Back to my main point, reaosnable, articulable suspicion is such a low standard that every situation worth arresting someone over should meet it.

 

[kludge]

In my opinion the officer would be out of line. He is demanding your ID, which would turn this into a detention, You can ask all you want, but he doesn't have to nor probably will tell you why you are being detained. What ever comes out of this will ultimately be dismissed or suppressed in a court hearing.

IC 34-28-5-3
Detention
Sec. 3. Whenever a law enforcement officer believes in good faith that a person has committed an infraction or ordinance violation, the law enforcement officer may detain that person for a time sufficient to:
(1) inform the person of the allegation; <snip>

IC 34-28-5-3.5
Refusal to identify self
Sec. 3.5. A person who knowingly or intentionally refuses to provide either the person's:
(1) name, address, and date of birth; or
(2) driver's license, if in the person's possession;
to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdemeanor.

OK, now I have another question... I bet you can guess what it is.

Scenario 1: My car fits the description of a break-in report. I am aware that if I'm stopped for a traffic violation (at least I assume that is the reason the lights are on and I'm being pulled over). I hand over my DL, no problem. Officer has "reasonable suspicion" due to the car's description.

"Sir, I'd like to search you vehicle."

"Officer, I do not consent to a vehicle search."

"Sir, your car fits the description of a break in report in this area, and I'd like to search your vehicle."

"Again, Officer, I do not consent to a vehicle search."

Now what?

Scenario 2: There have been break-ins the area, I'm walking home (using the sidewalk ) from work at 0200 with a backpack, I am stopped. Go ahead and presume that I fit the description of the reports and "reasonable suspicion" exists.

"Excuse me sir, I need to talk to you."

"How can I help you, Officer?"

"I'd like to see your ID please."

"Am I being detained?"

"Yes, sir, your description fits that of a break-report in this neighborhood."

(I pull out my DL and hand it to him)

"Sir, I need to search your backpack."

"Officer, I do not consent any search."

Now what?

 

[Episcopus]

OK, now I have another question... I bet you can guess what it is.

Scenario 1: My car fits the description of a break-in report. I am aware that if I'm stopped for a traffic violation (at least I assume that is the reason the lights are on and I'm being pulled over). I hand over my DL, no problem. Officer has "reasonable suspicion" due to the car's description.

"Sir, I'd like to search you vehicle."

"Officer, I do not consent to a vehicle search."

"Sir, your car fits the description of a break in report in this area, and I'd like to search your vehicle."

"Again, Officer, I do not consent to a vehicle search."

Now what?

Scenario 2: There have been break-ins the area, I'm walking home (using the sidewalk ) from work at 0200 with a backpack, I am stopped. Go ahead and presume that I fit the description of the reports and "reasonable suspicion" exists.

"Excuse me sir, I need to talk to you."

"How can I help you, Officer?"

"I'd like to see your ID please."

"Am I being detained?"

"Yes, sir, your description fits that of a break-report in this neighborhood."

(I pull out my DL and hand it to him)

"Sir, I need to search your backpack."

"Officer, I do not consent any search."

Now what?

I don't think either of those situations gives rise to reason to search. You must have PC for a search, you can't search on RAS under a Terry Stop situation. Terry only allows a pat down of the clothing for weapons.

In the 1st situation, I would think the proper procedure would be for the officer to remove you from the vehicle and pat you down, then keep you away from the vehicle while he questions you.

In the 2nd situation, he should remove you from your backpack, pat you down and then question you.

In either, he will either develop PC for a search, or you will clear up the situation and be sent on your way.

 

[dclaarjr]

+1 to both CarmelHP and Episcopus.

Thank you for the great information and enjoyable thread. I truly learned more about my rights from you.

 

[rhino]

Comments from this layman:

1. Very informative, and surprisingly devoid of hostility on all sides. Thank you to all involved for both.

2. I am especially impressed by how fpdshooter and metro 40 have conducted themselves in this topic. I have no reason to expect less from them specifically, but we all know that ANY TIME ANY QUESTIONS ARE ASKED OF POLICE OFFICERS AND THEIR BEHAVIORS, there will always be cops (and their supporters) who immediately succumb to the "you're a cop hater" knee-jerk reaction. The same is probably true in the opposite direction, but sometimes it seems like an average Joe like most of us aren't allows to even dare ask a question without it being interpreted as outright hositility.

Similarly, I am equally positively impressed by CarmelHP and Episcopus. They have provided a perspective we rarely (if ever) get to see or hear, whether in person or on one of these online forums.


3. After reading this I am less concerned about "Terry Stop" when and where they are conducted as per the actual law. The problem I see (as with so many other laws and legal precedents) is the opportunity for the practice to be abused by police officers, either due to ignorance or deliberate intent to go beyond the law in order to achieve some ends. I am not confident that most police officers know the law as well as fpdshooter and metro 40 have demonstrated here, nor am I confident that an overwhelming majority to not allow the ends to justify the means. These are my primary concerns.

4. A general comment (or set of comments):

"Legal" is not synonymous with "right." "Illegal" is not synonymous with "wrong." Within the strict confines of the law does not equate to "good." Obviously there is some overlap, but far too many people on either side of these issues have fallen prey to the wrongheaded (in my opinion) thinking that leads to an overly simplistic "if it's legal it must be right and good" and "if it's illegal has to be bad and wrong."

5. Our legal system is far too complicated.