ARRESTS, INVESTIGATIVE STOPS, CONSENSUAL ENCOUNTERS
In our interactions with law enforcement in Florida, there are three primary levels of encounters from which the legality of a police search or seizure is judged:
- consensual encounters,
- investigative stops, and
- full scale arrests.
The constitutional protections at issue in a criminal case will often turn on the type of encounter that occurred.
The consensual encounter involves only minimal police contact and no seizure, whereas the investigative stop requires a well-founded suspicion that criminal activity is afoot. The formal arrest requires probable cause. Simons, 549 So. 2d at 786. Although “there is no litmus test for distinguishing a police encounter from a seizure, a significant identifying characteristic of a police encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries, and the person cannot be detained without reasonable objective grounds for doing so.” Id. In Florida v. Bostick, the United States Supreme Court stated that when an officer “has in some way restrained the liberty of a citizen . . . we conclude that a ‘seizure’ has occurred.” Florida v. Bostick, 501 U.S. 429 at 434 (1991).
The United States Supreme Court has held that, in determining whether an episode began as a consensual encounter, courts must examine the totality of the circumstances and, most importantly, whether a reasonable person would believe that he or she was free to leave. United States v. Mendenhall, 446 U.S. 544 (1980). While it has been held by the Fifth District Court of Appeals that the police may freely question an individual and ask to see his identification, and may even request to search his person without implicating Fourth Amendment rights, officers may not convey a message that compliance with their requests is required. Jeralds v. State, 664 So. 2d 56 (Fla. 5th DCA 1995).
INVESTIGATORY STOP / DETENTION
The second major type of encounter with police is the investigative stop. This is where police detain you temporarily in order to investigate the possibility that you committed a crime or are in the process of committing a crime. In order to justify an investigatory stop, law enforcement officers must have a well-founded, reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968).
The Second District Court of Appeal has held that a law enforcement officer may temporarily detain a person and conduct an investigatory stop if the officer has a “founded” suspicion that the person has committed, is committing, or is about to commit a crime. Jordan v. State, 544 So. 2d 1073 (2d DCA 1989); State v. Allen, 994 So. 2d 1192, 1193 (5th DCA 2008). Founded suspicion must have a factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge. G.J.P. v. State, 469 So. 2d 826 (2d DCA 1985). Mere suspicion “is no better than random selection, sheer guesswork, or hunch; it has no objective justification.” G.J.P., 469 So. 2d at 828; Smith v. State, 592 So. 2d 1206 (2d DCA 1992). In evaluating whether there was an objective basis for reasonable suspicion, courts must consider “the totality of the circumstances” surrounding the stop. United States v. Cortez, 449 U.S. 411, 417 (1981).
Where a police officer conducts an investigatory stop on the basis of a physical description of the suspect, the description provided to the officer must be sufficiently specific and corroborated by reliable information. In United States v. Brown, 448 F.3d 239 (3d Cir 2006), the Circuit Court of Appeals reversed a federal district court’s denial of a defendant’s motion to suppress, which was filed on grounds that the arresting officer had conducted an unlawful investigatory stop of the suspect. The stop by the police officer was based on the allegations that: (1) the suspect matched a general description of black, male robbery suspects, between 15 and 20 years of age, wearing dark, hooded sweatshirts and black pants, (2) the suspect matched the description of suspects between the heights of 5’9” and 6,’ and (3) the officer had observed the alleged suspects in the reported area. Brown, 448 F. 3d at 242-44.
The Third Circuit Court of Appeals reversed, citing the fact that the suspect did not match the general age description, that the suspect had facial hair, which was not identified by the informant, that there was no information as to the reliability of the informant who told of the robberies, there was no allegation that the suspect was observed in a high-crime area, and there was no allegation that the suspect acted suspiciously or in a manner that conformed to police officer’s specialized knowledge of criminal activity. Id. at 248-253. The court concluded that “an excessively general description, combined with an honest but unreliable location tip in the absence of corroborating observations by the police, does not constitute reasonable suspicion under the ‘narrowly drawn authority’ of Terry v. Ohio, 392 U.S. at 27. Id. at 252.
In Florida v. J.L., 529 U.S. 266 (2000), the United States Supreme Court affirmed a judgment holding that a “stop and frisk” search of respondent based only on an anonymous tip was invalid under the Fourth Amendment. The suspect was searched after an anonymous caller reported to the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Florida v. J.L., 529 U.S. 266, 268 (U.S. 2000). Sometime after the police received the tip (for which there was no record), two police officers were instructed to respond. Id. They arrived at the bus stop approximately six minutes later and saw three black males “hanging out.” Id. One of the three black males was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, the suspect made no unusual movements, and there was no attempt to flee or otherwise evade police. Id. Based on these facts, the “stop and frisk” was held to be invalid. Id.
Consistent with Florida v. J.L. and Brown, Florida Courts have upheld investigatory stops by police only where the suspect matches specific identifying descriptions and other information corroborates the allegation that suspect has engaged in criminal activity. In State v. Allen, 994 So. 2d 1192 (5th DCA 2008), police conducted an investigatory of a suspect after receiving an anonymous tip by a confidential information who had a history of reliability. State v. Allen, 994 So. 2d 1192, 1193 (5th DCA 2008). The informant provided a specific description of the suspect as “a black male, dark skin, approximately 6’2”, weighing 200 pounds, wearing a dark-colored t-shirt, with facial hair.” Id. The suspects were located in a high-crime area and walked away “hurriedly” when approached by officers. Id. Based on the specificity of the information received by police officers, the known reliability of the informant, and suspicious activity observed upon the approach of police, the Fifth District upheld the investigatory stop. Id. at 1195.
Similarly, in State v. Davis, 849 So. 2d 398 (4th DCA 2003), police conducted an investigatory stop of two robbery suspects. An off-duty police officer had heard sirens near his residence and turned on his hand-held police radio to determine what was happening. State v. Davis, 849 So. 2d 398, 399 (4th DCA 2003). The officer learned that a robbery had occurred and heard the suspects described as “two black or hispanic males, ages 18-20, about 5’9” in height with thin builds, armed with black handguns, wearing hooded sweatshirts.” Id. Immediately thereafter, He saw a hispanic or black male walk quickly by him only a few steps away. The man briskly walked through the parking lot and climbed the fence into an adjacent apartment complex. Id. The man was wearing a hooded sweatshirt and had come from the general direction of the reported robbery. The officer then radioed police, who located the suspects in a nearby vehicle. Id. at 399-400. Police then stopped the vehicle, after observing nervous behavior and seeing that the occupants were the same height, build, and age, as the reported robbery suspects. Id. at 400. On the basis of these specific and corroborated factors, the Fourth District Court of Appeal held that sufficient “founded suspicion” existed for an investigatory stop. Id. at 401.
FULL-SCALE ARREST: FLORIDA AND FEDERAL LAW
The other level of encounter between police and a suspect is the full-scale arrest. An arrest may occur where a police officer grasps or applies physical force to an individual, or, in the absence of physical force, when the officer asserts his authority, for the purpose of making an arrest, and the individual to be arrested submits to the officer’s show of authority. California v. Hodari, 499 U.S. 621, 626 (U.S. 1991). Where an arrest takes place, an officer must have probable cause to believe that the defendant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (U.S. 1964).
The quantum of information necessary to constitute probable cause must be measured by the facts and circumstances of the particular case. Wong Sun v. United States, 371 U.S. 471, 481-82 (1963). Probable cause exists where “the facts and circumstances within the officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar, 338 U.S. 160, 175 (1949), citing Carroll v.United States, 267 U.S. 132, 162 (1925). However, a finding of probable cause may not be based on a “bare suspicion” that an individual has committed an offense. Brinegar, 338 U.S. 160, 175 (1949); Accord Wong Sun, 371 U.S. at 479. Under this standard, the subjective intentions of the arresting officer are irrelevant in determining the validity of an arrest. Whren v. United States, 517 U.S. 806, 813 (1996). The test is whether, under the facts and circumstances within the knowledge of the officers, there was reasonably trustworthy information to warrant a prudent man in believing that the petitioner had committed or was committing the offense. Beck v. Ohio, 379 U.S. 89, 91 (U.S. 1964); State v. Profera, 239 So.2d 867 (Fla. 4th DCA 1970).
If you have been arrested, detained, stopped, or investigated in Jacksonville or the surrounding counties of Northeast Florida, you may have legal defenses available to the contest the charge or mitigate possible penalties. Contact Hussein & Webber, PL today for a free consultation.
Why the Terry stop is still a life-saving tool
There always will be officers who aspire to make a difference in their community by being proactive in their policing rather than just reactive. They come to appreciate that palpable feeling of accomplishment knowing their personal vigilance prevented a homicide, rape or robbery. Outstanding police work is the result of proper utilization of the valuable crime-fighting tool known as the Terry stop.
The public often confuses the Terry stop with “stop and frisk.” It behooves law enforcement to be ready to answer the question “What is a Terry stop?” and explain to their communities it originated from the landmark United States Supreme Court Case Terry v. Ohio in which SCOTUS laid out the guidelines to be followed by police officers for making a legal investigative stop.
PATROL DONE WITH KNOWLEDGE, EXPERIENCE AND PURPOSE
When you patrol with knowledge, experience and purpose, you are in search of bad people who would victimize the good people who live and work on your beat. You can often clear and even prevent crimes by arresting people after making a successful investigative stop.
The talent of making successful investigative stops develops after you truly get to know the good and bad people on your beat over time by experiencing and remembering who people are and what they are about.
By knowing the good people you serve on your beat, you will be more likely to avoid the stopping of innocent people on the street just going about their business. This not only wastes your time, but it also creates resentment. However, this will occasionally happen and, when it does, sincerely thanking them for their cooperation and apologizing for their inconvenience goes a long way with many toward making amends.
It is important to remember that you can’t make an investigative stop on merely a gut feeling, no matter how accurate your gut is.
Clearly, you can make a stop on sight if you have probable cause for an arrest. However, you do not need probable cause to make a legal investigative stop.
The Supreme Court has ruled that a reasonable officer can make a legal investigative stop when the officer can articulate a reasonable suspicion that the person about to be stopped is committing, or has committed a crime. You must not only pay particular attention to what is happening before and during a contact for your personal physical survival, but also for your legal survival as well. After an arrest, you must possess the ability to articulate the legal justification for the stop.
PARTS OF THE TOTALITY PUZZLE
You must look at the case that you are trying to solve from your patrol car by making an investigative stop as a puzzle with many pieces. The more pieces of the puzzle you construct before deciding to make the stop, the clearer the picture you will have as you approach the contact. You will not only know that the stop you are making is legal, but it will also help an officer to decide on what tactics to use to keep them safe during the stop and ultimate arrest.
Here are some pieces of the puzzle that when observed bring an officer ever closer to reasonable suspicion to make that stop:
- You are patrolling in a business district, or residential area that has recently been experiencing many burglaries, car entries, thefts, rapes or whatever is the crime you suspect the individual of being involved in.
- You are patrolling in that area during the general time of the occurrences.
- You see a man coming out of an alley in this area who you know from prior experiences has committed that crime or those crimes.
- The man matches descriptions of the suspect.
- The man resembles security footage of the suspect that you have seen.
- The man is seen in close proximity to the scene of the crime just committed.
- That man is wearing bulky clothes and gloves even though the weather is warm.
- The vehicle closely matches the description of the vehicle driven by the suspect in a crime.
- The man sees your squad and turns back into the alley sharply as if he is going to run, then stops and exits the alley continuing to walk in what appears to be a feigned nonchalance, or makes some other clearly suspicious yet describable movement.
- The man is carrying an item that is a commonly stolen item in the current crime spree.
- The man, after seeing you, tosses an item into some nearby bushes.
- The man sees you and instantly bolts and runs!
Additional examples include:
- In drug cases, you note when you have observed multiple short-term contacts with an exchange.
- You see what appears to be a crime in progress, like a subject prying on a window, or a man roughing up another person.
- Someone looks in need of serious help or endangered such as a drunk man staggering through the snow with no shirt on.
None of these observations rise to a level of probable cause, but when you can articulate seeing a number of them, they can add up to reasonable suspicion for an investigative stop.
One major mistake made by some officers conducting Terry stops is the misperception that where there exist grounds for the stop, there is automatically grounds for a “frisk.” This is a legally fatal error.
The court in Terry specifically identified the frisk as a separate issue from the stop, stating, “a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous.”
Here are some pieces to go with this separate frisk puzzle to help justify a pat-down search:
- The suspect is historically known to go armed often.
- There are bulges in the area of his beltline that appear to be the outline of a firearm or edged weapon.
- The suspect made a furtive motion, which the experienced officer identified as a movement commonly used by suspects to reach for, check, reposition, or prepare to take advantage of, a concealed weapon.
- The movement of the suspect has revealed what appears to be a portion of a weapon concealed on his person.
- A named witness said he was armed.
- The crime, which you have reasonable suspicion to believe the suspect is involved in, is commonly committed with a weapon.
When an officer can articulate a number of these observations, it will most likely be deemed reasonable for that officer to conduct a pat-down search of an individual for their own safety.
However, few judges in a contested case will rule in favor of an officer whose only justification for the pat-down search is, “My personal policy is when I stop, I frisk.”
THE INVESTIGATIVE STOP DURING A LEGAL TRAFFIC STOP
Many officers have become masters at developing criminal cases that start with a traffic violation by:
- Utilizing plain view to look hard and see contraband or readily identifiable fruits of a crime in plain view to develop probable cause for an arrest of the driver and the eventual search of the vehicle.
- Becoming adept at identifying indicators of deception.
- Legally obtaining permission to search the vehicle.
- Calling a K-9 over, during the right circumstances, to conduct a walk around.
When the investigative stop is attached to a legal traffic stop and a K-9 is called to the scene for a walk around, it’s important to note that in Rodriguez v. United States the court clearly ruled that the length of the business of such a stop can’t be extended to await the arrival of the K-9. Such an extension would be considered a separate seizure from the initial stop.
The investigative or Terry stop is the bread and butter of the patrol officer who wants to make an impact on crime in their community. Crimes will be solved, and lives will be saved.
For these officers, being at the right place at the right time is owed less to luck and more to an acquired skill in the use of the valuable tool that is the Terry stop.
Cornell Law School Legal Information Institute. Terry Stop/Stop and Frisk.
WHAT IS THE DIFFERENCE BETWEEN AN “INVESTIGATORY STOP” AND A “WELFARE CHECK”?
An investigatory stop, also known as a terry stop or temporary detention, is a brief detention of a person by a law enforcement officer. The officer must have reasonable suspicion that the person is engaged in criminal activity in order to temporarily stop that person. Reasonable suspicion is the lowest burden of proof in the court system and requires that a law enforcement officer be able to point to specific and articulable facts which, taken together within rational inferences, reasonably warrants the conclusion that the stop was necessary. During an investigatory stop, the law enforcement officer is limited to what is reasonably necessary to confirm or dispel the officer’s suspicion
In U.S. v. Cortez, the Supreme Court of the United States held that in order to temporarily stop a person, law enforcement officers must, based on the totality of the circumstances, have a particularized and objective basis for suspecting the particular person of criminal activity. 449 U.S. 411 (1981). Additionally, with regards to duration of the temporary stop, the Supreme Court of the United States concluded that law enforcement officers must diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly. U.S. v. Sharpe, 470 U.S. 675 (1985).
An investigatory stop is considered a temporary seizure; therefore, if done unreasonably, can potentially be a violation of an individual’s Fourth Amendment right against unreasonable search and seizure. While the investigatory stop is a temporary seizure, it is important to note that it is not an arrest. In order to make an arrest, an officer must have probable cause that a crime has been committed.
A welfare check, also known as a wellness check, occurs when law enforcement officers respond to a request to check on the safety and well-being of a person. These situations typically arise when an individual is having a hard time getting ahold of a family member, friend, or neighbor and they believe something is wrong with the person. The most common type of welfare check is checking on an elderly person. However, welfare checks can be utilized for a wide variety of reasons, including but not limited to, potential suicide, drug overdose, and child endangerment.
In order to request a welfare check, an individual must first get in contact with law enforcement, whether that be through 911 or a non-emergency number. Prior to contacting law enforcement, an individual must be certain that the person they are concerned about is in danger. If the individual lives in the same area as the person they are concerned about, he or she may accompany authorities to that person’s residence. Additionally, no court order is required for police to conduct a welfare check. As long as the officer has reasonable grounds to believe that an inhabitant in a residence is endangered, they can legally enter the premises. Law enforcement is given this power under the Community Caretaking Doctrine, a judicially created exception to the warrant requirement of the Fourth Amendment.
For more information on Investigatory Stop v. Welfare Check, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (913) 451-9500 today.