Police intervention short of arrest.

Today, more than ever before, citizens' safety depends on the effectiveness of police to detect criminal activity at its earliest possible stage of development and to disrupt it and prevent or minimize its harmful consequences. Critical to this effectiveness is the need for police to interact with individuals well before law enforcement possesses adequate preliminary information to involve the judicial system with the acquisition of warrants based on probable cause. Law enforcement response, of course, must be consistent with the Fourth Amendment to the U.S. Constitution that states, "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." (1)

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In the case of government action amounting to an arrest, law enforcement must have probable cause that a crime was or is about to be committed and that the individual to be arrested has engaged in the criminal activity. The probable cause requirement of the Fourth Amendment is an essential safeguard against arbitrary government action. However, the U.S. Supreme Court has recognized the need for some type of police intervention short of an arrest.

Encounters between law enforcement officers and the general public typically fall within three categories. The most intrusive is an arrest that requires probable cause. The least intrusive encounter is the voluntary or consensual one. This encounter is limited by the scope of the consent given to the police. In between is another type of action of seizure, the investigative detention, that involves some level of government interference with the freedom of movement of individuals encountered. This article explores the legal issues associated with strategies designed to foster appropriate contact during police-citizen encounters consistent with rights secured under the Constitution and the societal interests in detecting and preventing crime at the earliest possible stage.

Investigative Detention

In the seminal case of Terry v. Ohio, (2) the U.S. Supreme Court ruled that a police officer may detain or seize a person on the street to investigate possible criminal activity based not upon probable cause but, rather, reasonable suspicion that criminal activity is "afoot." (3) The Court went further and allowed a search of the detainee in the form of a limited search for weapons, typically referred to as a frisk or patdown if the detaining officer has reasonable suspicion that the person is armed and, therefore, dangerous. (4) The Court's ruling recognized law enforcement's need for an intermediate response, short of arrest, to suspicious circumstances. This response furthers the government's goals of crime detection and prevention in addition to officer safety. While this has been a well-settled legal principle and valuable tool to law enforcement for nearly 40 years, its value to law enforcement, and society in general, has quite possibly never been as critical as it is today in light of the importance of early intervention into criminal activities.

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For a law enforcement officer to properly effect what is commonly referred to as a Terry stop, the officer must have specific and articulable facts supporting reasonable suspicion. This fundamental requirement of reasonable suspicion can be based on the totality of circumstances to include the officer's knowledge, experience, and observations; the conduct or demeanor of the individual detained; the reputation of the area or the individual detained; and information from others. These factors are what enable an officer to articulate reasonable suspicion that criminal activity is afoot sufficient to warrant police intervention. As the investigative detention is necessarily fact sensitive, it is instructive to review the facts underlying the Supreme Court's decision in Terry.

Officer McFadden, a police veteran of 39 years, observed two unknown males while he was walking his beat in downtown Cleveland. He observed the men talking and, then, splitting apart. One, then the other, would peer into a particular store front and then meet and talk again. Officer McFadden also observed that they appeared to be dressed out of season, wearing baggy and thick clothing. This behavior continued a dozen times in the course of about 10 minutes. A third man joined the two in conversation and then disappeared. Upon the reappearance of the third man, Officer McFadden approached the unseasonably dressed men and asked them some questions. The men would not make eye contact and gave mumbled responses to Officer McFadden's questions. Fearing that the three were armed and preparing to rob the store, Officer McFadden detained the men and conducted a limited search of them for weapons. He discovered two handguns.

Initially, the government argued that Officer McFadden's actions were reasonable under the Fourth Amendment because he had probable cause to believe the individuals were about to engage in criminal activity. The Supreme Court ultimately held that the government need not stretch the facts that far because the Fourth Amendment concept of reasonableness would allow for the type of intermediate response to the individuals' conduct that Officer McFadden pursued. The Court ruled that Officer McFadden's suspicion of the men was reasonable under the Fourth Amendment and sufficient to justify the stop and the frisk that yielded the concealed weapons.

The Court was mindful of the fact that a stop and frisk encounter presents more than a petty indignity. (5) The Court described a stop and frisk as "a serious intrusion upon the sanctity of the person, which is not to be undertaken lightly." (6) The Court further stated that a stop constitutes a Fourth Amendment seizure and that the frisk is a search under the Fourth Amendment. In allowing police to detain and handle people who are engaged in neither visibly illegal activity nor conduct sufficient to warrant an arrest, the Court said that Terry creates a limited exception to the requirement of probable cause "if there is an articulable suspicion that a person has committed or is about to commit a crime." (7)

A Terry stop occurs when police officers briefly detain people by means of physical force or a show of authority so that reasonable individuals would believe that they are not free to leave or terminate contact with the police. (8) Limits may be crossed that cause the encounter to become more than a mere investigative detention, ending up as the functional equivalent of an arrest.

Arrest or the Functional Equivalent

In Kaupp v. Texas, (9) the defendant, a 17-year-old male, was implicated in a murder by the victim's brother. Upon gathering this information, police officers went to Kaupp's home with the intent to confront him with the allegations of the victim's brother. Upon arriving at the residence at 3 a.m., Kaupp's father let the three officers, dressed in civilian clothes, into the home to talk with his son. The officers entered Kaupp's bedroom and shined a flashlight in his face, stating "we need to go and talk," to which Kaupp replied "okay." (10) The officers placed handcuffs on him and led him away barefoot and wearing only boxer shorts and a T-shirt to a police cruiser waiting outside. The officers then took Kaupp to the location where the victim's body had been discovered and remained there for 5 to 10 minutes before transporting him to the sheriff's office. Officers placed Kaupp in an interview room, removed his handcuffs, and read him his Miranda rights. Kaupp waived his rights and eventually incriminated himself in the murder. He was later convicted of murder after unsuccessfully arguing that his confession should be suppressed because it was obtained as a result of an unlawful arrest. (11) Kaupp appealed his conviction.

The Texas courts affirmed his conviction. The Texas Appeals Court concluded that Kaupp had not been arrested until after he confessed to the murder. Furthermore, Kaupp consented to go with the officers when he answered "okay" and that his being handcuffed was an acceptable routine practice of the sheriff's department in such cases out of concern for safety. The appeals court viewed Kaupp's cooperation--for example, the fact that he did not resist to the placing of handcuffs on him--as further indication of his consent to this encounter.

The Supreme Court agreed to hear the case and disagreed with the reasoning of the Texas courts. The Court held that the officers engaged in a seizure of Kaupp given that an objectively reasonable person would view this encounter as government acquisition of physical control and it was reasonable for him to believe that he was not free to go about his business. (12) The question then becomes whether the government was reasonable given the degree to which the government interfered with his freedom.

The Court reiterated that certain seizures can be justified by something less than probable cause. However, in this case, the facts indicate that Kaupp being removed involuntarily from his residence in handcuffs and transported to the sheriff's department goes beyond what would be within the scope of an investigative detention. Accordingly, more than simply suspicion of his involvement in the criminal activity is required to render this government action reasonable. Kaupp was confronted by three officers in the middle of the night who were telling him that they needed to go and talk. The Court concluded that it would be reasonable for him to deduce that he had no option but to go with the officers and that his response was merely a submission to a claim of government authority. Kaupp's removal from his home in handcuffs and subsequent trip to the crime scene and the police station without probable cause illustrate how what begins as a consensual encounter can turn into the functional equivalent of an arrest. The Court concluded that reasonable persons in Kaupp's situation would feel that they had no choice but to accompany the police and that they were not free to change their mind and return home and go back to bed. A confession derived from this unlawful government conduct, therefore, should not be used against the defendant unless the government can establish that the confession was "an act of free will [sufficient] to purge the primary taint of the unlawful invasion." (13)

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The Court provided some examples of circumstances that might turn an encounter into a seizure and quite possibly a full-blown arrest. These would include the threatening presence of several officers, the physical touching of the person, and the use of language or tone of voice indicating that compliance was not optional. (14)

"Stop and Identify" Statutes

While the ability of law enforcement to stop an individual based on suspicious conduct has been well settled since Terry v. Ohio, what course of investigative activity officers may pursue has not been clearly defined, and, often, officers are left with few options but to let people continue on their way despite the officers' concerns. However, in Hiibel v. Sixth Judicial District Court Nevada, Humboldt County, (15) the Supreme Court recognized the authority of law enforcement to arrest individuals who have been lawfully detained as part of a Terry stop for failure to identify themselves in violation of state law. The Court held that the authority to arrest these individuals as provided for by state law did not violate the Fourth Amendment nor the Fifth Amendment privilege against self-incrimination.

In Hiibel, police received a report of an assault in a truck involving a man and a woman. Found parked along the side of a gravel road, the truck was occupied by a woman who had locked out the male driver. The officer requested that the man (Hiibel) produce some identification. Hiibel refused and asked why the officer wanted to see it. The officer repeated his request for identification nearly a dozen times while the driver taunted the officer and continued to refuse to cooperate. The officer then proceeded to arrest Hiibel under Nevada law for obstructing the officer in carrying out his duties in the context of an investigative stop. The Nevada state statute includes a provision criminalizing the failure to identify oneself during a lawful investigative detention. (16) Hiibel was eventually convicted. He appealed his conviction, claiming that the Nevada "stop and identify" statute violates the Fourth and Fifth Amendments to the Constitution. His appeal was rejected in the Nevada courts, and, ultimately, the issue went before the Supreme Court. (17)

The Court upheld the constitutionality of the government's decision to criminalize the failure of individuals lawfully detained to identify themselves-to law enforcement. The Court reasoned that asking questions as part of the investigative detention is an essential aspect of the investigation. Officers should be free to ask individuals to identify themselves without violating the Fourth Amendment. An investigative detention permits the stopping of people for a relatively brief period of time, as well as the asking of questions and the taking of additional investigative steps. Discerning a suspect's identity assists officers in knowing if the person is wanted, unstable, or has a history of violence. The state's decision to allow for an arrest of individuals lawfully detained for failure to identify themselves recognizes a balancing of interests, balancing the government's objectives of securing the safety of the officer and allowing for the investigation to develop against the restriction on freedom the arrest carries. (18) The state's decision that this balancing weighs in favor of the government's interests does not violate the Fourth Amendment according to the Supreme Court. (19) The Court opined that the stop, the request, and the requirement of a response do not circumvent the guarantees of the Fourth Amendment. Law enforcement's ability to detain an individual while asking questions and seeking identification on less than probable cause is reasonable under the Fourth Amendment as it promotes legitimate government interests of preventing and solving crime and protecting law enforcement.

With respect to the Fifth Amendment, the Supreme Court reiterated that it prohibits only compelled testimony that is incriminating. Generally, the disclosure of one's name presents no reasonable danger of incrimination. In Hiibel, the refusal of the defendant to identify himself was simply because he thought it was none of the officer's business.

Hiibel illustrates the critical importance of the adoption of a "stop and identify" statute if law enforcement officers are faced with a situation in which leverage is needed to secure someone's identity. Without such a governmental position, simply refusing to identify oneself would not amount to criminal conduct. Furthermore, an individual's refusal to answer or give a name does not give rise in and of itself to a reasonable suspicion that criminal activity is afoot. (20)

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Consensual Encounters

Another effective tool for law enforcement is to engage in consensual or voluntary encounters with the public because such encounters do not require any articulable basis supporting the interaction. The ability of law enforcement to ask individuals for cooperation and seek consent to engage in what would amount to a search is well settled and not intended to be within the scope of this article. However, the Supreme Court's analysis in United States v. Drayton (21) illustrates how the authority to simply engage individuals in discussion can be effective at ferreting out criminal activity at its earliest stages. In Drayton, plainclothes police officers as part of a routine drug and weapons interdiction program boarded a bus and began talking with the passengers. To facilitate passenger movement in and out of the bus, the officer engaged in a conversation with a passenger would stand next to or behind the person he was speaking to. As the officer approached two men who appeared to be traveling together, he displayed his badge and identified himself as a police officer. He then asked the men if they had any luggage on the bus. One of the men responded by pointing to a bag in an overhead bin. The officer requested and received consent to search the bag. No contraband was located. The officer then asked one of the men if he would consent to a search of his person, which he allowed. The officer found cocaine on his person. His companion also was asked if he would consent to a search, which he agreed to, and the officer found cocaine on him as well. Both men were arrested and later moved to have the cocaine suppressed, arguing that it was seized in violation of their Fourth Amendment rights given that when they were approached on the bus, they were not "free to leave" and, thus, unreasonably seized. The defendants also argued that at a minimum, the officers should have told them they did not have to consent given the restrictions placed on their freedom of movement.

The Federal Appeals Court for the Eleventh Circuit agreed with the two men, noting that because they were essentially "trapped" on the bus, they should have been given some notice that they had a right to refuse. The Supreme Court disagreed, holding that the government did nothing to deprive the individuals of their freedom of movement, rather, the encounter occurred on a mode of transportation that the individuals chose themselves--the government did nothing more than take advantage of a situation. (22) The actions of the officers in this case did not amount to a seizure, and the subsequent requests for consent to search were lawful.

Conclusion

Effective policing today requires the use of strategies to intervene in criminal activity before it is successfully undertaken, and law enforcement's only response is an effective post-incident investigation. Of course, the effectiveness of law enforcement's efforts also will be measured by how this is accomplished within the framework of the Constitution and the protection afforded civil liberties.

Endnotes

(1) U.S. Const, Amend IV.

(2) 392 U.S. 1 (1968).

(3) Id. at 16.

(4) Id. at 27.

(5) Id. at 16.

(6) Id. at 16-17.

(7) Id. at 24.

(8) California v. Hodari D., 499 U.S. 621, 627-628 (1991).

(9) 123 S. Ct. 1843 (2003).

(10) Id. at 1845.

(11) Kaupp v. State, 2001 WL 619119 (not designated for publication).

(12) Kaupp at 1846.

(13) Id. at 1847, quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963).

(14) See Florida v. Royer, 460 U.S. 491, 498 (1983), citing United States v. Mendenhall, 446 U.S. 544 (1980); Brown v. Texas, 443 U.S. 47 (1979). See also U.S. v. Adeyeye, 359 F.3d 457 (7th Cir. 2004); U.S. v. Spence, 397 F.3d 1280 (10th Cir. 2005); U.S. v. Washington, 387 F.3d 1060 (9th Cir. 2004); U.S. v. Saari, 272 F.3d 804 (6th Cir. 2001); U.S. v. Brumfield, 910 F.Supp. 1528 (D.Colo. 1996) (bus interdiction program where officers boarded bus at stop where all passengers were to exit and ordered to exit with bags in their right hand near drug detection dog was deemed a seizure due to the manner in which the officers controlled the movements of the exiting passengers).

(15) 124 S. Ct. 2451 (2004).

(16) NRS [section] 171.123 (2003), defining the rights and duties of a police officer during an investigative detention.

(17) 59P.3d 1201 (2002).

(18) Hiibel at 2458.

(19) Id.

(20) Florida v. Royer, 460 U.S. 491 (1983), citing United States v. Mendenhall, 446 U.S. 544 (1960); Brown v. Texas, 443 U.S. 47 (1979).

(21) 122 S. Ct. 2105 (2002).

(22) Id. at 2113.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By MICHAEL J. BULZOMI, J.D.