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Investigative detention.

The U.S. Supreme Court defines a "seizure" of a person as "a governmental termination of freedom of movement through means intentionally applied."(1) Within that definition, the Court has recognized different types of seizures, depending upon the degree of governmental interference with a person's liberty. An arrest constitutes the highest level of interference and must be supported by probable cause. But in Terry v. Ohio,(2) the Court recognized that law enforcement officers "may, in appropriate circumstances and in an appropriate manner, approach a person for the purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest."(3)

The factual standard of "reasonable suspicion" is sufficient to justify a Terry stop. Although the stop is clearly a Fourth Amendment seizure and the person is not free to leave,(4) the scope of the stop still is presumably less intrusive than an arrest. The higher standard of probable cause applies if the level of intrusion is not justified by the circumstances of an investigative stop.

The level of force used by the police is one of the most significant factors relating to the reasonableness of a particular intrusion. When officers possess the requisite reasonable suspicion to make an investigative stop, they are allowed to take the necessary steps to both enforce the stop and protect themselves. The Supreme Court has observed that "the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it."(5) This article discusses constitutional constraints on police conduct when enforcing an investigatory stop.


The challenge for law enforcement officers conducting investigative detentions is to tailor the level of force to fit the circumstances. The consequences for failing to do so can be somewhat different, and more costly, than if the same occurs during an arrest. For example, the integrity of an arrest based on probable cause will seldom be affected by an officer's use of excessive force. While officers may be liable for damages resulting from their unconstitutional actions, it is unlikely that evidence obtained incident to that arrest will be suppressed because the arrest itself was lawful. On the other hand, the use of excessive force during an investigative detention will likely be viewed by the courts as converting the stop into an arrest without the requisite probable cause. The consequences can be both civil suits against the police and suppression of evidence. A federal appellate court recently explained:

"The scope of activities during an investigatory detention must reasonably be related to the circumstances that initially justified the stop. When actions by the police exceed the bounds permitted by reasonable suspicion, the seizure becomes an arrest and must be supported by probable cause."(6)

The Supreme Court has cautioned that the Fourth Amendment standard of "reasonableness" is not conducive to "precise definition or mechanical application."(7) There is no simple formula to be memorized. On the positive side, the relative ambiguity in this concept of "reasonableness" provides the necessary flexibility that permits officers to deal with the inherent variables of everyday law enforcement. The Supreme Court recognizes this point:

"We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid...limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation."(8)

In the absence of bright line rules, it may be taken as a general rule that officers engaged in investigative detentions should avoid levels of force normally associated with arrests - physical restraint, detention inside a police car, display of weapons, or the use of handcuffs. As the following cases illustrate, it is not true that using such levels of force will never be reasonable in an investigative detention or that their use always converts a detention into a de facto arrest. One federal appellate court has observed:

"This doctrinal flexibility allows officers to take the steps necessary to protect themselves when they have adequate reason to believe that stopping and questioning the suspect will pose particular risks to their safety .... It is because we consider both the inherent danger of the situation and the intrusiveness of the police action, that pointing a weapon at a suspect, and handcuffing him, or ordering him to lie on the ground, or placing him in a police car will not automatically convert an investigatory stop into an arrest that requires probable cause."(9)

Whether the level of force used by police in a given case is reasonable depends on a variety of factors. The following cases illustrate "reasonable" police use of particular levels of force during investigative detentions.


Physical Restraint

When police officers have the reasonable suspicion necessary to justify an investigative stop, the suspect is not free to walk away, and officers may use reasonable force to prevent the suspect from doing so. Physically grabbing suspects after lawfully commanding them to stop is a relatively nonintrusive means for officers to encourage compliance.

In U.S. v. Dotson,(10) a police officer who was assisting an Internal Revenue Service Agent in a suspected money laundering case stopped the suspect in a vehicle. When the suspect started to get out of the car, the officer ordered him to remain inside. The suspect disregarded the officer's command and continued to get out of the car. The officer then placed his hand on the suspect's shoulder to prevent him running away. When the IRS Agent arrived at the scene, he placed the suspect under arrest. In an attempt to suppress cocaine and other evidence of drug activity recovered incident to the arrest, the defendant asserted that the officer's use of physical restraint amounted to an arrest for which there was no probable cause. The U.S. Court of Appeals for the Seventh Circuit rejected that argument and concluded that the officer had reasonable suspicion to justify an investigative stop and that his use of physical restraint to prevent the suspect from running away did not convert it into an arrest.

A similar result was reached in Gallegos v. City of Colorado Springs,(11) where two officers attempted to stop a man to inquire about reports of a prowler and other disturbances in the area. When the officers first approached the man, they detected a strong odor of alcohol and observed that he appeared to be distraught and upset. The suspect ignored the officers' questions and continued to walk down the sidewalk. On three separate occasions, one of the officers grabbed the suspect's arm in an effort to stop him, and each time, the suspect jerked free and continued to walk away. When one of the officers grabbed the suspect by the shoulder, the suspect clenched his fists, turned to face the officers, and dropped into a crouch "similar to a wrestler's position." In response to the suspect's actions, one officer applied an arm bar maneuver to the suspect's right arm, while the second officer grabbed his left arm and initiated a take-down action. The suspect later filed a lawsuit against the police officers and the department under Title 42, U.S. Code, Section 1983, alleging violation of his Fourth Amendment rights. The suspect claimed that the officers stopped him without reasonable suspicion and used excessive force in the process.

The U.S. Court of Appeals for the Tenth Circuit ruled that the officers did not violate the suspect's Fourth Amendment rights because the initial stop of the suspect was an investigative detention supported by a reasonable suspicion that the suspect was involved in criminal activity. Moreover, the court found the level of force used by the officers was reasonable in light of the suspect's "strange and aggressive conduct .... "(12)

Detention Inside a Police Vehicle

Placing a suspect inside a police vehicle is another level of restraint that could affect the reasonableness of an investigative detention. In U.S. v. Bradshaw,(13) an officer stopped an automobile after observing what appeared to be an altered temporary tag in the rear window. When the driver got out of the car, the officer asked him to sit in the back of the police car while he checked the driver's license and vehicle certification. A second officer on routine patrol stopped to assist. When the second officer peered into the suspect vehicle's passenger window he observed what appeared to be a plastic bag containing marijuana. While retrieving the bag, the officer also discovered a revolver. In a motion to suppress the marijuana and the gun, the defendant claimed that his detention inside the police vehicle amounted to an arrest without probable cause.

The U.S. Court of Appeals for the Sixth Circuit affirmed the trial court's denial of the motion to suppress. While noting that detention in a police car may rise to the level of an arrest, particularly when the purposes of the initial stop have been completed,(14) it does not automatically do so. The court observed:

"Detention in a patrol car for several minutes is merely a normal part of police procedure for identifying delinquent drivers and does not constitute a custodial arrest."(15)

Display of Weapons

Although deadly force is not a viable option for enforcing an investigative stop, officers may frequently feel the need to display firearms during such stops as a means of discouraging aggressive behavior by potentially dangerous suspects. However, courts generally view the display of weapons by police as a factor that "increases the seriousness of the stop."(16) The U.S. Court of Appeals for the Seventh Circuit has described the impact of a drawn gun in these terms:

"The significance of the pointed gun is that it makes the encounter far more frightening than if the officer's gun remains holstered, or even drawn but pointed down at his side; and certainly where the danger of the encounter to the officer, though potentially serious, is not clear and present, the deliberate pointing of a gun at the suspect is problematic."(17)

Despite these concerns, most courts have rejected the view that the display of weapons during an investigative stop always converts the stop into an arrest.(18) In U.S. v. Conyers,(19) for example, police officers blocked a drug suspect's vehicle with their police car, and one of the officers drew his handgun, approached the suspect, and ordered him to raise his hands over his head. In an effort to suppress a weapon and cocaine discovered in his possession, Conyers asserted that the investigative stop was unreasonable, in part, because of the level of force used, i.e. blocking his car with the police vehicle, and display of the gun.

Both the federal district and appellate courts rejected the subject's argument. Observing that "[i]t is common for a distributor in possession of drugs to flee when confronted by the police ..."(20) the U.S. Court of Appeals for the District of Columbia concluded:

"...the detaining officers did not act unreasonably when they pulled their cruiser in front of Conyers' car. An officer may take whatever steps are reasonably necessary to prevent a subject from fleeing during the course of an investigatory stop" (emphasis added).(21)

With respect to displaying the weapon, the court reasoned that "because those who transport drugs often carry (and all too often use) a firearm ...."(22) the officer was reasonable in drawing his weapon for his own protection as he approached the suspect's car. The court also observed that whereas 30 years ago it might have been unreasonable for police officers to assume that a suspected drug dealer in a car would be armed, "nowadays 'it could well be foolhardy for an officer to assume otherwise.'"(23)

Handcuffing a Suspect

One of the most common symbols of an arrest in this country is police use of handcuffs. Consequently, when a police officer places a person in handcuffs, it invites the perception that an arrest has occurred. In spite of that perception, most courts have declined to adopt a blanket rule that using handcuffs to restrain a person under all circumstances is tantamount to an arrest.

In U.S. v. Blackman,(24) FBI agents investigating two armed bank robberies ordered four suspects out of an apartment and handcuffed them while they made inquiries into the robberies. The suspects eventually confessed to the robberies, but later sought to suppress the confessions by asserting that they were unlawfully arrested without probable cause. One of the significant factors they cited to support their claim was the use of handcuffs to detain them. Affirming the federal trial court's rejection of the defendants' assertions, the U.S. Court of Appeals for the Eleventh Circuit concluded:

"In this case, the FBI agents had a reasonable suspicion that the occupants of the apartment committed the two bank robberies .... In light of the violent nature of the robberies, of the number of suspects (four adult males) involved, and of the agents' need to protect themselves, the agents' act of calling for the defendants to come out of the apartment and handcuffing them once they were out of doors was not unreasonable" (emphasis added).(25)

The cases discussed thus far provide examples of police use of various levels of force during investigative detentions that were viewed as reasonable by the courts. The following cases emphasize that while these various levels of force may be reasonable under some circumstances, they may be unreasonable in others.


In Washington v. Lambert,(26) a police officer saw two men who, in his opinion, matched the descriptions of two armed robbery suspects. With the assistance of other officers, the two men were stopped at gunpoint, ordered out of their car, handcuffed, and placed in separate police cars for about 25 minutes. They were released when computer checks failed to disclose outstanding warrants or any other reasons for continuing the detentions. The two men filed a lawsuit against the officers under Title 42, U.S. Code, Section 1983, alleging violations of their Fourth Amendment rights. Summary judgment was granted to all of the officers except the one who had initiated the stop because the trial judge concluded that he had caused what a reasonable officer should have known was an arrest without probable cause.

The U.S. Court of Appeals for the Ninth Circuit concurred in the lower court's judgment that the level of intrusion reached that of an arrest and that there was no probable cause to support it. Although the crime at issue was armed robbery, the court cited that the lack of specific information undermined the officers' authority to take the aggressive action described in this case. Noting that the similarity of the two men to the descriptions of the robbery suspects was "general," the court stated that "the more specific the information that leads the officers to suspect that the individuals...are the actual suspects...[and that they] are likely to forcibly resist...the more reasonable the decision to use extraordinary measures to ensure the officers' safety."(27)

Because the similarity of description was "tenuous," the court focused closely on any other factors that could have led the officers to believe that such force was necessary. The court identified four factors that could justify the use of "especially intrusive means of effecting a stop":

* The suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight

* The police have information that the suspect is currently armed

* The stop closely follows a violent crime

* The police have information that a crime is about to occur that may involve violence.

Noting that "some combination of these factors may also justify the use of aggressive police action without causing an investigatory stop to turn into an arrest," the court held that in the absence of any of them, "the use of such aggressive and highly intrusive tactics is not warranted.... "(28)

A similar result was reached in Oliveira v. Mayer,(29) where six officers in six police cars stopped a vehicle containing three burglary suspects. The officers ordered the suspects out of their car at gunpoint, required them to kneel or lie down, handcuffed them, and placed them in separate police cars. In a civil action against the police alleging violations of federal constitutional rights, a federal district court ruled as a matter of law that the police actions violated the plaintiffs' constitutional rights.

The U.S. Court of Appeals for the Second Circuit concurred and reviewed the different level of force used by the police as follows:

"Standing alone, no single factor would necessarily convert the plaintiffs' detention from a Terry stop into a de facto arrest. Indeed, courts have occasionally concluded that a particular detention was a permissible Terry stop even though it involved a few of the intrusive elements present in this case.... Yet, the defendants do not cite and we have not discovered a single case in which a court has found a detention that involved numerous intrusive elements, with little or no justification, to be a Terry stop" (emphasis added).(30)

With respect to cases where an intrusive stop was deemed justified, the court pointed out that "the police have always had a reasonable basis to believe the suspect was armed or otherwise dangerous."(31) Considering that the suspects were stopped in connection with a burglary, the court noted that "suspecting a person of having committed a burglary cannot, in and of itself, provide police with grounds to subject that person to an extremely intrusive Terry stop."(32)


An investigative detention is a forcible seizure, governed by the "reasonableness" standard of the Fourth Amendment. The level of force used to effect an investigative stop must be tailored to the facts and circumstances confronting law enforcement officers at the time the seizure occurs. The courts are consistent in the view that officers are not required to assume unnecessary risks to their safety when conducting investigative stops. On the other hand, any use of force that is not justified by the facts and circumstances will generally be viewed as converting the stop into an arrest, which, in the absence of probable cause, would be unconstitutional.


1 Brower v. County of Inyo, 486 U.S. 593, 597 (1989).

2 392 U.S. 1 (1968).

3 Id. at 22.

4 U.S. v. Edwards, 53 F.3d 616, 619-620 (3rd Cir. 1995).

5 Graham v. Connor, 490 U.S. 386, 396 (1989).

6 U.S. v. Robinson, 949 F.2d 851,856 (6th Cir. 1991).

7 Bell v. Wolfish, 441 U.S. 520 (1979).

8 U.S. v. Place, 462 U.S. 696 (1983).

9 Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996).

10 49 F.3d 227 (6th Cir. 1995).

11 114 F.3d 1024 (10th Cir. 1997).

12 Id. at 1031.

13 102 F.3d 204 (6th Cir. 1996).

14 Id., at 212, citing U.S. v. Mesa, 62 F.3d 159 (6th Cir. 1995).

15 Id., citing U.S. v. Rodriguez, 831 F.2d 162 (7th Cir. 1987).

16 Washington v. Lambert, 98 F.3d at 1189.

17 U.S. v. Serna-Barreto, 842 F.2d 965,967 (7th Cir. 1988).

18 See, e.g., U.S. v. Vega, 72 F.3d 507 (7th Cir. 1995); U.S. v. White, 648 F.2d 29, (D.C. Cir.), cert. denied, 454 U.S. 924 (1981); U.S. v. Jackson, 918 F.2d 236 (1st Cir. 1990); U.S. v. Perea, 986 F.2d 633 (2nd Cir. 1993); U.S. v. Edwards, 53 F.3d 616 (3rd Cir. 1995); U.S. v. Taylor, 857 F.2d 210 (4th Cir. 1988); U.S. v. Jones, 759 F.2d 633 (8th Cir.), cert. denied, 474 U.S. 837 (1985); Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995); and U.S. v. Edwards, 103 F.3d 90 (10th Cir. 1996).

19 118 F.3d 755 (D.C. Cir. 1997).

20 Id. at 757.

21 Id.

22 Id.

23 Id., at 757-758, citing U.S. v. Clark, 24 F.3d 299, 304 (D.C. Cir. 1994).

24 66 F.3d 1572 (11th Cir. 1995).

25 Id. at 1576.

26 98 F.3d 1181 (9th Cir. 1996).

27 Id. at 1190.

28 Id. at 1192.

29 Oliveira v. Mayer, 23 F.3d 642 (2nd Cir. 1994).

30 Id. at 647.

31 Id., citing U.S. v. Alexander, 907 F.2d 269 (2nd Cir. 1990), cert. denied, 498 U.S. 1095 (1991); U.S. v. Nargi, 732 F.2d 1102 (2nd Cir. 1984); U.S. v. Merkley, 988 F.2d 1062 (10 Cir. 1993); Courson v. McMillan, 939 F.2d 1479 (11th Cir. 1991); U.S. v. Alvarez, 899 F.2d 833 (9th Cir. 1990), cert. denied, 498 U.S. 1024 (1991); and U.S. v. Seelye, 815 F.2d 48 (8th Cir. 1987).

32 23 F.3d 642, n 1.

Special Agent Hall is a legal instructor at the FBI Academy.
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Author:Hall, John C.
Publication:The FBI Law Enforcement Bulletin
Date:May 1, 1998
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