Police Citizen Contacts
Chapter 8
The Legal Relationship Formed During
Street Encounters With Citizens
• Two competing tensions form the basis for the
relationship
– The need for safety of the officer and society
– The Constitutional protections afforded citizens
• All interactions between police officers and
citizens take one of three forms
– Voluntary contact
– Seizure (Investigatory detentions)
• The Terry Stop
• The Stop & Frisk
– Arrest
• Why do we care?
– Liability
• Making a stop without the required level of evidence
places officers and the department unnecessarily at risk
– Evidentiary standards
• Upon making a Stop, Stop & Frisk or Arrest with
inadequate evidence precludes, in general, the
prosecution from using that evidence and everything
that follows it’s discovery
• Example:
– You see an unknown male approach a group of
known drug addicts on the street at the Soup
Kitchen. After speaking with the addicts for
awhile, the man walks away while simultaneously
placing his hand in his pocket.
• Stop
• Stop & Frisk
• Arrest
Example Answer
• No stop allowed
– See Sibron v. New York, 392 U.S. 40 (1968)
• Where the act of speaking with a group of known drug
addicts and placing one’s hand into a pocket does not
create a reasonable suspicion that the person is
involved in drug trafficking
• You approach that same unknown male after
observing that incident and request to speak
to him…he flees.
– Stop
– Stop & Frisk
– Arrest
Example Answer
• Stop and Frisk allowed
– Illinois v. Wardlow, 528 U.S. 119 (2000)
• Where unprovoked flight from officers in a high crime
area known for drug trafficking is enough to establish
reasonable suspicion that a person is involved in
criminal activity
– Why the frisk?
• Drug trafficking is a crime known to involve weapons
• The suspect is nervous about being stopped
• The suspect’s hand is concealed in his clothing
General Rules
• The level of information possessed by the police officer
must match the level of evidence needed for the action
taken
• Both the quality and amount of information, given the
totality of the circumstances, must be taken into
account
• Police officers can utilize the information possessed by
other police officers
• In general, the same rules apply to pedestrian and
vehicle stops
• The final determination of the police officer’s decision
to stop contains both a subjective and objective
component
Objective v. Subjective
Standard
• The police officer’s actions are objectively
reviewed according to the reasonableness of the
police officers subjective training, education and
experience
– Objectively speaking, would a similarly trained,
educated & experienced officer similarly situated take
similar actions?
– From a disinterested point of view, given the police
officer’s knowledge base, and taking into account all
of the circumstances, was this a reasonable thing to
do?
Four Basic Rules
• (1) An officer needs no level of suspicion to
initiate a voluntary questioning of a person
even if for the purposes of obtaining
criminally culpable information against that
person or another party. Texas v. Brown , 460 U.S. 730,742 (1983)
• (2) An officer must have reasonable suspicion
that a person is somehow connected to
criminal activity in order to legally restrict the
movement of that person. Terry v. Ohio
Four Basic Rules
• (3) An officer must have probable cause that a
person has committed a crime in order to
arrest them. State v. Parkinson 389 A 2d 1,8 (ME. 1978)
• (4) The standards by which the above actions
are held to is an objective one. The issue turns
on what similar situation reasonable and
prudent third person could think, not
necessarily what the actual persons involved
did think. Terry v. Ohio
Reasonable and Articulable Suspicion
• Specific facts (more than a “feeling” or “hunch”)
that the person is involved in criminal activity.
Less than probable cause.
• Suspicion is articulable when an officer in fact
subjectively (meaning in his/her own mind)
possesses it and can communicate the specific
facts leading to the suspicion. Suspicion is
reasonable when it can be viewed and
understood objectively (meaning outside the
officer’s subjective impression). State v. Lear ME. 1998
Reasonable and Articulable Suspicion
• Reasonable suspicion is a less demanding standard
than probable cause not only in the sense that
reasonable suspicion can be established with
information that is different in quantity or content than
that required to establish probable cause, but also in
the sense that reasonable suspicion can arise from
information that is less reliable than that required to
show probable cause…Reasonable suspicion, like
probable cause, is dependent on both the content of
information possessed by the police and its degree of
reliability. Both factors – quality and quantity are
considered in the ‘totality of the circumstances – the
whole picture.’ Alabama v. White 1990
Probable Cause
• A reasonable belief by a prudent and cautious
officer that the person committed a crime
• “Probable cause exists where the facts and
circumstances within the knowledge of the
officers and of which they have reasonably
trustworthy information would warrant a
prudent and cautious person to believe that
the arrestee did commit or is committing the
[crime].” State v. Parkinson 389 A 2d 1,8 (ME. 1978)
Voluntary Contacts
• How initiated
– By police officer
• Precatory (wish but not a demand) language of request
– By citizen
• In any way
• Level of evidence necessary
– None
• Compliance mechanisms available to officer
– None
• Constitutional Protections afforded citizens
– None (for testamentary evidence)
– No search, no show or use of authority
Voluntary Contacts
• Durational Limits
– None, however the longer the duration the more
exposure to a custody challenge
• Identification
– The citizen is not required to produce
identification
– Asking for ID may expose the contact to a custody
challenge
Warrantless Seizures
• For our purposes, three kinds of warrantless
searches
– The Terry Stop
• Investigatory detention
– The Stop & Frisk (Terry Pat Down Search)
• Investigatory detention
– The arrest
• Formal custody
Terry Stop
• How initiated
– Show of authority
• Level of evidence necessary
– Reasonable and Articulable
• Compliance mechanisms available to officer
– Show of authority, minimum use of force
• Constitutional Protections afforded citizens
– None (for testamentary evidence)
• Miranda not required unless the stop evolves into arrest
– No search absent PC
• Durational Limits
– Once the suspicion is relieved the subject must be released
Terry Stop
• Identification
– The person is not required to produce
identification absent a reason to enforce a city
ordinance, state or federal law
– Officers can ask for ID without fear that the
constitutionality of the stop will be infringed.
However, they cannot demand ID unless there
exists PC that the suspect is in violation of
something the officer can enforce
The Stop & Frisk (Terry Pat Down
Search)
• How initiated
– Show of authority, reasonable use of force (includes handcuffing)
• Level of evidence necessary
– Reasonable and Articulable suspicion (1) for the stop and (2) that the
suspect is armed and dangerous
• Compliance mechanisms available to officer
– Show of authority, reasonable use of force
• Constitutional Protections afforded citizens
– None (for testamentary evidence)
• Miranda not required even if handcuffed as long as the questioning is related
in scope out of a concern for public safety. New York v. Quarles (1984)
– No search absent PC
• Durational Limits
– Once the suspicion is relieved the subject must be released
The Stop & Frisk (Terry Pat Down Search)
• Identification
– The person is not required to produce identification absent a reason to
enforce a city ordinance, state or federal law
– Officers can ask for ID without fear that the constitutionality of the stop
will be infringed. However, they cannot demand ID unless there exists PC
that the suspect is in violation of something the officer can enforce
• Implementation
– The search is limited in scope to a pat-down of the suspect’s
outer clothing for weapons
– The “plain feel” exception: If an officer feels something to which
it is immediately apparent to the officer that the item is
contraband (without manipulation of the object), the officer
may seize it. Minnesota v. Dickerson (1993)
Warrantless Arrest
• The police officers intention to take the
person into custody
• Detention or restraint of the person arrested
either by a submission to authority or the use
of physical force
• An understanding by the person that they are
being arrested. California v. Hodari D. (1990)
Miranda
• Miranda applies to street level encounters
only when two factors are present:
– Custody
• A formal arrest
• Custodial factors outside the scope of an investigatory
detention
– This is called a De Facto Arrest or Seizure Tantamount to
arrest
– Interrogation
• Spontaneous Statement Exception
– Clarification is allowed
• Administrative Statement Exception (Booking
questions)
• Public Safety Exception
Interrogation
• Any action on the part of the police officer
designed to elicit an incriminating response
from the suspect.
– Public Safety Exception New York v. Quarles (1984)
– Administrative Questioning Exception State v. Griffin ME 2003
– Volunteered or Spontaneous Statements Miranda v. Arizona
– Clarification of Spontaneous Statements Allowed
State v. Philbrick ME (1981)
Custodial Factors Indicative of Miranda
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Location
Party who initiated contact
Existence of PC to arrest
Show of authority
Use of force
Duration and character of the interrogation
Waiver
• Must obtain a knowing, intelligent and voluntary
waiver
• Need not be signed (waiver can be obtained by
conduct)
– Video?
• Miranda Rights must be asserted affirmatively and
expressly
– Silence is not an affirmation of the suspect’s Miranda
Rights Berghuis v. Thompkins (2010)
• If counsel is affirmatively requested, questioning must
cease on all matters which could affect the person’s
criminal liability