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

• 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