Because they have an important job to enforce the laws and apprehend criminals, society gives the police a lot of authority. One of those powers is the authority to stop, or detain, suspected law violators.
First, do not confuse a stop with a consensual encounter. The police are certainly free to try to talk to you just the same way you may attempt to engage any stranger in conversation. As officer might say, “Excuse me, do you mind if I ask you a few questions?” You can either choose to cooperate, say nothing and keep walking, or say, “Gee, I’d like to, officer, but I’m late for an appointment.”
If an interaction doesn’t sound consensual, to avoid any confusion, simply ask. “Officer, am I being detained?” If she says, “No,” you can either walk away or stay and find out what the officer wants, after which you are still free to walk away.
Detentions are not consensual encounters and, make no mistake, a stop/detention is a seizure under the Fourth Amendment.
What exactly is a constitutional “seizure?” 1) A governmental interference (usually by the police) with any property in which you have a possessory interest, or 2) with your liberty to move about freely.
As mentioned in an earlier post, the Fourth Amendment says police need a warrant to search and seize a person or item. However, almost a half century ago, the U.S. Supreme Court created one of the exceptions to that rule.
In the case of Terry v. Ohio, the Supreme Court said the police are trained and put on the street for a reason. Therefore, the court was not going to require probable cause or a warrant to detain someone. Instead, if they have “reasonable suspicion” (a standard lower than probable cause) that a crime is about to be committed, is being committed, or had just been committed, the police have the authority to stop/detain someone in order to conduct a preliminary investigation.
How does a detention occur?
The most common one is you yielding to some demonstration of police authority. For example, you are walking out of the mall and an officer says, “Stop! Police!” and you obey his or her command and stop. Rarely will an officer stop you by putting his hand on your chest, or grabbing a hold of your shirt, but if it happens, you have been detained.
Maybe more familiar to most people is the traffic stop. While you are driving, a marked police unit gets behind you with flashing lights and one solid red light, with or without the use of the “chirp” or the siren. As soon as you pull over, you have been detained.
Detentions must be of short duration, no longer than the police need to find out if criminal activity is happening. If the detention goes on too long without added justification, it can turn into an “in fact” arrest, which is the equivalent of a false arrest. However, even though you are not under arrest, the officer is in charge of you during the detention and you are not “free to leave.”
Of course, in order to investigate the possibility of criminal activity the police must be able to ask questions. There is no requirement for the police to recite the Miranda rights because the person being stopped is not under custodial arrest at that point. However, that doesn’t prevent you from telling the police you want a criminal defense attorney present before you answer any questions.
During the stop, if the correct conditions are present, the police may also “frisk” you, or stated another away, pat you down for weapons, but I will take up that subject in a future blog post.
If you ever have any question about this or any of my other blog posts, feel free to send me an email at firstname.lastname@example.org.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.