Know Your Rights When The Police Stops You: Consensual Encounter; Detention And Pat Down Weapon Searches

Law and Order: The Criminal Justice System by Carina Castañeda 14 November 2009

The police may stop you, whether you are walking alone, congregating with friends or driving a vehicle, if they reasonably believe they have "probable cause" to stop a suspect who is engaged in criminal activity. Reasonable suspicion is based on the "totality of circumstances" surrounding the detention. For example, the relevant circumstances that would cause an officer to reasonably believe that a suspect is engaged in criminal activity includes, but not limited to, the common sense inferences of the officer, based on the officer's background, training, education and experience.

Other factors that lead to probable cause for the initial detention and subsequent arrests could be the location of the stop (high crime area); behavior of the suspect (nervous, lying, fleeing from the officer); physical description matches the broadcasted description. Although each of the individual facts alone may be inadequate to prove probable cause, TOGETHER, they may be sufficient to constitute reasonable cause to detain. Simply, the court always looks to the totality of the facts of the stop to ascertain whether the initial detention of the suspect was legal.

A common question for most is whether the police can stop anyone and question them without being placed under arrest? An individual's protection against unreasonable searches and seizures by the government and its agents arise out of the federal and California constitutions. The Fourth Amendment of the United States Constitution provides:

THE 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, SUPPORTED BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED OR THE THINGS TO BE SEIZED.

A Fourth Amendment "seizure" does not occur merely because an officer approaches a citizen and asks a few questions, or asks for identification. Detention occurs only if the person contacted is not free to leave at will, i.e., he is kept in the officer's presence by physical restraint (handcuffed), threat or force (gun is pointed at the suspect), or assertion of authority. Until the officer asserts some restraint on the person's freedom to move, no detention occurs. [The seminal case is Terry v. Ohio (1968) 392 U.S. 1]

An officer need not justify reasons for wanting to speak to someone. An officer may (1) approach a person in the street or public place, (2) ask a person if he/she is willing to answer some questions, (3) identify himself as an officer, (4) ask questions. All such acts do not convert a consensual encounter into a detention, and therefore, no seizure has occurred. In fact, a SIMPLE REQUEST for identification is not "per se" a detention. However, DEMANDING and RETAINING identification may be detention.

Clearly, what is deemed to be a mere consensual encounter or legal detention rising to a lawful arrest is a case-by-case analysis. The Fourth Amendment is a hotbed of new cases, evolving cases and unclear laws. But what appears to be clear is that an officer has a right to approach anyone in public to ask a few questions, or asks for identification, no detention occurs until the officer somehow restrains the person's freedom to move.

If, prior or upon detention, the officer reasonably believes the individual is involved in a criminal activity, the Fourth Amendment protections are triggered. An officer must have specific facts causing him/her to believe that (1) some criminal activity has occurred, and (2) the person stopped is involved in that activity.

The officer may detain the person for a reasonable amount of time, i.e. the amount of time it takes to confirm or dispel the suspicion. Reasonableness of the time frame depends upon whether officers conducted the detention in a "diligent" manner. Detention must end when it is determined that suspicions were unfounded or, with a traffic stop, when the citation is signed. Detention may be extended if after the initial stop additional cause exists such as the suspect provides false answers.

Officers may conduct a pat down search for weapons when he/she has reasonable cause to believe that the suspect is ARMED OR DANGEROUS, regardless of whether or not probable cause to arrest exists. Officer need not be absolutely certain that the person is presently armed. Some factors that the court have determined to justify pat down searches are including, but not limited to: nature of the crime being investigated; crime location is a known gang, drug or weapon problem, bulges under a suspect's clothing, behavior of the suspect.

However, the officer's permissible scope of pat down searches is limited. During the search, the officers may grip or otherwise manipulate a concealed object only if that action is necessary to determine if it is a weapon or could be used as a weapon. However, they are not entitled to remove any items from a person unless the officer has probable cause to believe it is contraband and "immediately recognizable" upon initial contact.

The Fourth Amendment dictates your rights to be seized and searched, whether in public or in your home. This right, however, is not absolute. Nonetheless, you do have the power to scrutinize and insure that the agents of the government work within the parameters set forth by this powerful law.

An arrest that leads to criminal charge against you do not begin at arraignment, it begins the second you are stopped by a police. From then on, an effective criminal defense lawyer should vigorously examine whether Fourth Amendment violations were committed and if so, a motion should be file. Insuring your rights means hiring an experienced and effective trial attorney.


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