Chapter 05: Temporary Detentions

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Investigative Constitutional Law

Chapter 5: Temporary Detentions Detention DefinedDetention Defined A temporary detention is a A temporary detention is a Fourth Amendment seizure Fourth Amendment seizure of the of the

person, requiring person, requiring objectively objectively reasonable suspicion reasonable suspicion that the that the detainee is involved in criminal activity.detainee is involved in criminal activity.

OfficersOfficers may effect a temporary detention in order to may effect a temporary detention in order to conduct a conduct a brief investigation brief investigation of their suspicions, if that detention is of their suspicions, if that detention is properly justified and limited.properly justified and limited.

Related Case Law: Union Pacific Railroad Co. v. Botsford and Related Case Law: Union Pacific Railroad Co. v. Botsford and Reid v. GeorgiaReid v. Georgia

Reasonable Suspicion

Investigative Constitutional Law

Investigative Constitutional Law

Chapter 5: Temporary Detentions Detention DefinedDetention Defined1.1. Vehicle StopsVehicle Stops A vehicle stop may be made if there is reasonable suspicion that A vehicle stop may be made if there is reasonable suspicion that

an occupant is involved in criminal activity.an occupant is involved in criminal activity. For an officer to make a stop, the level of suspicion needed is For an officer to make a stop, the level of suspicion needed is

not probable cause, but reasonable suspicion—the same as for a not probable cause, but reasonable suspicion—the same as for a pedestrian stop.pedestrian stop.

2.2. Pedestrian StopsPedestrian Stops Temporary pedestrian stops, sometimes called “Temporary pedestrian stops, sometimes called “Terry Terry stops,” stops,”

may be made on the basis of reasonable suspicion of criminal may be made on the basis of reasonable suspicion of criminal involvement.involvement.

Investigative Constitutional Law

Chapter 5: Temporary Detentions Detention DefinedDetention Defined3.3. ““Attempted Detention”Attempted Detention” There can be no evidentiary “fruits” of an unlawfully-attempted There can be no evidentiary “fruits” of an unlawfully-attempted

detention. Reasonable suspicion must be measured as of the detention. Reasonable suspicion must be measured as of the time of the completed stop.time of the completed stop.

4.4. Other DetentionsOther Detentions Occupants of a residence where a valid search warrant is being Occupants of a residence where a valid search warrant is being

served may be lawfully detained while the search is conducted.served may be lawfully detained while the search is conducted.

Investigative Constitutional Law

Chapter 5: Temporary Detentions The “Reasonable Suspicion” StandardThe “Reasonable Suspicion” Standard ““Reasonable Suspicion” means reasons that can be articulated Reasonable Suspicion” means reasons that can be articulated

(put into words) that suggest that a particular person may be (put into words) that suggest that a particular person may be involved in criminal activity.involved in criminal activity.

1.1. Contrast with Probable CauseContrast with Probable Cause Reasonable suspicion is less than probable cause.Reasonable suspicion is less than probable cause.2.2. The “Collective Knowledge” DoctrineThe “Collective Knowledge” Doctrine Reasonable suspicion can be based on the collective knowledge Reasonable suspicion can be based on the collective knowledge

of officers who share information with each other.of officers who share information with each other.

Investigative Constitutional Law

Chapter 5: Temporary Detentions The “Reasonable Suspicion” StandardThe “Reasonable Suspicion” Standard3.3. Observations, Training and ExperienceObservations, Training and Experience Inferences based on investigative Inferences based on investigative trainingtraining and and experienceexperience may may

transform apparently-innocent behavior into reasonable transform apparently-innocent behavior into reasonable suspicion for a stop.suspicion for a stop.

4.4. Anonymous PredictionsAnonymous Predictions An anonymous prediction of a suspect’s future behavior that An anonymous prediction of a suspect’s future behavior that

could not be known by a casual observer and that is could not be known by a casual observer and that is corroborated by police observations can provide reasonable corroborated by police observations can provide reasonable suspicion for a detention. (Discuss) suspicion for a detention. (Discuss)

Investigative Constitutional Law

Chapter 5: Temporary Detentions The “Reasonable Suspicion” StandardThe “Reasonable Suspicion” Standard5.5. Anonymous TipsAnonymous Tips Except in unusual circumstances and places, a Except in unusual circumstances and places, a purely purely

anonymous tip of uncorroborated anonymous tip of uncorroborated criminal activity does not criminal activity does not justify a detention or search.justify a detention or search.

6.6. Hunches Hunches and and Racial ProfilingRacial Profiling Detentions cannot constitutionally be based on hunches or on Detentions cannot constitutionally be based on hunches or on

the race of the person to be detained.the race of the person to be detained.

Investigative Constitutional Law

Chapter 5: Temporary Detentions The “Reasonable Suspicion” StandardThe “Reasonable Suspicion” Standard7.7. Drug Courier ProfilesDrug Courier Profiles A specific criminal profile can constitute reasonable suspicion A specific criminal profile can constitute reasonable suspicion

for detention.for detention.8.8. Unprovoked Flight in High Crime AreaUnprovoked Flight in High Crime Area Police may not stop a person for ID just because he or she is in a Police may not stop a person for ID just because he or she is in a

high crime area, but may do so if the person suddenly flees upon high crime area, but may do so if the person suddenly flees upon seeing approach of police.seeing approach of police.

Investigative Constitutional Law

Chapter 5: Temporary Detentions CheckpointsCheckpoints1.1. Border StopsBorder Stops Fixed checkpoints Fixed checkpoints at or near the border may be used to make at or near the border may be used to make

brief immigration checks.brief immigration checks.2.2. DUI and License CheckpointsDUI and License Checkpoints Vehicles cannot be stopped randomly for license inspections, Vehicles cannot be stopped randomly for license inspections,

but but fixed checkpoints fixed checkpoints can be used for brief screening stops can be used for brief screening stops according to a fixed formula to check for according to a fixed formula to check for licenselicense violations and violations and to spot to spot intoxicated driversintoxicated drivers, as well as proper , as well as proper child safety seat child safety seat use.use.

Investigative Constitutional Law

Chapter 5: Temporary Detentions CheckpointsCheckpoints3.3. Witness CheckpointsWitness Checkpoints Temporary checkpoints can be established to solicit public Temporary checkpoints can be established to solicit public

assistance where reasonably likely to facilitate contact with assistance where reasonably likely to facilitate contact with witnesses to a recent serious crime in the area.witnesses to a recent serious crime in the area.

4.4. RoadblocksRoadblocks Roadblock-checkpointsRoadblock-checkpoints can be constitutionally constructed and can be constitutionally constructed and

operated in operated in emergency and public-safety situations, emergency and public-safety situations, but cannot but cannot be randomly employed to detect ordinary criminal conduct by be randomly employed to detect ordinary criminal conduct by the motoring public.the motoring public.

Investigative Constitutional Law

Chapter 5: Temporary Detentions Scope of ActivityScope of Activity1.1. Length of DetentionLength of Detention Temporary detentions can Temporary detentions can only last as long as necessaryonly last as long as necessary to to

confirm or dispel the suspicious circumstances that justified the confirm or dispel the suspicious circumstances that justified the initial stop, unless initial stop, unless new discoveries justify extending the new discoveries justify extending the detention detention longer.longer.

2.2. Demand for IDDemand for ID Within the scope of a lawful detention, the detained person may Within the scope of a lawful detention, the detained person may

be required to identify himself or herself.be required to identify himself or herself.

Investigative Constitutional Law

Chapter 5: Temporary Detentions Scope of ActivityScope of Activity3.3. Field FingerprintingField Fingerprinting Within the scope of a lawful detention, officers may take Within the scope of a lawful detention, officers may take

fingerprint exemplars where prints might reasonably incriminate fingerprint exemplars where prints might reasonably incriminate or exonerate the suspect. (Modern Technology) or exonerate the suspect. (Modern Technology)

4.4. Request Consent to SearchRequest Consent to Search During a lawful detention, a law enforcement officer may During a lawful detention, a law enforcement officer may

request consent to searchrequest consent to search, and there is no constitutional , and there is no constitutional necessity to tell the person he or she is free to leave beforehand.necessity to tell the person he or she is free to leave beforehand.

Investigative Constitutional Law

Chapter 5: Temporary Detentions Scope of ActivityScope of Activity5.5. Plain View ObservationsPlain View Observations Evidence seen in Evidence seen in plain view plain view during a lawful detention may during a lawful detention may

contribute to justification for further search or seizure activity.contribute to justification for further search or seizure activity.6.6. Ordering Out and DetainingOrdering Out and Detaining At a lawful traffic stop, the driver and all passengers may be At a lawful traffic stop, the driver and all passengers may be

ordered out of the vehicle and temporarily detainedordered out of the vehicle and temporarily detained, without , without violation of the Fourth Amendment. (Officer Safety) violation of the Fourth Amendment. (Officer Safety)

Investigative Constitutional Law

Chapter 5: Temporary Detentions Scope of ActivityScope of Activity7.7. VIN InspectionVIN Inspection Within the scope of a lawful vehicle stop, officers may routinely Within the scope of a lawful vehicle stop, officers may routinely

inspect the inspect the VINVIN..8.8. K-9 SniffK-9 Sniff The scope of a lawful detention includes conducting a prompt The scope of a lawful detention includes conducting a prompt

K-9 sniff of the person or vehicle of the detainee, where this can K-9 sniff of the person or vehicle of the detainee, where this can be done be done without further delaywithout further delay. (A Sniff is not a Search). (A Sniff is not a Search)

9.9. Use of ForceUse of Force ReasonableReasonable force may be used to accomplish a lawful detention. force may be used to accomplish a lawful detention.

Investigative Constitutional Law

Chapter 5: Temporary Detentions Detention Converted to De Facto ArrestDetention Converted to De Facto Arrest The involuntary movement of a suspect for a The involuntary movement of a suspect for a substantial substantial

distancedistance constitutes a constitutes a de facto de facto arrest, which must be supported arrest, which must be supported by probable cause.by probable cause.

““Status Quo” DetentionsStatus Quo” Detentions A temporary detention can sometimes be made to maintain the A temporary detention can sometimes be made to maintain the

status quo of a suspicious situation pending investigation. status quo of a suspicious situation pending investigation. (Restore Order, Keep the Peace)(Restore Order, Keep the Peace)

Objective StandardObjective Standard The constitutionality of detentions is determined on an The constitutionality of detentions is determined on an

objective objective basis.basis.

Investigative Constitutional Law

Chapter 5: Temporary Detentions Civil Liability for Unlawful DetentionCivil Liability for Unlawful Detention To prevent civil liability from arising from temporary To prevent civil liability from arising from temporary

detentions, law enforcement officers must have reasonable detentions, law enforcement officers must have reasonable suspicion to justify the detention and must have a valid suspicion to justify the detention and must have a valid justification for any use of force. justification for any use of force.

If an officer acting under color of law detains a person If an officer acting under color of law detains a person without reasonable suspicion, or uses excessive force to without reasonable suspicion, or uses excessive force to accomplish an otherwise lawful detention, civil liability accomplish an otherwise lawful detention, civil liability may result. may result.