Criminal defense in Austin Texas.

Search & Seizure, Terry Stops, and Helicopters

Posted By on February 10, 2009

Given how much time and effort lawyers and judges spend on search and seizure law, I’ve often wondered how police officers keep it all straight.

Well, the truth is, all the legal opinions written about the Fourth Amendment concern a relatively small number of cases.  They concern the cases where an officer has gone beyond what everyone agrees is legal, but not so far as to have done something that’s clearly wrong.  They pertain to the gray area.

It’s a bit like the story of the helicopter pilot, who was asked how close he could fly to the trees without crashing. He said he didn’t know, because he’d never tried to find out.  It’s easier to stay on the right side of the line, than to determine exactly where it stops.

Police are allowed to talk to people.  So long as an encounter is voluntary, a cop can talk to you, like anyone else.  He doesn’t need a reason.

If a cop wants to detain someone, however, he must have what’s called “reasonable suspicion.”  Reasonable suspicion means first of all that a police officer can articulate a specific reason for the stop.  If the answer to the question, “Why did you stop him?” is “I don’t know,” that’s not good enough.  “I had a hunch,” or “I had a feeling” also won’t work.

Second, the explanation must be “reasonable.”  Reasonable is, of course, in the eye of the beholder.  Lawyers spend a lot of time arguing about what’s reasonable, and what’s not.  But again, it’s mostly the close cases that wind up in court.

It’s always reasonable to stop someone who’s committed a crime – even a traffic violation.  A very high number of arrests start out as a traffic stop – for the very good reason that it’s virtually impossible to drive more than a few miles, without violating one traffic law or another.  (If a cop wants to stop a driver, he can always find a reason.)  Many other stops are likely to be reasonable as well.  If someone’s walking down the street, looking into cars, while carrying a screwdriver, courts are likely to say that stop is fine.  Courts look at the “totality of the circumstances,” so whether it’s day or night, or whether it’s a “high-crime area,” count as well.

On the other hand, some things are not reasonable.  Stopping somebody because of his race is not reasonable.  Stopping somebody because of what he’s wearing, or how he looks, or how he looks at you, will also not work.  Detaining somebody because he’s “got no reason to be there,” is also unreasonable, in my opinion, though some courts might disagree with me about that (I’m looking at you, Williamson County).

Temporary detentions, or “Terry stops,” are supposed to be short (only as long as “necessary”), and are supposed to involve as little force as possible.  Courts, however, are likely to sign off on anything that’s justified as “officer safety.”  (Quite reasonably, they don’t want to be accused of doing anything that might endanger an officer’s life.)  One of the things officers are allowed to do (for officer safety) is to pat down anyone they detain.  This is supposedly to find out whether the citizen has a weapon, but as a practical matter, cops find far more drugs than weapons, and one can’t help but wonder if that isn’t (usually?) what they’re looking for.

Over the years, courts have developed a whole field of law devoted to the question of what sorts objects officers can seize after feeling them through someone’s clothing.  Without going into all the kinds of “bulges” they’ve examined, the general rule is that if the cop can tell it’s not a weapon, but he can’t be sure that it’s drugs, he’s supposed to leave it alone.  Otherwise he’s free to seize it.

Again, this is for Terry stops only, or temporary detentions, where the cop has no more than a “reasonable suspicion.”


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