Seizure, Arrest, and Terry Stops
The power to arrest is one of the most iconic police powers. Watching a cop slap their cuffs on a perp and lead them away is a prolific scene in any Law and Order-type media. The ability to cart the bad guys away is part and parcel with the idea of law enforcement. But as you would expect, the media does not tell the whole story. Police do arrest of course, but oftentimes the first interaction with a citizen is something different.
When we talk about arrest or its derivatives, what we’re really discussing is the police power to detain. When and how does an officer have the power to (lawfully) restrict your movement? As you may expect, the power to detain rises with the degree of apparent criminal activity. Or to put it another way, the more severe the criminal conduct, the more severe a detention an officer is permitted to do.
Now when we talk about lawfulness or permissibility or justification, we’re not talking about criminal conduct per se. It’s true no person, be it judge, police officer, or even president is above the law. But for police, actions that would be criminal for a regular citizen are not criminal for a police officer when acting in their official capacity. As an easy example, it’s not criminal for a police officer to cart someone off to a jail cell. For you or me? Not so much.
No, when a defense attorney talks about the lawfulness of a search or seizure, they are looking at the evidence obtained from the search or seizure. The basic rule is called the Exclusionary Rule which simply states evidence obtained unlawfully must be excluded from trial.
This is an important rule for anyone who wants to beat their criminal charge. If the initial stop was unlawful, all evidence found at that stop, as well as all evidence that flowed from that faulty stop, must be excluded, or suppressed. There are tomes of minutia and interpretation of this rule and its application, but there’s the basics.
Now what makes a seizure unlawful? The police are government actors, so the absolute limit of their power is the Constitution. For the Federal Constitution, the provision you are looking for is the Fourth Amendment:
“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, and the persons or things to be seized.”
Again, enormous volumes of text have been written interpreting the scope of this single sentence. But even those interpretations are not the end of the road. Besides the U.S. Constitution, Washington State also has a Constitution, with a somewhat similar provision in Article 1, Section 7:
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
The general rule is that if a State Constitution offers more protections to a citizen than the Federal, the State Constitution “trumps.” And our courts have indeed interpreted the above clause as more protective than the Fourth Amendment, since the Washington provision is an assurance of personal privacy, rather than a restraint against the government.
All this means is that government actors in Washington, i.e. police, have a higher hurdle to overcome for their seizure of Washington citizens.
Degrees of Detention
As I mentioned above, the permissibility of the government’s intrusion into a citizen’s privacy depends on two factors 1) the severity of the conduct of the citizen, and 2) the severity of the conduct of the officer. Let’s start with the second one first.
The least restrictive police action is the one where the citizen is free to terminate the encounter at any time. If a person is free to leave, then they haven’t been “seized” and the constitutional protections don’t kick in. So while nothing is stopping an officer of coming up to you on the street and asking “Committed any crimes lately?” nothing is preventing you from just walking away. If that interaction ever happened to me I’d probably get myself in trouble by saying something unprofessional, but that’s not recommended.
This is why I recommend you ask if you’re free to leave. It’s pretty hard to exclude statements someone makes voluntarily, i.e. under no showing of police power. If an officer asks you a question without a show of force, namely without detaining you, statements you make are considered “voluntary” and much more likely to be admitted. Whether it’s truly “voluntary” if an officer in full uniform is shining a light in your eyes while asking you questions is another matter. When someone is seized at all is another area of strenuous debate.
Now for the other end of the spectrum. When can a police use those cuffs and lock you up in a cell for a while, i.e. arrest? First, an arrest is not defined by reading Miranda rights (although is often indicative). An arrest is simply detention plus transportation, or merely an extended detention. Our courts have never determined the precise length of time for a detention to become an arrest, which is obviously a source of some contention for close cases. As we’ll soon see, the classification is quite relevant.
Things can get muddled at this point, but at the base level an arrest requires probable cause (PC). PC gets thrown around a lot, because it means different things in different contexts. For an arrest, the United States Supreme Court defined PC to arrest as “evidence that would warrant a prudent and reasonable [magistrate] in believing that a particular person has committed or is committing a crime.” Sibron v. New York, 392 U.S. 40, 75 (1968). It’s a loose definition, and goes to the archaic ways people used to get arrested.
Back in the day, an officer would provide an affidavit, maybe some other evidence to a judge or magistrate. The official would look over the evidence and determine whether PC to arrest was found. If so, they would sign off on an arrest warrant, and the cops would go and haul the named person off to jail. While this process is still on the books it’s somewhat rare, for a couple reasons.
One big reason is that police don’t need a warrant to arrest if they have PC to believe someone is committing or has committed a felony. Police also don’t need a warrant if a misdemeanor or gross misdemeanor is committed in the officer’s presence (the explanation for those classifications can be found here). Those two exceptions cover a lot of crimes, but there are even more exceptions, like confessions, if the time needed to get a warrant would cause evidence to be lost, and a bunch of others here. But even those exceptions generally require PC, which is a not insignificant standard.
But all that leads to the intermediate police response: Terry.
The Terry Stop
The Terry stop was borne of the landmark U.S. Supreme Court Case Terry v. Ohio, 392 U.S. 1 (1968). In Terry the Court held that the Fourth Amendment was not violated when police made a brief stop of someone to check for weapons or investigate, if the police had a “reasonable and individualized suspicion” (RIS) that the person was involved in criminal activity or poses a threat to public/officer safety. During a Terry stop the police can briefly seize someone, do a pat-down, and engage in questions related to the RIS to confirm or dispel their suspicions. If during the pat-down or the questioning the police discover evidence of a crime, well there’s the PC to arrest. I don’t have any hard numbers, but having read a lot of police reports in my day, I can say with confidence an enormous amount of charges are based off Terry stops.
“Terry recognizes that it may be the essence of good police work to adopt an intermediate response…A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146 (1972).
Terry has its limitations. Our Supreme Court has recognized Terry as a valid warantless exception for seizure, but also recognize the impact on privacy interests by the encounter. Thus the police, on a Terry stop, must be relatively brief, cannot transport the person except away from a source of weapons, and must ask questions only relating to the RIS. Questions outside RIS is either an arrest or a voluntary encounter. Hence, once again, my advice to ask if you’re free to leave. And, needless to say, not answering questions so as not to give PC to arrest.
RIS is below PC, and in general is enough of a loophole to drive a truck through. But it’s not completely unlimited. The police can’t do a Terry stop on a mere hunch, or because you are in a high-crime area, or because you are in the company of other suspected criminals, or because you have a criminal history yourself. Which isn’t to say that the police can’t stop you per se, but it does mean if the police found something, a good lawyer could get the evidence tossed under the exclusionary rule above.
Why the Classification Makes a Difference
RIS is a low standard, PC is higher still. If the police only had RIS to detain someone, but effectively arrested someone, then the stop can be challenged as a de facto arrest, with some positive evidentiary results. Under Terry the stop is lawful, for PC the stop is unlawful. An example:
Let’s say you were walking down the street and the police said they saw you exchange money for a baggie with an unknown substance. Those facts by themselves are below PC, i.e. no judge would sign an order having you arrested just on that. But it probably rises to RIS level. So an officer could come and talk to you, give you a pat down, ask a few questions. If during the pat down they found a gun, crack pipe, etc the evidence probably stays in.
But let’s say they approach you and pat you down and don’t find anything that’s obvious weaponry or contraband. Then let’s say they put you in the back of a cruiser while they go canvas the neighborhood to talk to the person they saw you make the exchange with. If they have you held while they gather evidence elsewhere, it’s probably an arrest. Since there’s no PC to arrest, anything they find could be suppressed. Statements you make could also be excluded.
It’s a big deal, and very fact specific. The advice is the same: stop talking and ask for your lawyer. But for admitting or excluding evidence for the future, and hence chances at trial, it can make all the difference.