The following report covers one of the presentations during the fifth week of the Spring 2012 session of the Fairfax County Citizens Police Academy, which took place at the West Springfield Police Station.
Imagine a local resident sees a youth with a backpack and flashlight looking into cars in the middle of the night and makes an anonymous call to the police. An officer on patrol sees the kid walking down the street. Can he legally search him?
Lt. Darrin M. Day used that scenario to explain to participants in the Citizens Police Academy the legal issues surrounding reasonable suspicion, probable cause, and the use of force when an officer confronts a possible suspect.
The key court decisions on this matter stem from the Fourth Amendment to the Constitution, which protects people from unreasonable searches and seizures.
Day says officers prefer to start with a consensual encounter, so in this case, he would ask the suspect to sit on the ground. If an officer asks for an ID, it’s still a consensual situation, and does not infringe on the person’s Fourth Amendment rights, he says, “as long as a reasonable person would understand they could refuse to cooperate and excuse themselves from the encounter.”
But if the officer demands an ID, it is no longer consensual. If the suspect refuses to comply, Day says he would try to intimidate him into handing over an ID.
An officer is allowed to conduct an investigative stop if he or she has “reasonable suspicion” that criminal activity has occurred or is about to occur, he says. An officer can frisk a suspect if there is a possibility the suspect is armed and constitutes a danger to the officer or someone else.
Day says a pat down is sometimes crucial, because a suspect could have a gun, knife, or needles infected with HIV or hepatitis C. “A needle scares me more than anything,” he says.
With regard to the example of the kid with the flashlight, Day says, “depending on his tone of voice and actions, I might ask to look in his backpack.”
An investigative stop is also known as a “Terry stop,” he explains, which stems from the U.S. Supreme Court’s 1968 ruling in Terry v. Ohio that said police officers must be able to take action even though probable cause to arrest does not exist. That case involved a police officer who observed two men walking past a store and peering inside repeatedly. The officer stopped them, patted them down, found firearms, and learned they had been preparing to rob the store.
The court ruled that the police have the right to act when there is reasonable suspicion; they don’t have to wait for a crime to be committed.
A 1983 Supreme Court ruling in Michigan v. Long extended Terry to allow the police to search an area within a suspect’s reach where a weapon may be found. So in the case of the youth looking in cars, Day says, an officer can search his backpack, as long as there is reasonable suspicion that the suspect is dangerous or may gain easy access to a weapon.
The police officer will try to get the suspect on the ground, using mace or a stick if necessary, Day says. If the suspect hits the police officer, he faces a mandatory six months in jail and no suspended sentence. “I don’t make the decision to hit you,” he says. “You make the decision to resist.”
When considering whether to conduct a “Terry stop,” Day says several factors should be taken into account: whether the suspect has a prior felony record, fits the description of a wanted notice, looks like he’s hiding something, is in an area with a history of recurring crime at that hour, fits the description given by a tipster, or is staggering or appears to be in need of medical attention. Day says he has “driven more drunks home than I’ve ever arrested.”
Officers can use reasonable force if necessary during an investigative stop, such as making a suspect lie on the ground, pointing a service weapon at a suspect for the officer’s protection, ordering a suspect out of a vehicle, or handcuffing him.
An officer can detain a suspect as long as necessary to carry out a “diligent active investigation,” Day says. That could take 20 minutes or an hour. “There is no set time limit.”
With regard to the youth suspected of breaking into cars, he says, the suspect could be detained while back-up officers patrol the street to look for cars with broken windows. If they find stolen property, weapons, or broken glass on the youth, they can arrest him. If not, they will take his picture, write a police report, and let him go.
According to Day, an officer has “probable cause” to arrest someone “when the facts and circumstances when, taken together with rational inferences, would lead a prudent person to believe that a crime is being or has been committed.” There is probable cause to carry out a search when “evidence of a crime or contraband” is present. If a cop smells weed in your car, for example, he can search it.
Day says the Fairfax County Police Department’s policy allows the use of force “only to the extent reasonable necessary to accomplish lawful objectives.” If a suspect falls to the ground after being hit, the officer can’t continue to hit him, Day says.
Officers are supposed to take the severity of the crime into account when using force. For example, Day says, they wouldn’t use a taser on a litterer. Other factors to be considered include the nature of the threat posed by the suspect, the degree to which the suspect resists arrest, and whether the suspect tries to flee.
The Supreme Court ruled (Graham v. Connor) that an officer’s actions in using force must be “objectively reasonable” in light of the facts and circumstances and must take into account that officers make split-second decisions in uncertain, rapidly evolving situations.
There are different levels of resistance when officers attempt to arrest a suspect, Day says. A cooperative subject puts his hands behind his back when asked. A passive resister would say something like, “No I’m not.” An active resister would pull away, and an assailant might say, “come and get me.”