Know Your Rights: Police Citizen Encounters.

February 12, 2017

Judicial interpretation of the coverage and meaning of the 4th amendment have changed over the years. The amendment consists of two conjunctive clauses, one prohibiting unreasonable searches and seizures:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
The other requires a search warrants issue only on a showing of probable cause:
“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.”
The amendment also specifies that the people shall be secure in “their persons, houses, papers, and effects.” The meaning of this phrase has evolved from a strict property law concept, to a more nebulous expectation of privacy rational, and the amendment must continue to evolve.
In early cases dealing with the Fourth Amendment the interests protected were defined in terms of property law concepts. The early case made it clear that the Supreme Court gave a fairly literal reading to the Amendment. In determining whether a Fourth Amendment “search” had occurred the Supreme Court looked to whether “protected zones” had been in¬vaded by government officials. These protected zones were based on the language of the amendment and roughly approximated the borders of a person’s property.
The first important attempt to redefine the Fourth Amend¬ment away from the notions of property law occurred in Justice Brandeis’s dissent Olmstead v. U.S., 277 U.S. 438 (1928). The majority in the case found, in a literal reading of the Fourth Amendment, that a person’s conversa¬tion was not “property.” So the government’s wiretapping of his conversation was not cov¬ered by the amendment. Justice Brandeis found this result untenable. He contended, “every unjustifiable intrusion by the Government upon the private life of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Justice Brandeis defined the interest protected by the Fourth Amendment in terms of the individuals “right to privacy,” and not strictly in terms of the person’s property interest. Over a period of time Justice Brandeis’s view was accepted.
In Katz v. U.S., 389 U.S. 347 (1967), the Supreme Court adopted the Brandeis view, and ruled that the Fourth Amendment protects “people, not places,” and that a search occurs only when the government intrudes upon a person’s reasonable expectation of privacy. Beginning with Katz v. U.S., 389 U.S. 347 (1967), and extending through Chimel v. California. 395 U.S. 752 (1969), Coo¬lidge v. New Hampshire. 403 U.S. 443 (1971), and U.S. v. U.S. District Court. 407 U.S. 297 (1972), the Supreme Court articulated the notion that searches must be conducted pursuant to a warrant in order to meet the reasonableness standard of the Fourth Amendment, subject only to a few narrowly drawn exceptions to the rule.
Police/Citizen Encounters
Police-citizen encounter without a warrant can be classified as one of four types of intrusions, each of which requires its own level of justification:
(1) A contact, which involves a minimal restriction on liberty, does not implicate the Fourth Amendment, and requires no justification.
(2) A stop constitutes a seizure under the Fourth Amendment and is justified only if the police have a reasonable, articulable suspicion that the person has been, or is engaged in criminal activity.
(3) A frisk, which must be preceded by a lawful stop, and is justified only if the police have reason to believe the person is armed and dangerous; and
(4) An arrest that is justifiable only if the police have probable cause to believe the person has committed or is committing a crime.
Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in any public place, and asking him if he is willing to answer some questions, or putting questions to him, if the person is willing to listen. Police-citizen exchanges which take place under circumstances in which the citizen’s freedom to walk away is not limited by anything other than his desire to cooperate with the officer do not amount to a seizure of the person. The test for whether a person has been seized is an objective one the question is whether the person feels s/he is free to walk away, what a reasonable person innocent of any criminal conduct would have thought had he been in the defendant’s shoes.”
The Metropolitan Police Department has recognized the standard with respect to the reasonableness of police conduct. The order states, “conduct by an officer which places the sworn member in face-to-face communication with an individual citizen under circumstances in which the citizen is free not to respond, and to leave, is considered a contact. MPD General Order, Series 304, No. 10 (Police-Citizen Contacts, Stops, Frisks, July 1, 1973)
A “Terry stop,” in contrast to a “contact,” is any encounter, short of an arrest, in which an individual is restrained. Whenever a police officer accosts an individual and restrains his freedom to walk away, the person has been seized person. Thus a brief detention of a suspect in an alley for the purpose of asking him to identify himself was a Terry stop and unjustifiable, Brown v. Texas, 443 U.S. 47 (1979).
A stop can be the result of either “physical force, or a show of authority” on the part of the police. For example, the Court of Appeals found that when a police officer ordered an individual to “come here” in a stern and commanding tone twice, that individual was seized within the meaning of the Fourth Amendment, In re D.T.B., 726 A.2d 1233 (D.C. 1999);
Other examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer; some physical touching of the person of the citizen; or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
A Terry stop can only be justified if the officer’s has a reasonably, articulable suspicion that a crime has been, is being, or is about to be committed by the suspect. (Note: MPD General Order, Series 304, No. 10, permits only limited questioning of the Terry detainee)
“The officer may direct questions to the detained person for the purpose of obtaining their name, address, and an explanation concerning their presence and conduct.” More persistent questioning may be custodial interrogation, marking the detention as an arrest.
“A refusal to listen, answer, or cooperate with the police does not furnish grounds for an investigatory stop” Duhart v. United States, 589 A.2d 859 (D.C. 1991).
Refusing to provide identification is neither a crime nor, in most circumstances, even a ground for suspecting criminal activity.” United States v. Wylie, 569 F.2d 62, 69 (D.C. Cir. 1977). The ability and willingness to produce facially valid identification, however, is at least a slight indication that the individual may not be engaged in criminal conduct.
The Supreme Court determined in Florida v. Bostick, 501 U.S. 429, 437 (1991), that refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. In justifying a particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Further, the suspects actions must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” See, e.g., Sibron v. New York, 392 U.S. 40, 73 (1968)
“There must be something, at least in the activities of the person being observed or in his surroundings, that affirmatively suggests particular criminal activity, completed, current, or intended” (Donald) Jones v. United States, 391 A.2d 1188 (D.C. 1978); (George) Coleman v. United States, 337 A.2d 767 (D.C. 1975). In making that assessment it is imperative that the facts be judged by an objective standard. Would the facts known to the officer at the moment of the seizure or the search warrant a man of reasonable caution in his belief that the action taken was appropriate? An “articulable suspicion” must be based on behavior unusual enough to plant the seeds of suspicion in the mind of a trained police observer, Kenion v. United States, 302 A.2d 723 (D.C. 1973).
It is not enough that an officer concludes that a citizen “looked suspicious” unless the officer can support that conclusion with facts, Brown v. Texas, 443 U.S. 47 (1979). Concrete facts not inchoate suspicion must underlie a Terry stop, United States v. Cortez, 449 U.S. 411(1981). The totality of the circumstances, the whole picture, must be taken into account.
There must be something in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended. (Donald) Jones v. United States, 391 A.2d 1188 (D.C. 1978); (George) Coleman v. United States, 337 A.2d 767 (D.C. 1975).
Sources of relevant information can include (1) The particular activity of the person stopped for questioning which the investigating officer has observed; (2) The officer’s knowledge about (a) the activity and the person observed and/or (b) the area in which the activity is taking place, and (3) the immediate reaction or response of the person approached and questioned by the officer.
Police observed of a car lawfully parked in a high narcotics area, with three occupants, windows rolled up, and excessive smoke inside? The appellate court held there was not sufficient information to support more than mere suspicion, and a Terry stop was ruled invalid, see Hemsley v. United States, 547 A.2d 132 (D.C. 1988),
Experienced police officers saw Mr. Smith talking to suspected drug dealers in a high narcotics trafficking area. Mr. Smith walked from the scene at a fast pace upon the arrival of plainclothes officers in an unmarked car. Again the appellate court held the police did not have a reasonably articulable suspicion sufficient to stop absent evidence that Mr. Smith knew the police had arrived. (John H.) Smith v. United States, 558 A.2d 312 (D.C. 1989),
There was no reasonable suspicion where an officer saw defendant and another individual examining an object, the defendant shoved the item in his pocket when the police approached, would not answer questions, and reluctantly removed hand from pocket when twice asked to do so. Duhart v. United States, 589 A.2d 895, 898-99 (D.C. 1991)
Terry v. Ohio, 392 U.S. 1 (1968), approved not only certain seizures of the person in the absence of probable cause, but also a limited kind of search dubbed a “frisk.” A frisk can be performed only if a valid Terry stop has been executed, and the officer has a reasonable belief that a suspect is armed and dangerous. The Court sanctioned, under limited circumstances, an officer’s “carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault him.” While an individual may only be frisked after a valid stop, a valid stop alone does not justify a frisk. A frisk must be supported by an independent justification. (Taylor) Mayes v. United States, 653 A.2d 856(D.C. 1995); In re R.M.C., 719 A.2d 491 (D.C. 1998).
A frisk is forbidden absent specific and articulable facts indicating not only that “criminal activity may be afoot,” but also “that the persons with whom [the officer] is dealing may be armed and presently dangerous.” Terry, 392 U.S. at 30.24 “The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” The frisk cannot be sustained if the evidence establishes that the true purpose behind it was something other than protection.
Whether there was probable cause to make an arrest is viewed from the perspective of a reasonable, cautious, and prudent peace officer ‟and must be judged in light of his experience and training.” Munn v. United States, 283 A.2d 28 (D.C. 1971). The question is whether officers in the particular circumstances, conditioned by their observation and information, and guided by their experience, reasonably could have believed that the person to be arrested had committed a crime.
Vehicle Stops
Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment even though the purpose of the stop is limited and the resulting detention brief.” As with the stop of an individual on the street, the level of seizure of a person in a car is determined by reference to objective circumstances and the subjective feelings those circumstances evoke. Relevant factors include the officer’s intent in stopping the car, the impression conveyed to the occupants as to whether they were in custody or only briefly detained for questioning, the length of the stop, the questions asked, if any, and the extent of the search, if any was made. The intrusion must be “reasonably related in scope to the justification for its initiation.”
Thus, when the police stop a car based on a traffic violation, they may not, by virtue of that traffic violation alone, frisk the driver. During a traffic stop, the police may detain the car’s occupants only for the time required to issue a ticket and check the driver’s license and registration.
There is no automatic right for police to order occupants out of a car for a parking violation, Carr v. United States, 758 A.2d 944 (D.C. 2000). Citing Pennsylvania v. Mimms, 434 U.S. 106, 111, n.6. However without further articulable suspicion, the police may order the driver and any passengers out of the car based on the hazards inherent whenever an officer approaches a stopped car. Any further intrusions must be based on objective circumstances apart from the mere traffic violation.
The standard is no different for Terry frisks conducted during the stop of a car. United States v. Page, 298 A.2d 233 (D.C. 1972) held that the police lacked grounds to frisk a passenger where the car had been stopped because of a traffic violation and the police saw the passenger make certain “furtive gestures.” See also (Taylor) Mayes, 653 A.2d at 862-63 (driver’s traffic infraction standing alone cannot justify passenger’s frisk); Powell v. United States, 649 A.2d 1082, 1091 (D.C. 1994) (frisk of driver unjustified where officers saw driver bend or duck toward passenger side of car before traffic stop); (Jesse) Tyler v. United States, 302 A.2d 748 (D.C. 1973) (furtive gestures by sole occupant of car insufficient to justify protective search).
But see In re D.E.W., 612 A.2d 194 (D.C. 1992) (frisk justified when movement is not ambiguous, but is identified as attempt to conceal weapon); United States v. (Robert) Johnson, 212 F.3d 1313, 1316-17 (D.C. Cir. 2000) (frisk justified where continued shoving down motion in response to police confrontation suspicious enough to suggest criminal activity).
During a traffic stop, the police may detain the car’s occupants only for the time required to issue a ticket and check the driver’s license and registration. See Carr v. United States, 758 A.2d 944 (D.C. 2000) (there is no automatic right for police to order occupants out of a car for a parking violation) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111, n.6 (1977)). However, without further articulable suspicion, the police may order the driver and any passengers out of the car based on the hazards inherent whenever an officer approaches a stopped car. Mimms, 434 U.S. at 111; Maryland v. (Jerry) Wilson, 519 U.S. 408 (1997).

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