police4aqi

Police, The Fourth Amendment, Qualified Immunity

Terry stop law reform proposals

with 6 comments

I am not a big fan of Terry stops in general, because they are warrantless seizures, and, moreover, because police routinely try to escalate Terry stops to get arrests out of them.

However, I am pretty resigned to the fact that Terry stops are here to stay for the foreseeable future.  I would like to propose three reforms to reign in Terry stops a bit at the margin:

  1.  That a police officer be required to use the words “Terry stop” (as in “stop, you, this is a Terry stop”) before there is any duty for the suspect to stop.  That way, there will not be issues regarding whether the police officer was ordering, as opposed to merely requesting, a stop.
  2. That a police officer has to say what crime she suspects before any questioning and/or pat down.  This helps innocent people bring and support civil suits for unconstitutional Terry stops that are not actually grounded in reasonable suspicion.
  3. That a police officer may not Terry stop somebody who is on her own property (that is, in her home, in her curtilage and/or in any open fields that she owns).  I simply don’t think it is reasonable to allow police to Terry stop a person on her own property.

For what it is worth, here is a recent case that gotten me thinking again about proposed reforms #1 and #3 in the above list:

PANARELLO v. City of Vineland, Dist. Court, D. New Jersey 2016

 

Written by Burgers Allday

February 13, 2016 at 1:30 pm

Posted in Uncategorized

6 Responses

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  1. the first one’s a good idea (maybe don’t call it a ‘terry stop’); but it matters at least as much that people know when they are NOT being detained. so maybe 1b should be that if there is any question as to whether a person is being detained the LEO should have to say “I would like to talk to you but I am not ordering you to stay”
    I think LEOs could have some reasonable objections to #2, because it could interfere with their ability to investigate.
    The third one sounds good, but what if an airline pilot radios in a complaint about a laser pointer messing with him from a vicinity and the cops see me walking around in my backyard with a laser pointer? i dunno

    Bill O'Brien

    February 15, 2016 at 4:48 pm

  2. Thanks for the interesting critique, Mr. O’Brien. On the laser pointer scenario type objection I would say that there is probable cause (and, if needed, exigent circumstances). So that hypo is not a Terry stop situation.

    Burgers Allday

    February 15, 2016 at 5:24 pm

  3. As far as your critique about #2, imagine that you are NOT in a stop and identify state and have no duty to give a name on mere RS. Would you be more likely to give your name to: (i) a police officer who doesn’t say what he suspects you of; or (ii) one who does say what he suspects you of. I would be more likely to volunteer info to an officer who tells me what I am suspected of, especially if I know that it is a Constitutional violation for the officer to tell me that he suspects me of something that turns out to be an unreasonable suspicion. I mean I wouldn’t do a lot of talking on a Terry stop regardless of circumstances, but, at the margin, I would be more likely to give some information (like my name) if I knew what I was suspected of and why I was suspected of it.

    Burgers Allday

    February 15, 2016 at 5:32 pm

    • i take it your reason for wanting #2 is to prevent cops from making up rs after the fact; which they might do in order to defeat a motion to suppress or a 1983 suit. and that makes sense. i was just thinking that there might be circumstances in which the cops want to question me without telling me what crime they suspect me of. maybe they pull me over because they think i’m a terrorist but tell me — at the time — that they are doing so because they think i might be intoxicated. …..i guess the cops could record a statement of subjective rs at the time out of the hearing of the suspect. …..or did you mean that it is important for the suspect to know the subjective rs at the time of the stop?

      Bill O'Brien

      February 16, 2016 at 10:38 pm

      • well, I have two different responses to your comment.

        1. Terry stops generally aren’t about interrogating suspects. There are different reasons for Terry stops. Probably in most cases they are about trying to find contraband on the suspect. In other cases they are to fish for outstanding warrants (or to get the suspect to refuse to hand over identification papers and then arresting the suspect for obstruction). In some cases the stop is to present the suspect to a witness. But, what Terry stops are not about is to give the suspect a chance to tell his side of the story, and, in the process, perhaps defeat probable cause that otherwise might have existed. Terry stops should be about that, but they really aren’t. For a recent case where officers were not interested in what the suspect had to say, see:

        https://scholar.google.com/scholar_case?case=8091740679846853491&q=%22fourth+amendment%22+%22qualified+immunity%22&hl=en&scisbd=2&as_sdt=6,33

        2. Even if police officers were generally interested in getting suspects to talk on Terry stops, they are much more likely to get that to happen if they say why the stop is occurring and to be honest about it. Police like to lie to suspects in cases where they have probable cause to arrest (or have already arrested the suspect). However, if the police officer only has RS, then explaining the RS is much liklier to convince the suspect that the police are acting in good faith and to explain their side of the story. If the RS is real, then most people will understand the reason for the imposition and try to co-operate (even if that is not really what they should do in their best legal interests). This idea that police are going to get people to give information, without themselves giving some information to the suspect is unrealistic. But, that kind of brings us back to point #1. Police on a typical Terry stop are trying to get the suspect’s id card and determine what, if anything, is in her underwear. They are not interested in helping the suspect say things that will clear the suspicion. On cop boards, police officers say that they are interested in that, but in reality they are not.

        3. CAVEAT: I am not saying that there are no exceptions to #1 and #2, but I believe that the exceptions are rare compared to how often police Terry stop on insufficient RS, secure in the knowledge that it will be impossible to prove later that they had insufficient RS. That is why, considered in the aggregate, the benefit of requiring a police officer to set forth, for the benefit of the suspect, her basis for RS at the outset of the Terry stop outweighs the rather speculative potential harm caused when the suspect decides not to talk precisely because the police officer disclosed her basis for RS.

        Burgers Allday

        February 17, 2016 at 9:16 pm

        • thanks for your thoughtful response. i think we may have in mind different scenarios as typical terry stops. but i would defer to you on what really is typical. in any case, i agree with you. when i am being detained on the basis of reasonable suspicion, it must be rs of something in particular; general suspicion isn’t enough. and, on the whole, it would be best if police were required to tell suspects what in particular they are suspected of, in order to hold them based on reasonable suspicion. that seems fair….but of course the police could still lie, or simply be mistaken about the real (“objective”) basis for the rs.

          Bill O'Brien

          February 18, 2016 at 9:25 am


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