Police investigate people they believe have committed, or are actively committing, crimes. They determine who the bad guys are and they bring those bad guys to justice. But how do they determine who the bad guys are when it's not obvious? Since people don't usually wear shirts that boldly say “I'm a bad guy committing a crime”, how does a police officer look into something that they think seems fishy without making a full on arrest? Enter: Pre-arrest, Investigative Detentions.
A pre-arrest detention is a term I use to refer to an interaction between you and a police officer wherein that officer has kinsly interrupted your day to investigate you for a crime. In other words, he or she thinks sooooomething fishy is going on and want to look deeper. But can an officer really detain you in any way without first having probable cause to arrest you? Yes. Yes they can.
These pre-arrest, pre-probable cause, what is making that fish smell type interactions really come in two flavors:
1. Consensual Encounter
These Pre-arrest investigative detentions are actually not legally detentions at all. They are more of an interaction between a citizen and an officer that is consensual on the part of the citizen. What does this mean?
It means that, as long as the officer has the right to be in the physical location where the encounter occurs, they apply no physical force or make no show of force to make the encounter happen and a reasonable person in your position would feel free to disregard that officer and go about your business, they can talk to you about anything under the sun. Courts hold that, even when officers are in uniform with a gun in its holster and an active radio on their shoulder, these casual encounters are not the type of investigative detentions that trigger your 4th Amendment rights.
So, who cares? You should. So long as your interaction with an officer remains a “casual encounter”, your 4th Amendment right against unreasonable search and seizure does not apply.
Suppose you are standing in line at a Walgreens in front of a uniformed police officer about to buy some cold medicine. The officer asks you what the cold medicine is for and you blurt out that the cold medicine is for your Meth kitchen.
At your future trial for the attempted manufacturing of Meth, that statement would be used against you. These types of investigative detentions are casual encounters because the officer had a right to be in the Walgreens and you were free to leave at any point. You are afforded no 4th Amendment protections here because you are not seized under the law.
Moral of the story: If a cop casually asks you what the cold medicine is for, the answer should always unequivocally be “for a cold”.
2. Investigative Detentions, i.e. the Terry Stop
These more intrusive investigative detentions occur when police stop you because they suspect that you are involved in criminal activity and they detain you so that they can investigate.
A Terry Stop is more intrusive than a consensual encounter because you are “seized” and your 4th Amendment rights attach. How do you know you have been seized? When you or any other reasonable human in your shoes would not feel free to leave because the officer has physically restrained you or ordered you to stay put. Once seized, unlike consensual encounters, your 4th Amendment right to be free from unreasonable searches and seizures attach. Huzzah!
What makes Terry Stop investigative detentions reasonable? To be reasonable, the officer initiating the stop must have reasonable suspicion based upon articulable facts that you are involved in criminal activity. Just what level of suspicion is, or is not, reasonable has been defined and re-defined by state and federal courts across this land. We know it is something less than probable cause, but something more than an officer's hunch. Once a Terry Stop is initiated, the officer may pat you down for weapons and detain you for as long as necessary to confirm or dispel their suspicion.
Refer to the Walgreens scenario above, only this time imagine that, instead of outing your Meth production business, you pay for the cold medicine and go into the bathroom. The officer follows you into the bathroom, shows you his badge, identifies himself as an officer, and orders you out of the bathroom for questioning. Once outside of the bathroom, the officer sees a bulge in your coat pocket so he pats you down for weapons only to find a rather large baggie of methamphetamine instead.
In this scenario, your 4th Amendment rights attach the minute he confronts you in the bathroom, shows his authority as an officer and orders you outside for questioning because a reasonable person in your position would not feel free to leave. As such, the officer would need reasonable suspicion based on articulable facts that you were involved in criminal activity at the time he confronted you for the detention to be reasonable. If the detention was reasonable, the baggie of Meth he finds would not be suppressed and could be used against you at trial. If it was unreasonable, they would.
Based only on the facts I have given you in this example, that officer likely did not have suspicion that was reasonable. But, police officers aren't dumb. They know some criminal defense attorney like myself will later be scrutinizing the reasonableness of their suspicion and so the facts are not usually this straight forward. If the officer testifies that he was suspicious because you fit the description of a known Meth manufacturer, that you were sweating bullets in December out of nervousness, that this particular Walgreens was in an area known for its Meth manufacturing problem, and that he called in to the state pseudoephedrin registry and discovered you bought excessive amounts of pseudoephedrin in the preceding month, a judge would find his suspicion was reasonable.
If you or someone you know has been arrested for a crime that arose from pre-arrest investigative detentions like these, contact a criminal defense attorney to determine if the particular facts and circumstances surrounding your seizure were legal under the 4th Amendment.