Brian Thiem writing this week about a current topic.
I heard many times during my law enforcement career, “I ain’t done nothing wrong—you can’t stop me.”
Experts have recently inundated us with articles, blogs, and social media posts about citizen’s rights when dealing with the police. One I read last week was obviously written by someone who had some knowledge of constitutional law, since he cited a 1968 U.S. Supreme Court decision (Terry v. Ohio), and said that police can only detain a citizen when they have reasonable suspicion the individual was involved in criminal activity.
That’s wrong! There are actually many exceptions to that legal requirement, and much of it is based on the reality that law enforcement officers have other duties and responsibilities besides investigating crime and arresting criminals. Courts have given police quite a bit of freedom to carry out their “protect and serve” function.
I promise I won’t get into a bunch of legalese and begin citing court decisions in this article. Instead, I’ll explain the common sense rationale behind the case law that defines some of the circumstances under which police can stop and detain individuals.
What exactly is a detention? Quite simply, it occurs when a police officer stops someone who may be on foot or in a vehicle and temporarily restricts his or her movement. Since a police detention takes away a citizen’s freedom, even though for a limited period of time, a democratic government must place limits on the authority of its police.
If an officer sees someone walking away from a car with a broken window and blaring alarm, or sees a man jaywalking across the street and says, “Hang on a minute, dude, I want to talk to you,” the officer has effected a legal investigatory stop. That’s part of the police’s law enforcement function, but that isn’t what we’re exploring today.
What if an officer sees someone staggering around in circles on a public sidewalk mumbling to himself or spots a car driving through a private business parking lot at night without its lights on? Where I worked (Oakland, CA), neither is against the law, but it’s the duty of police officers to look out for the welfare of the public. Therefore, an officer can (and probably should) check out the person on the sidewalk to see if he requires medical assistance, and the officer can stop the car because if it enters a public street with its lights off, it could create a hazard.
We’ve seen that the police can detain people to check on their welfare or to ascertain if they’re a danger to the public, but what if the officer discovers a gun or syringe of heroin on the mumbling man or determines the driver of the car not yet on the public street is intoxicated? Since the stops were legal, resultant arrests and evidence discovered would also be legal.
What if an officer stops a car for speeding, can she instruct the driver and passengers to remain in the car while she writes a ticket? Even though the passengers have not committed an offense (only the driver is responsible for the traffic violation), the officer has the legal right to restrict their movement for her safety or for the safety of the passengers.
Since the officer knows nothing about the occupants of the car (Clyde might be driving and Bonnie and the rest of the gang could be his passengers), it would be reasonable for the officer not to want them wandering around while she’s running a record check on the driver and writing the ticket. In addition, it’s the officer’s responsibility to ensure the safety of the public, so if the stop were on a busy roadway, she would not want passengers outside the vehicle where they could be struck by passing cars.
What about the police detaining everyone during the execution of a search warrant? A search warrant authorizes the police to search for evidence of a crime—let’s say a murder weapon—but does not authorize the arrest of anyone. What if someone in the house wants to leave or walk around in the house while police are conducting the search?
Courts have recognized the danger to police if people are free to come and go or move about a house when they’re searching for a weapon, narcotics, or other evidence. Therefore, the police may detain everyone present and restrict their movement for the officers’ safety until they’re finished. And if the search reveals evidence of a crime against someone in the house (such as a trafficking quantity of narcotics), the occupants can be arrested.
I discussed just a few of the exceptions to the reasonable suspicion limitation on law enforcement’s authority to stop and detain people or prevent them from temporarily leaving a particular area. Good crime fiction authors must understand enough criminal law to know if their police characters are operating legally or not. Savvy readers expect this, and although Matt Sinclair, the homicide detective in my novels, frequently works in the legal shades of gray, he knows the limits of his legal authority.
So, even if a citizen has done nothing wrong (and the police officer has no reasonable suspicion to believe that he or she has), the police might still be allowed to legally detain the person.