General Rights
While some principles remain constant, solid advice from an attorney in any criminal prosecution takes a careful and thorough review of all the facts leading to arrest. The Bill of Rights to the U.S. Constitution and corresponding provisions in each state’s constitution provide citizens with fundamental rights and safeguards from intrusive governmental conduct. The difficulty of analyzing any individual criminal case is often due to the fact that a citizen’s constitutional and statutory rights vary depending on the type of encounter they’ve had with a police officer. Likewise, an officer’s authority varies depending on the type of encounter.
When reviewing the legality of police interactions with citizens, a court will analyze specific facts to categorize the defendant’s contact with police into one of three categories. First are consensual encounters often referred to as the “common law right to inquire.” This is the right of any citizen, including a police officer, to ask another person a question. Second are detentions, also referred to as investigatory stops or Terry stops. This is a more forceful and intrusive type of contact by a police officer toward a citizen that allows the officer to detain an individual for a period to further investigate potential criminal activity. The final level is formal arrest. The facts leading up to the encounter, including the tone of the police officer’s voice are significant in determining the type of encounter, which is critical in determining whether a citizen’s constitutional rights were violated because the citizen’s rights and the police officer’s authority vary at each level of encounter.
Consensual Encounter
The basic premise of a consensual encounter is that the contact or communication is voluntary. The encounter may be terminated by the citizen at any moment during the interaction. The Fourth Amendment’s protection against illegal search and seizure is not violated merely because a police officer attempts to have a conversation with a citizen as long as a reasonable person would understand that he or she could refuse to cooperate and excuse themselves from the conversation. This is of great importance because if the person has not been “seized” or “detained,” then the Fourth Amendment is not implicated, and no constitutional violation can occur. So, if a police officer approached an individual asking to see what is inside a purse or backpack, for example, and no detention occurred because a reasonable person would have known they could walk away, well, if the person volunteers their property for inspection, they have effectively given up any complaint against unlawful search and seizure. The tone of the officer’s voice, the wording he or she chooses, and other circumstances are evaluated to determine if a reasonable person would think they have the right to walk away. In this type of encounter, no ID needs to be provided, a person’s name does not need to be given verbally, and the person can leave at any point. If a more forceful tone or commanding language is utilized, the encounter will likely rise to the level of a detention or Terry stop.
Detention, Investigatory, or Terry Stops
The next category of citizen-police encounters involves interactions that courts refer to as investigatory stops, temporary detentions, or Terry stops. The standard to allow an officer to detain someone under this stop was articulated in Terry v. Ohio, 392 U.S. 1 (1968). The U.S. Supreme Court held that when an officer observes specific and articulable events which give rise to a reasonable suspicion that illegal activity may be underway, then the officer is justified in detaining and questioning the individual. Reasonable suspicion must derive from objectively reasonable facts and inferences from those facts, not mere hunches. While this level of encounter does not give the officer the right to search a person or his property, the officer can pat the individual down for weapons and inquire whether the person has something in his or her possession that could hurt the officer. Also, the person must properly identify themselves to the officer once they have been validly detained. Several factors go into the determination of whether reasonable suspicion arises in one of these stops, including the officer’s experience, whether the stop occurred in a high-crime area, tips, witnesses, and many others. If this stop leads the officer to probably cause the individual will find themselves in the third category, formal arrest.
Formal Arrest
In order to place an individual under arrest for any crime, an officer must have probable cause. Probable cause does not mean the individual actually committed the suspected crime, it merely requires that a prudent, objective person, in the position of the officer, taking into account the officer’s experience, knowledge, and observations, would reasonably believe that a crime has been or is being committed. The officer may then search the individual incident to arrest, and the individual must provide the officer with identifying information. Again, all three of these encounters are dependent on the most minute of details for justification, as such, it is important to have an experienced attorney analyze all the facts of arrest against the applicable law to determine whether any of the individual’s constitutional or statutory rights have been violated.
