Reasonable Suspicion (Part 1)

Law enforcement in the current climate.

It’s always been tough. It’s more difficult as cultural narratives shift away from trust in law enforcement entities, cameras recording officers’ every move are everywhere – including on the police themselves, and court opinions lead to the conclusion that good police work sometimes runs afoul of the 4th Amendment – at least how X particular court sees it!

So let’s talk 1st about reasonable suspicion. What is it, how does it work, and what are the practical applications?

Police may stop/briefly detain a person for investigative purposes (known as a Terry stop), when they have reasonable suspicion that criminal activity is afoot. Reasonable suspicion is a low standard – lower than probable cause. It is determined by the totality of the circumstances.

Some (non-exhaustive) factors that go into the analysis: 1) location, 2) time, 3) corroborated informant info, 4) police observations, 5) unprovoked flight, et al. The presence of only 1 factor is generally not enough, but these things go into the totality of circumstances analysis.

As part of a Terry stop, officers may pat down or “frisk” a suspect – but ONLY if he has independent reasonable suspicion to believe the person detained is armed.

(If I’ve read this 1x in a police report, I’ve read it 1,000x: “I patted him down for officer’s safety.”

Nope. That’s not a “thing.” The officer MUST be able to explain why he believed the suspect was armed before frisking him.)

The officer must act reasonably/quickly to dispel/confirm suspicion. Terry stops can escalate into a full-scale arrest (which requires probable cause) based on passage of time, escalating shows of force, and greater degrees of restriction.

Here is a portion of a clip from an officer’s body cam.

Back story to provide the requisite context for the officer’s actions:

Police called about a wild disturbance in a high crime area at 10:30 pm. Officer arrives and walks by an unoccupied car in a parking lot. Sees a gun on the seat. The suspect comes out and walks to the driver’s side door with a key.

Police engage him and ask if he was getting into that car. He says no. He is acting nervous. Eyes darting and a deer-in-the-headlights frozen response. Police tell him to relax, he isn’t under arrest, but they saw a gun and just want to make sure everyone is safe.

Other officers arrive. The officer continues to talk to the suspect to keep him calm, and he says the car belongs to his girlfriend – contradicting his earlier claim that he wasn’t getting in that car. He also says he just got out of jail on a weapons possession charge.

When does consensual encounter turn into detention?

Pat down?

Can you articulate the reasonable suspicion for 1) the investigatory detention AND 2) the frisk, based on the totality of the circumstances?