Less Than Probable Cause

The following scenario is not at all uncommon for a street officer: You conduct a traffic stop of a truck matching the description of a vehicle that was involved in an armed robbery a few minutes earlier. The robbery involved a male individual. You don’t have backup because the shift is hopping with other high-priority calls. Your safety is your utmost concern, and with your firearm drawn, you order the driver to exit the vehicle with hands open and exposed away from the body. As the driver exits, you realize “he” is a “she.”

Nonetheless, until you can figure out why she’s operating a vehicle that may have been involved in a recent armed robbery, you place her in handcuffs and ask her if she has any weapons. She claims she does not. You conduct a frisk of her outer clothing and a cursory check of the passenger area for weapons. You find a loaded .38 in the center console. After you secure the weapon, you run her name and birth date and learn that she has an outstanding warrant for her arrest. It turns out she was not involved in the armed robbery, but you charge her with crimes related to the possession of the gun.

Later, at a motion-to-suppress hearing, the driver’s attorney calls you as a witness and cross-examines you. You testify that you had reasonable suspicion to believe that the vehicle his client was driving matched the description of the one involved in the armed robbery. You admit that you did not have probable cause to arrest her at the moment you stopped the vehicle. You also admit that you placed the driver in handcuffs once she stepped out of the vehicle. When asked if the driver was free to go, you reply, “No.” 

“Well then!” the attorney exclaims. “She was under arrest then, wasn’t she!” He doesn’t wait for your answer.

At the conclusion of the hearing, the defense attorney argues that when you placed the driver in handcuffs, you “arrested” her without probable cause and that the subsequent retrieval of the weapon was the result of an unlawful search. As such, the weapon must be suppressed. 

Is the defense attorney correct? Not necessarily.

Generally, when police officers handcuff individuals, those individuals are not free to leave. Commonly, there’s probable cause to place them under arrest. However, occasions exist when police officers don’t have probable cause to arrest but the circumstances dictate that individuals be placed in handcuffs or in the back seat of a squad car. Is it legal? If so, what are the rules that govern handcuffing and detention in situations involving something less than probable cause?

Terry v. Ohio
The United States Supreme Court held in Terry v. Ohio that a police officer can temporarily detain an individual suspected of criminal activity if the officer can point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Although Terry stops constitute seizures under the Fourth Amendment, they “constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause.”

Without question, Terry stops must be limited in scope to the justification for the stop. Officers can question the detainee in the course of the stop to dispel or confirm their suspicion. More importantly, the Supreme Court has recognized that police officers should not be required to take unnecessary risks during their questioning. As such, officers are “authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry ] stop.” That is, an officer may frisk an individual for weapons in the course of the stop if the officer reasonably believes that person to be armed and dangerous. The fact that a Terry stop involves an automobile does not change the rules. Officers may conduct a limited pro­tective sweep for weapons if they reasonably believe they’re dealing with an armed and dangerous individual. Any activity by the police beyond the limits of Terry requires probable cause or consent.

To determine whether an officer’s conduct during a Terry stop is lawful, the courts look at the reasonableness of the officer’s actions under the totality of the circumstances. In evaluating the totality of the circumstances, courts may not consider the relevant factors in isolation from one another.

Handguns, Handcuffing & Reasonable Suspicion
It’s true that Terry stops must be fairly nonintrusive. However, there’s often a valid concern for officer safety during such encounters. Indeed, Terry allows officers to take all necessary steps to protect themselves if the circumstances reasonably warrant such measures. In sum:

• Police officers may draw their weapons without transforming an otherwise valid Terry stop into an arrest.
• A reasonable number of backup officers is permissible during the stop because “mere numbers do not automatically convert a lawful Terry stop into something more forbidding.”
• Likewise, police officers may place individuals in handcuffs without having probable cause to do so and without violating the Fourth Amendment.
• Finally, police officers are permitted to place individuals in the back seat of a squad car even though they’re not under arrest.   

What to Do
If you’re involved in a Terry stop and you have a reasonable and articulable basis for believing that the individual you’re in contact with poses a threat to you and/or is armed, you may conduct a frisk of the person’s outer clothing to dispel or confirm your suspicions. Likewise, you may place that individual in handcuffs. I recommend that when you do either of these tasks, you inform the person that you’re conducting a brief pat-down and handcuffing them for your safety and theirs. Likewise, if you decide to place the individual in the back seat of your squad car, tell them that you’re doing so for safety reasons. 

More important, be sure these restrictions last long enough to verify your suspicion that the individual is engaged in illegal activity. If the circumstances develop into a situation warranting the drafting of a police report, clearly document the reason for the added protection. 

Finally, if you’re faced with a savvy criminal defense attorney who tries to convince you that your actions transformed a Terry stop into a full custodial arrest, don’t argue. Simply respond that while their client was not free to go, they were being detained in such a manner for officer safety reasons and until you could conduct a reasonable investigation into whether the individual was involved in criminal activity.

References

1. 392 U.S. 1 (1968).
2. Ibid . at 21.
3. Michigan v. Summers , 452 U.S. 692, 699 (1981).
4. Florida v. Royer , 460 U.S. 491, 500 (1983).
5. Ibid . at 498.
6. United States v. Hensley , 469 U.S. 221, 225 (1985).
7. Terry , 392 U.S. at 30.
8. See Michigan v. Long , 463 U.S. 1032 (1983) for the constitutional parameters of a protective search of an automobile.
9. See United States v. Brignoni-Ponce , 422 U.S. 873, 881-82 (1975).
10. See, Unites States v. Cortez , 449 U.S. 411, 417 (1981).
11. United States v. Arvizu , 534 U.S. 266, 274 (2002).
12. United States v. Vargas , 369 F.3d 98, 102 (2nd Cir. 2004).
13. United States v. Zapata , 18 F.3d 971, 976 (1st Cir. 1994).
14. Gallegos v. City of Colorado Springs , 114 F.3d 1024, 1028 (10th Cir. 1997). 
15. United States v. Kapperman , 764 F.2d 786, 790 n.4 (11th Cir. 1985).