Investigative Detentions

How much information do the police need before a citizen can lawfully be detained for DWI or for any other crime—reasonable suspicion. The standard originates with a landmark 1968 Supreme Court case-Terry v. Ohio, 392 US 1 (1968).  This question can be important to someone arrested for DWI because the charge will likely get thrown out, if, at a minimum, reasonable suspicion for the initial stop did not exist.

In legalese, a temporary investigative detention is justified when the detaining officer has “specific articulable facts which, taken together with rational inferences from those facts lead the officer to conclude that the person detained is, has been, or soon will been engaged in criminal activity”. This is something more than a hunch and less than probable cause. Texas courts require specific facts pointing toward a crime rather than mere conclusions. The quote below states the law on this point.

“Without specific, articulable facts, a court has no means in assessing whether this opinion was objectively reasonable”.  Ford v. State, 158 SW 3d 488 - Tex. Court of Criminal Appeals 2005.

Typically in a DWI case, the arresting officer personally observes the “bad driving” which justifies the stop. A myriad of possibilities exist to justify a stop-erratic or unsafe driving of all sorts. 

Frequently, however, the information or tip justifying the stop comes from a person other than a police officer-what the courts term, “the citizen-informant” or “citizen witness”. For example, a fellow driver calls 911 to report you for suspicion of DWI due to unsafe weaving or driving recklessly. A stop based upon a tip from someone identified by the police satisfies the Fourth Amendment because the tip is deemed to carry sufficient "indicia of reliability". In the DWI context, the “tipster” stops and identifies himself to the police or gives his name and contact information to the police dispatcher. The courts consider the tip to possess enough information to allow the officer to conclude that the caller-in is credible.

When the police detain someone on the basis of an anonymous tip, however, they must corroborate the tip. Corroboration means the police confirm enough facts to conclude that the information provided is reliable and a detention is justified.

To recap: stops to investigate, OK when reasonable suspicion to investigate; OK when information for the stop comes from an “informant” known to be credible; OK when information comes from an anonymous “informant” when the “tip” is corroborated by the police officer.

Public Safety and the Fourth Amendment

At a hearing the other day, a police officer testified that a caller-in reported that a man handed another man a gun in an apartment house parking lot and then drove off. Those actions warranted a stop of both men. Now, nobody was doing anything illegal. Nobody was threatening anyone or exhibiting the weapon in a dangerous manner. In fact, the two men appeared to be friends. The caller-in thought it looked dangerous.   So what justified the stop? "Reasonable suspicion"-the time honored test? I don’t think so.

Police officers often testify that if they stop a motorist for traffic and they smell alcohol, the driver gets to do field sobriety tests. It’s policy. So, you can have a drink, get stopped for traffic and suddenly you’re on the side of the road, with one leg in the air.  Is that legal? Perhaps not. But let me clue you in. The Fourth Amendment gets little respect. The Amendment tends to get in the way of “effective” law enforcement. This is no secret.  We lionize cops who have the cojones to skip procedure and get the job done. Everyone’s seen Dirty Harry or  Lt. John McClane. They're American heroes.

The stop of the man with a gun in the parking lot.   “Public safety” justified that. “Public safety?” Did I miss that in law school? I actually looked it up after the hearing. Not in the Fourth Amendment. The term, however, glided off the officer’s tongue.

The Constitution guarantees a collision over our various rights. No one interest is absolute. It’s certainly safer to strip all the handguns from a "high crime" area.  Public safety could justify that. You’d get a big argument from the Second Amendment folks, but I’d bet you’d have less opportunity for violence. Stopping everyone at a DWI roadblock at two in the morning in downtown Austin would make the streets safer. MADD would applaud.  A similar case can be made for profiling, stops of suspicious persons who make furtive movements and endless other hunches and intuitive judgments that suggest possible criminal behavior. We'd probably be safer.

Ultimately, in America, it’s a question of balance. It’s in our genes. We have made the balancing of competing interests our passion. Following a slippery concept like "public safety", has legal consequences-the sawed off shotgun seized in a search of the car in the parking lot winds up getting thrown out. Adherence to the Fourth Amendment preserves our freedom. I’ll have to admit, though, that at times, Inspector Callahan fits the emotional bill. "Pass the popcorn, will ya?”.  


Fourth Amendment Nuance Worth Consideration

While conducting research for a motion to suppress evidence  as a violation of Terry v. Ohio,  I discovered some caselaw concerning what is termed  “the collective knowledge doctrine.”  Terry v. Ohio, of course, allows a police officer to conduct a limited  investigative detention when supported by reasonable suspicion. Terry will be discussed  in the coming Texas legislative session because it provides the Fourth Amendment muscle for a number of  proposed bills that parrot Arizona’s attempt to detain individuals to check their immigration status.

The “collective knowledge or imputed knowledge” doctrine refers to imputing knowledge of facts essential to a determination of reasonable suspicion or probable cause from one law enforcement source to the actual officer conducting the detention or arrest. The justification for the rule lies in the fact that “the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates”.  United States v. Colon, 250 F.3d 130 (2nd Cir. 2001).

OK, that’s interesting. What do you do with that? Well, here’s the important and often overlooked point. When a civilian employee of a police department gets stuck in the chain of information, an officer conducting the detention cannot ordinarily rely upon “imputed knowledge” from the civilian employee. Only if the "civilian" is trained in making a "reasonable suspicion" determination can “reasonable suspicion” be imputed to a detaining officer from a non-law enforcement source. This of course can render reasonable suspicion or probable cause insufficient and invalidate a search or seizure under the Fourth Amendment. This nuance undoubtedly gets overlooked and detentions or arrests that involve non-law enforcement personnel in the chain of information pass muster when perhaps they should not.

For instance, in the Colon case  a presumably anonymous caller reported to a civilian 911 operator that a man in a bar had a gun. A police dispatcher received that information as did the officer ultimately making the investigative detention. What did not get transmitted was the fact that the caller gave additional information from which one could conclude that the “anonymous” caller was in fact identifiable. The Court found the detention invalid under Florida v. J.L., 529 U.S. 266,  120 S.Ct. 1375, 146 L.Ed. 2d 254 (2000) (anonymous tip concerning man with a gun without more insufficient to establish reasonable suspicion) because the information concerning the caller’s identity (known to the civilian 911 operator but not the police dispatcher nor the detaining officer) could not be imputed to the actual officer making the detention. Had everyone involved in the chain of information possessed police credentials, knowledge of the caller’s identity could have been imputed to the officer conducting the detention. It might be helpful in situations where "reasonable suspicion" depends on collective information to ask who is making the reasonable suspicion determination.

Under Terry, the police must make the determination. Likewise, imputed information essential to a reasonable suspicion determination must originate with a “police” source or evidence must exist that the civilian police employee received training in determining reasonable suspicion.  An untrained civilian source or a record that fails to show a properly trained civilian jeopardizes the legality of the detention.