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Investigative Detentions on Less Than Probable Cause

The U.S. Supreme Court has generally interpreted the Fourth Amendment prohibition against “unreasonable searches and seizures” to impose a warrant requirement upon police officers who wish to perform a valid search or arrest. However, the Court has carved out some exceptions to the warrant requirement, which make certain “seizures” constitutionally permissible in the absence of a warrant.

One exception that the Court has recognized is for investigative detentions based on less than probable cause. In 1968, the Court established a notable exception to the warrant requirement in Terry v. Ohio for investigative detentions based on less than probable cause (i.e., sufficient reason based on known facts to believe a crime has been committed).

The Stop-and-Frisk Exception to the Warrant Requirement

In general, the Fourth Amendment requires police officers to obtain a warrant prior to arresting a person or taking them into custody. Police officers are usually only permitted to take a person into custody without a warrant if they have probable cause to believe that the person has committed a felony or a misdemeanor in their presence.

However, the Court in Terry upheld the constitutionality of a warrantless on-the-street detention and “frisk” (patting down a person to search for weapons), even though the officer’s suspicions fell short of probable cause for placing the subject of the investigation under arrest. Under the stop-and-frisk exception established by Terry, police officers do not generally need a warrant to briefly detain and frisk someone without probable cause if they have reasonable suspicion of criminal activity.

Test of Reasonableness

Although investigative detentions that fall short of arrest do not require a warrant and may be based on less than probable cause, the Fourth Amendment requirement of reasonableness is applicable “whenever a police officer accosts an individual and restrains his freedom to walk away.” The test of reasonableness for a Terry detention is whether a police officer can point to “specific and articulable facts” that would lead a neutral magistrate to conclude that both an investigative stop and a frisk were required.

Applying this test to the facts of the case, the Court held that the police officer was justified in frisking three men who appeared to be casing a store for armed robbery. The Court reasoned that the police officer was reasonably led to believe that the men were armed and dangerous, and that the officer’s safety required a frisk. However, the scope of the frisk must be limited to discover the object of the frisk (e.g., dangerous weapons).

Reasonable Perception Standard for When a “Seizure” Has Occurred

As Fourth Amendment protections only take hold at the point when a “seizure” has occurred, it has been an important task of the Court to define the nature of a “seizure.” Although the Court has occasionally refined its approach, the basic standard is “reasonable perception.” Under this approach, a person has been seized if a “reasonable person would have believed that he was not free to leave” in view of all the circumstances surrounding the incident. Applying this standard generally, a Terry detention occurs and must subsequently meet the test of reasonableness when the person being detained feels that he is not free to leave.

In 1991, the Court held in Florida v. Bostick that the free-to-leave test is not an appropriate measure for determining whether a police encounter constituted a “seizure” in the context of a police bus sweep. Rather, the appropriate inquiry when police conduct a bus sweep to detect illegal drugs is “whether a reasonable person would feel free to decline the officers’ requests [to inspect tickets, identification and sometimes luggage] or otherwise terminate the encounter.” The Court reasoned that a reasonable person seated on a bus that is ready to depart would not feel free to leave even if there were no police present. Effectively, this means that the Terry limitations are applicable to bus sweep encounters whenever a reasonable passenger would not have felt free to protest the intrusion.

Protective Search of the Passenger Compartment of a Car

The exception to the warrant requirement for a Terry investigation is not limited to searches of a person. In 1983, the Court held in Michigan v. Long that the Terry search extends to a protective search of the passenger compartment of a car if an officer possesses a reasonable belief that “the suspect is dangerous and…may gain immediate control of weapons.” Under these circumstances, an officer may search the passenger compartment of an automobile without a warrant and on grounds constituting less than probable cause.

Detention of Luggage at Airports

Similarly, the Court has held that the Terry limitations govern the detention of luggage at airports when probable cause is lacking, in order to detect the presence of drugs. Accordingly, an officer is permitted to briefly detain luggage at an airport, when his observations lead him reasonably to believe that the luggage contains narcotics.

Furthermore, Terry also permits a police officer to seize a traveler’s luggage for a “canine sniff” on less than probable cause. In handing down this rule, the Court reasoned that a “canine sniff” by a dog trained to sniff for narcotics does not violate a traveler’s Fourth Amendment rights, since the result of the “sniff” is limited in disclosure and impinges only slightly on the traveler’s privacy.

The Permissible Length of a Terry Detention

Whether the length of a Terry detention violates the Fourth Amendment standard of reasonableness varies with the circumstances. In 1985, the Court held in U.S. v. Sharpe that the unreasonableness of a detention depends on “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” Applying this measure to the facts at hand, the Court approved of the 20-minute detention of a driver who had evaded drug agents, reasoning that the DEA agent “diligently pursued his investigation” and that there was no unnecessary delay involved.

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