Stops, Illegal

Unlawful Fourth Amendment Seizures, Traffic Stops, Terry Stops

Why does it matter if a police officer stops a person illegally?  All the evidence after an unlawful stop must be suppressed – the prosecution can’t use it to support a charge or at trial.

The social harms of police stops

traffic stop
traffic stop

As a general rule, when the government interferes with your liberty or property rights, the law requires that a greater intrusion be balanced by a greater fact-based justification.  American law uses different words to describe this would-be justification, such as: reasonable articulable suspicion of criminal activity, probable cause that a person has committed a crime, etc.

Leaving aside for the moment the question of justification, what is the problem with police stops, or Fourth amendment seizures of people, anyway?  After all, you’ve likely been stopped for a traffic violation and apart from the ticket, you survived well enough.

Unfortunately, some people do not survive a police stop without suffering injury or death, as news reports frequently remind us.  Sometimes police officers are hurt or killed.  Other times it’s a suspected criminal.  Even innocent, law-abiding citizens are being injured or killed by police on a regular basis –almost always after what seemed a “routine” traffic stop.

Another problem exacerbated by too many traffic stops is the disparate impact based on race of, for example, marijuana laws.

Harm reduction:  Minimizing police contacts to those truly necessary can reduce these social harms caused by police contacts.

The Legal Standard for a Fourth Amendment Seizure

Does is matter if the car or person is not currently in motion, or “already stopped” at the time of the Fourth Amendment seizure?  No, it does not.  The correct focus is on whether there is a lawful reason for a police officer to temporarily detain a person and require some information or compliance from the person.

The U.S. Supreme Court’s Terry vs Ohio

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
The right of the people to be secure against unreasonable searches and seizures, shall not be violated

A Terry stop allows the police to briefly detain someone if police have reasonable, articulable suspicion of criminal activity.   The U.S. Supreme Court’s case, Terry v. Ohio, 392 U.S. 1 (1968), held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity.  It also held that police may conduct a limited search of the detainee’s clothes for weapons if police have reasonable and articulable suspicion that the person detained may be “armed and dangerous.”

To justify a stop, police must be able to articulate specific facts that would lead a reasonable police officer to believe that the person stopped is or is about to be engaged in criminal activity, not based on past conduct.

Traffic stops of motor vehicles

In addition to the justification of “reasonable and articulable suspicion of criminal activity” standard for a brief detention, traffic stops can also be justified by an observed traffic or vehicle law violation.  Though most speeding violations are not a crime, a police officer can lawfully stop a driver for speeding.   Similarly, an equipment violation observed by a police officer can justify a traffic stop.

Two types of traffic stops

When it comes to Fourth Amendment seizures of people in motor vehicles, we can consider two categories of police justifications claimed:

  1. Observed traffic or equipment law violations, though not crimes.
  2. Facts observed amounting to “Reasonable and Articulable Suspicion of criminal activity” (or “RAS”).

Standards of proof –traffic or equipment law violations

If a driver accused of petty misdemeanor speeding has a trial before a judge, the prosecuting attorney has the burden of admitting evidence into the trial court record that the judge believes proves guilt beyond any (reasonable) doubt.

But, compare that to a pre-trial evidentiary hearing before a judge challenging whether a traffic stop was legal, where evidence of a crime (say, DWI) was later discovered.  Assume the only justification for the stop was alleged speeding.  While the prosecutor still has the burden of proving that the traffic stop was lawful, he or she need only prove that the police officer had an objective basis for believing that the driver was speeding.

This means that it would be possible to have a case where the prosecution would lose the speeding ticket case but win the stop challenge hearing, since it has a lower standard of proof.

Standards of proof – Reasonable and Articulable Suspicion of criminal activity

freedom to travel
freedom to travel

The legal standard for the government to justify a Fourth Amendment seizure is lower than, for example, the evidence required to support Probable Cause to charge a crime.  The Reasonable and Articulable Suspicion of criminal activity (or, “RAS”) standard requires objective reasons rooted in the present tense before a police officer can briefly detain a person lawfully.  If a judge does not believe there was an objective basis for the stop, under the totality of the circumstances, all evidence later obtained must be suppressed.  The prosecutor won’t be able to use it to support a criminal charge or at a trial.

A good defense lawyer will consider whether a defense challenge to a Fourth Amendment seizure could be successful.

The Fourth Amendment analysis does not end there, however.  We also take a look at the level of intrusiveness and length of the detention and whether it was justified; as well as whether any subsequent search was illegal.