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Assure Legal Validity of the Core Transaction
Written by Randy Means
The third in this series of five articles describes strategies to reduce the need for use of force, limit exposure to liability, and positively influence perceptions of force events. Assuring the legal validity of the “core” transaction is essential to reducing agency and officer liability and increasing successful criminal prosecutions.
Your agency policy, training, assessment and supervision should prepare officers to recognize the “core” transaction in fact situations and know the lawful force choices available to them. Uncertainty as to whether the law allows them to touch, detain or enter protected space makes officers (and supervisors) hesitant and jeopardizes officer safety. Optimized officer safety, risk management and enforcement success is achieved through a confident understanding of the Fourth Amendment.
Law enforcement leaders must ensure that officers and supervisors in their command understand that the legal validity of the “core” (underlying) transaction will affect the “reasonableness” of a force action. One might ask, “How much force is reasonable in an absolutely illegal police action?” Normally, the answer would be “none.”
If an officer makes an illegal stop and the subject resists physically, how much force is reasonable to overcome the resistance? The same question may be asked in respect to illegal arrests, illegal searches and illegal entries into private premises. If we don’t get the core transaction right, we’re at risk of losing every time force is used.
So, we now begin a brief discussion of certain recurring high-risk police actions that are known for creating “force problems.” The starting point is to understand the three legal environments within which officers operate when conducting officer-citizen contacts and the legally permissible use of force in each environment.
Each time an officer makes contact or attempts to make contact with a person, the facts surrounding the contact control the amount and type of police authority an officer may use. All citizen contacts fall into one of three legal categories: voluntary contact, investigative detention and arrest. In order to use constitutionally permissible force, it is essential that officers understand the characteristics of each type of contact or transaction.
A voluntary contact is one in which the officer does not say or do anything that would cause a reasonable person to feel that he is being required to participate. Generally, such a contact involves words of request, invitation, solicitation, cooperation or just simple conversation.
Words of command, demand, instruction or requirement are avoided, as are non-verbal behaviors that suggest the requirement of stopping and participating. Because this type of transaction is voluntary and not a seizure, it requires no particular factual justification— no probable cause or even reasonable suspicion needs be proved.
The officer’s exact words, body language and paralanguage are all critical to establishing the legal category of a contact. The Supreme Court has said that if “physical force or show of authority” is used to accomplish the contact, it is not voluntary; it is a “seizure” requiring at least reasonable suspicion.
Use of force is inconsistent with the very concept of a voluntary contact. Obviously, no force of any kind is permitted. This remains true for the entire transaction. If a person initially agrees to the contact, there is no obligation for him to continue to be cooperative.
The person can discontinue the contact whenever he chooses. Naturally, if reasonable suspicion or probable cause should develop during a voluntary contact, the officer has the option of elevating the transaction into an investigative detention or arrest, assuming that state law and agency policy allow that action.
An investigative detention is also widely known as a “Terry Stop” and is referred to by some courts as a “limited seizure.” The Supreme Court ruling in Terry v. Ohio (1968) allows an officer to detain or stop a person if the officer has reasonable suspicion that the individual is involved in criminal activity.
The use of police authority in an investigative detention is permitted, but the law places restrictions on the nature and degree of force that is permissible. These restrictions must be followed for the stop to be lawful.
Investigative detention is intended to allow the officer a limited amount of time and control of the environment to confirm or dispel his suspicion. The officer can temporarily require those under reasonable suspicion of criminal involvement to remain where they are. Non-deadly force and other restraints may be used as reasonably necessary to effect and safely maintain the detention.
The seriousness or violence associated with the crime under investigation is a factor the court will consider in determining whether it was reasonable to use restraints. If subjects resist or flee, the officer may use reasonable force to control them and/or place them in restraints.
However, if the person is cooperative and there are not additional circumstances that would lead a reasonable officer to believe force or restraints were necessary to conduct the detention safely, a court may determine that no use of force is permitted.
If the officer’s use of force to detain someone is unreasonable, a court may view the seizure as an arrest requiring probable cause. In that case, the originally lawful investigative detention would, in the court’s eyes, become an unlawful arrest.
Because involuntary movement of a detained suspect normally converts the transaction into an arrest requiring probable cause, it is generally not advisable for an officer to require a detained person to go elsewhere with the officer.
That being said, force generally cannot be used to involuntarily move a detainee from where he is first seized by police. However, the officer is allowed to move a suspect short distances within one environment—the general location of the initial stop—provided the officer has articulable safety or security reasons for doing so.
Investigative detentions must be brief. The court uses several factors to determine if the duration of a detention was reasonable. Because the purpose of the detention is to allow the officer an opportunity to confirm or dispel his initial suspicion, the court may examine what the officer was doing during the detention to assist in that conclusion. Courts tend to give favorable consideration to detentions that are progressing efficiently toward a determination of probable cause, as long as they don’t extend beyond about an hour.
The seriousness of the suspected offense can also affect the court’s view of reasonable duration. The court has not set a strict time limit for investigative detentions. The reasonableness of the duration is determined on a case-by-case basis. One can easily think of case facts where a detention of more than 10 minutes would be unreasonable, and others where a detention of 75 minutes would be lawful.
Officers should be mindful that when the investigation dispels their suspicion to the point where it is no longer reasonable to suspect the person’s criminal involvement, the authority to maintain the seizure dissolves, and the person must be immediately released.
Investigative Detention and Searches
A pat down, or “Terry Frisk,” is a limited search of a person for weapons, which is permitted in some investigative detentions. To lawfully frisk someone, the officer must have either voluntary consent or articulable, reasonable suspicion that the person is armed and constitutes a threat to the officer. Reasonable suspicion may be gained through a single fact or a combination of facts.
If the act under investigation involved a weapon, the officer observed a bulge under the person’s clothing consistent with a weapon, or the officer had reliable information that the person may be armed, those factors would typically be sufficient to justify a frisk. The scope of the frisk is limited to those places where the person could quickly access a weapon. If the contents of carried belongings were quickly accessible by the subject at the time the detention began, those belongings may also be frisked for weapons.
If the investigative detention involves a vehicle stop, the same reasoning applies to a frisk of the occupants and interior of the car. The search is limited to places in the passenger compartment of the car where a weapon would be quickly accessible. Therefore, the trunk and locked containers are generally excluded.
Entry into Private Premises
Non-consensual entry into private premises is dangerous work. Physical risks are elevated, as are risks of lawsuits and liability. The Constitution affords greater protection from government intrusion into a private home than any other space. People are more prepared and motivated to defend their homes than any other space. This is where people are most likely to have a weapon, be the most territorial, or be under the influence of alcohol and/or other drugs.
Officers should exercise particular legal caution when making any non-consensual entry into a home, whether or not a warrant is used. The high legal standard that must be met for a lawful entry, coupled with the risk of nonrecognition of the “intruders” as officers, has resulted in lose-lose tragedies across the nation.
An arrest occurs whenever the seizure of a person exceeds the parameters of an investigative detention in terms of duration, involuntary movement of the suspect from one place to another, or use of unreasonable restraints. If there is no probable cause for an arrest, arguably, any force used to effect the arrest is unreasonable.
For a use of force to be reasonable, the transaction that underpins the need for force must be lawful. Force used toward unlawful objectives is generally unreasonable. The cure for most “force problems” is found in the Fourth Amendment classroom—studying the law of arrest and detention, search and seizure.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at email@example.com.
Greg Seidel is the director of training for Thomas & Means. During his 25-year career with the Petersburg, Va., Police Bureau, Captain Seidel led his agency's tactical team, investigation division, Office of Internal Affairs and Training Bureau. He is a certified instructor in firearms, fitness, and chemical and less-lethal weapons. He can be reached at firstname.lastname@example.org.
Published in Tactical Response, Sep/Oct 2010
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