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How Long is Too Long During a Terry Stop?
Police are often taught that a Terry stop can last as long as an active and diligent investigation reasonably requires. While there is some truth in that, a Terry stop cannot last forever. A point comes when the suspect must be arrested or released.
Reasonable suspicion authorizes the police to detain a suspect while they investigate the relevant suspicious circumstances. This detention, called a Terry stop, is a form of seizure and is thus governed by the Fourth Amendment. If a Terry stop lasts too long, courts will rule that an arrest has occurred, which of course requires the higher standard of probable cause.
If a Terry stop lasts so long that it becomes an arrest, and the police lack probable cause to justify the arrest, then it is an unreasonable seizure, which will result in suppression of evidence (and potential civil liability). So, how long is too long for a Terry stop?
The touchstone of the Fourth Amendment is “reasonableness.” Specifically, it prohibits “unreasonable searches and seizures.” In Terry v. Ohio, the United States Supreme Court interpreted the Fourth Amendment to permit something less than an arrest—a temporary investigative detention—in situations where the police have “reasonable suspicion” that crime is “afoot.”
This lesser form of seizure, known as a Terry stop, is permitted when police encounter facts and circumstances that meet the lesser standard of “reasonable suspicion.” But in order for a Terry stop to comply with the “reasonableness” requirement of the Fourth Amendment, it must be limited in scope and duration.
A Terry stop either progresses to probable cause to arrest, or it fails to develop into probable cause and requires the release of the suspect. During this period of investigative detention, police have a duty to affirmatively pursue the investigation to determine which course of action is appropriate—arrest or release. An investigative detention must be brief. It is limited to the time that is necessary under those particular circumstances to achieve the purpose of the stop.
The answer to how long a Terry stop is permitted to last is determined by two factors: the purpose of the stop and what is necessary for the police to achieve that purpose. As information develops, the situation may justify prolonging the detention, but if an explanation readily dispels the suspicion, then the police must promptly release the suspect.
Most investigative detentions can be, and are thus required to be, resolved in a measure of minutes, not hours. In United States v. Place, the Supreme Court said, “Although we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case,” and, “In assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation.”
In this case, the police failed to act fast enough with the information they had. A suspect believed to be carrying drugs was known to be arriving at an airport on a particular flight, but the police made no arrangements prior to his arrival. When the suspect arrived, he declined to give consent to search. The police then detained his luggage, which they reasonably suspected contained narcotics, and took it to another airport where a narcotics dog sniffed the luggage and established probable cause.
The Court noted that limitations applicable to investigative detentions of suspects are also applicable to investigative detentions of their luggage. The Court determined that the initial detention of the luggage was permissible, but the 90-minute period was unreasonable under these circumstances.
Under other circumstances, even a short detention may exceed the limitations of a Terry stop. For example, detaining a pedestrian beyond the time that was necessary to write a ticket, for the purpose of checking for arrest warrants based on an unsubstantiated hunch, has been found to be an unreasonable extension of the Terry stop, and thus an unreasonable seizure.
Traffic stops are also analogous to Terry stops and must not be prolonged unnecessarily. A stop that is lawful at its inception can violate the Fourth Amendment if it exceeds a reasonable period that is necessary to accomplish the purpose of the stop. See, for example, Illinois v. Caballes.
In Caballes, the Supreme Court found that walking a narcotics dog around a vehicle during a traffic stop was not a search and was permissible as long as the stop was not extended for that purpose, even where there were no articulable facts to suggest drug activity. The purpose of the stop was traffic enforcement, and the stop was not extended beyond the time that was necessary for normal questioning and interaction associated with a traffic stop.
However, “a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” If police detain a driver for the purpose of bringing a narcotics dog to the scene where there is no evidence of drug activity, even a brief extension of the traffic stop is unacceptable.
A Terry stop, even if initially justified, may lose its acceptability over time. The Supreme Court is unlikely to ever announce a specific time limit for Terry stops because the very nature of them requires that question to be answered on a case-by-case basis. Particular circumstances involving a serious case may justify a prolonged detention, whereas a less serious situation would only justify a short detention.
A 90-minute stop may be acceptable if a serious police investigation is progressing, the police are acting with diligence and the additional time is likely to reveal information that will resolve the situation. However, 90 minutes is a long time to detain a suspect under the reasonable suspicion standard and will only be justified in compelling circumstances.
Even in serious cases where investigation is progressing toward probable cause, it is unlikely that the Supreme Court would approve of an all-day Terry stop. A rule of thumb might be that the duration of an investigative detention should normally be measured in minutes, not hours—though in a serious case where circumstances required it, 75 minutes might be reasonable.
Ed. Note: This is the fourth in a series of occasional articles in this column that will identify and debunk some of the greatest myths in police law. These common misunderstandings are a result of many factors, not least of which is inconsistency among our own trainers, as well as prosecutors and judges. It is important, though, for supervisors and managers to accurately distinguish between common misunderstandings and correct law so they apply correct standards in their assessments of officers.
Officers need to make the same distinction so they are able to properly apply the law. Naturally, our training should reflect the law as it is—not as it might be pervasively misunderstood. Each agency should decide and announce its philosophy toward prosecutorial and judicial agendas that may be different—often more restrictive of police behavior—than the law actually is.
Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He is the primary legal instructor for the IACP. He can be reached at email@example.com. In her 20-year career, Pam McDonald has worked as a patrol officer, a felony investigator, a felony prosecutor and a college professor specializing in police issues. She is currently assisting Randy Means. She can be reached at firstname.lastname@example.org.
Published in Law and Order, Nov 2009
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