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Tuesday, August 11, 2015

State Court Search & Seizure Protections & Police Constraints, Especially During Traffic Stops

As briefly mentioned in my last post, state courts have sometimes held that search and seizure law should impose meaningful constraints on police during traffic stops, in a manner analogous to U.S. Supreme Court invocations of Terry v. Ohio in traffic stop contexts. An exemplary instance recently occurred when the Oregon Supreme Court ruled in State v. Jimenez (2015) that the Oregon Constitution prohibits police from asking about weapons during a traffic stop absent “reasonable, circumstance-specific concerns for the officer’s safety or the safety of other persons who are present.”

Illinois has a somewhat similar regime. In Illinois, and as explained in the Illinois Supreme Court’s holdings in People v. Harris (2008) and People v. Gonzalez (2003), “[i]n the absence of a reasonable connection to the purpose of the stop or a reasonable, articulable suspicion, [courts] must consider whether, in light of all the circumstances and common sense, [questioning of a motorist] impermissibly prolonged the detention . . . .” The Illinois courts have derived this limitation from Fourth Amendment law. Thus, in Illinois police typically are legally unable to prolong a traffic stop to make inquiries unrelated to the justification for the traffic stop (for example, since most traffic stops are based upon traffic violations, police would be unable to extend the stop to ask about unrelated topics such as the presence of drugs or weapons), absent independent suspicion.

The search and seizure regime that seeks to most minutely control police conduct may come from New York. In People v. De Bour New York’s highest court established a four-tiered analysis in 1976 to govern police interactions with the public.

[First, t]he minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality. [Second, t]he next degree, the common-law right to inquire, is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. [Third, w]here a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, [New York statutory law] authorizes a forcible stop and detention of that person. A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he is in danger of physical injury by virtue of the detainee being armed. [Fourth,] a police officer may arrest and take into custody a person when he has probable cause to believe that person has committed a crime, or offense in his presence.

Three years ago the court clarified in People v. Garcia (2012) that the same De Bour analysis applies to traffic stops, holding that in the absence of founded suspicion police may not inquire about weapons. The De Bour framework is based upon New York search and seizure law, though it is reliant on Fourth Amendment law.

What each of these regimes has in common is an attempt, through search and seizure law, to reduce police discretion during encounters with the public. Given that traffic stops comprise the most common reason for police-public encounters (see here at footnote 235), these are important and meaningful attempts to constrain police action, even to the extent of seeking to control what words police can utter. These constraints would not, of course, end all of the sorts of tragedies resulting from police use of force that have recently so pervaded the news. But by using law to impose a mechanism that seeks to limit the scope of police-public encounters, they do hold the potential for avoiding at least some of these tragedies, which so often escalate from their origins as routine encounters to spin out of control as police prolong the interactions.

In my next post, I will provide an overview of more recent U.S. Supreme Court guidance on whether the Fourth Amendment supports these sorts of constraints.

Posted by Fabio Arcila on August 11, 2015 at 01:04 PM | Permalink

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