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Police Stops and Levels of Suspicion
Under the Fourth Amendment of the U.S. Constitution, people in the U.S. are protected from unwanted searches and seizures where there is no probable cause to justify an intrusion on an individual’s rights. See David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, 25 T. Jefferson L. Rev. 367-388 (2003). Accordingly, in order for a police officer to arrest and search you without your consent, the officer needs probable cause that a crime has been committed.
While probable cause is needed for a full arrest and search, there are additional levels of suspicion lower than probable cause that justify limited intrusions of a person’s rights. In particular, there are generally 3 different categories of stops that an interaction with a police officer can be placed into. Those are:
– Consensual Encounters;
– Investigatory Stops; and
Consensual encounters are those interactions with police officers where the individual is not under arrest and there isn’t sufficient suspicion to justify the detention of the individual for any reason. Under these circumstances, any questions or requests by the police are voluntary and the individual need not comply with officer’s questions or requests. Instead, the individual can refuse to comply or answer questions without any repercussions.
Examples of circumstances that are consensual encounters include when a police officer starts questioning an individual encountered on the street without articulable grounds that the individual is acting suspiciously, requesting consent to search an individual’s vehicle where probable cause for a search doesn’t exist, and requesting permission to enter an individual’s residence where probable cause to enter the residence does not exist.
Under all of these circumstances, the individual can simply refuse to answer the officer’s questions or refuse permission to search or enter the individual’s residence or other possessions. Importantly, where there isn’t sufficient suspicion to justify infringing on an individual’s rights, the simple act of a person’s refusal to answer questions or comply with a police officer’s requests cannot in and of itself be used as grounds for suspicion. That is, a person’s refusal to comply with requests during a consensual encounter cannot be used against him and does not serve to elevate the level of suspicion to justify further detention or arrest.
Where an encounter is consensual and the individual does not wish to interact with the police, that person needs to affirmatively assert his rights and terminate the encounter by refusing to answer voluntary questions or physically leaving the scene. During consensual encounters, police officers have no duty to inform an individual of her rights, it is the individual’s responsibility to assert her rights or terminate the encounter. Appropriate actions may include asking the police officer what his or her grounds for detaining you are and, if the police officer indicates there are none or can’t articulate any, then the encounter is consensual and the individual may refuse to answer any questions or leave at any time.
Where a police officer has some grounds of suspicion that a crime has been committed, but not enough suspicion to rise to probable cause and justify an arrest, the police officer may conduct a brief investigatory stop. This intermediate of level of is called reasonable suspicion and exists where there is:
An objectively justifiable suspicion that is based on specific facts or circumstances and that justifies stopping and conducting a limited search of a person thought to be involved in criminal activity
Reasonable suspicion is more than just a police officer’s hunch that a crime is being committed and requires the officer to be able to point to specific facts or circumstances as to why a particular individual’s conduct is suspicious and deserving of an investigatory stop.
Where there is sufficient grounds to justify an investigatory stop, the investigatory stop is limited to a minimal intrusion on that person’s rights. More specifically, an investigatory stop is limited to a police officer:
(1) requiring the individual to give identifying information such as the indivudal’s name and address, identification if available, and an explanation for the individual’s actions; and
(2) conducting a brief pat-down of the individual where the officer reasonably suspects his safety may be at risk.
C.R.S. § 16-3-103. Importantly, the pat-down is limited to feeling outside the clothes for objects that could be a safety risk. An officer may not reach into the individual’s pockets or go beyond the bounds of a pat-down unless the officer detects an item that could potentially be a threat to his safety, such as a knife or a gun.
Further, the purpose of the investigatory stop must be reasonable and the character of the stop must be be reasonable when considered in light of its purpose. See Terry v. Ohio, 392 U.S. 1 (1968); Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). For example, an investigatory stop where a police officer has reasonable suspicion that a petty offense has been committed and detains the individual for several hours is likely unreasonable in scope and duration.
Importantly, where a police officer has conducted an investigatory stop and the individual has complied with the requirements of the stop, if there is insufficient information to elevate the level of suspicion to probable then the encounter must be terminated and the individual will be free to leave. If there is sufficient information to elevate the level of suspicion then the individual may be arrested.
Where sufficient information exists to demonstrate probable cause that a crime has been committed, a police officer may initiate a full arrest, detain the individual, and search the individual as part of the arrest. Notably, it does not matter the seriousness of the offense – that is, a police officer may arrest an individual where she has probable cause that any crime has been committed, it does not matter if it’s a petty offense, a misdemeanor, or a felony.
Once arrested, an individual must be given his Miranda rights intended to advise the individual of his Fifth Amendment right to silence and his right to consult with an attorney. See People v. Madrid, 179 P.3d 1010, 1014 (2008). Generally, it is advisable that an individual who has been arrested exercise these rights and request an attorney. Criminal procedures can be complicated and stressful, having an attorney to advise you throughout the process can help navigate the process and ensure your rights are not violated.
Once Miranda rights are given, any statements made by the individual afterward the advisement can, and likely will be used in court. Importantly, statements given before the arrest can also be admissible in court. Accordingly, in order to preserve one’s rights during an encounter with a police officer appropriate steps may include limiting any statements during the pre-arrest stages to only what is required – for example, only disclosing identifying information and reason for one’s actions during an investigatory stop, or terminating the encounter promptly if the stop is consensual.
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.