Terry and Adams indicate that an officer can frisk a suspect, and pull out objects found on the suspect, if there is reasonable suspicion to believe that the search is necessary to protect the officer or others from bodily harm during the course of an otherwise legal stop. See United States v. Preston, 685 F.3d 685 (8th Cir. 2012) ("Officers may conduct a protective pat-down search for weapons during a valid stop when they have objectively reasonable suspicion that a person with whom they are dealing might be armed and presently dangerous."). One obvious concern is that an officer may use the Terry frisk doctrine as a pretext to search for evidence of a crime. Thus, the officer may testify that he felt a fear of bodily harm, when in fact he was looking for evidence without having probable cause. Is there an easy way to distinguish Terry frisks from impermissible searches for evidence?
Applying these principles to the present case, we believe that Sgt. Connolly acted justifiably in responding to his informant's tip. The informant was known to him personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene. Indeed, under 147*147 Connecticut law, the informant might have been subject to immediate arrest for making a false complaint had Sgt. Connolly's investigation proved the tip incorrect.[2] Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e. g., Spinelli v. United States, 393 U. S. 410 (1969); Aguilar v. Texas, 378 U. S. 108 (1964), the information carried enough indicia of reliability to justify the officer's forcible stop of Williams…
Once Sgt. Connolly had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon. Probable cause to arrest depends "upon whether, at the moment the arrest was made . . . the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379 U. S. 89, 91 (1964). In the present case the policeman found Williams in possession of a gun in precisely the place predicted by the informant. This tended to corroborate the reliability of the informant's further report of narcotics and, together with the surrounding circumstances, certainly suggested no lawful explanation for possession of the 149*149 gun. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. See Draper v. United States, 358 U. S. 307, 311-312 (1959). Rather, the court will evaluate generally the circumstances at the time of the arrest to decide if the officer had probable cause for his action:
"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U. S. 160, 175 (1949).
See also id., at 177. Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful. See Brinegar v. United States, supra; Carroll v. United States, 267 U. S. 132 (1925). The fruits of the search were therefore properly admitted at William's trial, and the Court of Appeals erred in reaching a contrary conclusion.
he Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Time and again, this Court has observed that searches and seizures "`conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.' " Thompson v. Louisiana, 469 U. S. 17, 19-20 (1984) (per curiam) (quoting Katz v. United States, 389 U. S. 347, 357 (1967) (footnotes omitted)); Mincey v. Arizona, 437 U. S. 385, 390 (1978); see also United States v. Place, 462 U. S. 696, 701 (1983). One such exception was 373*373 recognized in Terry v. Ohio, 392 U. S. 1 (1968), which held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ," the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions. Id., at 30; see also Adams v. Williams, 407 U. S. 143, 145 — 146 (1972).
Terry further held that "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a patdown search "to determine whether the person is in fact carrying a weapon." 392 U. S., at 24. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . ." Adams, supra, at 146. Rather, a protective search — permitted without a warrant and on the basis of reasonable suspicion less than probable cause — must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, supra, at 26; see also Michigan v. Long, 463 U. S. 1032, 1049, and 1052, n. 16 (1983); Ybarra v. Illinois, 444 U. S. 85, 93-94 (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U. S. 40, 65-66 (1968)…
The Court in Long justified this latter holding by reference to our cases under the "plain-view" doctrine. See Long, supra, at 1050; see also United States v. Hensley, 469 U. S. 221, 235 (1985) (upholding plain-view seizure in context 375*375 of Terry stop). Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U. S. 128, 136-137 (1990); Texas v. Brown, 460 U. S. 730, 739 (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i. e., if "its incriminating character [is not] `immediately apparent,' " Horton, supra, at 136 — the plain-view doctrine cannot justify its seizure. Arizona v. Hicks, 480 U. S. 321 (1987).
We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search" within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U. S. 765, 771 (1983); Texas v. Brown, supra, at 740. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. See Hicks, supra, at 326-327; Coolidge v. New Hampshire, 403 U. S. 443, 467 — 468, 469-470 (1971) (opinion of Stewart, J.). The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure 376*376 would be justified by the same practical considerations that inhere in the plain-view context.[3]..
Under the State Supreme Court's interpretation of the record before it, it is clear that the court was correct in holding that the police officer in this case overstepped the bounds of the "strictly circumscribed" search for weapons allowed under Terry. See Terry, 392 U. S., at 26. Where, as here, "an officer who is executing a valid search for one item seizes a different item," this Court rightly "has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will." Texas v. Brown, 460 U. S., at 748 (Stevens, J., concurring in judgment). Here, the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to "[t]he sole justification of the search [under Terry: ] . . . the protection of the police officer and others nearby." 392 U. S., at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id., at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U. S., at 1049, n. 14; Sibron, 392 U. S., at 65-66.
Once again, the analogy to the plain-view doctrine is apt. In Arizona v. Hicks, 480 U. S. 321 (1987), this Court held invalid the seizure of stolen stereo equipment found by police while executing a valid search for other evidence. Although 379*379 the police were lawfully on the premises, they obtained probable cause to believe that the stereo equipment was contraband only after moving the equipment to permit officers to read its serial numbers. The subsequent seizure of the equipment could not be justified by the plain-view doctrine, this Court explained, because the incriminating character of the stereo equipment was not immediately apparent; rather, probable cause to believe that the equipment was stolen arose only as a result of a further search — the moving of the equipment — that was not authorized by a search warrant or by any exception to the warrant requirement.
In assessing the reasonableness of an officer's actions, "it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?". Terry, 392 U.S. at 22, 88 S.Ct. at 1880 (citations omitted). The officer's state of mind, or his stated justification for his actions, is not the focus of our inquiry. See Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Scott v. United States, 436 U.S. 128, 138-39, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978); United States v. Colin, 928 F.2d 676, 678 (5th Cir.1991). As long as all the facts and circumstances, viewed objectively, support the officer's decisions, the Fourth Amendment is satisfied. We must attempt to put ourselves in the shoes of a reasonable police officer as he or she approaches a given situation and assesses the likelihood of danger in a particular context…
Rideau's specific moves took place after a detention, at night, in a high crime area where the carrying of weapons is common. These are articulable facts upon which a police officer may legitimately rely in justifying his actions. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Laing, 889 F.2d 281, 286 (D.C.Cir.1989); United States v. Trullo, 809 F.2d 108, 111 (1st Cir.1987). Stripped from their context, the backward steps offer no threat, but to a police officer in Ellison's situation, they become very significant in the matrix of the general facts. Stated abstractly, specific actions may be construed as more or less hostile depending on the setting in which they occur. Of course, that an individual is in a high crime neighborhood at night is not in and of itself enough to support an officer's decision to stop or frisk him. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). But when someone engages in suspicious activity in a high crime area, where weapons and violence abound, police officers must be particularly cautious in approaching and questioning him. Trained, experienced officers like Ellison may perceive danger where an untrained observer would not. Id. at 52 n. 2, 99 S.Ct. at 2641 n. 2. We are unwilling to tie the hands of police officers operating in potentially dangerous situations by precluding them from taking reasonable steps to ensure their safety when they have legitimately detained an individual.
Note that reasonable suspicion to conduct a frisk will depend in part on the nature of the crime for which the citizen is suspected. Thus, if there is reasonable suspicion to believe that a person is going to commit a crime of violence with a weapon, there will automatically be reasonable suspicion to frisk that person. On the other hand, if the citizen is suspected of a financial crime, it is less likely that reasonable suspicion to frisk will be found. See Leveto v. Lapina , 258 F.3d 156 (3rd Cir. 2001) (frisk of person suspected of tax offense was illegal, as there was no reason to think that the person was armed and dangerous); US v. McKoy 428 F.3d 38 (1st Cir. 2005) (no reasonable suspicion for a patdown, even though the defendant was in a high crime area, where the basis for the stop was a parking and license plate violation: "this is not a case where the police had reason to suspect the presence of firearms
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.[14] See Terry, 392 1050*1050 U. S., at 21. "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id., at 27. If a suspect is "dangerous," he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v. New Hampshire, 403 U. S. 443, 465 (1971); Michigan v. Tyler, 436 U. S. 499, 509 (1978); Texas v. Brown, 460 U. S., at 739 (plurality opinion by REHNQUIST, J.); id., at 746 (POWELL, J., concurring in judgment)…
The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. See 413 Mich., at 472, 320 N. W. 2d, at 869. This reasoning is mistaken in several respects. During any investigative detention, the suspect is "in the control" of the officers in the sense that he "may be briefly detained against his will . . . ." Terry, supra, at 34 (WHITE, J., concurring). Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long's position break away from police control and retrieve a weapon from his automobile. See United States v. Rainone, 586 F. 2d 1132, 1134 (CA7 1978), cert. denied, 440 U. S. 980 (1979). In addition, 1052*1052 if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. United States v. Powless, 546 F. 2d 792, 795-796 (CA8), cert. denied, 430 U. S. 910 (1977). Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation "at close range," Terry, 392 U. S., at 24, when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a "quick decision as to how to protect himself and others from possible danger . . . ." Id., at 28. In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.[16]
The trial court and the Court of Appeals upheld the search of the trunk as a valid inventory search under this Court's decision in South Dakota v. Opperman, 428 U. S. 364 (1976). The Michigan Supreme Court did not address this holding, and instead suppressed the marihuana taken from the trunk as a fruit of the illegal search of the interior of the automobile. Our holding that the initial search was justified under Terry makes it necessary to determine whether the trunk search was permissible under the Fourth Amendment. However, we decline to address this question because it was not passed upon by the Michigan Supreme Court, whose decision we review in this case. See Cardinale v. Louisiana, 394 U. S. 437, 438 (1969). We remand this issue to the court below, to enable it to determine whether the trunk search was permissible under Opperman, supra, or other decisions of this Court. See, e. g., United States v. Ross, 456 U. S. 798 (1982).[17]
----------------------
Synopsis of Rule of Law. If there is not a plain statement that a lower state court’s decision rests upon adequate and independent state grounds and when the state appears to have rested its decision primarily on federal law, the Supreme Court will assume that the decision is in fact based on federal law.
Issue. If there is not probable cause for arrest, can a protective search for weapons
extend to an area beyond the person?
Does Long’s claim that the Michigan Supreme Court acted
on independent and adequate state grounds eliminate the Supreme Court’s jurisdiction to hear this
case?
Held. The United States Supreme Court (Supreme Court) reversed the decision of the
Michigan Supreme Court. The Supreme Court held that the protective search of the passenger compartment
was reasonable under principles that the Supreme Court created in a prior case, Terry v. Ohio, (392 U.S.
1 (1968)). In Terry, the Supreme Court held that there was a valid protective search for weapons in the
absence of probable cause to arrest because it was unreasonable to deny a police officer the right
“to neutralize the threat of physical harm,” when the officer possesses a reasonable
suspicion that an individual is armed and dangerous. In Terry, the Supreme Court only permitted a search
of the person. In this case, the Supreme Court holds that the principles outlined in Terry also apply to
the passenger compartment and trunk of a vehicle if the officer has a reasonable suspicion that a person
may be armed and dangerous.
Long also tried to argue that the Michigan constitution afforded
greater protection from search and seizures then the U.S. Constitution and that the reference to the
state constitution in the Michigan Court’s opinion formed a basis for independent and adequate
state grounds. The Supreme Court analyzed the Michigan Supreme Court’s opinion and confirmed that
it referred to the state constitution, but noted that it otherwise relied exclusively on federal law.
The Michigan opinion did not include a plain statement that the references to federal law were solely
used as a guide, and the decision was really based on the Michigan constitution. Without such a plain
statement, the Supreme Court held that the case is not based on independent and adequate state grounds,
and therefore, is reviewable by the Supreme Court.
Is it reasonable to assume that those suspected of drug dealing always prevent a risk of harm to the officer when stopped-justifying a protective search of areas that the suspect could reach after a stop? In US v. Brown , 913 F.2d 570 (8th Cir.1990), the court relied on Long to uphold a search of a locked glove compartment, when the officershad reasonable suspicion of drug activity. The court concluded that "since weapons and violence are frequently associated with drug transactions,the officers reasonably believed that the individuals with whom they were dealing were armed and dangerous." Is there now a per se rule that a search of a passenger compartment for weapons can be conducted upon reasonable suspicion to believe the driver is a drug dealer? See also US v. Sakyi , 160 F.3d 164 (4th Cir. 1998) (finding it permissible to frisk all occupants of a car after a cigar box of marijuana was found in the car; court reasons that "guns often accompany drugs").
We recognize the danger of slippage into a guilt by association pattern whereby anyone seen near prospective drug activity becomes fair game for a stop and frisk. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) was just such a case. The police officer was told in no uncertain terms that "[t]he inference that people who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security." Sibron, 392 U.S. at 62, 88 S.Ct. at 1902. The line of distinction is admittedly thin between people who talk to narcotics addicts and people who frequent apartments where narcotics activity is being conducted. But it is a line that has some bearing on the reasonableness of the officer's conduct. There is more reason to suspect that an individual who is present in a private residence containing drugs is involved in illegal drug activity than someone who merely holds conversations with drug addicts in public places. Here, the justification for the stop and frisk lies in Reid's proximity to the premises to be searched, and the reasonableness of Officer Carter's expressed concern about his safety and that of his colleagues. We have even less basis for challenging that reasonableness on appeal than did the trial court in hearing the evidence on the motion to suppress evidence.
We recognize that we have created no beacons for police or trial judges to use in navigating the deep waters of Fourth Amendment doctrine. Unfortunately, "reasonableness" is not a plain meaning word that lends itself to bright-line parsing.
Given all the circumstances, it was objectively reasonable for the officer to believe that this particular hard object could likely be a weapon and to seize the item to satisfy himself that it was not something that could be used to inflict harm. Officers making 277*277 Terry stops must make "quick decision[s] as to how to protect [themselves] and others from possible danger." Terry, 392 U.S. at 28, 88 S.Ct. 1868; accord Stanfield, 109 F.3d at 983.
Compare Buie with US v. Colbert , 76 F.3d 773 (6th C:.r. 1996), where the court found that a protective sweep after an arrest was not permitted where there was no indication that anyone other than the arrestee was on the premises: "The facts upon which officers may justify a Buie protective sweep are those facts giving rise to a suspicion of danger from attack by a third party during the arrest, not the dangerousness of the arrested individual."
Courts have held that the self-protective principles of Buie and Terry can permit a protective sweep even when no arrest is involved. That is, if the officers are acting in the course of legal activity, and they have reasonable suspicion to believe that a person in the area can obtain access to a weapon and use it on the officers or others, the officers are permitted to conduct a protective sweep for weapons. See, e.g., US v. Gould , 364 F.3d 578 (5th Cir. 2004) (en bane), in which officers were given consent to search a particular room in a home. They were concerned, under the circumstances, that they might be walking into a trap, and so conducted a cursory inspection of the entire house. The court found the inspection to be a permissible protective sweep.
===
an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"; and (2) "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."
`"[W] here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority."'
- in Brownfield v. State, 2007
In Royer, the Court held that an arrest occurred when Royer was forcibly moved to a custodial atmosphere, for purposes of extracting consent to search. The Court noted, however, that an officer can, within the confines of a Terry stop, force the suspect to move for purposes of safety and security. Are there any other legitimate reasons to force a suspect to move without probable cause to arrest? Many courts have found that if reasonable suspicion exists, it is permissible to transport the suspect a short distance for purposes of identification by witnesses. In People v. Hicks , 68 N.Y.2d 234, 508 N.Y.S.2d 163 (1986), the New York Court of Appeals found that coercive movement to the crime scene for purposes of identification was within the confines of a permissible Terry stop.
The most common investigative techniques permitted pursuant to a Terry stop are 1) preliminary investigation of the suspect's identity, and 2) questioning concerning the suspicious circumstances giving rise to the stop. See US v. Guzman, 864 F.2d 1512 (10th Cir.1988) ("An officer conducting a routine traffic stop may request a driver's license and vehicle identification."). The officer may also verify the information obtained from the suspect by communicating with others, or by conducting preliminary investigations such as a vehicle registration check, license check, or a computer search for outstanding warrants. See US v. Mendez , 118 F.3d 1426 (10th Cir. 1997) ("An officer conducting a routine traffic stop may run computer checks on the driver's license, the vehicle registration papers, and on whether the driver has any outstanding warrants or the vehicle has been reported stolen").
Courts have also permitted officers to detain suspects on reasonable suspicion in order to conduct a canine sniff or to conduct a preliminary investigation of other suspicious circumstances. See US v. Bloomfield , 40 F.3d 910 (8th Cir. 1994) (where officers had reasonable suspicion that drugs were in a car, it was proper to detain the suspects while a dog was brought to the scene to sniff the vehicle, because the investigation was "reasonably related in scope to the circumstances that justified the interference in the first place").
The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U. S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of "arbitrary and abusive police practices" was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U. S. 352 (1983). The California law in Kolender required a suspect to give an officer "`credible and reliable'" identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in "`virtually unrestrained power to arrest and charge persons with a violation.'" Ibid. (quoting Lewis v. New Orleans, 415 U. S. 130, 135 (1974) (Powell, J., concurring in result))…
The narrow scope of the disclosure requirement is also important. One's identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555 (1990) (suggesting that "fact[s] the State could readily establish" may render "any testimony regarding existence or authenticity [of them] insufficiently incriminating"); cf. California v. Byers, 402 U. S. 424, 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (1990) (principal opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.
Some investigative techniques are themselves so intrusive or extensive as to require probable cause. The most obvious example is a search for evidence, which, as stated above, goes beyond the scope of a Terry stop. Also, some courts have held that probable cause is requirerl before a suspect can be subjected to a series of demanding physical te๔tr; to determine whether he is intoxicated. See People v. Carlson, 677 P.:๔ci 310 (Colo.1984) (holding that the full battery of tests employed was 2lintrusive as to constitute an arrest). Roadside sobriety tests that are les;-:, demanding may be permissible under Terry, however. See State v. Wyatt , 67 Haw. 293, 687 P.2d 544 (1984) (limited field sobriety test permissibJ,๔ on reasonable suspicion).
Many courts have held that a Terry stop must end when the reason for the stop has come to an end. If the reasonable suspicion supporting the stop has been cleared up (e.g., an identification checks out) or the person has been processed (e.g., the traffic ticket has been issued), then the stop is at an end and the suspect must be released. So for example, an officer who stops someone for a traffic violation cannot continue the stop in order to investigate for drug or gun crimes, in the absence of reasonable suspicion to support such an independent inquiry. A Terry stop cannot be used as an excuse for a fishing expedition. US v. Santiago , 310 F.3d 336 (5th Cir. 2002) (detention after a valid traffic stop was impermissible: "Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed.").
Even though voluntarily given, consent does not remove the taint of an illegal detention if it is the product of that detention and not an independent act of free will. - in US v. Jackson, 2007
Although an officer's inquiry may be wide-ranging, once all relevant computer checks have come back clean, there is no more reasonable suspicion, and, as a general matter, continued questioning thereafter unconstitutionally prolongs the detention. - in US v. Saldana, 2015
When reviewing the denial of a motion to suppress evidence, the appellate court must consider the evidence in the light most favorable to the government. United States v. Shamaeizadeh, 80 F.3d 1131, 1135 (6th Cir.1996). Whether consent to a search is voluntarily given is a question of fact. United States v. Crowder, 62 F.3d 782, 787 (6th Cir.1995), cert. denied, 516 U.S. 1057, 116 S.Ct. 731, 133 L.Ed.2d 682 (1996). Thus, a district court's finding of voluntary consent will be reversed only if clearly erroneous. United States v. Calhoun, 49 F.3d 231, 234 (6th Cir.1995).
A law enforcement officer may make a brief investigatory stop of an individual so long as there is a reasonable basis for doing so. Terry v. Ohio, 392 U.S. 1, 22-24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically, "the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). A law enforcement officer is generally justified in stopping an individual and asking for identification when relying on information transmitted by a valid police bulletin. See United States v. Hensley, 469 U.S. 221, 232, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Obviously, stopping Erwin was proper in light of the fact that both he and his vehicle matched the description given by the general police broadcast of a possible drunk or reckless driver.
After the deputies satisfied themselves that Erwin was not drunk or otherwise impaired, they were justified in continuing to detain Erwin if, by then, they had reasonable and articulable suspicion that Erwin was engaged in other criminal activity. We think, as the district court did, that the deputies were reasonably entitled to conclude that Erwin may have been a drug dealer, based on the facts that he (1) was nervous, (2) seemed to try to avoid being questioned by attempting to leave, (3) seemed to have used or was preparing to use a pay telephone to make a call when a cellular telephone was available, (4) seemed to have drug paraphernalia in his vehicle, (5) had a large amount of cash, (6) had no registration or proof of insurance, (7) had a criminal record of drug violations, and (8) had an out-of-place backseat cushion. Although many of these facts are consistent with innocence, all that is required is that the deputies' suspicion be "reasonable" and "articulable," as determined by the totality of the circumstances. See Sokolow, 490 U.S. at 6-8, 109 S.Ct. 1581. We find this standard was met.
The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and `voluntariness is a question of fact to be determined from all the circumstances.'" - in Bay v. Com., 2012
In Dunaway v. New York, 442 U.S. 200 (1979), the Court distinguished Terry stops from cases in which the police detain a suspect for sustained interrogation. The Court emphasized that Terry was a narrow decision and concluded that police cannot detain a suspect and transport him to the stationhouse for questioning without probable cause, even if the detention is not deemed to be an arrest under state law (and there would be no arrest record or formal booking procedure). Justice Brennan, writing for the Court, concluded that "detention for custodial interrogation-regardless of its label-intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." He noted that "any 'exception' that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are reasonable only if based upon probable cause.".. In Davis v. Mississipi394 U.S. 721 (1969), the Court held that a round-up of twenty-five African-American youths for questioning and fingerprinting-in an effort to match prints found around a window entered by a rape suspect-violated the Fourth Amendment.
The Court of Appeals did not question the reasonableness of Officer Thrasher's or Agent Cooke's conduct during their detention of Savage. Rather, the court concluded that the length of the detention alone transformed it from a Terry stop into a de facto arrest. Counsel for respondents, as amicus curiae, assert that conclusion as their principal argument before this Court, relying particularly upon our decisions in Dunaway v. New York, 442 U. S. 200 (1979); Florida v. Royer, 460 U. S. 491 (1983); and United States v. Place, 462 U. S. 696 (1983). That reliance is misplaced.
Admittedly, Terry, Dunaway, Royer, and Place, considered together, may in some instances create difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest. Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops. While it is clear that "the brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion," United States v. Place, supra, at 709, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes. United States v. Hensley, 469 U. S., at 228-229, 234-235; Place, supra, at 703-704, 709; Michigan v. Summers, 452 U. S. 692, 700, and n. 12 (1981) (quoting 3 W. LaFave, Search and Seizure § 9.2, pp. 36-37 (1978)). Much as a "bright line" rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.
We sought to make this clear in Michigan v. Summers, supra:
"If the purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain circumstances be able to detain the 686*686 individual for longer than the brief time period involved in Terry and Adams [v. Williams, 407 U. S. 143 (1972)]." 452 U. S., at 700, n. 12.
Later, in Place, we expressly rejected the suggestion that we adopt a hard-and-fast time limit for a permissible Terry stop:
"We understand the desirability of providing law enforcement authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation. Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation." 462 U. S., at 709, n. 10.
The Court of Appeals' decision would effectively establish a per se rule that a 20-minute detention is too long to be justified under the Terry doctrine. Such a result is clearly and fundamentally at odds with our approach in this area.
After Sharpe what kind of conduct, if any, will be considered impermissible delay, as opposed to diligent investigation? See United States v. Davies , 768 F.2d 893 (7th Cir. 1985) (reasonable to detain suspects for an additional thirty minutes to await advice from superiors, where detaining officers were inexperienced); US v. Bloomfield, 40 F.3d 910 (8th Cir.1994) (en bane) ("The one-hour period between the time Roberts pulled Bloomfield over and the time Roberts arrested Bloomfield was not an unreasonable period to wait for a drug dog to verify Roberts' suspicion."); Embody v. Ward, 695 F.3d 577 (6th Cir. 2012) (after Embody was found with a loaded gun in a state park, a two-and-a-half hour detention was not unreasonable under Terry; Embody "points to no lack of diligence by [the officer] in trying to confirm (or allay) his suspicions. The officers took the time they needed to determine whether the AK-47 was a handgun, whether Embody had a permit for it, whether he had illegally modified it and whether he posed any other safety threats. A good part of the detention, moreover, came at the beck and call of Embody, who asked to speak to the police supervisor, even after being told it would delay his release.").
In US v. Alexander, 907 F.2d 269 (2d Cir.1990), the court held that officers acted properly when they unholstered their guns to detain two men suspected of purchasing drugs. The two men were in a Jaguar at 6:00 p.m., parked in an area known for drug activity. The court emphasized the "dangerous nature of the drug trade and the genuine need of law enforcement agents to protect themselves from the deadly threat it may pose." Has the court established a per se rule for those who are reasonably suspected of drug activity? Compare US v. Novak, 870 F.2d 1345 (7th Cir.1989), where nine law enforcement officers working in an airport stopped two suspected drug couriers. One officer drew her gun and pointed it directly at one suspect's head at close range. The court found that an arrest had occurred. The action was clearly excessive given the fact that the suspects had just deplaned and could not have been carrying weapons.
Terry concerned seizures of the person, but its principles have been applied to seizures of property as well. The Court in United States v. Van Leeuwen, 397 U.S. 249 (1970), held that some detentions of property could occur upon reasonable suspicion. Officers, acting upon reasonable suspicion, detained a mailed package for more than a day, while an investigation was made for purposes of developing probable cause and obtaining a warrant
The Court in United States v. Place, 462 U.S. 696 (1983), noted that it is often necessary to seize property upon reasonable suspicion, while an investigation of criminal activity continues. The Court recognized, however, that if a person is traveling with his property, then a seizure of that property "intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary." It concluded that "the limitations applicable to investigative detentions of the person should define the permissible scope of the person's luggage on less than probable cause."
We find that the officers, upon seeing the items contained in Frost's pockets, had sufficient "reasonable suspicion" to detain Frost for further questioning, and submit his luggage and other belongings to a dog sniff test. We believe that Frost's appearance, belongings and behavior "were adequate grounds for suspecting [him] of carrying drugs and for temporarily detaining him and his luggage while [the officers] attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention." Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1327, 75 L.Ed.2d 229 (1983).
Frost argues that the 80 minutes that elapsed between the time Detective Adams brought the suitcase to the airport police station (5:40 p.m.) and the time the suitcase was offered to the dog for olfactory inspection (7:00 p.m.) was too long, and so exceeded the limits of lawful investigative detention. Frost relies solely on United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), a case in which the Supreme Court found a search to be unreasonable and ordered the suppression of the evidence produced by the search…
We find that none of the indicia of a lack of diligence, which substantially informed the result in Place, occurred in the instant case. We thus hold that the detention of Frost's suitcase constituted no violation of his rights.
Because the intrusion [in US v. LaFrance, 879 F.2d 1 (1989)] was not as severe as that in Place, the court reasoned that the somewhat longer detention of the package was permissible so long as the police were acting diligently.
We agree with Winsor that this assertion "flies in the face of both precedent and common sense." Appellant's Supplemental Brief at 1. As the Supreme Court made clear in Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967), "the reach of [the Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." To draw a distinction based upon whether there had been a physical entry into the premises would enable police officers to evade the reach of the Fourth Amendment simply by forcing a door open and visually examining the interior without crossing the threshold. That the officers gained visual access to the interior of a dwelling without physically entering it is irrelevant to the question whether a search was effected. We find support for our position not only in Katz but also in United States v. Johnson, 626 F.2d 753 (9th Cir.1980), aff'd on other grounds, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In Johnson, police 1573*1573 standing outside the front door of a home arrested a person standing inside the door. We rejected the government's argument that the arrest was not inside the home because the police had not crossed the threshold, reasoning that "it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home. Otherwise, arresting officers could avoid illegal `entry' into a home simply by remaining outside the doorway and controlling the movements of suspects within...." 626 F.2d at 757. See also United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984) (holding that a warrantless "search" of a home conducted by monitoring a radio transmitter violated the Fourth Amendment, noting, "[a]t the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable").
Neither of the cases relied upon by the government undermines our position. In United States v. Hersh, 464 F.2d 228, 229-30 (9th Cir.), cert. denied, 409 U.S. 1008, 93 S.Ct. 442, 34 L.Ed.2d 301 (1972), the police, while standing on the front porch, looked through a window and saw incriminating evidence inside the residence. We held no search was effected because police merely did what any member of the public was free to do — walk onto the front porch and observe whatever was in plain view through an unobstructed window. Similarly, in Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964), the police did what any person could do — they knocked on the front door of a residence, but did not use their authority as police officers to command the occupants to open the door. When the occupant opened the door, he did so voluntarily, not, as Dennis Winsor did, in response to a claim of lawful authority.[3]
In sum, we hold that the police did effect a "search" when they gained visual entry into the room through the door that was opened at their command… The government cites no authority, and we know of none, that a search of a residence may constitute such a limited intrusion on Fourth Amendment interests that it may be justified by a degree of suspicion less than probable cause.
We need not decide whether Knights' acceptance of the search condition constituted consent in the Schneckloth sense of a complete waiver of his Fourth Amendment rights, however, because we conclude that the search of Knights was reasonable under our general Fourth Amendment approach of "examining the totality of the circumstances," Ohio v. Robinette, 519 U. S. 33, 39 (1996), with the probation search condition being a salient circumstance.
The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined "by 119*119 assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Knights' status as a probationer subject to a search condition informs both sides of that balance. "Probation, like incarceration, is `a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.' " Griffin, supra, at 874 (quoting G. Killinger, H. Kerper, & P. Cromwell, Probation and Parole in the Criminal Justice System 14 (1976)). Probation is "one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service." 483 U. S., at 874. Inherent in the very nature of probation is that probationers "do not enjoy `the absolute liberty to which every citizen is entitled.' " Ibid. (quoting Morrissey v. Brewer, 408 U. S. 471, 480 (1972)). Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.
Does the result in Knights mean that the reasonableness of every search-and accordingly the necessary standard of proof-is based on a balance of the needs of the state and the privacy interests of the individual? If so, what is left of its declaration in Hicks that "a search is a search" that requires probable cause even though the particular search is cursory and relatively unintrusive? And what is left of the Terry Court's statement that officers during a stop can conduct a search upon reasonable suspicion, but only for self-protection and not to search for evidence?
Justice Thomas relied heavily on Knights, even though the search in that case was conducted upon reasonable suspicion. Justice Thomas emphasized that the parolee's expectation of privacy is substantially diminished, because his very liberty is conditional. In contrast, the state's interest in conducting a suspicionless search was found "substantial" because "parolees are more likely to commit future criminal offenses." He explained that, "most parolees require intense supervision" and that "a requirement that searches be based on individualized suspicion would undermine the State's ability to effectively supervise parolees and protect the p ublic from criminal acts by reoffenders".
See, e.g., US v. Freeman , 479 F.3d 743 (10th Cir. 2007) ('We interpret the Knights-Samson line of cases as resting on the parolee's diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case."). But the Supreme Court, in Maryland v. King , 133 S.Ct. 1958 (20 13), seemed to rely on a Knights/Samson-like free-form balancing in upholding DNA testing of arrestees. King is set forth in full after the treatment of "special needs" searches, infra.
In some circumstances, such as "[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). Those circumstances diminish the need for a warrant, either because "the public interest is such that neither a warrant nor probable cause is required," Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), or because an individual is already on notice, for instance because of his employment, see Skinner, supra, or the conditions of his release from government custody, see Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), that some reasonable police intrusion on his privacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the "interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer." Treasury Employees v. Von Raab, 489 1970*1970 U.S. 656, 667, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989).
The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be "colored by their primary involvement in `the often competitive enterprise of ferreting out crime.'" Terry, supra, at 12, 88 S.Ct. 1868 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). As noted by this Court in a different but still instructive context involving blood testing, "[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them.... Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate." Skinner, supra, at 622, 109 S.Ct. 1402. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the "touchstone of the Fourth Amendment is reasonableness, not individualized suspicion." Samson, supra, at 855, n. 4, 126 S.Ct. 2193.