Reexamining Reasonable Suspicion
by: Alice Newlin-Cushing • February 8, 2014 • no comments
Does Terry Really Apply to Completed Misdemeanors?
Is reasonable suspicion always enough? In the decades since the United States Supreme Court decided Terry v. Ohio, Oregon courts have held that so long as police reasonably suspect that a person is involved in criminal activity, Article 1, section 9, of the Oregon Constitution permits police to stop that person. The severity and recent nature of the crime suspected do not matter—a crime is a crime in Oregon.
However, not every state nor every federal jurisdiction has interpreted Terry so broadly, and arguably, neither should we. This article will explain what the United States Supreme Court and the federal circuit courts have held regarding the permissible bases for Terry stops, and how to raise challenges to reasonable suspicion stops for completed misdemeanors under the Fourth Amendment. Furthermore, this article will suggest that Oregon has not directly confronted the issue of whether reasonable suspicion of a completed misdemeanor justifies the same intrusion into a person’s liberty as suspicion of more severe or ongoing crimes, and that we have drawn our reasonable suspicion stop parameters too broadly.
It is clear that under the Fourth Amendment law enforcement is not required to wait until there is probable cause in order to seize a person if the law enforcement interests outweigh the individual’s liberty interests. When there is reasonable suspicion of a crime that is imminent or ongoing, as it was in Terry, the law enforcement interests are strong and a stop is reasonable.[1] When the crime has been completed, the United States Supreme Court has held that the balance weighs in favor of law enforcement interests “when police have reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony.”[2] In those circumstances a limited seizure, such as a Terry stop, may be made to investigate that suspicion.
However, the Supreme Court limited its holding to felonies and left open the issue of whether stops conducted without probable cause are reasonable when the crime suspected is a completed misdemeanor. When it confronted that issue, the Ninth Circuit declined to adopt a bright line rule prohibiting all reasonable suspicion stops for completed misdemeanors, but held that it is appropriate to consider the nature of the suspected offense in balancing the defendant’s liberty interests against law enforcement investigatory interests.[3] Specifically, in Grigg, the Ninth Circuit concluded that it was unreasonable for police to stop a person on suspicion of having committed a misdemeanor by playing his music too loudly some hours previously, emphasizing that under those circumstances, there was no threat to public safety and police had reasonable means other than a stop to investigate.
Other federal circuits have taken a similar approach, holding that reasonable suspicion stops for completed misdemeanors are reasonable only when there is an ongoing or potentially repeating public safety risk.[4] The Sixth Circuit has gone further, saying, in dicta, that police may not make a stop on reasonable suspicion of a mere completed misdemeanor.[5]
Accordingly, in cases where police make a stop based solely on reasonable suspicion that your client previously committed a misdemeanor, it may benefit your clients to move to suppress the evidence obtained in that stop. For nonviolent crimes with little public safety risk and ample investigatory avenues, such as criminal trespass, littering, third-degree theft and others, the federal constitutional balancing test especially supports suppression. The motion to suppress in those circumstances could argue that the court is required to determine the stop’s legality under the Fourth Amendment using the balancing test outlined by the Supreme Court and adopted by the Ninth Circuit:
A reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g. drunken and/or reckless driving), and any risk of escalation (e.g. disorderly conduct, assault, domestic violence). An assessment of the ‘public safety’ factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.[6]
And, though the Oregon Supreme Court has never held that it is required, it is also arguable that Article 1, section 9, of the Oregon Constitution likewise limits the ability of police to stop a person for a minor crime. Balancing law enforcement interests against the personal interests of the defendant is consistent with Oregon’s exclusionary rule and not based on a deterrence rationale like the Fourth Amendment, but instead seeks to vindicate a defendant’s personal rights.[7] Raising both state and federal constitutional arguments gives your client the best chances for suppression at trial and on appeal, and may help develop Oregon stop law consistently with the more protective approach taken under the Fourth Amendment. _____________________________________________________
- ↑ Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968).
- ↑ United States v. Hensley, 469 US 221, 105 S Ct 675, 83 L Ed 2d 604 (1985) (holding that an investigatory stop of the defendant in reliance on information that the defendant had participated in a robbery was permissible because the “justification for the stop did not evaporate when the armed robbery was completed,” and such suspicion justified the length and intrusiveness of the stop and detention).
- ↑ United States v. Grigg, 489 F3d 1070 (2007) (holding that in evaluating the reasonableness of an investigatory stop, a reviewing court must consider “the nature of the offense, with particular attention to nay inherent threat to public safety associated with the suspected past violation,” but declining to adopt strict rule that no stops for completed misdemeanors would be reasonable).
- ↑ See United States v. Moran, 503 F3d 1135, 1141-43 (10th Cir 2007) (the governmental interests in investigating completed criminal trespass outweighed personal interests because of multiple reports of the same, likely armed, individual trespassing, and a history of confrontations between trespasser and property owner indicating an ongoing or repeated public safety risk); United States v. Hughes, 517 F3d 1013, 1017 (8th Cir 1008) (declining to adopt a per se rule, but holding that “to determine whether a stop is constitutional, this court must balance the ‘nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion’” and therefore the governmental interest in investigating a previous trespass does not outweigh the personal liberty and privacy interests against being stopped and frisked).
- ↑ Gaddis ex rel Gaddis v. Redford Twp., 364 F3d 763, 771 n 6 (6th Cir 2004).
- ↑ Grigg, 498 F3d at 1081.
- ↑ State v. Thompkin, 341 OR 368, 143 P3d 530 (2006).
