You are hanging out in a park with a couple of friends. Two police officers show up and ask you and your friends what you are doing in the park. You walk away, which is within your rights. If you do attempt to walk away and the officers prevent you from doing so, you are legally detained. Or you don’t walk away because you believe you are not free to walk away due to an articulable intimidating presence of the officers. In either case, you are being detained.
You may ask the officers: “Am I being detained?” and, indeed, you should. It is important to establish whether you are detained on not. (If the officer says you are not being detained, then you are free to walk away.) The reason it is important to establish whether you are detained or not is because of what may come next. If you end up getting arrested subsequent to the detention, you may be able to suppress the evidence if the court determines that the detention was unlawful.
You find out from the officers that they received a report of suspicious activity in the park and that you and your friends fit the description of the individuals who are suspicious. In this case, or under other circumstances where an officer can establish reasonable suspicion that you are engaged in or about to engage in criminal activity, the officer can legally detain you for a brief investigation. This is known as a Terry stop, named after the Supreme Court case, Terry v. Ohio (1968) 392 U.S. 1., where that court held that an officer may conduct a brief investigative detention when there is reasonable suspicion that the individual stopped is armed or where the officer suspects criminal activity is afoot.
This is important though: Officers aren’t allowed to conduct such a detention based on a hunch, curiosity, or a rumor. Even the report that there is suspicious activity, such as the example here, will not suffice unless that report is deemed to be reliable in its description of illegal behavior. For example, a report of “suspicious individuals” will not suffice. But a report of “suspicious individuals brandishing guns” would.
Back to the park. What the officer may do is ask you if you are willing to answer a few questions or otherwise investigate by observation and consensual conversation. What the officer may not do is immediately detain you by restricting your movement. The officer needs articulable reasonable suspicion to do that. This can be very ambiguous. Sometimes an officer will claim that he or she had the requisite suspicion based on clothing (for example, the officer might claim: “The suspect was wearing a baggy jacket in the summer and criminals often wear baggy clothing unsuitable for the weather to hide a weapon.”). Or the officer might base his or her suspicion on the demeanor of the detainee (“He was nervous” or “He looked like he was on drugs” or some other pretext.) That will not be enough.
An officer’s reasonable suspicion must be based on the “totality of the circumstances.” Now, of course, if the officer witnesses criminal activity, say you and your friends are brandishing guns in the park, that is sufficient. But otherwise, there must be more than just clothing or demeanor or a citizen’s report of suspicious activity or any one discreet observation.
Let’s say you are in the park with your friends at 2:00 a.m. in the morning. The park is a known gang and drug hangout. You and your friends are wearing clothing associated with the local street gang. When the police arrive, you are making furtive movements at your waistband. These circumstances together may be enough for an officer to establish reasonable suspicion.
An unlawful detention is a violation of an individual’s Fourth Amendment rights. As such, if the detention is unlawful, the evidence found as the fruits of the detention must be excluded. In almost all cases, a successful suppression of the evidence will result in dismissal of the charge or charges.
Orange County criminal defense attorney William Weinberg offers free consultations where he will review your case and assess your options. A motion to suppress evidence may be one of those options. Contact him at his Irvine office at 949-474-8008 or by email at email@example.com to set up your free consultation.