By: Todd Duncan, NIRMA Law Enforcement and Safety Specialist
Calls for service about a “suspicious person” are common in law enforcement. They can justify a deputy responding, observing, asking questions, and investigating. But a suspicious person call does not automatically justify detaining or frisking someone.
THE RISK
A common mistake is believing a deputy may detain someone simply because the deputy is “conducting a lawful investigation.” The investigation may be lawful, but the detention still requires independent Fourth Amendment justification.
THE RULE
Under the U.S. Supreme Court case of Terry.v¡.Ohio, 392 U.S. 1 (1968), a deputy may briefly detain a person only when the deputy has reasonable, articulable suspicion that the person is involved in criminal activity. A hunch, unusual behavior, presence in a high crime area, or a caller’s characterization of someone as “suspicious” is not enough by itself.
Nebraska state statute on this subject says: “A peace officer may stop any person in a public place whom he reasonably suspects of committing, who has committed, or who is about to commit a crime and may demand of him his name, address, and an explanation of his actions.” (NRS 29-829)
However, before detaining someone, deputies should be able to answer two questions:
- “What specific facts make me reasonably suspect this person has committed, is committing, or is about to commit a crime?”
- “What law or statute do I reasonably suspect this person has violated, is violating, or is about to violate?” It’s this second question that sometimes gets overlooked.
If the deputy cannot articulate the facts and connect those facts to suspected criminal activity, i¡e¡ an actual crime or law violation, the deputy should generally continue the investigation through observation or a consensual encounter, rather than detention. To summarize:
- Consensual encounter: No reasonable suspicion is required. Deputies may approach, ask questions, and request identification, as long as the person remains free to decline and leave.
- Investigative detention: Requires specific, articulable facts that establish reasonable suspicion of criminal activity.
- Frisk: A lawful stop does not automatically authorize a frisk. The deputy must also reasonably suspect that the person is armed and dangerous. A Terry frisk is a limited protective search for weapons, not a search for evidence.
WHY IT MATTERS
Once a deputy restrains a person’s freedom of movement through physical force or a show of authority to which the person submits, a Fourth Amendment seizure has occurred. If reasonable suspicion was lacking, the detention may be unconstitutional, potentially resulting in suppression of evidence, civil litigation under 42 U.S.C. § 1983, and avoidable liability for the deputy and agency.
THE TAKEAWAY
Suspicion brings you to the scene. Reasonable suspicion permits the detention. Reasonable suspicion that the person is armed and dangerous permits the frisk.
When in doubt, deputies can often continue investigating through observation, gathering additional information from the initial caller, and consensual conversation until sufficient facts develop to justify detention.
Stay professional. Stay accountable. Protect the badge.
