Justice Matters: What constitutes a lawful detention

Justice Matters: What constitutes a lawful detention
Commonwealth's Attorney Bryan Porter

This is the first of a series of columns exploring police/citizen encounters.

Imagine a scenario: you are walking out of a local department store having completed
some holiday shopping. As you reach your car, a police officer approaches you. She orders you to stop and to drop your shopping bags. She tells you that she is investigating a shoplifting offense and that you match the description of the shoplifter. 

You ask the officer if you are under arrest. She replies, “No, you are just being detained for investigative purposes” and requests your identification. A moment later, another police officer slowly drives past your location. Inside his police car is the cashier who witnessed the shoplifting offense inside the store and who called police. 

You hear over the officer’s radio: “The witness says that’s not the suspect.” The officer who detained you looks at you and says: “Sorry for the inconvenience, but you matched the description we were given of the thief. You’re free to leave now” and hands you your driver’s license.

So, while you have done nothing wrong, you have been stopped by an officer, briefly detained and, for a moment, suspected of a crime. The obvious question is: can the police lawfully do this?

The answer to this question is, in certain circumstances, a definite “yes.” In the landmark 1968 case of “Terry v. Ohio,” the United States Supreme Court ruled that police officers who possess a “reasonable, articulable suspicion” that a person has committed a crime may briefly detain the person in order to confirm or dispel their suspicion. Given the name of the case, these detentions are often referred to as “Terry” stops.

The Terry case is fascinating. It was decided in the middle of the Civil Rights Era, and the
implications of the decision were not lost on the Supreme Court. The Court acknowledged arguments of civil rights groups against such detentions and stated that the decision should not be taken as an approval of detentions outside of the “legitimate investigative sphere.” Indeed, the Court was worried that investigative detentions might be abused and therefore strictly regulated the manner in which they were to be conducted.

For instance, prior to detaining someone, police officers must be able to articulate specific facts that establish the person to be detained might be involved in criminal activity. Officers must have more than a “mere hunch” that the person is involved in a crime. An officer cannot detain anyone they choose, nor can they stop someone simply because they happen to be in a certain area or neighborhood.

Furthermore, detentions must be as brief as possible — in most circumstances, no longer than ten minutes. Officers cannot take a detained person to headquarters against their will; the Constitution does not countenance “running someone in for questioning.” Detained persons are not subject to a search of their person, although officers may conduct a limited weapons pat-down if they can articulate a reasonable belief that the person is armed and dangerous.

When conducted in compliance with these constitutional constraints, investigative detentions are an important law-enforcement tool. In Alexandria, detentions have directly led to arrests in a host of serious crimes such as murders, robberies and sexual assaults.
Without Terry stops, many violent crimes would simply not be solved. 

However, police departments must comport with the constraints of the Terry decision. A department that allows individual officers discretion to stop whomever they wish, without articulating facts arising to reasonable suspicion, or that condones practices such as a full search of a detained person during a detention, would be encouraging its officers to violate the law.

Most citizens do not realize the prosecutor’s role in both teaching constitutional law and ensuring compliance with its mandates. Over the past decade I have taught literally thousands of law enforcement officers about the Constitution, teaching them to honor
this revered document and to uphold the oath they took upon assuming office.

Police officers work a dangerous job for little fame and less fortune. I will always believe that, when done correctly and within established constitutional constraints, policing is a noble calling.

As the elected prosecutor, my role is to help ensure compliance with those constraints.