Limits on the Stop

Limits on the Stop

The preceding sections asked what an officer needs in order to begin a stop. Terry v. Ohio sets a second requirement that governs everything after the stop begins: the officer's action must be "justified at its inception" and also "reasonably related in scope to the circumstances which justified the interference in the first place."¹ Reasonable suspicion is the price of admission, and scope measures what that price buys. Suspicion that a person is involved in crime buys a brief detention aimed at resolving that suspicion. The purpose the Court recognized in Adams v. Williams for such a stop is to determine the person's identity or to maintain the status quo momentarily while the officer gathers more information.²

The scope requirement follows from the way Terry justified itself. A stop on less than probable cause is an exception to the usual rule that seizing a person requires probable cause, and the Court has taken care to keep the exception narrow.³ In Dunaway v. New York the Court explained that the stops in Terry and its progeny were judged by balancing the government's need against the individual's interest only because those intrusions fell far short of the kind associated with an arrest.⁴ The balance, in other words, is struck for an intrusion of a particular size. If an officer holding only reasonable suspicion could stretch the detention in time or in coerciveness, the justification struck for the small intrusion would be spread over a large one, and the officer would be doing on a suspicion standard what the Fourth Amendment reserves for probable cause. An exception broad enough to cover a seizure as intrusive as an arrest would swallow the general rule that such seizures require probable cause.⁵ The incentive problem is concrete, because an officer who has a hunch but no probable cause has every reason to hold the person in place, or take the person elsewhere, in hope of developing the missing evidence. The scope limit removes that option.

Scope reaches both how long a seizure lasts and how it is carried out. A plurality in Florida v. Royer described an investigative detention as one that must be temporary, must last no longer than the purpose of the stop requires, and must use the least intrusive means reasonably available to verify or dispel the suspicion.⁶ Dissenting opinions in Illinois v. Caballes pressed the manner point further, arguing that adding a drug investigation to a traffic stop widens its scope even when no time is lost, and one of them warned that a stop bounded by its justification must not become a general license to search a person who is held in place.⁷ The majority in that case took a different view of the dog sniff, a point the traffic-stop discussion below takes up.⁸

Two limits follow from the shared premise, and each is taken in turn. The first concerns the kind of detention: when a stop grows into the functional equivalent of an arrest, as it did when police in Dunaway took a suspect from a neighbor's home to a police car, drove him to the station, and questioned him in an interrogation room without telling him he was free to go, the lesser justification no longer fits and probable cause is required.⁹ The second concerns length: even a stop that was justified at the start must end when its purpose has been served, and United States v. Place applied that limit to a traveler's luggage, holding that a 90-minute detention before a dog sniff exceeded what a Terry stop permits.¹⁰ Students lose points on this topic when they treat reasonable suspicion at the outset as permission for whatever detention follows, since the same suspicion that justifies a brief stop supports only a brief stop.¹¹ The first subsection below takes up the line between a stop and an arrest.

Stop Versus Arrest

The first limit on a Terry detention concerns its kind, and the Court's description of a stop in Adams v. Williams supplies the starting point: a brief stop of a suspicious person, made to determine the person's identity or to maintain the status quo momentarily while obtaining more information.¹³ Both purposes look toward the next few minutes at the place of the encounter. An officer might ask who the person is and what the person is doing, or hold a situation steady while a question is put or a check is run, and neither aim requires moving the person anywhere or holding the person through a long investigation. The same passage explains why a stop of that size is reasonable on less than probable cause: an officer who lacks the information needed for an arrest need not shrug and let a crime occur or a criminal escape, and an intermediate response may be the essence of good police work.¹⁴ The question this subsection answers is where an intermediate response stops being intermediate.

Dunaway v. New York marks the spot. Police acting on an informant's tip, which they had not verified, picked up the petitioner in connection with an attempted robbery and homicide and held him for questioning without probable cause to arrest.¹⁵ He was taken from a neighbor's home to a police car, driven to the station, and placed in an interrogation room, and he was never told he was free to go; he would have been physically restrained had he refused to accompany the officers or tried to escape.¹⁶ The Court held that taking a suspect into custody and transporting him to the station house for questioning is functionally equivalent to an arrest, that it requires probable cause, and that it cannot be justified as an investigative detention on less.¹⁷ The State urged the Court to apply the Terry balancing test to such a seizure, but the narrow intrusions in Terry and its progeny were judged by balancing only because they fell far short of the kind of intrusion associated with an arrest, and this detention did not.¹⁸

The Court also refused to let a label decide the case. Whether state law called the detention an arrest did not matter, and the facts that the petitioner was not told he was under arrest, was not booked, and would have had no arrest record if the questioning had produced nothing did not make his seizure comparable to the narrow intrusions of Terry and its progeny.¹⁹ That refusal follows from the reason probable cause exists. The functional features of an arrest, such as removing a person from the scene into custody for questioning, are the intrusions the probable-cause requirement was built to guard against, and renaming them does not make them smaller. If the label controlled, an officer who wanted to hold a person for questioning on a hunch could avoid the arrest standard simply by never using the word arrest, and the lower standard that justifies a stop would reach every detention an officer chose to describe modestly.

Two features separate the detention in Dunaway from a stop, and each has its own logic. The first is where the detention happens. A stop that stays on the street leaves the person in a public place, in view of others, and ends where it began, whereas a move to the station relocates the person into a setting the police control and from which leaving is not a realistic option. The second is the purpose of the detention. Terry and its progeny permit brief investigative stops on less than probable cause where the purpose is to quickly confirm or dispel suspicion of criminal activity.²⁰ Interrogation at the station house pursues a different aim, which is to turn suspicion into evidence, and suspicion alone has never been enough to justify that. A detention that stays on the scene and aims at a quick answer therefore preserves the justification for the lower standard.

Dunaway marks one end of a spectrum and does not draw a single line across it. The Court has recognized in United States v. Sharpe that no clear line separates a stop from an arrest, and lesser intrusions fall along a continuum, while custody followed by transport to a stationhouse for interrogation is the paradigm of a full custodial arrest.²¹ Several steps that resemble custody do not convert a stop into an arrest by themselves: asking for identification does not, under Hiibel v. Sixth Judicial District Court of Nevada, and fingerprinting, though a hallmark of custody, does not necessarily do so under Davis v. Mississippi.²² Some courts have also treated a show-up identification at or near the scene as consistent with a stop.²³ Each of these is a quick means of confirming or dispelling suspicion, which is what a stop is for. The fingerprint point has an edge, because in Davis the prints were excluded as the fruit of a detention that violated the Fourth Amendment, even though the Court suggested that a narrowly defined detention for fingerprinting might sometimes be permissible on grounds insufficient for an arrest.²⁴

Because a stop exists to gather information, an officer may put questions to the person during it, and the rules for those questions explain what a refusal does and does not allow. Justice White, concurring in Terry, described the line: given proper circumstances, a person may be briefly detained against his will while pertinent questions are directed to him, but the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.²⁵ Identification is a partial exception that a legislature can create. The principles of Terry permit a state to require a person lawfully stopped to disclose a name, and Hiibel upheld a statute that tied an arrest for failing to identify to reasonable suspicion of criminal activity.²⁶ A refusal to answer other questions, such as what the person was doing, carries no comparable consequence, so silence alone cannot supply the probable cause that an arrest requires.

The stop-arrest line also shows up when the questioning itself is challenged under Miranda. A Terry stop is somewhat inherently coercive, but it usually lacks the police-dominated atmosphere that calls for warnings, so street questioning generally proceeds without them, even where the person is frisked for the officer's safety.²⁷ Warnings may become necessary once the suspect is taken into custody and questioned in a police-dominated or compelling atmosphere.²⁸ The features that push a detention toward arrest, removal from the scene and an interrogation setting, tend to produce that atmosphere as well, which is why the two questions often arrive together on the same fact pattern.

The usual trap on this topic is the officers' vocabulary. Students lose this issue when they let the label the officers used decide it, treating the absence of an arrest announcement or a booking as proof that the detention was only a stop.²⁹ The opposite error is to treat every identification demand, fingerprint, or on-scene show-up as an arrest, when each of those can fit within a stop that remains brief and focused on confirming or dispelling suspicion.³⁰

Duration of the Detention

A detention that stays on the street and involves only a few questions is still not lawful for as long as the officer cares to continue it. A stop that was justified at its start remains justified only for the time its purpose reasonably requires. The exception to probable cause for stops rests on a balance: the nature and quality of the intrusion on the individual is weighed against the importance of the governmental interest offered to justify it, and only a minimally intrusive detention can be supported on less than probable cause.³³ Time is one of the main measures of intrusiveness. The government's interest in a stop is to confirm or dispel suspicion quickly, and that interest does not grow as the clock runs, so each added minute puts more weight on the individual's side of the scale while the government's side stays where it began. The previous subsection asked whether a detention had become an arrest in character; this one asks whether a detention that remains a stop in character has lasted too long.

Police may briefly detain personal effects, such as luggage, on reasonable suspicion that they contain contraband or evidence, but the detention must be limited in scope and duration.³⁴ In United States v. Place agents at an airport seized a traveler's luggage, moved it to another location, and exposed it to a trained narcotics detection dog, which reacted to one bag; the bag held cocaine.³⁵ The Court held that the agents' reasonable suspicion would have supported a brief detention of the luggage for a sniff. The luggage was instead held for 90 minutes before the sniff, and the traveler could not leave with it in the meantime, so the seizure was unreasonable under the Fourth Amendment.³⁶ The case therefore holds both poles of the rule. The same suspicion, the same bag, and the same dog support a brief hold and cannot support a long one. The Court did not announce a number of minutes past which every stop fails. Ninety minutes is the case's example of excess, and the permissible length of any other detention depends on the circumstances of that case.³⁷

That circumstances-based inquiry has a recognizable shape. If the first moments of the encounter dispel the officer's suspicion, the stop may go no further and the person must be free to go; if the suspicion is confirmed or further aroused, the stop may be prolonged and its scope enlarged as the circumstances require.³⁸ That latitude has an edge, because a detention does not last as long as reasonable suspicion lasts. Courts ask whether the police are diligently pursuing a means of investigation likely to resolve the matter one way or another very soon, and whether there is a reason to keep the person present during that interval.³⁹

Each half of the diligence question has its own logic. The first half, a means likely to resolve the matter very soon, tests whether the officer is spending the time on the investigation the stop was permitted to carry out. The second half, a reason for keeping the person in place, asks whether the person's presence is needed at all, since holding someone on the sidewalk while a record check runs is a smaller intrusion than holding that person while an officer waits for something to turn up. The incentive behind both halves is the one that drove the scope limit generally. An officer with a hunch and no probable cause gains by holding a person or a bag in place and hoping evidence develops, and a rule that measured duration only by the existence of the original suspicion would reward that delay. Requiring diligence makes the clock a cost to the officer, who must either resolve the suspicion promptly or let the person go.

The opinions in Place also show two ways of understanding why the time limit matters. The majority extended the balancing used in Terry to a seizure of luggage from the traveler's custody, treating the government's interest in briefly holding a bag that probably contains narcotics as substantial.⁴⁰ A concurring opinion objected to that extension. It read Terry and its progeny as permitting only brief investigative stops of a person and extremely limited searches, and it observed that effects are seized incidentally when the person is seized. A seizure of property independent of the person, it argued, must rest on probable cause, because a seizure threatens the interest in keeping possession even when nothing is searched.⁴¹ For the majority, the brevity of the hold is part of what makes lesser suspicion enough. For the concurrence, strict brevity is what keeps the Terry exception from swallowing the probable-cause rule. The majority's rule governs a luggage seizure, and the concurrence is useful as a statement of why the time limit has to be taken seriously.

Place also held that exposing luggage to a trained narcotics detection dog is not a search, because the sniff reveals only the presence or absence of contraband and no other private information.⁴² That holding does not rescue a seizure that lasted too long, since the lawfulness of the sniff and the lawfulness of the detention that precedes it are separate questions. The same pairing returns in the traffic-stop part of this chapter, where the question is again whether the sniff stretched the time the stop needed.

The common error here is to treat the suspicion that began the stop as a license that lasts as long as the officer wants it. Students lose this issue when they reason that a detention is lawful for as long as the suspicion remains, when the real questions are whether the police are moving diligently toward an answer and whether the hold has outlasted its purpose.⁴³ A second error is to read Place as drawing the line at ninety minutes, which would pass every shorter hold automatically. The case supplies an example of excess, and a detention far shorter than that can still fail if the suspicion was dispelled or the officers were not pursuing the matter diligently.⁴⁴