Oct, 2018

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posted in News, Wilka, Welter & Ash LLP Law Blog.

Cut And Paste Reasonable Suspicion

In order to justify stopping and detaining a person, an officer must possess a “reasonable suspicion” based on his training or experience to believe an individual is engaging in criminal activity. Often called a “Terry stop,” the concept of reasonable suspicion was first made precedent by the United States Supreme Court in Terry v. Ohio. In Terry, the Court ruled that an officer may stop an individual for a brief amount of time in order to determine whether that person was involved in a punishable crime. The stop may include a “pat down,” or search for weapons that could place the officer in danger. The reasonable suspicion standard has also been used to justify detaining persons involved in a traffic stop long enough for a drug dog to be called to do a canine sniff test for illegal drugs. The reasonable suspicion standard requires “specific and articulable facts” and more than just an “inchoate and unparticularized hunch” of an officer. Reasonable suspicion looks to the “totality of circumstances” that a reasonable officer, in his experience and training, would justify detaining an individual.

Recently, in South Dakota and elsewhere, there has been an alarming trend in police reports that has not gone unnoticed by defense attorneys. Whenever a person is detained for a criminal act, the officers involved will file a police report. The report is a written statement of what that officer observed from the point of contact through the actual detention. This report may be accompanied by a video or audio account of the interaction with the officer. These accounts are made as a safeguard for your liberties and to hold the officer accountable for such, but don’t always tell the whole or correct story. Part of the report will be the officer’s observations of what he determines to be reasonable suspicion for a detention. It has been noticed, however, that several reports in South Dakota have contained language of a similar nature regarding reasonable suspicion. In fact, many accounts are nearly word for word indicating that officers may be “cutting and pasting,” into their reports, wording or language used in other reports. What is more curious are the observations made that are being used as indications of reasonable suspicion. In a recent second circuit email circulation, several attorneys have seen reports of “nervousness,” “swearing to god,” or “pulsating carotid arteries” in the police reports. These types of observations are particularly concerning due to the fact that nervousness typically is associated with any confrontation with authorities. Also, observations regarding arterial pulsation are suspicious due to the fact that police do not have medical training to make such observations and that those observations are almost never evident in a video and certainly never in audio. Thus, reasonable suspicion becomes suspect in and of itself. Add to the mix that the same language appears in multiple reports, and it becomes worrisome that reasonable suspicion is being manufactured by police in order to circumvent the Terry protections against unreasonable searches.

Luckily, the courts have noticed the same trends and have made rulings that force authorities to find more conclusive observations in their quest for reasonable suspicion. In the 8th Circuit, the Court in U.S. v. Jones, ruled that, “Because the government repeatedly relies on nervousness as a basis for reasonable suspicion, it must be treated with caution.” And in U.S. v. Beck, the Court stated that, “any suspicion associated with Beck’s nervous demeanor during the traffic stop to be, at best, minimal.”

Despite the best efforts of the courts as watchdogs preventing overreaching by authorities, you need an attorney to review your specific case and make sure that your rights are protected. You need the experience and expertise of the attorneys at Wilka, Welter and Ash who keep up on current events and know how to fight for you.