§ 17.03 "REASONABLE SUSPICION"

• Jurisdiction: United States

§ 17.03. "Reasonable Suspicion"²⁶

[A] In General

As discussed elsewhere,²⁷ the Supreme Court has never quantified the concept of "probable cause." The Court in Illinois v. Gates²⁸ described it as a "fluid concept" that is "not readily, or even usefully, reduced" to a mathematical formula. Basically, "probable cause" involves a "substantial basis" for concluding—a "fair probability" but less than a preponderance of the evidence—that a search will turn up criminal evidence or that the person seized is guilty of an offense.

In similar fashion, the Supreme Court in Terry v. Ohio did not indicate what quantum of evidence is required to justify a less-than-ordinarily-intrusive seizure of a person or to conduct a less-than-full search (pat-down) of a suspect, although Chief Justice Warren did make the rather obvious point in the context of a pat-down that the officer need not be "absolutely certain" that the suspect is armed. The Court has since stated that the "reasonable suspicion" standard applied in Terry²⁹ is "obviously less demanding than that for probable cause."³⁰ It requires "considerably less"³¹ proof of wrongdoing than proof by a preponderance of the evidence. As the Court has recently put it, "Terry accepts the risk that officers may stop [and/or frisk] innocent people."³² All that is required to justify a Terry-level search or seizure is "some minimal level of objective justification."³³ Indeed, "reasonable suspicion," like "probable cause," can be based on an officer's reasonable mistake of fact³⁴ or law.³⁵

Essentially, the police may not act on the basis of an "inchoate and unparticularized suspicion or hunch," which was expressly condemned in Terry; suspicion is "reasonable," however, if the officer can point to some (perhaps just a few) specific and articulable facts that, along with reasonable inferences from those facts, justify the intrusion.³⁶ And, in making the determination, police officers are entitled to draw on "their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' "³⁷

As with probable cause, the Supreme Court has declared that the "reasonable suspicion" standard cannot be "readily, or even usefully, reduced to a neat set of legal rules."³⁸ Instead, the justifiability of a Terry-type seizure or search, like a seizure or search based on probable cause, is supposed to be evaluated on "the totality of the circumstances — the whole picture."³⁹

[B] Types of Information

[1] Overview

As noted immediately above, the justifiability of a Terry-type seizure or search, like a seizure or search based on probable cause, is supposed to be evaluated on the totality of the circumstances. However, according to some scholars, "lower courts have slowly and steadily created whole categories of cases which allow police to [stop and] frisk . . . , whatever the specific facts [of the individual case] are."⁴⁰ That is, certain observations (e.g., furtive behavior or flight by a suspect) or surrounding circumstances (e.g., the suspect is in a "high-crime area") can result in a virtual bright-line rule at the lower-court level that "reasonable suspicion" exists.⁴¹

Typically, as in Terry, a seizure of a person (and pat-down) will be based in whole or in considerable part on an officer's personal observations of the suspect and the surrounding circumstances. A police officer is entitled to make "common-sense conclusions about human behavior,"⁴² and may draw upon her personal law enforcement expertise. More complex problems arise, however, when an officer claims that she acted on the basis of suspicions grounded at least in part on the observations or experiences of others.

The era of "Big Data," which refers to the collection and processing of vast amounts of information in order to predict outcomes, may signal new opportunities and challenges for police and courts as they try to determine reasonable suspicion. Many police officers routinely use big data analytics to determine where to focus their resources or which suspects may be dangerous; it is likely that police (and perhaps courts) will also use these tools to inform their decisions about whether reasonable suspicion exists.⁴³

[2] Hearsay: When It Is and Is Not Sufficient

In Terry, the detaining officer acted on the basis of his own personal observations of the suspects. Three cases — Adams v. Williams,⁴⁴ Alabama v. White,⁴⁵ and Florida v. J.L.⁴⁶—teach, however, that "reasonable suspicion," like "probable cause," may be based on hearsay. Furthermore, because "reasonable suspicion" is a less demanding standard than "probable cause," it may be satisfied not only on the basis of a lesser quantum of evidence, but also on the basis of "information that is less reliable than that required to show probable cause."⁴⁷ The same factors that apply to information supplied by an informant in the probable cause context—the informant's basis of knowledge and her veracity—apply in the Terry context, "although allowance must be made in applying them for the lesser showing required to meet that standard."⁴⁸ Adams, White, and J.L., usefully suggest rough guidelines regarding how informants may (and may not) properly be used in the Terry context, and how courts should oversee the process.

In Adams v. Williams, the Supreme Court sustained a Terry stop-and-frisk based in part on an informant's tip that would not have justified an arrest or search based on probable cause. In this case, a known informant told O that W was seated in a nearby car with narcotics in his possession and a gun concealed at his waist. The informant did not indicate the basis of his knowledge. O approached W and, on the basis of the tip, conducted a Terry procedure, which resulted in the seizure of a gun from W's waist.

The Supreme Court, per Justice Rehnquist, conceded that the unverified tip might have been insufficient to justify any action that required probable cause. Nonetheless, the Court held that the tip "carried enough indicia of reliability" to justify a Terry-level seizure. The Court considered the tipster's information sufficiently reliable because he had provided the police with information on a prior occasion, and because he personally came to O with the present information, rather than making an anonymous report. As a result, the informant subjected himself to the (theoretical) risk of arrest for making a false complaint if the information he provided proved to be false. The Court was not dissuaded by the fact, pointed out by the dissenters, that the informant's prior track record consisted of a single tip, pertaining to a different type of conduct (alleged homosexual behavior in a railroad station), which did not result in an arrest. For purposes of reasonable suspicion, there were sufficient indicia of the informant's reliability.

The Court in Adams warned that "[s]ome tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized." Alabama v. White⁴⁹ provides a good example of such an unsatisfactory tip, but one that was saved—although barely so — by independent police investigation. In White, the police received a telephone call from an anonymous informant who stated that W (a woman he named) would be leaving a specified apartment at a specified time, that she would get in a "brown Plymouth station wagon with the right taillight broken," and that she would drive to a specified motel, in possession of an ounce of cocaine in a brown attache case.

The officers proceeded to the apartment building, where they observed an automobile fitting the informant's description, parked in front of the building. They spotted a woman, empty-handed, enter the car and drive in the direction of the motel. Before the car reached its destination, however, the officers stopped the vehicle and ordered the driver, W, out of the car. A search based on consent resulted in seizure of marijuana, found in an attache case in the car.

The White Court held, 6-3, that the anonymous tip in this case, by itself, was insufficient to justify W's forcible stop. Drawing language directly from Illinois v. Gates, the Court pointed out that the caller provided "absolutely no indication of the basis for the . . . predictions regarding [W's] criminal activities"; furthermore, the call "provide[d] virtually nothing from which one might conclude that [the informant] . . . [was] either honest or his information reliable." Nonetheless, in what the Supreme Court crucially observed was "a close case," the majority concluded that "under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of [W's] car."

Notice here that the corroboration was incomplete and imperfect. First, it was not clear prior to the stop that the woman the police were following was the person named by the informant. Second, the police did not corroborate that the suspect left the apartment specified by the informant. Third, the police did not wait to see if W would drive her car to the motel, as predicted. Moreover, one fact not only was not corroborated but was false: W did not have the attache case in her possession when she entered her car, as had been predicted.

Rather than dwell on these shortcomings, however, the Supreme Court focused on the fact that the informant predicted future conduct—that a particular person would come out of the apartment building and drive a particular automobile to a particular location—some of which was corroborated. According to Rehnquist, "[w]hen significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." Of course, as the dissent noted, every fact the police...