§ 17.04 Distinguishing a "Terry Stop" from an Arrest

• Jurisdiction: North Carolina

§ 17.04 Distinguishing a "Terry Stop" from an Arrest⁸³

[A] Overview to the Issue

An encounter between a police officer and a private citizen can be so nonintrusive that it does not constitute a "seizure" and, therefore, does not trigger Fourth Amendment scrutiny, a matter discussed earlier in this Text.⁸⁴ On the other hand, a detention can be so intrusive that it constitutes a de facto arrest and, therefore, requires probable cause and not mere reasonable suspicion. The line between a Terry-level seizure and a de facto arrest, therefore, is a critical one. Unfortunately, the line is not bright. As with other Terry issues, courts consider the totality of circumstances surrounding the encounter. Various factors, however, deserve special note and are considered immediately below.

[B] Length of the Detention

Terry involved a very brief detention of persons suspected of criminal activity. The Court has more than once stated that the justifiability of a seizure on less than probable cause is predicated in part on the brevity of the detention.⁸⁵

Nonetheless, there is no bright-line time limitation to a Terry-type seizure. A seizure based on reasonable suspicion may be permitted although it lasts longer than the seizures that occurred in Terry. For example, in United States v. Sharpe⁸⁶ the Court upheld a 20-minute detention of suspects, stopped in their vehicles on a public highway, in order to investigate criminal activity. Although the Court upheld the seizures, their legitimacy was based on the presence of three critical temporal factors: (1) the officer "pursued his investigation in a diligent and reasonable manner"; (2) the method of investigation "was likely to confirm or dispel [the officers'] suspicions quickly"; and (3) the detention lasted no longer than was necessary to effectuate the purpose of the stop. A significant fact in Sharpe was that the length of detention was aggravated by evasive actions taken by the suspects in what otherwise would have been a briefer detention.

Sharpe should not be interpreted to mean that a seizure of any length may be justified on the basis of reasonable suspicion as long as the police pursue their investigation diligently. Indeed, Sharpe warned that even if the three conditions stated above are met, a detention that "continues indefinitely at some point . . . can no longer be justified" as a Terry stop.

Despite this warning, the Supreme Court in United States v. Montoya de Hernandez ⁸⁷ upheld a seizure, based on reasonable suspicion, that lasted more than 16 hours. In the case, M, a woman whom customs agents reasonably suspected of concealing narcotics-filled balloons in her alimentary canal in order to smuggle them into the country, refused to undergo an x-ray. Therefore, the agents detained her in a small room, and told her that "if she went to the toilet she would have to use a wastebasket in the women's restroom," so that her stool could be inspected for balloons. The Court held that the seizure here "was not unreasonably long," in view of the fact the method of suspected smuggling did not allow for speedy determination, M refused the only alternative method of investigation (an x-ray), M made "heroic" efforts to avoid having the bowel movement, and (perhaps most importantly) it occurred at the international border.

[C] Forcible Movement of the Suspect

[1] In General

In Terry, the suspects were seized and searched where they were found — on the street. However, if the police move a suspect to another site for further investigation, a court may treat the seizure as tantamount to an arrest, requiring probable cause. This is especially likely to occur if the criminal investigation could have occurred where the detention arose.

For example, in Dunaway v. New York,⁸⁸ the police took D into custody at his neighbor's home, and transported him to a police station for questioning. Although D was told he was not under arrest, the Supreme Court treated the seizure as a de facto arrest, requiring probable cause. Likewise, in Florida v. Royer,⁸⁹ the police moved R, originally encountered in an airport concourse, to a small room 40 feet away...