Kansas Bar Journals
76 J. Kan. Bar Assn. 8, 16 (2007).
They Didn't Look Right to me! Reasonable Suspicion in Kansas: Through Whose Eyes is it Viewed?
Kansas Bar JournalVolume 76, September 200776 J. Kan. Bar Ass'n 8, 16 (2007)They Didn't Look Right to me! Reasonable Suspicion in Kansas: Through Whose Eyes is it Viewed?By Colin D. Wood"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." 1
"... [T]hey didn't look right to me at the time."2 That was the initial thought of a 39-year police detective as he noticed two men on a downtown Cleveland street corner in the afternoon of Halloween, Oct. 31, 1963.3 The detective's suspicions led him to stop, detain, frisk, and arrest the men. His actions started a chain of legal events that have resulted in a sea of change in Fourth Amendment jurisprudence. Forty-three years later the issue of when a suspicious police officer may interfere with the free travel of pedestrians and drivers in public places remains hotly contested, especially as law enforcement agencies expand their proactive "criminal interdiction" programs. Kansas has certainly not been immune from this debate.
There are four types of police-citizen encounters recognized in Kansas: (1) voluntary or consensual encounters, (2) investigatory stops or temporary nonarrest detentions, (3) public safety stops, and (4) arrests. The most common is the investigatory stop, or Terry stop, requiring that the investigating officer possess reasonable suspicion that the suspect being detained has committed, is committing, or is about to commit a crime.4
The purpose of this article is to provide a practical survey of reasonable suspicion law in Kansas.5 This article will look at the history of investigative detentions upon less than probable cause, Terry v. Ohio6 and its progeny, and reasonable suspicion today as well as briefly touch on criminal interdiction. The issues relating to "frisk, arrest, and consent law" are outside the scope of this article and will only be touched on where necessary to illuminate the discussion. A word of caution: The author fully admits his bias that courts should, when weighing reasonable suspicion factors, more consistently give due deference to the training and experience of investigating police officers as U.S. Supreme Court precedent requires.7
A Little History
"The Fourth Amendment does not require a policeman who lacks probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape ... [a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable [action] in light of the facts known to the officer at the time." 8
To know where we have been allows us to better understand where we are. A nonarrest, investigatory detention is a forced, but temporary, deprivation of a suspect's right to be left alone, which allows a law enforcement officer the opportunity to seek further information upon which to decide whether to arrest or otherwise invoke the criminal justice system.9
The right of proper authorities to stop and question persons in suspicious circumstances has its roots in English practice where it was approved by the courts and the common-law commentators.10 One might argue, however, that the U.S. Constitution requires something different.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Constitution, Amendment IV.
During our first 150 years, it was generally understood in the United States that the Fourth Amendment required government agents to possess probable cause for any search and for any seizure.11 As a practical matter, police detentions based upon less than probable cause (or even no cause) probably happened every day but were not an issue earlier in our history because there was no exclusionary rule, government civil liability, or an interested court system. A more definite recognition by the U.S. Supreme Court of the rights of criminal suspects did not gain traction until the mid-20th century, following the settlement of private property and general employment rights.
By 1939, however, the Uniform Arrest Act had been promulgated and adopted in a few northeastern states, officially authorizing nonarrest detention, not to exceed two hours, of a person "abroad" who an officer had reasonable ground to suspect was committing, had committed, or was about to commit a crime.12 Surprisingly, Chief Justice Earl Warren, a leader in the protection of personal rights,13 had dissented in a 1959 nontraditional arrest case, thereby joining the growing argument that there was a true difference between the seizing of a suspect for investigation purposes and the seizing of a suspect for a custodial arrest.14 By 1960, the authority to stop and detain suspects in nonarrest situations on less than probable cause was well recognized by numerous state laws and lower court decisions.15
Why the changing court landscape in the mid-20th century? "[Terry and nonarrest detentions and frisks] must be understood in the context of the time. When the case was docketed in the U.S. Supreme Court, the country seemed to be coming apart at the seams. Nonviolent resistance to segregation and other Jim Crow practices had stalled; black nationalist voices were advocating that white violence should be met in kind. Urban rioting unsettled the country as had massive protests against the Vietnam [W]ar. There was a growing white backlash to civil rights advances. That backlash was often violent."16 With the baby boomer generation then entering its late teens, violent crime had increased 81 percent between 1965 and 1970.17 Adding jet fuel to the crime control blaze were the Warren Court's then recent decisions in Mapp v. Ohio18 (exclusionary rule applicable to states) and Miranda v. Arizona19 (required a warning of right to remain silent), popularly viewed as being a pro-criminal decision. "Impeach Earl Warren" signs appeared along the nation's highways as the country approached the 1968 presidential election.20
In 1967, the U.S. Supreme Court took up three cases, Terry v. Ohio, Sibron v. New York,21 and Peters v. New York,22 all involving nonarrest stop and search situations. These cases came to be known as the Terry Trilogy. The Court generally focused on the searches involved and only backhandedly discussed the issue of the initial police contact (nonarrest detention). Because Terry is the premier case, it will be the focus here.
The facts upon which Terry rests, at least those chosen for use in the decision by the author, Chief Justice Warren,23 are surprisingly few, and some would say weak at best. The sparse facts, however, are just what make the case so notable in reasonable suspicion analysis. Today, when practitioners are weighing whether reasonable suspicion is present in their case, it is recommended that their case facts be compared and contrasted with those of Terry: Detective Martin McFadden, a 39-year veteran police officer, noticed John Terry and Richard Chilton on a street corner. During the 10 minutes or so of observation, McFadden watched as Terry and Chilton would individually walk up the sidewalk, look into a particular store window, and then return to their companion for further conversation. Depending upon which account is used, this behavior was repeated about 12 times. A third man, Carl Katz, approached the duo, spoke to them, and then left the area. Terry and Chilton later walked away in the direction taken by Katz.24 McFadden later stopped all three men, frisked each, found hidden handguns on Terry and Chilton, and arrested all three. Terry and Chilton were charged with the gun violations, filed motions to suppress, lost, were convicted, and appealed.25 The Ohio Court of Appeals affirmed the convictions, and the Ohio Supreme Court dismissed the appeals on the ground that no "substantial constitutional question" was involved.26
McFadden had certainly not observed a crime. In fact, each and every individual behavior of the men was clearly innocent. At the time of the encounter, McFadden lacked both a warrant and probable cause to arrest the men. In 1963, there was no legal support for the Ohio trial court's suppression denial decision in either Ohio law or the U.S. Supreme Court.27
The U.S. Supreme Court, however, later affirmed the Ohio trial court's reasoning in an 8-1 decision,28 holding that "[a] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest."29 However, "it must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person,"30 which invokes the Fourth Amendment. Such an accosting can occur by either physical force or a show of authority.31 Therefore, "[t]hrough a series of acts [by...