Chapter 1. Investigative Detention

• Author: Ken Wallentine
• Pages: 1-23

1

CHAPTER 1

INVESTIGATIVE DETENTION

Introduction

Voluntary Encounters

Street contacts

Community Caretaking

Investigative Detention

Reasonable suspicion

What constitutes a “seizure?”

What does “reasonable suspicion” mean?

Can an officer demand that a person identify himself?

How long may a reasonable suspicion detention last?

Sources of reasonable suspicion

Homeland security detentions

Informant issues

Detentions for Identification

Distinguishing detention basis from frisk basis

Terry v. Ohio

Plain touch in the course of a

Terry

frisk

Use of force to detain and to frisk

CHAPTER ONE2

Introduction

Not all police/citizen contacts require specific legal justifi-

cation for the contact. However, most police/citizen con-

tacts are not purely voluntary and do involve some degree

of detention. To determine whether the encounter was law-

ful, courts examine whether the officer has effected a sei-

zure, the motive for the contact, and the quantum of

information (such as reasonable suspicion or probable cause)

known to the officer at the time of the encounter. Courts

generally describe police/citizen contacts by reference to

one of three levels: level one, a purely voluntary encoun-

ter; level two, an investigative detention; and level three, a

custodial arrest. Traffic detentions will be covered in a sepa-

rate chapter.

Voluntary Encounters

Street contacts

An officer may approach a citizen and have a conversation

and ask questions without any level of suspicion—as long

as no detention is involved. An officer/citizen contact re-

mains “voluntary” as long as the officer does not restrict the

freedom of the citizen, either by physical conduct or verbal

direction. Another question courts consider in assessing the

voluntariness of an officer/citizen contact is whether a rea-

sonable person would feel free to turn and walk away from

the encounter. As long as a reasonable person believes that

he or she can “disregard the police and go about his or her

business,” the encounter remains voluntary.

Florida v.

Bostick

, 501 U.S. 429 (1991). If a reasonable person in simi-

lar circumstances would not feel free to leave, then the

encounter has turned into a “seizure.”

United States v.

Ringold

, 335 F.3d 1168 (10th Cir. 2003),

cert. denied

, 540

U.S. 1026 (2003). Simply asking a citizen for identification,

without any command or show of force, remains a volun-

tary encounter.

Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt County

, 542 U.S. 177 (2004) (“In the ordinary

course a police officer is free to ask a person for identifica-

tion without implicating the Fourth Amendment.”);

United

States v. Drayton

, 536 U.S. 194 (2002). “A police officer

does not have to inform the citizen they are free to disre-

gard any further questioning for the encounter to be consen-