FOURTH AMENDMENT INFRINGEMENT IS AFOOT: REVITALIZING PARTICULARIZED REASONABLE SUSPICION FOR TERRY STOPS BASED ON VAGUE OR DISCREPANT SUSPECT DESCRIPTIONS.

• Author: Lewis, Caroline E.

Table of Contents Introduction 1799 I. The Fourth Amendment, Terry Stops, and Reasonable Suspicion 1802 II. When Physical Descriptions Contribute to Reasonable Suspicion 1806 A. Distinctive Considerations of the Physical Description Factor in Active Suspect Searches 1806 B. Courts' High Tolerance for Vague or Discrepant Suspect Descriptions that Contribute to Reasonable Suspicion for a Terry Stop 1808 C. Courts' Low Tolerance for Vague or Discrepant Suspect Descriptions that Contribute to Reasonable Suspicion for a Terry Stop 1811 III. The Importance of Particularized Suspicion in the Context of Suspect Descriptions 1814 A. A Narrowly Crafted Reasonable Suspicion Standard Is Critical 1816 1. The Harms of Terry Stops and the Disparate Policing and Stops of Racial Minorities 1816 2. Other Terry Stop Reasonable Suspicion Factors with Particularization Problems 1818 B. Courts' Tolerance for Vague or Discrepant Suspect Descriptions in Reasonable Suspicion Determinations Is Too High 1820 C. Courts' High Tolerance Allows for Infringement of Individuals' Fourth Amendment Rights, and the Standard Must Change 1822 IV. How Courts Should Weigh the Suspect Description Factor in Reasonable Suspicion Determinations 1824 A. A New Standard 1824 B. Counterargument: Public Safety Will Suffer if Police Latitude Is Restricted 1826 Conclusion 1828 INTRODUCTION

On Lawrence Harbin's walk home one Monday night, police officers began to trail close behind him in their cruiser. (1) The officers followed Mr. Harbin for a brief period, and he soon made it to his home in Alexandria, Virginia, stepping onto his front porch. (2) As Mr. Harbin stepped inside his living room, he heard police officers yell to him through the open front door, ordering him to stop and stay in place.' He turned to find an officer ordering him to put his hands where the officers could see them. (4) Mr. Harbin complied and, moving carefully to the porch, began to explain to the officers who he was. (5) Officers responded by reinstructing him to keep his hands up, and one officer approached him with his hand ready on his holstered firearm. (6)

Mr. Harbin's wife emerged from their home, insisting to the officers that he was her husband.' There on his front porch, an officer patted down Mr. Harbin, finding no weapons. (8) The officer asked Mr. Harbin for identification, which he produced. (9) It was then that an officer asked Mr. Harbin, "Did I see you at 7-Eleven[?] Oh! It must have been someone else. We are stopping everybody--and are not taking any chances." (10) The officers then left. (11)

About thirty or forty minutes prior to these events, and a few blocks away from Mr. Harbin's home, officers had received a report that a man brandished a gun at a 7-Eleven and fled on foot. (12) The officers spotted Mr. Harbin walking home and thought he might be that man. (13) However, the gun-brandishing suspect was described as a six-foot-three-inch tall Black man of large and stocky build, wearing a blue knit cap and a waist-length blue jacket that may have been a ski parka. (14) Mr. Harbin was a Black man of average build and was wearing a two-tone gray and black jacket, brown business dress pants, brown dress shoes, a white shirt, a light gray sweater, and no cap. (15)

Displeased with the ordeal to which the police officers subjected him, Mr. Harbin decided to sue the police and the city for civil rights violations, representing himself pro se. (16) He asserted that the police had little reason to think that he was the gun-brandishing man from earlier in the night, and they indeed had the wrong man. (17) However, he would see little relief as the federal district court found "ample" support for upholding the officers' actions--the stop and frisk of Mr. Harbin on his front porch "f[e]ll well within Terry." (18)

In Terry v. Ohio, the Supreme Court granted law enforcement broad power to perform a limited stop and search of someone when an officer has reasonable suspicion that the person is engaged in criminal activity. (19) The resulting "Terry stop" created a way for police officers to investigate a suspicious person without requiring full probable cause for an arrest. (20) The officer need only have "reasonable suspicion supported by articulable facts" (21) based on the circumstances and the officer's policing "experience that criminal activity may be afoot." (22) Reasonable suspicion is--by design--a broad standard, deferential to police officers' judgment. (23) Law enforcement officers across the United States employ this powerful tool extensively, performing millions of Terry stops each year. (24)

Mr. Harbin's scenario presents a fairly compelling case for the police having this wide discretion. Someone has just brandished a gun in a patron-filled convenience store and fled to the surrounding neighborhood. The suspect may escape apprehension or may even continue to cause more danger in the immediate community. But the officers have an important piece of information aiding their search: a physical description of the suspect. Undoubtedly, this factor will drive their search of the nearby area. And, should they come upon someone who fits the description, it will substantially--if not wholly--inform the officers' reasonable suspicion to stop that person to investigate.

But what if that suspect description is vague, consisting of few descriptors? Or what if, like in Mr. Harbin's case, there are many discrepancies between the description given and the appearance of the person the officers eventually stop under suspicion that he is the perpetrator? When reasonable suspicion to stop and frisk someone is based largely on a physical description of a criminal suspect, how "particularized" (20) must that description be?

This Note examines this specific reasonable suspicion factor: the resemblance of a person stopped under Terry to an active suspect description of someone who has very recently committed a crime. Exploring this scenario, this Note seeks to analyze courts' varying tolerance levels for vague or discrepant suspect descriptions creating reasonable suspicion, discuss the detrimental and unconstitutional impacts of an overly broad standard for this reasonable suspicion factor, and propose a new standard for courts to employ.

Part I describes the Terry stop's origin and standards, including the Terry Court's balance of public safety and individuals' Fourth Amendment rights. Part II explores the scenario under examination in this Note and analyzes trends in various courts' treatment of this factor in reasonable suspicion determinations. Part III discusses the dangers of an overbroad reasonable suspicion standard and argues that courts' high tolerance of vague or discrepant suspect descriptions informing officers' suspicion threatens individuals' Fourth Amendment rights. Finally, Part IV proposes a new legal standard for weighing this reasonable suspicion factor whereby courts look for indicia of particularization when a suspect description contributes to a Terry stop. This new standard would revitalize the particularization requirement of Terry and the Fourth Amendment, better protect individuals' rights against unreasonable intrusion, and promote more effective and equitable policing. Ultimately, this new standard would better balance the needs with which the Terry Court grappled: public safety and individuals' dignity.

1. THE FOURTH AMENDMENT, TERRY STOPS, AND REASONABLE SUSPICION

   An understanding of Fourth Amendment protections, how the Supreme Court formulated the Terry standard, and the development of Terry stops thereafter is a critical foundation to a discussion of reasonable suspicion based on suspect descriptions. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons[,] houses, papers, and effects, against unreasonable searches and seizures." (26) Until 1968, the standard for seizing someone in accordance with the Fourth Amendment required probable cause. (27) In Terry v. Ohio, however, the Supreme Court adopted a rule permitting brief investigatory detentions pursuant to a standard that falls short of probable cause. (28)

   In Terry, a police officer witnessed the two codefendants "casing" a store--taking turns repeatedly walking past the store window and looking in. (29) The officer feared a robbery was soon to take place and that the men may have a gun. (30) The officer confronted the men to investigate further and performed a pat-down search of their outer clothing, indeed revealing two firearms. (31) The trial court recognized that the officer's actions fell in some gray area between a probable cause arrest and a consensual encounter. (32) Yet, it held that the officer was right to frisk the men for protective purposes when he had "reasonable cause" to believe that the men might be armed, and a frisk of this nature was different than a full arrest and search for evidence of a crime. (33) The trial court had stated that, without the ability to perform a frisk in this type of situation, "the answer to the police officer may be a bullet." (34)

   The Supreme Court agreed that the officer's actions were necessary, despite him lacking probable cause. (35) The Court handed down a new standard, holding that a police officer may briefly detain (36) and perform a limited search of an individual when the officer has reasonable suspicion "in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous." (37) Thus, the "Terry stop" was born.

   The Terry Court established guardrails for what can amount to reasonable suspicion. (38) In justifying a stop and search pursuant to Terry, an officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (39) Reasonable suspicion requires more than an "inchoate and unparticularized suspicion or 'hunch.'" (40)...