Section 9.11 Justification for Seizure: Persons
Library | Criminal Practice 2012 Supp |
C. (§9.11) Justification for Seizure: Persons
The justification required for seizure of the person depends on the intrusiveness of the seizure involved, measured not by what the officers involved say or intend, but by the degree of restraint from the perspective of what a reasonable person in the defendant’s situation would perceive. State v. McKeehan, 894 S.W.2d 216, 219–20 (Mo. App. S.D. 1995). No justification is required for police to enter into a police-citizen encounter. Because these encounters are consensual and the individual is free to go, officers do not need cause. State v. Talbert, 873 S.W.2d 321, 323 (Mo. App. S.D. 1994); State v. Childress, 828 S.W.2d 935, 945 (Mo. App. S.D. 1992). “A person may not be detained even momentarily, however, without reasonable, objective grounds for doing so.” Talbert, 873 S.W.2d at 323; Fla. v. Royer, 460 U.S. 491, 498 (1983).
When a defendant has been stopped such that a reasonable person would not feel free to go or to ignore the police, reasonable suspicion that the person was or is involved in criminal activity is required. State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992); Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion must be based on specific and articulable facts and is determined in a common-sense fashion based on the totality of the circumstances. Franklin, 841 S.W.2d at 641; State v. Duncan, 879 S.W.2d 749, 751 (Mo. App. W.D. 1994). Knowledge of recent relevant criminal conduct is a permissible component of reasonable suspicion. State v. Hawkins, 137 S.W.3d 549, 557 (Mo. App. W.D. 2004).
Although a “‘hunch’ or ‘inchoate and unparticularized suspicion’ is insufficient” to establish reasonable suspicion, Talbert, 873 S.W.2d at 324, courts have recently expressed concern that officers are relying on no more than such an “inchoate and unparticularized suspicion or hunch” and have refused to find the “requisite minimal level of objective justification” for the stop. See State v. Copeland, 949 S.W.2d 227, 230 (Mo. App. S.D. 1997); see also State v. Schmutz, 100 S.W.3d 876 (Mo. App. S.D. 2003) (innocent activity coupled with the mere fact of presence in an area where businesses were closed is insufficient to establish reasonable suspicion); State v. Weddle, 18 S.W.3d 389, 394 (Mo. App. E.D. 2000) (nervousness alone is not enough for reasonable suspicion); State v. David, 13 S.W.3d 308 (Mo. App. W.D. 2000) (a stop was improper when an officer could not articulate any reasonable suspicion that the defendant had committed or was about to commit a crime). Missouri courts appear more willing than in the past to...
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- Chapter 9 Search and Seizure
- Section 9.1 Introduction
- Section 9.2 Sources of Control Over Search and Seizure Activity
- Section 9.3 Theories of the Fourth Amendment
- Section 9.4 Interpretive Sources: History and Meaning of the Fourth Amendment
- Section 9.5 Methodology of Analysis
- Section 9.6 What Is a Search?
- Section 9.7 Seizure of Property
- Section 9.8 Seizure of Persons
- Section 9.9 Justification for Searches: In General
- Section 9.10 Justification for Seizure: Plain View
- Section 9.11 Justification for Seizure: Persons
- Section 9.12 Justification for Seizure: Vehicles
- Section 9.13 Pretext
- Section 9.14 Background and Purpose
- Section 9.15 Requirements for Obtaining: In General
- Section 9.16 Issued on Probable Cause
- Section 9.17 Supported by Oath or Affirmation
- Section 9.18 Particularly Describing the Place to Be Searched
- Section 9.19 Particularly Describing What Is to Be Seized
- Section 9.20 Manner of Execution and Scope of Search
- Section 9.21 Specialized Warrants
- Section 9.22 Introduction
- Section 9.23 Exceptions to Warrant Requirement
- Section 9.24 Exigent Circumstances
- Section 9.25 Automobile Exception
- Section 9.26 Introduction
- Section 9.27 Consent
- Section 9.28 Special Needs: In General
- Section 9.29 Inventory
- Section 9.30 Administrative Searches
- Section 9.31 Border and Border Area Searches
- Section 9.32 Protection of Officers and Preservation of Evidence
- Section 9.33 Search Incident to Arrest
- Section 9.34 Protective Frisk
- Section 9.35 Protective Sweep
- Section 9.36 Other Detentions and Searches Based on Safety Needs
- Section 9.37 Standing
- Section 9.38 Exclusionary Rule
- Section 9.39 Limits on Application of Exclusionary Rule
- Section 9.40 Exceptions to Exclusionary Rule: Inevitable Discovery and Independent Source
- Section 9.41 Fruits of the Poisonous Tree and Purging the Taint
- Section 9.42 Motion to Suppress
- Section 9.43 General Requirements
- Section 9.44 Appellate Review
- Section 9.45 Review of Warranted Searches
- Section 9.46 Motion for Return of Property
- Section 9.47 Conclusion
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