Section 9.11 Justification for Seizure: Persons

LibraryCriminal 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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