Traffic stops, littering tickets, and police warnings: the case for a Fourth Amendment non-custodial arrest doctrine.

AuthorMoran, David A.

    Over the past thirty years, the United States Supreme Court has recognized and developed three categories of police-citizen encounters for purposes of the Fourth Amendment:(1) consensual encounters,(2) investigative stops,(3) and custodial arrests.(4) The Court has defined the boundaries between the categories(5) and, for each, has specified the level of suspicion required to initiate the encounter(6) and the intrusiveness of the search a police officer may conduct incident to the encounter.(7) The Court has decided dozens of cases by placing a particular police-citizen encounter into one of these three categories and then examining the police conduct in terms of the doctrine developed for that Category.(8) The doctrine is so well developed that lower courts and commentators routinely recite that there are three, and only three, categories of police-citizen encounters.(9)

    The only problem with this tidy picture is that it is demonstrably wrong. As the following three scenarios illustrate, there are common police-citizen encounters that are neither consensual encounters, Terry stops, nor arrests:

    Scenario (1): After observing Jones' car travelling at 75 miles per hour in a 55 mile per hour zone, Officer Adams pulls Jones over. Adams orders Jones to step out of the car and to produce her license, registration, and proof of insurance. After checking her documents, Adams issues Jones a speeding ticket. Scenario (2): Officer Adams walks up to Jones after she throws her hot dog wrapper onto the sidewalk. Adams orders Jones to produce identification and, after checking it, issues her a citation for littering. Scenario (3): Same as (2), except Adams does not issue Jones a citation. Instead, Adams orders Jones to pick up the wrapper and warns her that he will ticket her if he ever catches her littering again. Because each of these scenarios is based upon encounters that occur thousands of times every day in the United States, one might expect that the Supreme Court would have, by now, categorized them as full-blown arrests, investigative stops, or consensual encounters. Surprisingly, that expectation turns out to be incorrect. The Supreme Court has never explicitly placed encounters such as these into one of its three categories.

    To the contrary, the Court's treatment of the first scenario, the routine traffic violation stop, has been so confusing and inconsistent that some lower federal and state courts incorrectly regard such stops as Terry stops requiring only reasonable suspicion, even though the Supreme Court has held that probable cause is required for such an encounter.(10) A few state courts have recognized that a routine traffic stop is a "non-custodial arrest," but have done so primarily on the authority of state statutes, rather than the Fourth Amendment.(11)

    The Supreme Court has created this confusion by failing to explicitly recognize the constitutional doctrine of non-custodial arrests and, even worse, by analogizing routine traffic violation stops to Terry stops.(12) This analogy is misleading because a routine traffic violation stop differs in several significant respects from an investigative stop. For example, a traffic violation stop requires probable cause, a higher degree of suspicion than is required for a Terry stop,(13) and a traffic violation stop may last longer than would be permissible for a Terry stop.(14) In addition, traffic violations are completed offenses that are too petty to justify an investigative stop.(15)

    However, the Court has clearly recognized that traffic violation stops are not custodial arrests.(16) Therefore, Miranda warnings need not be given during a traffic violation stop because a motorist pulled over to the side of the road is not in custody for purposes of the Fifth Amendment,(17) and an officer may not perform a search incident to custodial arrest during a traffic violation stop unless an occupant of the vehicle has actually been taken into custody.(18)

    Because these traffic violation stops are not investigative stops, custodial arrests, or consensual encounters, the Court should recognize that there is a fourth type of police-citizen encounter, the non-custodial arrest. Each of the previously described scenarios involves an "arrest" for Fourth Amendment purposes because in each, the police detained a citizen based on full probable cause that the citizen has committed a completed offense. Because the officer is not merely investigating the possibility of an offense but has made the judgment that a violation has in fact occurred, the citizen may be detained as long as it takes for the officer to perform the tasks that follow from that conclusion. Unlike a custodial arrest, however, a citizen so detained will be free to go after the officer has completed those tasks.(19)

    Recognition of the non-custodial arrest as a fourth category of police-citizen encounter would have several important consequences. First, the recognition that traffic violation stops are non-custodial arrests would end any remaining confusion as to whether the police may detain a suspect for such a petty offense on less than probable cause.(20) Second, the doctrine would pave the way for the Court to answer the long-unresolved question of when, if ever, it is unreasonable for the police to take a person into custody for a petty offense.(21)


    Until the late 1960s, the Supreme Court had little occasion to subdivide the field of police-citizen encounters. The Fourth Amendment requires that "seizures" of persons be reasonable and that warrants "particularly" describe the persons "to be seized,"(22) but the text does not itself define what constitutes a seizure. Prior to the Court's 1968 Terry decision, however, it was well settled that a personal seizure for Fourth Amendment purposes meant an arrest, which, in turn, required full probable cause.(23)

    The Court muddied this simple picture in Terry by holding that a stop and frisk is a "seizure" for purposes of the Fourth Amendment, but not an "arrest."(24) The Court then held that such a seizure, without full probable cause is reasonable because the scope of the intrusion is of brief duration and less intrusive than a full-blown arrest.(25)

    Terry did not tightly define the contours of the investigative stop doctrine that it created. In particular, it left four questions unresolved. First, Terry did not identify the level of suspicion needed to justify an investigative stop.(26) Second, it did not attempt to define the point at which an investigative stop would be so intrusive or so prolonged that it would amount to an "arrest" requiring probable cause. Third, the Court did not define the point at which a consensual police-citizen encounter becomes an investigative stop. Fourth, Terry did not indicate whether an investigative stop could be used to investigate past criminal conduct or, as in Terry itself, only suspected ongoing criminal activity.(27)

    Since Terry, the Court answered each of these questions, and thereby created a coherent and complete investigative stop doctrine. First, the Court eventually defined the level of suspicion needed for an investigative stop as "reasonable suspicion," a standard less exacting than probable cause, but more than a mere hunch.(28)

    Second, the Court, in a series of cases, drew the line between an investigative stop and a full-blown arrest. The Court recognized that a Terry stop becomes an arrest for Fourth Amendment purposes if the police unreasonably prolong the encounter.(29) Similarly, the Court recognized that if the circumstances surrounding an investigative stop become too intrusive, the encounter turns into an arrest.(30)

    Third, the Court eventually defined the line between consensual encounters and Terry stops. Thus, a police-citizen encounter is not consensual when a reasonable person in the suspect's position would not feel free to decline the encounter.(31)

    Fourth, the Court held that a Terry stop could be used for completed criminal activity, at least when the suspected crime was a felony.(32) The Court has, however, left open the question of whether the police may use a Terry stop to investigate completed minor offenses.(33)

    The net effect of these post-Terry decisions was to define sharply the contours of an investigative stop and to distinguish it from both "consensual" police-citizen encounters and full-blown arrests. Although Terry characterized police-citizen encounters as "incredibly rich in diversity,"(34) Terry and its progeny effectively reduced that diversity to only three categories of police-citizen encounters: full-scale arrests (which require probable cause), investigative stops (which require less than probable cause), and consensual encounters (which require no suspicion at all). By creating, or recognizing, a new variety of encounter that is not consensual but also is not an arrest, the Court started a process that resulted, perhaps inevitably, in a doctrine in which the lower courts feel obliged to force all types of police-citizen encounters into these three boxes.

    As a result, a majority of the federal circuits have explicitly stated that police-citizen encounters fall into one of three categories.(35) This tripartite categorization has resulted in strained, and ultimately erroneous, efforts in both the federal and state courts to categorize traffic violation stops as Terry stops.


    If one accepts the notion that all police-citizen encounters must fall into one of three categories, each with its own special Fourth Amendment doctrines, the first step a reviewing court must take in order to analyze a particular case is to categorize the encounter. One of the most common police-citizen encounters is the traffic violation stop, that is, a police stop of a motor vehicle after an observed violation of a traffic ordinance.(36) Because...

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