Los Angeles Police Department Legal Bulletin October 1996 PDF

jAL bulletin http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT LEGAL AFFAIRS DIVISION - LEGAL TRAINING UNIT Volume 20, Issue 2 October 15, 1996 Detentions axe a vitally important part of a police officer's duties. A proper detention w...

jAL bulletin http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT LEGAL AFFAIRS DIVISION - LEGAL TRAINING UNIT Volume 20, Issue 2 October 15, 1996 Detentions axe a vitally important part of a police officer's duties. A proper detention will only occur where the police officer is knowledgeable about detention rules and procedures. In today's litigious society, the issue of a proper, lawful detention may arise in the venue of a civil court as easily as in a criminal court. The following article "Detentions" was published in Point of View, Volume 24, Number 1. Point of View is a quarterly publication of the Alameda County District Attorney's Office. All Department employees are encouraged to read and study the article. The information will stimulate discussions in roll call and group sessions. The article with citations is available for review in the Legal Training Unit, Legal Affairs Division. Questions about detentions or other criminal law topics should be directed to the Legal Training Unit, (310) 342-3075. This copyrighted material is reprinted by permission of the Alameda County District Attorney’s Office. DETENTIONS "(I) t seems evident that temporary detention provides a legally useful procedure which the police should use on appropriate occasion for the benefit of the community." No police action is as productive or commonplace as detentions, including car stops. Detentions occur at all times of the day aid night on streets, freeways, sidewalks, parks and various other places. Detentions also occur for a variety of reasons: a pedestrian acting suspiciously, a car leaving the area where a robbery or burglary just occurred, a secretive hand-to-hand exchange in a high-drug area, a man staggering on a sidewalk, a speeding motorist. Although officers may initiate detentions for various reasons, their objective is essentially the same: to determine if the suspect should be arrested or cited, released because their suspicions were unfounded, or whether further investigation is necessaiy. To accomplish this objective, the law permits officers to do a number of things. Depending on the circumstances, they may question the suspect, hold the suspect for a field show-up, seek consent to search, run a warrant check, complete a field contact card, issue a warning, or take other appropriate action. In many cases, officers may also take certain protective measures, such as conducting a pat search for weapons, ordering the detainee out of a car, handcuffing the detainee, placing the detainee in a patrol car, or even implementing felony stop procedures. Regardless of the purpose of the detention or the methods employed, the act of detaining a suspect triggers certain procedural rules, which, if violated, may result in the suppression of all evidence obtained as the result of the detention. As we will now discuss, these rules concern with two separate aspects of detentions: (1) Was the detention justified? In other words, did the officers have sufficient reason to believe '1S DA4 AL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html the detainee had committed or as committing a crime? 1. After the detainee vas stopped, did the officers conduct their investigation in a reasonable manner? GROUNDS TO DETAIN: "REASONABLE SUSPICION" The term "reasonable suspicion" is used to describe the minimum level of suspicion required to lawfully detain a suspect or make a car stop. Reasonable suspicion exists when the detaining officer (or, if applicable, the officer who authorized the detention) was aware of specific facts which reasonably indicated the detainee, (1) was in the process of committing a felony, misdemeanor, or infraction, (2) was about to commit a crime, or (3) was wanted for a crime that had already occurred. Reasonable suspicion is similar to probable cause in that both terms describe a particular level of suspicion. They differ, however, in that reasonable suspicion may be based on information that is not as incriminating or as reliable as the information needed to establish probable cause. As the United States Supreme Court explained: Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Consequently, an officer may detain a suspect even though the circumstances do not directly implicate the suspect in a crime. In fact, it is sufficient that the circumstances were merely consistent with criminal activity. In the words of the California Supreme Court, "(I) f the circumstances are consistent with criminal activity, they permit -- even demand -- an investigation; the public rightfully expects a police officer to inquire into such circumstances in the proper discharge of the officer's duties." SIGNIFICANT FACTS In determining whether reasonable suspicion existed, the courts take note of all relevant circumstances known to the officer at the time the suspect was detained. Those circumstances are then evaluated to see if they were sufficiently suspicious to justify a detention. Such an evaluation is made by applying common sense, taking into account the reasonable inferences draw by the officer as the result of the officer's training and experience. % In some cases, the decision to detain is based on a single circumstance, e.g., the suspect matched the description of a wanted person or a person who had just committed a crime in the area. Often, however, the decision to detain is based on a variety of circumstances which, when considered as a whole, are sufficiently suspicious to justify a detention. The following circumstances are considered relevant, although not necessarily determinative: High Crime Area The fact that a person was present in a so-called "high crime area" will not justify a detention. Such a 15 3/26/02 3:37 PM ,EGAL BULLETIN http ://infoweb/Legal%20Affairs/Legal%20Bulletms/9-4-97/LBl 2.html fact may, however, be highly relevant if the person was observed engaging in conduct commonly associated with a certain type of criminal activity which is prevalent in that particular area. As the Court of Appeal noted, "While a person cannot be detained for mere presence in a high crime area without more, this setting is a factor that can lend meaning to the person's behavior." For example, a suspect's act of peering into parked cars in an alley would appear even more suspicious if the alley was frequently the site of auto burglaries or car thefts. Similarly, a secretive hand-to-hand exchange of money for a small, unidentified object would be suspicious — and may even justify a detention — if such conduct occurred in an area where drugs are typically bought and sold in such a manner. In contrast, merely receiving cash from another person in a high-narcotics area would not justify a detention because such conduct is not sufficiently suspicious. Late or Unusual Hour In determining whether certain conduct was sufficiently suspicious to warrant a detention, the court will consider whether the conduct occurred at a time when such activities would be considered unusual. For example, an outdoor gathering at 3 A.M. would naturally arouse some suspicion where a gathering at 8 P.M. would probably not. Nervousness Nervousness upon seeing an officer or a patrol car may be a factor in determining whether grounds to detain existed. But because many law-abiding people become nervous when they see an officer, a nervous reaction will be considered relevant only if it could reasonably be characterized as unusual. For example, it has been deemed significant that a suspect’s eyes "were glued" on a patrol car as the suspect changed his course and started walking in a different direction; or when a suspect, upon seeing an unmarked police car, "looked shocked" and quickly walked away; or when a suspect who was running from a bank immediately stopped running when he saw an officer, then turned pale and stared at the officer as his hands began to shake. * On the other hand, less extreme symptoms of nervousness would be considered less significant; e.g., suspect "looked nervous" upon seeing a patrol car, or appeared to be "wary" of an officer, or failed to make eye contact with an officer and "kneaded" the steering wheel of his car. Furtive Gestures A sudden movement by a suspect in apparent reaction to the presence of an officer may be considered relevant if the movement was such that it reasonably appeared the suspect was attempting to bide, discard, retrieve, or distance himself from an object (such as drugs or a weapon), or was attempting to hide from officers. Lies A suspect's act of lying to officers for the purpose of misleading them or to divert suspicion away from the suspect is a circumstance that may be considered in determining whether reasonable suspicion exists. Such an act will not, however, warrant a detention in the absence of other circumstances. Flight of 15 v?6/n? pm L BULLETIN http://infoweb/Legal%20AfTairs/Legal%20Bulletins/9-4-97/LB 12.html A suspect’s act of running from officers will not justify a detention. It is, however, a highly suspicious circumstance that may be a "key factor" in establishing reasonable suspicion. The significance of a suspect's act of fleeing from officers depends on the surrounding circumstances. As the California Supreme Court observed, "Time, locality, lighting conditions, and an area’s reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity." Or, as the Court of Appeal pointed out, "Running down a street is in itself indistinguishable from the action of a citizen engaged in a program of physical fitness. Viewed in context of immediately preceding gunshots, it is highly suspicious." Logical Escape Route If a person was detained on suspicion that he had just committed a crime, it would be relevant that the suspect was seen leaving the area where the crime occurred or was traveling on a logical escape route from the area. The circumstance is especially relevant if officers arrived in the area quickly after the perpetrator fled and there were few or no other people in the area. Description Similarities A detention may be based in part, or sometimes solely, on similarities between the physical descriptions of the detainee and perpetrator. Whether such similarities are sufficient to justify a detention depends on various factors including the number of shared physical characteristics and whether any of them were unusual or unique; whether the detainee was in a car which was similar to a car used in the commission of the crime; whether the detainee was in the company of others whose physical descriptions were similar to those of other perpetrators; whether the detainee and the perpetrator were wearing similar clothing; and whether the detention occurred near the crime scene or on a logical escape route shortly after the crime was committed. A detention may be justified even though there were discrepancies between the detainee's and the perpetrator's descriptions. "It is enough," said the Court of Appeal, "if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties." Information from Witnesses and Informants The decision to detain a particular person is often based on information furnished by witnesses and informants; e.g., a witness to a robbery provides a physical description of the robber, or an informant reports that a particular person is presently carrying a gun or drugs. Whether such information is sufficient to detain depends on whether there is reason to believe it is reliable. As the United States Supreme Court observed, "Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized." Consequently, officers who detain a suspect based on information from a witness or informant must be able to prove they reasonably believed the information was reliable. As we will now discuss, the manner in which this is accomplished depends on the type of informant who provided the information. Citizen Informants Information from a "citizen informant" is presumed reliable and may, therefore, justify a detention if it was based on the informant's personal knowledge. In most cases, a person will be deemed a citizen 3/26/02 3:37 PM JAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html informant if he or she was a crime victim or witness who identified himself to officers or whose identity was known to officers. Tested Police Informants Information from a tested informant will usually be deemed reliable. An informant will be considered "tested” if his information was corroborated or if he had a good "track record" for providing accurate information. Anonymous and Untested Police Informants Information from anonymous persons and untested police informants is not presumed reliable. Consequently, when such information is used, at least in part, to justify a detention, it is necessary to prove there was reason to believe it was accurate. As the Court of Appeal noted, "Obviously, the objective reliability of the informant's information must be a factor in determining whether the police officer's suspicion is objectively reasonable." Thus, for example, a detention would not be justified if it was based solely on an anonymous call to the police reporting that a certain person was presently in possession of drugs. Under such circumstances, it would be necessary to corroborate the tip, although, as noted earlier, such corroboration need not be as convincing as the corroboration required to establish probable cause. PRETEXT DETENTIONS A detention based on reasonable suspicion that the detainee committed a certain crime will not be invalidated on grounds the detaining officer expected or hoped the detention would lead to information about some other crime. This is because the lawfulness of a detention depends solely on whether the officer was aware of specific facts which constituted reasonable suspicion to detain. As the United States Supreme Court explained, "Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken." DETENTION PROCEDURE When reasonable suspicion exists, officers may take action which is reasonably necessary to protect themselves and determine whether the detainee should be arrested, cited, or released. Although the law gives officers a great deal of discretion in deciding how to conduct detentions, there are limits. Specifically, detentions must not be unduly prolonged or unreasonably intrusive. This means, among other things, officers must be diligent and must limit their investigation to the crime or crimes for which reasonable suspicion exists. If these rules are violated, the detention will be automatically converted into a de facto arrest which will be declared an unlawful arrest unless probable cause existed at that point. We will now discuss in detail the two types of actions officers may take: 1. Actions reasonably necessary for officer safety, and "in/Um 7-T7 D\4 EGAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html 2. Actions reasonably necessary to confirm or dispel the officer’s suspicions. OFFICER SAFETY During a detention, officers may take certain precautions for their safety and the safety of others. Although some of these precautions might be indicative of an arrest, they will not transform a detention into a de facto arrest unless a court concludes they were not reasonably necessary. Restraining a Detainee The act of restraining a detainee will not convert a detention into a de facto arrest if such restraint was warranted under the circumstances. For example, handcuffing a detainee has been deemed reasonable when officers were waiting for the victim of a purse snatch to arrive for a show-up; while transporting a rape suspect to a hospital for a show-up; while detaining six suspects in a robbery-murder, and after the detainee struggled with officers. Similarly, placing a detainee in the back seat of a patrol ca, has been declared reasonable while officers were waiting for a i ibbery victim to arrive for a show-up, or while waiting for the arrival of an officer who was expenenced in recognizing the symptoms of drug use. Drawn Guns An officer's act of drawing a gun on a detainee will not convert a detention into a de facto arrest if such a precaution was reasonably necessary under the circumstances and the gun was reholstered after it was safe to do so. For example, in People v. Campbell an officer drew a gun in order to detain a suspected drug dealer, but reholstered it after a pat search revealed he was unarmed. The court ruled the encounter was merely a detention because, "The officer's concern for his safety also justified his approaching [the suspect] with a drawn weapon... When [the suspect] did not react violently to being accosted, [the officer] immediately replaced his gun in his belt before patting down [the suspect]. This conduct did not constitute restraint beyond that which is necessary for temporaiy detention." Force The use of force against a detainee will not transform a detention into a de facto arrest if such force was reasonably necessary under the circumstances. As the Court of Appeal explained: The right to verify or dispel suspicion is meaningless unless officers may, when necessary, forcibly detain a suspect. Thus, a police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest. For example, force may be used if reasonably necessary to prevent a detainee from fleeing or destroying evidence. of 15 3/26/02 3:37 PM 3AL bulletin http://mfoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB12.html Ordering Occupants of a Car to Exit If officers have detained the driver or passenger in a car, they may order the occupants out as follows: ORDERING THE DETAINEE OUT: Officers may, as a matter of routine, order the detainee to exit the vehicle while they are conducting their investigation. This is mainly because of the potential for danger that results when an officer is unable to observe the movements of a detainee. ORDERING OTHER OCCUPANTS OUT: An occupant who is not being detained may be ordered to exit the car if such action would, (1) help insure officer safety or, (2) facilitate the investigation. For example, courts have ruled it was reasonable to order a non-detained passenger to exit when the passenger kept his hands in his pockets and fidgeted nervously; when it was necessary to question the occupants separately about the driver's identity; or when an officer would be entering the car to search for registration or to conduct a consent search. Felony Car Stops Although the procedure for conducting a felony car stop may vary, it often involves ordering all the occupants out at gunpoint, ordering them to lie on the ground, conducting a search of their persons for weapons, handcuffing them, and placing them in the caged section of a patrol car. In most cases, felony car stops occur hen there is probable cause to arrest some or all of the occupants. Consequently, there is usually no reason to be concerned that the precautions taken might transform the encounter into a de facto arrest because an arrest is justified. If reasonably necessary under the circumstances, officers may also make a felony car stop where there is only reasonable suspicion to detain one or more of the occupants of the car. For example, in People v. Soun, Oakland police employed full felony car stop procedures when they stopped a car containing six men who were suspects in the murder of a video store clerk who was killed during an aborted robbery. Although the officers had only reasonable suspicion to detain the men, the court ruled the felony-stop precautions were proper under the circumstances and, thus, did not transform the detention into a de facto arrest. Said the court, "[The officers] were authorized to take such steps as were reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop." Order to Keep Hands in Sight An officer who has lawfully detained a suspect may order the suspect to remove his hands from his pockets or otherwise keep his hands in sight. Such an action is permissible whether or not there is reason to believe the suspect is armed. Pat Searches A pat search of a detainee is permitted if there is reason to believe the detainee was armed or dangerous. The following circumstances are particularly relevant: NATURE OF CRIME UNDER INVESTIGATION. A pat search is justified if the suspect was lawfully 15 in 6/m mi pm GAL BULLETIN http://infoweb/Lega]%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html detained for a crime of violence, possession of a weapon, or burglary. A pat search is probably justified if the suspect was detained for suspicion of drug sales. DETAINEE ON PAROLE OR PROBATION. The fact that officers were aware that the detainee was on parole or probation may be relevant, especially if the detainee was on parole or probation for a crime involving weapons or violence. WEAPONS AND GANG PROBLEMS. It is relevant that the detention occurred in an area where weapons are commonly used or where there are drug or gang problems. NIGHTTIME AND DARKNESS. It is relevant that the detention occurred in darkness because in such a situation an armed detainee may be able to get his hands on a weapon under his clothing without being detected. BULGE UNDER CLOTHING. A bulge not inconsistent with a weapon may justify a pat search. SUSPICIOUS MOVEMENTS. A furtive or suspicious movement by a detainee is a circumstance that may be considered, especially if the movement reasonably indicated the detainee might be reaching for a weapon or might be trying to hide a weapon from an officer's view. HOSTILITY. A detainee who is hostile toward officers or who has a histoiy of hostility toward officers may probably be pat searched without any additional circumstance indicating danger. NERVOUSNESS. A detainee's nervousness will not justify a pat search but it is a circumstance that may be considered, especially extreme nervousness. OFFICERS OUTNUMBERED. The fact that officers were outnumbered by detainees will not usually justify a pat search but it is a relevant circumstance. INFORMATION FROM INFORMANT. A pat search will be justified if officers received information from a citizen informant or tested informant that the detainee is presently armed with a weapon. In the absence of specific facts such as these, a pat search will be declared unlawful. For example, a pat search will not be upheld if it was based solely on an officer’s hunch, if it was conducted as a matter of "routine," or if the justification given was, "I did it for officer safety." Scope of a Pat Search An officer who is conducting a pat search for weapons may remove a concealed object from under the >f 15 3/26/02 3:37 PM iGAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB12.html detainee’s clothing under the following circumstances: CONVENTIONAL WEAPON: The officer reasonably believed the object was a conventional weapon that it could be used as an instrument of assault. HARD OBJECT: The object felt hard to the touch and the pat search did not eliminate the possibility it was a weapon. On the other hand, a soft object may be removed only if the officer can cite specific facts which reasonably indicated the object was an atypical weapon. CONTRABAND: There was probable cause to believe the object was contraband, such as illegal drugs. This determination may be based on how the object felt during the pat search and any other relevant circumstances. An officer may also reach inside a detainee's clothing to grasp or manipulate an object if the detainee's clothing was so rigid or heavy that the officer could not rule out the possibility the object was a weapon. CONDUCTING THE INVESTIGATION When reasonable suspicion exists, officers may question the detainee and take other steps which are reasonably necessaiy to confirm or dispel their suspicion. If, however, a court concludes the officers’ actions were unreasonably intrusive, the detention will be declared a de facto arrest. As the United States Supreme Court explained: The scope of the intrusion permitted [during a detention] will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. Length of Detention A detention may be converted into a de facto arrest if it was unreasonably lengthy. There is, however, no rigid time limit after which a detention automatically becomes a de facto arrest. Instead, what counts is whether officers conducted the detention in a diligent manner. Although officers must not delay in conducting their investigation, a detention will not be deemed unreasonably lengthy merely because it might have been conducted more expeditiously. Again quoting the United States Supreme Court: if 15 'V'^7 pm iL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html A court making (the assessment of whether a detention was too long) should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished... The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it. The detention must, of course, be terminated when officers determine their suspicions were unfounded or, in the case of a traffic stop, when the driver signs the citation. The detention may, however, be extended if circumstances arise which increase the level of suspicion or provide grounds to detain the suspect to investigate another crime. As the Court of Appeal observed: No hard and fast rule can be formulated for determining the reasonableness of the period of time elapsing during a detention. The dynamics of the detention-for-questioning situation may justify further detention, further investigation, search, or arrest. The significance of the events, discoveries, and perceptions that follow an officer's first sighting of a candidate for detention will vary from case to case. Questioning In many cases, the most effective method of confirming or dispelling an officer's suspicion is simply to question the detainee. As the Court of Appeal observed: When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning, designed to bring out the person's explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow the suspect to go about his business or (arrest) him... MIRANDA One of the legal issues which may arise with regard to the questioning of detainees is whether officers should have obtained a Miranda waiver before questioning. In most cases, the answer is no. This is because a detainee does not have rights under Miranda unless he is questioned under circumstances which would cause a reasonable person to believe his freedom had been restrained to the degree associated with a formal arrest. And during most detentions, these circumstances do not exist. As the United States Supreme Court explained: [An officer who has detained a suspect] may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions, But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that [detentions] are subject to the dictates of Miranda. 15 3/26/02 3:37 PM \L BULLETIN http://infoweb/Legal%20Affairs/Legal%20BulIetins/9-4-97/LB 12.html A detention may, however, evolve into a situation requiring a Miranda waiver if it becomes lengthy or if there were circumstances that would reasonably indicate the detainee was under arrest. These circumstances might include the number of officers confronting the suspect, whether the questions were accusatory or merely investigatory, and whether the detainee had been physically restrained. For example, in People v. Taylor the court ruled the defendant was in custody following a car stop mainly because he was "surrounded by at least four officers, several vehicles and a helicopter, and held at gunpoint." Questions about Unrelated Crimes Officers who have lawfully detained a suspect to investigate a certain crime may not interrogate the suspect about unrelated criminal activity unless officers were aware of facts which constituted reasonable suspicion to believe the suspect was involved in that activity. As the Court of Appeals explained in the context of traffic stops: (Officers are precluded) from imposing a general crime investigation upon the detained traffic offender that is not reasonably necessary to completion of the officer's traffic citation duties unless the officer has an independent reasonable suspicion that the driver has committed unrelated offenses. Warrant Checks Officers may prolong a detention for the purpose of running a warrant check, as follows: FELONY AND MISDEMEANOR DETENTIONS (NON-TRAFFIC). If officers have reasonable suspicion to-believe that a detainee committed a felony or misdemeanor they may prolong the detention for a reasonable period of time for the purpose of running a warrant check. TRAFFIC VIOLATIONS; DRIVER MAY BE TAKEN INTO CUSTODY. In the case of traffic violations, officers may run a warrant check on the driver if the driver could have been taken into custody for an appearance before a magistrate; e.g., no satisfactory identification or a stop for reckless driving. TRAFFIC VIOLATIONS; CITE AND RELEASE. If the traffic offense was such that the officer was required to cite and release the driver, a warrant check is permitted only if it does not prolong the detention mpre than a "few moments." As the Court of Appeal explained: (T) he warrant check must be completed within the period of time necessary for the officer to discharge his ordinary duties incurred by virtue of the traffic stop. That period of time necessarily includes the time required to write out the citation and obtain the offender's promise to appear or to warn him against committing future similar violations and release him without issuance of a citation. It may also include time for examination of the motorist's driver's license and the registration card for the vehicle and...to the foregoing period of time may lawfully be added the few moments necessary for the officer to return to his vehicle with the driver's identification and initiate the warrant check by use of radio or computer terminal. 15 7-17 pm GAL BULLETIN http://infoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html For example, a warrant check during a routine traffic stop would be permitted if it was conducted while the officer was writing a citation or while waiting for DMW information. On the other hand, a warrant check would not be permitted after the officer had completed his duties relative to the stop; e.g., after the driver signed a promise to appear. As the California Supreme Court observed. "(W) hen the officer has completed his duties flowing from the (traffic) violation, no further detention—whether for a warrant check or otherwise—is permissible: the motorist must then be released forthwith." Sometimes, however, circumstances develop during a routine traffic stop which will justify a more lengthy detention. This typically happens when officers see or hear something which makes it reasonable to believe an occupant of the car had committed a felony, misdemeanor, or a more serious infraction. In such cases, a warrant check on the detainee is permitted. In the words of the Court of Appeal, "[A] detention which furnishes sufficient cause to prolong the investigation beyond the time required to issue a traffic citation may properly continue while a warrant check is run." Request for Written Identification Officers who have lawfully detained a suspect may ask the suspect for written identification. If the suspect denies having written identification but is carrying a wallet, officers may order the suspect to look through the wallet while officers watch to determine if it contains identification. Alternatively, officers maj seize the wallet and search it themselves for written identification. Officers who have made a traffic stop may ask a passenger in the car for written identification or question the passenger about his identification only if it is reasonably necessary to do so; e.g., to identify the passenger in case he was needed as a witness against the driver for driving without a license. Field Contact Cards During the course of a detention, officers will sometimes complete a field contact card or field interview card. Such cards typically contain the detainee's name, address, vehicle description, and a summary of_^ the details surrounding the detention. This information may be stored in a file catalogue or computer database which can be accessed by officers in the course of subsequent investigations. As a general rule, officers may briefly prolong a detention for the purpose of completing a field contact card if the detention was based on reasonable suspicion that the detainee committed a felony, a misdemeanor, or an infraction for which the officers could have taken the detainee into custody for an appearance before a magistrate. As the Court of Appeal explained: Field identification cards perform a legitimate police function. If done expeditiously and in an appropriate manner after a lawful stop and in response to circumstances which indicate that a crime has taken place and there is cause to believe that the person detained is involved in same, the procedure is not constitutionally infirm. In the case of a traffic violation for which the driver must be cited and released, it is not clear whether the detention can be prolonged for the purpose of completing a field contact card. As a practical matter, however, the detaining officer will usually obtain all the necessary personal and vehicle identification information as a consequence of the traffic stop. Thus, in such cases there is usually no need to prolong the detention. Prosecutors note: of 15 3/26/02 3:37 PM .EGAL BULLETIN http://mfoweb/Legal%20AfTairs/Legal%20Bulletins/9-4-97/LB 12.html If a field contact card leads to the arrest of the detainee for a crime committed after the detention, the legality of the detention should not affect the admissibility of evidence obtained as the result of the arrest. This is because the evidence is not "fruit" of the detention inasmuch as the commission of the crime after the detention constitutes an intervening independent act which attenuates the link between the detention and the arrest. Transporting the Detainee The act of transporting a detainee from the scene of the detention will convert the detention into a de facto arrest unless, (1) there was good cause to transport the detainee or, (2) the detainee voluntarily consented to be transported. . For example, a detention will become a de facto arrest if officers required a detainee to accompany then to the station for questioning, fingerprinting, or for an appearance in a lineup. As the United States Supreme Court explained, ”[T]he line (between a detention and an arrest] is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes." The act of transporting a detainee from the detention site to the crime scene or some other place for a show-up will also ordinarily convert the detention into a de facto arrest because it is usually possible to quickly transport the victim or witness to the detainee's location. Such action will not, however, convert a detention into a de facto arrest if there were circumstances that made it reasonable to do so. This typically occurs when it is impractical to transport the victim to the detention site because of injuries inflicted during the crime. In the words of the California Supreme Court: We can conceive of factual situations in which it might be quite reasonable to transport a suspect to the crime scene for possible identification. If, for example, the victim of an assault or other serious offense was injured or otherwise physically unable to be taken promptly to view the suspect, or a witness was similarly incapacitated, and the circumstances warranted a reasonable suspicion that the suspect was indeed the offender, a "transport" detention might well be upheld. Similarly, it may be reasonable to transport the detainee to the crime scene or to a hqspital for a show-up if, because of unusual circumstances, it could be done much faster than waiting for the victim to be transported. Again quoting the California Supreme Court, "(T) he surrounding circumstances may reasonably indicate that it would be less of an intrusion upon the suspect's rights to convey him speedily a few blocks to the crime scene permitting the suspect’s early release rather than prolonging unduly the field detention." It may also be reasonable to transport a detainee if it was reasonably necessaiy for officer safety or the safety of the detainee. For example, if a crowd hostile to officers or the detainee gathered at the detention site it would be reasonable to transport the detainee a short distance to a location where the detention could be conducted safely. Similarly, in People v. Soun the court ruled it was reasonable to transport six suspects in a robbery-murder to a parking lot three blocks away because the officers reasonably believed the detention would be lengthy and it was necessary to detain the suspects in separate patrol cars which were blocking the street. Said the court, "A three-block transportation to an essentially neutral site for these rational purposes did not operate to elevate (the suspects') custodial status from detention to arrest." of IS 'i.nf./oo i-m pm 1AL BULLETIN http ://infoweb/Legal%20Afrairs/Legal%20Bulletins/9-4-97/LB 12.htm! Fingerprinting the Detainee The United States Supreme Court has indicated that officers may take the fingerprints of a person who has been lawfully detained if, (1) officers reasonably believed that fingerprinting would prove or disprove the suspect's connection to the crime for which he had been detained, and (2) the fingerprinting procedure was carried out quickly. Consent Searches When a suspect is detained on reasonable suspicion that he committed a certain crime, officers may, of course, seek consent to search for evidence pertaining to that crime. For example, if there is reasonable suspicion that the detainee just committed an armed robbery, officers could lawfully seek consent to search his person and car for the gun used in the robbery. As we will discuss, under certain circumstances, officers may also lawfully seek consent to search for evidence of an unrelated crime — a crime for which reasonable suspicion did not exist. Investigation Terminated; Detainee Free to Go Officers may seek consent to search for evidence of an unrelated crime if detainee reasonably believed the detention was over and that he was free to leave. For example, in People v. Galindo, an officer stopped a car for speeding and wrote a citation. After the driver signed a citation and received a copy, he stated walking back to his car. At that point, the officer sought and received consent from the driver and a passenger to search the car for drugs and guns. During the search, officers found cocaine and heroin. The court ruled the consent search was lawful because, "Nothing in the record suggests that (the driver or the passenger) had any objective reason to believe that they were not free to end the discussion and proceed on their way. The record fully supports the People's claim that (the officer’s) postcitation of [the passenger] could properly be initiated without objective justification of criminal activity and resulted in no restraint of [the passenger's] liberty." Investigation Terminated; Detainee Not Free To Go When the purpose of the detention has been accomplished, the detainee must be promptly released. If, however, the detention is improperly extended, during which time the detainee gives consent to search, such consent will be deemed invalid. For example, in People v. Lingo consent given by a driver who was stopped for an equipment violation was declared invalid because it occurred after "the officers had completed their activity with reference to the equipment, the license, and the registration...[Nevertheless] they continued to detain defendant, his companion and his vehicle, for an'entirely different purpose — namely to make inquiry about an offense which, admittedly, they had no grounds to suspect had been or was being committed." Investigation Continuing; Detainee Not Free To Go The courts have not directly ruled on whether officers who are lawfully detaining a suspect with regard to a particular crime, may seek consent to search for evidence of an unrelated crime for which reasonable suspicion does not exist. It would seem, however, that such action should be upheld because the intrusion is so minimal. In other words, if officers are permitted to prolong a detention a "few moments" to run a warrant check 15 3/26/02 3:37 PM LEGAL BULLETIN http://iiifoweb/Legal%20Affairs/Legal%20Bulletins/9-4-97/LB 12.html which is unrelated to the purpose of the stop, they should be permitted to prolong a detention a few seconds to seek consent to search. On the other hand, a court may rule a detention had become a de facto arrest if officers, prior to seeking consent, had prolonged the detention by questioning the detainee about an unrelated crime or matters unrelated to the purpose of the stop. 5 of 15 3/26/02 3:37 PM