The 3 Categories of Police Stops

While each of us may have a different interpretation of what constitutes a police stop the law places interactions with police into three general categories: mere encounters, investigative detentions, and custodial detentions/arrests. As a general rule, the more intrusive the police action, the greater level of protection an individual enjoys under the Fourth Amendment to our United States Constitution and Article 1 Section 8 of the Pennsylvania Constitution. It is important to understand that while the United States Constitution provides an individual with protection against unreasonable searches and seizures, the Pennsylvania Constitution provides even more protections of the same.

While no state may provide less protection than what is required in the Constitution, there is no prohibition to further protections. The discipline of Constitutional law is comprised of federal statutes, state statutes, and applicable case law. In many situations state constitutions fill in the blanks left by the United States Constitution given that the document itself was signed in Philadelphia over two hundred years ago. Since that time there have only been twenty-seven Amendments to the famous document, the first ten of which are collectively known as the Bill of Rights.

Under the Fourth Amendment (one of the Amendments in the Bill of Rights Group) there is no “seizure” (aka police stop) unless an individual is physically detained or submits to an order to stop. Under the Pennsylvania Constitution, however, a seizure occurs whenever the police restrict the movement of an individual, request identification, or pose a question to an individual regarding criminal conduct.

The key issue in many illegal search and seizure cases is the classification of the encounter with police as the level of the encounter triggers constitutional protections under state and federal law. The lowest level of interaction between police and an individual is a “mere encounter.” This, in theory, occurs when a police officer engages in non-coercive conversation with an individual and the person, again in theory, is free to leave without speaking to police. In many situations, however, this level of interaction leads to an eventual search of the suspect and so it is important that a defense attorney attempt to bring out that at some point a reasonable person would not feel free to walk away from the officer.

A mere encounter, because it is in theory considered a non-coercive interaction, does not provide an individual with any constitutional protections. Without constitutional protections an individual is unable to assert any type of right against this confrontation with police. The standard a court uses is that of a “reasonable person”. The analysis is based on the totality of the circumstances surrounding the confrontation. Courts look at such factors as the position of the individual and the officer, the officer’s tone of voice, requests made by the officer during the interaction and any other relevant factors. If a Court finds that the individual would have not felt free to leave the interaction moves from a mere encounter to an investigative detention.

An investigative detention, unlike a mere encounter, enables the individual to invoke constitutional protections. Investigative detentions, however, do not require that a police officer advise a suspect of his/her Miranda Rights (remain silent, etc.) but do allow the officer to conduct a frisk of the individual if, based on their observation, training and experience, the individual is a threat to the officer or possesses contraband. An investigative detention only requires that the police officer articulate reasonable suspicion that a crime is occurring, has occurred, or will occur. Reasonable suspicion is a lower form of probable cause which is the standard a police officer must use to arrest an individual or obtain a search warrant to search their property.

Probable cause is the evidentiary standard that the government must meet to make a legal arrest (custodial detention). An Arrest is the highest level of police contact with an individual and so an individual naturally enjoys the highest level of constitutional protections under federal and state law. There are many situations, however, where a person is arrested but the arrest occurs much earlier than the actual time when the person is formally taken into custody (handcuffed etc.) A custodial detention again is based on totality that circumstances analysis and courts look at a number of factors to determine if this classification is appropriate.

The three types of interactions between police officers and individuals are important to a potential criminal defense as Motions to Suppress Evidence, the procedural tool to assert these constitutional rights, are quite often the strongest defenses in cases of illegal guns, drugs, and practically any other case largely based on illegal items.