ARREST - POLICE OFFICERS - CONSTITUTIONAL RIGHTS OF ACCUSED PERSONS - ADMISSIBILITY OF EVIDENCE

ARREST - POLICE OFFICERS - CONSTITUTIONAL RIGHTS OF ACCUSED PERSONS - ADMISSIBILITY OF EVIDENCE.

(1) The provisions of the 4th Amendment to the United States Constitution are applicable to any detention of a person for investigation of suspected criminal conduct irrespective of whether or not the detention amounts to an arrest or not; however, such a temporary detention is not a violation of the 4th Amendment if the officers acted upon specific and articulable facts which would "warrant a man of reasonable caution in the belief that the action taken was appropriate"; in other words, the officers may act on something less than "probable cause," but they may not act simply on the basis of good faith based upon nothing more substantial than "inarticulate hunches."

(2) A police officer who has temporarily detained a person for investigation of suspected criminal conduct without making a formal arrest is not required to warn the detained person of his constitutional rights under Miranda v. Arizona, 384 U.S. 486, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), until the initial suspicions which led the officer to make the "stop" are transformed into "probable cause" to believe the person confronted has committed an offense or until the suspect has a reasonable basis in fact to believe that he is under arrest (i.e., in custody of the police and not free to leave); at either of these points, the required warnings must be given in order to insure the admissibility in evidence of any incriminating statements thereafter made by the suspect.

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                                                                 January 20, 1970

Honorable Peter D. Francis
State Senator, 32nd District
Legislative Building
Olympia, Washington 98501

                                                                                                                  Cite as:  AGO 1970 No. 2

Dear Sir:

            This is written in response to your recent letter requesting our opinion with regard to the circumstances under which a  [[Orig. Op. Page 2]] police officer may, constitutionally, detain a person for investigation of suspected criminal conduct without making a formal arrest.  We paraphrase the two principal questions raised by your request as follows:

            (1) Where a police officer temporarily detains a person for investigation of suspected criminal conduct without making a formal arrest, (a) do the provisions of the 4th Amendment to the United States Constitution relative to searches and seizures apply and (b) if so, what circumstances will justify such a detention?

            (2) Must the police officer warn the temporarily detained person of his constitutional rights under the rule of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), before interrogating him, in order to make the statements of the detained person admissible as evidence against him in a subsequent criminal trial?

            We answer both questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            The basic constitutional provision which is involved in your first question is the 4th Amendment to the United States Constitution, which reads as follows:

            "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."1/

             [[Orig. Op. Page 3]]

            Prior to its 1968 decisions in Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868, andSibron v. New York, 392 U.S. 40, 20 L.Ed. 2d 917, 88 S.Ct. 1889, the various cases which had been decided by the United States Supreme Court involving searches or seizures of persons were all determined solely on the basis of whether or not there had been an arrest and/or search and, if there had, whether or not the police officers making the arrest or search had "probable cause."2/ However, during the early years of the last decade, the concepts of "reasonable suspicion" as a lesser degree of certitude than probable cause, and of a "stop and frisk" as a justifiable response to such a suspicion but short of a full-blown arrest (seizure) and search were beginning to be recognized by lower courts as being within the ambit of the 4th Amendment.  For example, inUnited States v. Bonanno, 180 F.Supp. 71 (S.D. N.Y. 1960), a federal district court had held that the temporary detention and interrogation of the occupants of an automobile did not violate their 4th Amendment rights despite the officer's obvious lack of probable cause to make an arrest where the officer involved reasonably believed that a crimemight have been committed and the circumstances demanded immediate investigatory activity.

             [[Orig. Op. Page 4]]

            Similarly, inPeople v. Rivera, 14 N.Y. 2d 441, 201 N.E. 2d 32 (1965) (cert. denied, 379 U.S. 979), the New York court of appeals, although assuming the applicability of the 4th Amendment, had upheld the right of police officers to stop a person in the public street and to question him on the basis of factual circumstances which would reasonably actuate investigation and inquiry.3/

             With its decisions inTerry andSibron, the Supreme Court has clearly made these concepts a part of the 4th Amendment spectrum in so far as warrantless searches and seizures are concerned.  As will be discussed below in more detail, the distinction recognized by the court is betweenbrief detentions or seizures of persons for the purpose of making an on the spot investigation of the unusual behavior of the person stopped,4/ and detentions or seizures of persons for a more protracted time which "eventuate in a trip to the station house" for the purpose of holding the person to answer for a crime.5/   Thus, both terms entail action by the arresting officer which deprives a person of his freedom of action.  They differ in the purpose and extent of the detention, however, in that the "stop" is essentially an investigative detention, while an arrest is a custodial detention.

            However, before proceeding to detail the facts of these two cases, a brief aside would seem to be in order.  As is the case with respect to almost every asserted violation of the constitutional safeguardwhich is litigated, both of these cases involved the admissibility into evidence of the objects obtained by the officer as a result of his "stop" or temporary detention and "frisk" of the suspected offender; i.e., a revolver, in the case of Terry, and a packet of heroin in the case ofSibron.  This factor should be kept firmly in mind in terms of the practicalities involved in your question.  As the court inTerry itself recognized, in many cases the threat of  [[Orig. Op. Page 5]] exclusion of the evidence obtained in violation of the suspect's constitutional rights is about the only real deterrent to the perpetration of an impermissible intrusion by the detaining police officer.  This thought was expressed by the court as follows:

            ". . . Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. . . . Thus its major thrust is a deterrent one, . . . and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere 'form of words.'"6/

             With this, the court then went on to express its recognition that:

            "The exclusionary rule has its limitations, . . . as a tool of judicial control. . . .  Doubtless some police 'field interrogation' conduct violates the Fourth Amendment.  But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule.  Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal."7/   (392 U.S. at 13.)

             [[Orig. Op. Page 6]]

            In theTerry case, the prosecution had charged the defendant with carrying a concealed weapon.  The critical issue related to the admissibility in evidence of the revolver which the arresting officer had discovered in the defendant's possession upon stopping and "frisking" him.

            By way of factual background, the officer had initially observed unusual conduct on the part of the defendant and two other men which led him to suspect that they were "casing a job, a stick-up" of a certain retail establishment in Cleveland, Ohio.  Thereupon (in the words of the court),

            ". . . Deciding that the situation was ripe for direct action, Officer McFadden approached the three men, identified himself as a police officer and asked for their names.  At this point his knowledge was confined to what he had observed.  He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source.  When the men 'mumbled something' in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing.  In the left breast pocket of Terry's overcoat Officer McFadden felt a pistol.  He reached inside the overcoat pocket, but was unable to remove the gun.  At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker's store.  As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. . . ."  (392 U.S. at pp. 6-7.)

            Defendant's motion to suppress this revolver was denied by the trial court, and this ruling was affirmed by the reviewing state appellate court.  State v. Terry, 5 Ohio Appeals 2d 122, 214 N.E. 2d 114 (1966).  After the supreme court of Ohio had dismissed an appeal from this decision, the United States Supreme Court granted certiorari.8/

             [[Orig. Op. Page 7]]

            ". . . to determine whether the admission of the revolvers in evidence violated the petitioner's rights under the Fourth Amendment, made applicable to the States by the Fourteenth.  Mapp v. Ohio, 367 US 643, 6 L.Ed. 2d 1081, 81 § Ct 1684, 84 ALR 2d 933 [[367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684, 84 A.L.R. 2d 933]](1961). . . ."  (392 U.S. at 8.) ALR 2d 933 (1961). . . ."  (392 U.S. at 8.)

            In making this determination, it was necessary for the court to decide, first, whether the "stop" i.e., temporary detention for investigation of the defendant Terry had constituted a "seizure" of his person within the meaning of the 4th Amendment,supra.  Secondly, the court then had to decide whether the "frisk" which followed was a "search" under this constitutional provision; and lastly, it had to decide whether, in the event that the "stop and frisk" did amount to a constitutionally protected search and seizure, it was unreasonable under the circumstances.  The court's resolution of these three issues resulted in its delineation of four broad principles which it regarded as applicable not just in the area of "stop and frisk" but also with respect to the entire search and seizure procedure.

            The first of these principles is manifest in the court's response to points one and two.  In holding that the "stop" was a seizure and the "frisk" a search, the court ruled that the 4th Amendment governs all intrusions by law enforcement officers into the personal security, privacy and liberty of the people, regardless of whether the particular intrusion (in the case of a "stop" or detention, for investigation) amounts to an arrest or not in other words, a "stop" is just as much a seizure of the person under the 4th Amendment as is an arrest.

            Secondly, the court announced the principle that the reasonableness of the intrusion must be judged by an objective standard:

            ". . . And in making that assessment it is imperative that the facts be judged against an objective standard:  would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?  [citations omitted]  Anything less would invite intrusions upon constitutionally  [[Orig. Op. Page 8]] guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. . . ."9/

             Thirdly, the court held that:

            ". . . The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible. . . ."10/

             And finally, the court propounded the principle that the reasonableness of the search or seizure is to be decided

            "'. . . by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'"11/

             Applying these principles to the facts before it, the court held that although the "stop and frisk" were constitutionally inhibited by the 4th Amendment, they were not unreasonable and, therefore (in accordance with the trial court's ruling) the revolver obtained as a result of the encounter was properly admitted into evidence.

            The court upheld the propriety of the "stop" on the ground that the officer had observed unusual behavior by the suspects which gave rise to the definite possibility of a crime in progress and required that he take immediate action to intercept and investigate them.  Briefly summarized, the defendant Terry and one of the other defendants were first observed taking turns pacing back and forth in front of the same store, pausing each time to stare into the store window, roughly twenty-four times; they did not appear to be waiting for anyone or anything; they were then joined by the third defendant who spoke to them and then left swiftly, and who rejoined them several blocks away.

             [[Orig. Op. Page 9]]

            With respect to this phase of the officer's conduct, the court first expressed its recognition that:

            ". . . a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."

            It then applied this principle to the facts of the case, as follows:

            ". . . It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions.  He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.  There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone.  Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs.  Store windows, moreover, are made to be looked in.  But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away.  It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further."12/

             [[Orig. Op. Page 10]]

            The "frisk" phase of the case was upheld by the court because (1) the officer was "justified in believing" that the men men whose behavior he was investigating were "armed and presently dangerous to himself and to others;"13/ and (2) the search itself was "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and might realistically be characterized as something less than a 'full' search, even though it remained a serious intrusion."14/

             A "justified belief" was held to mean that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."15/   In so holding, the court indicated that the arresting officer's belief may, in part, rest on inferences which his experience leads him to draw, but "he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous."

            This, then, wasTerry v. Ohio, in which the evidence obtained by the stop and frisk was held to be admissible.  On the other hand, in the companion case of Sibron v. New York,supra, the court ruled the evidence thus obtained to be inadmissible and overturned the defendant's conviction for illegal possession of heroin because (unlike the defendant in Terry) he had not done anything that would lead a reasonably prudent man to believe him armed and dangerous.  The patrolman who had made the "stop and frisk" of this defendant testified that he had observed Sibron out of earshot talking with six or eight "addicts," but conceded that he had not seen anything pass between Sibron and the addicts.  Nevertheless, he approached Sibron in a cafe and asked him to step outside, saying, "you know what I'm after."  Thereupon, Sibron "mumbled something" and reached into his pocket.  Simultaneously, the patrolman thrust his hand into the same pocket, where he discovered a quantity of heroin in several envelopes.

            In determining that the heroin was inadmissible in evidence, the Supreme Court went through a two-step analytical process which is likely to be characteristic in cases like this in  [[Orig. Op. Page 11]] the future.  First, it determined that "nothing resembling probable cause existed until after the search had turned up the heroin";16/ therefore, the search could not be justified as incident to a lawful arrest.  Then, it applied theTerry test to determine if the search was justifiable as a self-protective search for weapons.

            At this point, the court found that the patrolman's testimony revealed no facts from which he might reasonably have inferred that the suspect was armed and dangerous.  While, under some circumstances, Sibron's putting his hand in his pocket might reasonably have incited the belief that he was going for a weapon, the court felt that being an addict and talking to other addicts did not warrant the conclusion and the patrolman's testimony left no doubt that he thought Sibron was reaching for narcotics, not for a weapon.

            From this decision, we derive the following principles with respect to the right of a police officer to "stop and frisk" a person for investigation of suspected criminal conduct:  First, the scope of any search not authorized by a warrant or incident to a lawfularrest must be strictly limited to pat down or "frisk" for dangerous weapons; second, in the absence of probable cause a "frisk" cannot be justified by the need to prevent the disappearance or destruction of evidence of a crime; and third, the only acceptable justification for a "frisk" is a reasonable belief that the suspect is armed and dangerous.

            Before concluding, we should also note two recent cases decided by the United States Courts of Appeals which illustrate the application of Terry and Sibron.  InTinney v. Wilson, 408 F.2d 912 (9th Cir. 1969), a police officer had agreed to accompany a girl in her car into an alley to commit an act of prostitution.  After arresting the girl for prostitution, he observed a man lying on the back seat of her car.  The officer searched the man cursorily for weapons in the belief that the man was in a position to rob him.  The search produced several drug capsules.  The court held that, while the officer had a right to search for weapons, his discovery of the capsules in the man's pocket did not follow a lawful arrest because he did not have probable cause; and, therefore resulted from an unconstitutional extension of his "frisk" for possible weapons.

             [[Orig. Op. Page 12]]

            InWartson v. United States, 400 F.2d 25 (9th Cir. 1968), a police officer had received a tip that a man answering the description of a man who had just shortly before robbed a bank had been seen getting out of a cab and going into a specified apartment.  The description was of a male Negro, 22, six feet two inches, 190 pounds wearing green and yellow sweater, a yellow and black shirt and dark trousers.  On entering the apartment by invitation, the officer was invited into the bathroom where the suspect was bathing.  The officer pulled his pistol before he saw the clothes the suspect had been wearing, and promptly took him outside where he was identified and handcuffed.  The court held the officer did not need probable cause at the time that the suspect was detained in the bathroom because "such brief, informal detentions are not arrests."17/

             The basic conclusions which we draw fromTerry andSibron in specific response to your first question, are as follows:

            (a) The provisions of the 4th Amendment to the United States Constitutiondo apply to any detention of a person for investigation of suspected criminal conduct irrespective of whether or not the detention amounts to an arrest or not; and

            (b) Such a "stop" is not a violation of the 4th Amendment if the officers acted upon specific and articulable facts that would "warrant a man of reasonable caution in the belief that the action taken was appropriate"; in other words, the officers may act on something less than "probable cause," but they may not act simply on the basis of good faith based upon nothing more substantial than "inarticulate hunches."  The evidence at hand must demonstrate a substantial possibility that a crime has been, is being, or is about to be, committed by the suspect.18/

             Question (2):

            By this question you have asked whether, during such a period of temporary detention as is the subject of your first question, it is necessary that the police advise the detained person of his constitutional rights underMiranda v. Arizona,supra, before proceeding to interrogate him.

            TheMiranda rule, of course, also involves the concept of sanctioning or enforcing a constitutional safeguard against unwarranted police activity by excluding the evidence thus obtained   [[Orig. Op. Page 13]] only here, the constitutional safeguards are the prohibition against self-incrimination contained in the 5th Amendment to the United States Constitution19/ and the "right to counsel" provision of the 6th Amendment.  As most recently described by our own state supreme court in State v. Creach, 77 W.D. 2d 194, 199 [[77 Wn.2d 194, 199]], 461 P.2d 329 (1969),

            "In general,Miranda requires that, prior to custodial interrogation of an accused, he must be warned:  (1) that he has the right to remain silent; (2) that any statement he does make can and will be used as evidence against him in a court of law; (3) that he has the right to consult with counsel before answering any questions; (4) that he has the right to have his counsel present during the interrogation; (5) and that if he cannot afford an attorney, one will be appointed for him without cost to him, prior to questioning, if he so desires."  (Emphasis supplied.)

            The key phrase in this statement, in so far as your question is concerned, is "custodial interrogation."  InMiranda, this was described as:

            ". . . questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . ."20/

             At issue in State v. Creach, supra, was the admissibility of certain statements which the defendant had made to police officers investigating a report concerning stolen credit cards.  The factual situation at the time the critical statements were made was described by the court as follows:

             [[Orig. Op. Page 14]]

            "August 9, 1966, the Yakima Police Department received a report that an individual was exhibiting credit cards that appeared to be stolen.  Pursuant to this report, Officer Leavitt went to the Chinook Hotel where defendant was pointed out by the manager as the individual reported.  Officer Leavitt approached defendant and asked for identification documents.  Defendant produced a billfold containing numerous credit cards and a driver's license for 'James S. Black.'  Defendant stated that he was Mr. Black and complied with the officer's request that he step outside to answer questions, although he protested that he was waiting for a telephone call."

            Although no Miranda type warning had been given to the defendant at this point in the proceedings, the Washington court held that his statements made to the officers outside the hotel which in turn aroused their further suspicions and led to a formal arrest were admissible because the questioning by the officersat this point did not amount to custodial interrogation.  In so holding, the court first quoted with approval from the recent 4th Circuit Federal Court case ofUnited States v. Gibson, 392 F.2d 373 (1968), as follows:

            "InMiranda, the primary concern of the Court was with the 'potentiality of compulsion' inherent in in-custody interrogations.  The Court spoke of that case as one in which '[a]n individual is swept from [his] surroundings into police custody,' 'thrust into an unfamiliar atmosphere,' held incommunicado, 'surrounded by antagonistic forces,' and 'run through menacing police interrogation procedure.'  This is not such a case.

            "'Custodial interrogation' certainly includes all station-house or police car questioning initiated by the police, for there the 'potentiality for compulsion' is obvious.  Whether it also reaches police inquiries made of a suspect on the street or at his own home was left unanswered by  [[Orig. Op. Page 15]] the Court and has been much debated. . . . Precise refinements of the terms 'custody' and 'interrogation' will have to be developed on a case by-case basis.  Thus, our present task is to determine whether the atmosphere surrounding the brief police questioning on the sidewalk near the car was characterized by 'official overbearing' or 'overzealous police practices' which, as the Court pointed out, could preclude the individual's making a rational decision whether to speak to the police or remain silent.

            "This court does not read Miranda as requiring officers to preface with a warning all non-coercive [[noncoercive]]questioning conducted in the course of a routine investigation as in the circumstances of this case.  [Footnotes omitted.]"

            Proceeding from this decision, the Washington court then laid down the following rule or test as to when interrogation becomes custodial, in its judgment:

            "It is difficult to set forth an all-inclusive rule covering every possible situation, but once an investigating officer has probable cause to believe that the person confronted has committed an offense, the officer cannot be expected to permit the suspect to leave his presence.  At that point, interrogation becomes custodial, and the suspect must be warned of his rights.  People v. Ceccone, 260 Cal.App. 2d 886, 67 Cal.Rptr. 499 (1968).  SeeMathis v. United States, 391 U.S. 1, 4, 20 L.Ed. 2d 381, 88 S.Ct. 1503 (1968).

            Finally, the court applied this test to the facts at hand, saying:

            "The questioning of defendant outside the hotel was noncoercive; it did not have the 'potentiality of compulsion  [[Orig. Op. Page 16]] inherent in the in-custody interrogations.'  It was conducted during the course of a routine investigation.