What is a ‘defacto’ arrest? Was I held by the police at the scene too long? What is a Terry Stop?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Were the passengers with no criminal history Improperly detained and or arrested?

As I stated in the facts above two of the defendants were detained even
though their identification checked and they had no outstanding warrants
for their arrest. The court observed these two defendants were placed in the rear of
the police cars from the initial detention for at least 80 minutes until
the canine left the scene.  Thereafter, they were continually detained
because the police allegedly obtain consent to search the vehicle and then
they were all arrested when drugs were found.

This Appellate Court goes into an extensive Terry stop analysis and
evaluates what constitutes temporary detention and or seizure of a person
outlined in the US Supreme Court decision of Terry v. Ohio and the New
Jersey Supreme Court decisions of State v. Coles and State v. Mann.

The court initially asked whether the state has met its burden by a
preponderance of evidence that the warrantless search of an individual was
justified in light of the totality of the circumstances. Under Terry an
individual can be detained for a brief period of time for a patdown an
officer safety only if the officer has specific and articulable facts taken
together with a rational inference from those facts give the officer rise
to a reasonable suspicion of criminal activity.

“Totality of the circumstances” include: a) giving way to the officers’ knowledge and
experience, b) objective facts observed, and c) Officer experience is included.
However, an officer’s hunch or subjective good faith alone can never justify an
investigatory stop or detention even if it leads to the discovery of illegal activity.

“Reasonableness” of the police conduct is assessed given the split decision and fluid nature of each set of facts and circumstances presented to the police at the time of the initial contact with a subject.

In other words, the court’s analysis proceeds with objective observations of the police, information they learned if available, modes and patterns of operation of certain kind of lawbreakers.  Next the court must determine whether the evidence raises a suspicion that is particular to the individual and whether or not he or she is engaged in wrongdoing. Then the court examines the circumstances and takes a realistic approach to review the police behavior in the context of an ever increasing violent society. The focus must be narrowly fixed on the defendant, the officers  observations, experience and knowledge and those ‘rational inferences’ drawn from those together.

This court goes on to identify the various factors used to support “reasonable suspicion” and high crime areas. Those factors are: nervousness, implausible responses, suspicious behavior, flight following a good faith police command to stop, unresponsiveness to police questioning is our command, characteristics contain and drug courier profiles, and outstanding warrants can be considered.  However, officers’ knowledge of a suspect’s criminal history alone is not enough to be considered enough to justify initial stop and frisk.  In addition, if probable cause exists to search one suspect, that suspect’s presence does not confer broad authority on the police to subject others in the vicinity to search and seizure without independent probable cause outlined above for the Terry stop of those individuals.

In other words, the police have to have an adequate basis upon which to search each individual suspect, question him, and subject him to a Terry search. The probable cause particularization with respect to one defendant cannot be transposed onto another select.

The next threshold the police must show is that the Terry stop  has lasted no longer than necessary to complete the investigation for which the stop was made.  The police have to provide evidence by a preponderance standard that they stop was no more than a minimally intrusive.  If the arrest last longer than the “minimally intrusive” threshold the stop will be considered a ‘de facto’ arrest and will be held unconstitutional unless supported by full probable cause facts.  The question is “whether the police diligently pursued a means of investigation that was likely to confirm her to spell their suspicions quickly during which time it was necessary to the tan the defendant.”  This court also recognize there is no bright line test to determine what constitutes ‘minimally intrusive’ but time, unnecessary delay, and the brevity of the invasion of the fourth amendment interest come into play.  Other factors which have been considered “an arrest ”  include transporting a suspect to another location for safety, isolating him/her from another, whether those detain have been placed in fear for their safety and the manner in which they are detained.

Applying that analysis to the facts of this case the court determined that: a. Defendant Shaw was confronted by a police officer with his weapon drawn, b. He was placed in the rear of a police cruiser after determining there is no basis to hold him, c. He was left there for at least 35 minutes and possibly upward of an hour, d. a K-9 was secured from somewhere so the police could search the vehicle, e. Shaw was left in isolation for an extended period of time and only then told and identified officer that there was drugs in the truck.  This constituted much more than a Terry Stop without the supporting ‘probable cause’ facts.

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