WHEN IS A STOP AN ARREST? PROPORTIONALITY OF POLICE SHOW OF FORCE TO DEGREE OF SUSPICION
If the police have a reasonable suspicion of criminal conduct, they have the right to stop an individual to conduct a brief further inquiry. In a motor vehicle, reasonable suspicion of a moving violation also gives rise to the right to stop and briefly inquire. If the result of this inquiry is probable cause to suspect criminality, then the police can arrest the individual. The police may not arrest an individual based on reasonable suspicion; rather, they need probable cause.
So, how is it determined whether the police have conducted a stop or a full-blown arrest? Courts look at what is termed the “totality of the circumstances.” The recent Massachusetts Appeals Court case of Commonwealth v. Santiago offers a helpful roadmap for such analysis.
In Santiago, the defendant was charged with firearm offenses after the police pulled over a vehicle in which he was one of three passengers. The police had been following the vehicle based on a confidential informant’s tip. At some point before they pulled the vehicle over, the police became aware that the defendant had a prior firearm conviction, and that he was “known” to another police department. They also knew of an allegation from the tipster that the defendant was selling cocaine and “involved in firearms.”
The police tailed the defendant from his home to another municipality where they had reason to suspect that he was making a drug purchase, and then back toward his home. At some point, the vehicle in which the defendant was riding significantly increased its speed, to a speed in excess of the posted speed limit. Fearing that they had been spotted, the tailing officers radioed to a state trooper up ahead to pull over the vehicle.
The state trooper observed the vehicle make marked lane violations, pulled behind the vehicle, and put on his flashing lights. The vehicle’s driver responded appropriately by promptly pulling to the side of the road and stopping.
At or about the same time, the vehicle was surrounded and blocked in by multiple police vehicles. Multiple officers emerged from their vehicles and approached the surrounded vehicle, at least two of which officers had their guns drawn. Upon getting close to the vehicle, one of the officers observed a firearm in close vicinity to the defendant (and to an area in which the defendant had just placed something) and the defendant was removed from the vehicle, handcuffed, and taken to the station. He was charged with two firearm-related offenses.
Defense counsel moved to suppress the firearm based on an arrest without probable cause. Counsel’s argument was that by surrounding the vehicle with guns drawn, the police did not merely perform a “stop,” which is justified by reasonable suspicion, but rather effected an arrest. And since the police had only reasonable suspicion, and not probable cause (which the government conceded), the arrest was unconstitutional. The Appeals Court in Santiago found that the police conduct in that case rose to the level of an arrest and that the firearm should have been suppressed.
So, why was that an arrest, rather than just a stop? A stop is not an arrest simply because officers take reasonable precautions to protect themselves, including drawing their weapons. “Whether a police seizure has been transformed into an arrest ‘depends on the proportional relationship of the degree of intrusiveness on the defendant to the degree of suspicion that prompted the intrusion.’” The issue is a fact-specific one, that must be resolved on a case-by-case basis.
The Appeals Court offered the following guidance, viz.:
1. an approach with drawn guns is generally thought excessive in the absence of any suggestion that the defendant is armed or other circumstances suggesting the possibility of violence;
2. even with information suggesting that a defendant possesses a firearm illegally, police are not generally justified in drawing their guns in the absence of additional “fear-provoking circumstances”;
3. when the stop concerns a vehicle, a court will also consider “the number of police used to effectuate the stop and whether the movement of the automobile was impeded.”
In Santiago, remember, the police conduct consisted of “the presence of multiple cars and officers, the use of four police vehicles to box the [defendant’s vehicle] in, and the approach of at least two officers with guns drawn.” The Appeals Court found that conduct “disproportionate ‘to the degree of suspicion that prompted the intrusion’ and constituted an arrest.”
The Appeals Court considered these facts: (1) although the defendant had a firearm conviction and was rumored to be “involved” with guns, the police had no information suggesting that he was then in possession of a firearm, the defendant had no known history of violence, and no police officer testified that they feared for their safety; (2) there was no furtive movement observed (at least not until officers had boxed in the vehicle and approached with weapons drawn) and the vehicle had pulled over promptly for police; (3) the police were not outnumbered, and the encounter was in the daytime and not in a high-violence area; and (4) because this was an ongoing surveillance operation, the police had time to plan how they would stop the defendant without the need for split-second decision making, and the police had control over where the stop would occur.
The court’s decision was not an easy one, and it made a point of recognizing “that the fact-specific decisional law in this area may at times pose a difficult dilemma for police officers: ‘If the officer approaches a suspect . . . with his gun still in his holster, he increases the risk that he will be shot. If, on the other hand, he protects himself by drawing his gun, he increases the risk that a court will set the criminal free by construing his action as an illegal arrest,’” nevertheless, the court was “reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes”.
The Appeals Court concluded its opinion by “emphasiz[ing] that even when police lack probable cause to arrest, they may draw their guns or otherwise show force, to protect themselves or others, when such a display is “proportional . . . to the degree of suspicion” based on all relevant circumstances.
Attorney Kevin D. Quinlan
Criminal Defense and Family Law
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569