Reasonable Suspicion - Prosecutor Explains

hello everybody i'm eric scramlin and this is the tactical in-service podcast a podcast for law enforcement in this podcast i discuss legal strategies and topics to help you stay up on the law in this very first episode episode one i'm going to get back to the basics i'm going to talk a little bit about reasonable suspicion today why reasonable suspicion well as a prosecutor one of the most common issues that i dealt with was suppression motions where the issue was did reasonable suspicion exist to support the traffic stop or the detention in the civil um field it's a very common attack from plaintiff's council and uh it's a very common issue in section 1983 liability cases so very important stuff to know even though it seems pretty straightforward to the reasonable suspicion this is something that you use as an officer in your daily job all the time it's actually very complex and what i'm going to talk about a little bit here today i'm going to talk about some united states supreme court cases the courts have not even really truly been able to define it in fact they refuse to as they say put it into a neat set of rules and guidelines because of the vagueness of reasonable suspicion and the way that our courts defined it it can create some confusion so what i'm going to talk about today is something that i've put together as a prosecutor over years and years of doing suppression motions researching the case law it's kind of a three-step guide a methodology now i don't expect you as an officer to be out on patrol and kind of like oh check one check two this is more of of what i preach about every battle is one before it's fought meaning that you have to be prepared for these situations mentally and this is a methodology that you can um you can use as you approach any situation that you get into so i'm going to give you that today in this episode but before i get started make sure you subscribe to the podcast this is a brand new podcast this is episode one and uh one of the things that i really want to do with this podcast is whenever a new case comes out a united states supreme court case a big federal court of appeals case for my new mexico officers new mexico supreme court or court of appeals decisions i'm going to break it down and i'm going to get on here and i'm going to do an episode on it so i can give you everything you need to know about that case so make sure you subscribe to the podcast on whatever app you use to listen to podcasts and also subscribe if you're watching this on youtube to the youtube channel so you get the notifications when a new episode comes out let's dive right into this reasonable suspicion stuff okay so if you're watching this on youtube you can see i got a powerpoint up on the screen here i'm just gonna walk through my three-step approach a little bit of background if you're listening on the podcast and you want to see the powerpoint just jump over to the youtube channel tactical attorney it'll be there you can also go to my website tacticalattorney.com to get all these resources for free so okay let's talk about reasonable suspicion essentially we're going to jump right into where it all kind of started which is terry v ohio so let's kind of get into the basics of what we're talking about here what i'm talking about here is the investigatory stop okay so this is your typical patrol officer turning the lights on making a traffic stop or if you see you know someone walking down the road that's potentially engaged in activity turning on the lights stopping them it's a detention under attention the fourth amendment applies and you know that you need to have a warrant or an exception to the warrant requirement okay so today we're going to be talking about reasonable suspicion an exception to the warrant requirement what terry versus ohio tells us is that these investigatory stops occur when an officer briefly detains and investigates a person based on reasonable suspicion of criminal activity okay so you know what are the courts talking about here how do you define reasonable suspicion and what we find from the courts is we get tests and we get factors to look at but the courts have admitted that it's difficult to define in fact in a famous united states supreme court case or nellis versus united states the sites 517 u.s 690 from 1996 the courts come out and say they say articulating precisely what reasonable suspicion and probable cause mean is not possible what really yeah so instead what we do what the case law tells us and this is important for you to understand is that you have to focus on the big picture okay what do i mean by the big picture i'm talking about what the courts tell us is that totality of circumstances thing that they're always mentioning in cases so when you hear the court say you need to focus on the totality of circumstances what they're talking about is they want you to put everything together and create a big picture analysis that's why they say it's difficult to frame this in terms of some neat set of rules because they want to look at the big picture you know the court the courts have told us going back to united states versus cortez i'm not going back to it but this is a case you're going to want to be familiar with the supreme court case united states first cortez 449 u.s 4 11. the courts say look we've used a lot of different terms to try to capture this elusive concept of what uh cause is sufficient to authorize police to stop somebody they use terms like and you've heard this before articulable reasons founded suspicion and they say these are not self-defining and uh they're not going to provide clear guidance on what this means it just depends on the situation instead the courts tell us and this is big that the essence of all that's been written in all the case law is this totality of the circumstances what is the big picture and that's what you must take into account so you don't need to get necessarily tied up with these fancy legal terms which you need to take from all the case law combined is that there really is no need definition it's what's the big picture tell you okay so what do the courts focus on when they're looking to create that big picture well there's three specific things that they're looking for first of all they're looking for specific facts not vague things i'm going to talk about this in a minute not the defendant was behaving in a suspicious manner that's a conclusion you need to be specific on the facts okay and when then they bring up this articulable facts you hear that a lot when you hear a discussion on terry versus ohio what do they mean by that well they just mean facts that you can't articulate they don't want to hear conclusions like again suspicious activity they want you to articulate what facts tell you that this is suspicious activity and they also mention and this is a big one and this is where we kind of get into the transitioning into making the final decision here is rational inferences okay what am i talking about with rational inferences once you see the facts and you articulate the specific facts what can you as an officer infer from those facts can you infer reasonably that this is criminal activity and there's a little bit more that goes into that but we'll talk about that in just a second eric's guide to reasonable suspicion as i've called this it's not an official guide it's not used by the supreme court this is something that i came up with throughout my years of being a prosecutor um in looking at all the case law and saying what common things are there and i found that this is a methodology that you can use as an officer to determine whether or not you have reasonable suspicion so it's one of those things that it's a mental checklist that helps prepare you for any situation you get into so alright step one you need to ask yourself what crime do i see and when you ask that question what crime do you see happening right now what crime is about to happen what crime has been committed so specific okay what crime do i see and you need to be specific if it's a burglary you say burglary if it's a drug deal you talk about a drug transaction you have to be very specific here remember when we're creating this big picture analysis the court wants to see specific articulable facts so you need to identify specifically the crime you see then you move to step two where you ask yourself what facts do i see to support step one so what we're talking about here like i've been saying is you got to be specific okay the court does not want to see i saw defendant behaving in a suspicious manner they want to hear the facts that tell you as an officer that this behavior is suspicious okay so you be specific on the facts to support the crime that you've named in step one finally step three once you've identified the crime and you've identified the facts you need to take a step back and say is this more than a hunch now that sounds kind of vague and it is and it's one of those things where if you do a detailed analysis of step one and two it makes three a lot easier and the courts again kind of give us a little guidance on what's a hunch and what's not and there's a couple things i'm going to talk about here in a minute that may help with that but these are the three steps that you need to have down identify the crime be specific with the crime be specific with the facts that support it then take a step back and say is this more than a gut feeling or can i make rational inferences that lead the conclusion that there may be criminal activity afoot i also think it's important to remember that the ends don't justify the means you know you can't base you make observations after you turn the lights on after you make the detention you can't say oh well i found drugs so therefore there was reasonable suspicion no it doesn't work that way you need to have the crime identified the facts and the inferences before the lights go on you don't get to use what you found to buff up the reasonable suspicion it's got to exist before the lights turn on and again i can't mention this enough because as a prosecutor one of the red flags that i saw that would always trigger emotion and would always come back to haunt the officer during the hearing because you would get crossed on this he or she get crossed on this by the defense attorney is things like i responded in reference to a suspicious person call i noticed the suspect was acting suspicious or the suspect was crouched in a suspicious manner okay what's wrong with these statements yeah they're conclusions again the court wants specific facts so you need to list and your complaint and your report what the specific facts are that you saw that led you to believe the suspect was acting suspicious or crouch in a suspicious manner you need to be detailed in those facts it's very important okay let's walk through a little example here of how this stuff kind of works in practice so this is a case for new mexico um essentially we have a concerned citizen who calls uh in the police department's actually like a neighborhood watch person that's always watching looking out and actually has like the patrol sergeant's uh cell phone so it sends a text says hey there's a car it's in our neighborhood it's around 11 30 at night i don't recognize it it doesn't look like it belongs here it's been sitting out there for like 30 minutes and it looks suspicious and the officers know that there had been burglaries recently in the area none at that house none maybe in the houses that are close just recently in that area generally speaking there have been some burglaries none that night maybe not even done the night before but recently in the area so patrol officer sends a vehicle out and a unit out the unit sees the vehicle there it is smashed the description it's parked on the side of the road right where the caller said it was i should mention no violation it's not a parking violation and other than what the caller had said there's no nothing illegal about how the car is parked there so there's a driver and there's a passenger do you have reasonable suspicion to turn the lights on and conduct a traffic stop walk through the steps i'm going to take it a step further too because it was actually the passenger that was the defendant in this case so do you have reasonable suspicion to support attention of the passenger so let's walk through it step one what crime do you see okay you can see now why i'm specific with these steps because you get a call for suspicious activity burglaries in the area you just kind of come out there oh well there's the vehicle i'm gonna turn my lights on but when you get in court you need to be able to explain this stuff so what crime do you see well the car is parked there legally there's nothing illegal about that if you had to think about it you got to pick something what are you going to pick you're going to say well maybe they're case in a house for a burglary like the terry the ohio case that's probably the best you can you can go with at that point right okay what facts do you have to support it well um okay it's 11 30 at night they've been parked on the side of the road for 30 minutes and there have been burglaries in that area okay so you've identified a crime you have identified some facts but let's go to step three is this more than a hunch okay this is where it becomes a little tricky you need to go back and you look at your facts and you need to look at some rational inferences can you really infer from the fact that a vehicle's parked on the side of the road well there's nothing illegal about doing that that this is going that they're engaging possibly about to commit a burglary on those facts alone probably not you're right to be thinking that probably not and of course our courts in new mexico um told us in city of roswell versus hudson 141 new mexico 261. if you want to look the case up that uh there was no reasonable suspicion to detain the passenger they didn't address the driver because uh the driver wasn't arrested and charged with anything so he didn't have a case but probably the same would have applied here because what happens is the officer goes to the vehicle talks to the driver the driver says um i live here looks of the driver's license it's not the address so the officer says well what the heck why are you lying and he says well actually the passenger lives here so the officer goes to the passenger demands that the passenger hand over his id side note what do you have to have to demand someone turn over their id yeah you need to have reasonable suspicion the officer didn't um and the passenger refuses to turn over the id gets arrested under a city of roswell's municipal ordinance of concealing id and the case goes up to our state supreme court and our court says that the officer had no reasonable suspicion to detain the passenger based on these facts they said the totality of circumstances remember the big picture failed to establish any reasonable individualized suspicion that the defendant passenger was breaking or had broken any law when the officer demanded that the identification be turned over so city of roswell versus hudson this is an example where we go through step one step two step three you identify a crime it's kind of vague you can identify it you can identify some facts but you get to step three and this is a generalized suspicion or hunch those rational inferences just can't get you there okay so again um one thing that i want to uh not again but one thing that i want to talk about that kind of ties into this with step three is that when you're making reasonable inferences it's important to know that uh you can make reasonable inferences and deductions to support reasonable suspicion based on your specific training and experience okay take a look at united states versus our v zoo i think is how you say it it's 534 u.s 266 2002 case okay this is a a case that involved border patrol making a traffic stop on someone where the border patrol officer had specific knowledge of the area the geography and even though he didn't witness any traffic violations based on the area the geography and his training experience as a border patrol agent the court the united states supreme court said that he could draw on that specific training experience to make rational inferences that would support the fact that this was smuggling either human trafficking or drugs okay but again it cannot be based on hunches so i'm going to talk a little bit i'm going to talk a little bit more about um that rv zoo case in a later episode in how to draw on your training experience but for today i just want you to realize that that case is out there and for my new mexico officers there's a case that just came out called state versus uh martinez leave the site for that martinez is for i'm sorry 2020 new mexico supreme court zero zero five where they have something analogous where an officer that had specialized training in narcotics could rely on that training in order to make inferences about something that he saw to make a stop but i'm going to do an episode on that later so look for that episode probably episode four or five okay so i know that's a lot uh kind of the take in so let's do a quick recap here all right step one on the eric's guide to reasonable suspicion is to identify the crime what crime do i see and again remember you're creating a big picture analysis here once you've identified the crime and you're specific about it go back and say what facts do i see to support step one so what specific facts do you have to support the crime again be specific no conclusions and then finally take a step back is this more than a hunch so what you're doing in this step is you're taking your facts and your crime and you're making rational inferences from those facts to tell you whether or not this is a hunch or if it actually is reasonable suspicion to make the stop so i'm born and raised in michigan think of inferences this way i go to bed at night it's january it's freezing cold outside nasty night there's clouds in the sky and uh the ground's frozen but there's no snow on the ground i wake up in the morning and there's a foot of snow on the ground open my door i gotta go and clear the car off and all that stuff warm it up based on my experience of living a mission in the wintertime i can infer from the snow that's on the ground and on my car the fact that it was 20 degrees last night that it's january i can infer that we had a snowstorm last night and snow fell from the sky those are very rational inferences to make the same applies here when you identify a specific crime and specific facts that are consistent with that crime you can make rational inferences about those facts that lead you to believe that criminal activity is afoot okay is it more than a hunch is when you can't make those rational inferences or you got to stretch it too much for example the classic you see a person leave a known drug house just walk out the door and walk down the sidewalk okay yeah they left a known drug house but they haven't done anything to give you a rational inference that they actually have drugs on them other than the fact they left the drug house that's a hunch you need specific facts like maybe you saw them in the driveway of a known drug house and do a closed fist hand-to-hand deal we have supreme court or i'm sorry we have federal case law to support that at the uh appellate level but that's kind of what i'm talking about you need to be able to differentiate between the two i hope this gives you a better understanding of reasonable suspicion this is just a little tool that you can use a methodology to help walk you through the situation whatever situation you may be in if you apply this methodology to that approach i think you'll be generally good of course you need to go out and read the case some be familiar with all the nuances and make sure you subscribe to this podcast because as new case law comes out his ever evolving field i'll give you updates on i'll talk about it and in future episodes i'm going to dive in more specifically to some other issues like drawing on your training experience i have a couple of cases i'll dive into that our visual case a little bit more and for my new mexico officers i'll dive into some of our case law and how our interstitial approach analysis may be a little bit different so make sure you subscribe to the podcast this is my first episode i hope i did all right i'm looking forward to doing a whole bunch more of these with you guys subscribe subscribe to the youtube channel if you find any value in this and you want to contact me you can go to my website at tacticalattorney.com all my contact info is there my email address you can call me you can text me and i'd be happy to discuss any of these topics with you and i would really love the opportunity to invite you to one of my courses or come to your department and do a course so give me a call we'll discuss that until next time remember every battle is won before it's fought stay safe we'll see you next time

Channel: Tactical Attorney

Views: 41,697

Keywords: Reasonable Suspicion - Prosecutor Explains, reasonable suspicion, reasonable suspicion attorney explains, reasonable suspicion for officers, reasonable suspicion 2021, reasonable suspicion for law enforcement, understanding reasonable suspicion, law enforcement training, law enforcement training 2021, police training, new mexico police training, prosecutor training

Id: avFQq23i3y8

Length: 20min 23sec (1223 seconds)

Published: Fri Feb 05 2021