Investigative Detentions - le.alcoda.org

CALIFORNIA CRIMINAL INVESTIGATION

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Chapter 1

Investigative Detentions Chapter Organization

(1) The Basics (2) When a Suspect Is “Detained” (3) Detention Procedure (4) Converting Detentions Into Contacts

The Basics Grounds to detain: See Chapters 29-31 PROBABLE CAUSE AND REASONABLE SUSPICION. “Investigative detention” defined: An investigative detention is a temporary seizure of a suspect for the purpose of determining (1) if there is probable cause to arrest, (2) if further investigation is necessary, or (3) if the officers’ suspicions were unfounded.1 Summary of requirements: There are three requirements for conducting detentions:

(1) Reasonable suspicion: Officers must have had reasonable suspicion to detain. See Chapter 31 PROBABLE CAUSE TO ARREST (Reasonable suspicion).

(2) Scope of detention: Although the scope of the detention may expand as the result of changed circumstances, the initial scope must be limited to maintaining officer safety and investigating the circumstances upon which reasonable suspicion was based.

(3) Utilize reasonable means: Even if the scope of the officers’ investigation was properly focused, a detention may be invalidated if they did not pursue their objectives in a reasonable manner.

Detentions vs. de facto arrests: If a detention is deemed a de facto arrest, it becomes unlawful unless the officers had probable cause.

Defined: A detention will be deemed a de facto arrest if any of the following occurred:

Unnecessary officer-safety precautions: Officer-safety precautions were unnecessary or excessive. See Officer-safety precautions, below. Unduly prolonged: The detention was unduly prolonged. See Conducting the investigation, Diligence, below. Unnecessary transport: The detainee was unnecessarily transported to another location. See Detentions Procedure, Transporting the detainee, below.

Misleading terminology: The term “de facto arrest” may be misleading because it might be interpreted to mean that an arrest results whenever officers take action that is more consistent with an arrest than a detention, such as handcuffing the detainee.2 As discussed below, however, such actions will not convert a detention into an arrest unless they were unnecessary under the circumstances. Detentions based on reasonable suspicion plus: Some courts have permitted detentions that had just reached the level of a de facto arrest where the level of suspicion had almost reached probable cause.3

ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE

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Other types of detentions Traffic stops: A traffic stop is a car stop that is based on probable cause or reasonable suspicion that the driver committed a traffic infraction. Also see Chapter 3 TRAFFIC STOPS. Special needs detentions: A special needs detention is a temporary seizure of a person for a non-investigative purpose. See Chapter 2 SPECIAL NEEDS DETENTIONS. Detentions on school grounds: See Chapter 2 SPECIAL NEEDS DETENTIONS (Detentions on school grounds). Detentions pending issuance of search warrant: See Chapter 28 EXECUTING SEARCH WARRANTS (Securing the Premises, Detentions). Detentions of property: Officers may “detain” (temporarily seize) property for a reasonable time if there is reasonable suspicion to believe it is evidence or that it contains evidence; e.g., officers detained a suitcase while seeking a warrant to search it.4

Delay in seeking warrant: A lawful detention of property may become unlawful if officers waited an unreasonable amount of time before applying for a search warrant.5

Detentions of mail: Mail may be detained without reasonable suspicion if the detention did not significantly interfere with its timely delivery.6 Detentions for parking violations: If officers have grounds to cite a driver for a parking violation, they may detain him for the purpose of issuing a citation.7

When a Suspect Is “Detained” “Free to terminate” test: An encounter is deemed a detention if a reasonable innocent person in the suspect’s position would not have felt free “to decline the officers’ requests or otherwise terminate the encounter.”8

Relevant circumstances: The circumstances that are relevant in determining whether a suspect had been detained are covered in Chapter 4 INVESTIGATIVE CONTACTS (Key Indicators).

Exceptions Vehicle passengers: The passengers in a stopped car will be deemed “detained” even if a reasonable person in their position would have felt free to leave. This is because officers have the authority to restrict their movements for officer-safety purposes.9 Also see Chapter 59 STANDING (Motor vehicles). Suspect fled: Although a fleeing suspect or a suspect who otherwise refuses to comply with an officer’s instructions would not feel free to terminate the encounter, a detention will not result until he submits or is apprehended.10

Examples: A seizure would not result if the suspect did any of the following: Foot pursuit: Suspect ran when officers ordered him to stop.11 Vehicle pursuit: Suspect led officers on a car chase.12 Suspect kept walking: Suspect kept walking after being ordered to stop.13 Suspect submitted, then fled: The suspect initially submitted but then ran or refused to submit or comply with the officers’ commands.14

Suspect discarded evidence: Because a fleeing suspect is not detained, evidence he discards while in flight will not be suppressed on grounds that officers lacked grounds to detain him.15 Flight providing grounds to detain: Although flight will not automatically provide officers with grounds to detain, it is such a suspicious circumstance that not much more is required. See Chapter 31 PROBABLE CAUSE TO ARREST (Running from officers).


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Detention Procedure: Detentions must be conducted in a reasonable manner,16 as follows: Fundamentals

No “least intrusive means” test: In the past, some courts would rule that a de facto arrest resulted if the officers failed to employ the least intrusive means of pursuing their objectives. The “least intrusive means” test has been abrogated.17 Instead, a detention may be invalidated only if the officers were negligent in failing to discern and implement a less intrusive alternative.18 Common sense: The circumstances are evaluated by applying common sense, not hypertechnical analysis.19 No unrealistic second-guessing: In determining whether the officers conducted a detention in a reasonable manner, a court must not engage in unrealistic second-guessing. This is because most detentions are swiftly developing, and because a “creative” judge “can almost always imagine some alternative means by which the objectives of the police might have been accomplished.”20 Training and experience: A court may consider the officers’ interpretation of the circumstances in light of their training and experience.21 Totality of circumstances: In determining whether the officers acted in a reasonable manner, the courts will consider the totality of circumstances surrounding the detention.22

Using force to detain: The use of force to effect a detention will not transform it into a de facto arrest if the force was reasonably necessary.23

Relevant circumstances: Relevant circumstances include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting or attempting to evade arrest by flight.”24 Felony car stops: See Officer-safety precautions (Felony car stops), below. Gunpoint: See Officer-safety precautions (Gunpoint), below. Tasers: See Chapter 5 ARRESTS (Use of Force, Intermediate force). Arrest for Pen. Code § 148: If force was necessary, officers will often have grounds to arrest the detainee for Pen. Code § 148.25

Officer-safety precautions Fundamentals

“Unquestioned command”: Officers are authorized to take “unquestioned command” of detentions.26 Reasonably necessary precautions: Officers may utilize whatever officer-safety precautions are reasonably necessary under the circumstances.27 Detentions are dangerous: In determining whether officer-safety precautions were reasonably necessary, the courts may consider that an officer who is detaining a suspect is “particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger.”28 Loosening restrictions: In the past, it was sometimes argued that most officer-safety precautions were too closely associated with arrests to be justified by anything less than probable cause. But changes in our culture, especially the prevalence of weapons and violence among the criminal element, have made these arguments untenable.29

Keep hands in sight: Officers may order the detainee to remove his hands from his pockets and otherwise keep his hands in sight.30 Put hands on dash: Officers may order the occupants of a stopped vehicle to put their hands on the dash.31 Exit car: See Controlling detainee’s movements, below.


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Lay on the ground: Commanding a detainee to lay on the ground is much more intrusive than merely ordering him to stand or sit on the curb or some other location. Consequently, such a precaution is permitted only if it was warranted under the circumstances.32 Controlling detainee’s movement: See Controlling the detainee’s movement, below. Questions re officer safety: See Conducting the investigation (Questioning, Questions pertaining to officer safety), below. Pat searching: Officers may pat search a detainee if they reasonably believed he was armed or dangerous. See Chapter 10 PAT SEARCHES. Handcuffing: Although handcuffing often “minimizes the risk of harm to both officers and occupants,”33 officers may not handcuff detainees as a matter or routine.34

Good cause required: Handcuffing is permitted only if there was good cause.35 ► Examples: See this endnote for examples of good cause.36

Handcuffing after pat search: Because pat searches are fallible, handcuffing will not be invalidated merely because a weapon was not found during an earlier pat down.37 Telling detainee he is not under arrest: In close cases it is relevant that the officers told the detainee that, despite the handcuffs, he was not under arrest and that the handcuffs were only a temporary measure for everyone’s safety.38 Limitations

Tight handcuffs: Handcuffs must not be applied more tightly than necessary.39 Duration: Handcuffs must not be applied for an unreasonable length of time.40

Gunpoint: Although a detention at gunpoint is a strong indication that the detainee was under arrest, the courts have consistently ruled that such a safety measure will not convert a detention into a de facto arrest if (1) the precaution was reasonably necessary, and (2) the weapon was reholstered after it was safe to do so.41 Felony car stops

Based on probable cause: When officers utilize felony car stop procedures, they usually have probable cause to arrest one or more of the occupants for a serious crime. If so, it would be irrelevant that the detention had been converted into a de facto arrest. Based on reasonable suspicion: If officers have only reasonable suspicion, a felony stop is permissible if they reasonably believed that the occupants were armed or that they otherwise presented a substantial threat.42

Warrant checks: Because a detainee who is wanted on an arrest warrant necessarily poses an increased threat to officers, warrant checks are permitted if they do not unduly prolong the detention. See Conducting the investigation (Warrant checks), below. Open the door: If reasonably necessary, officers may open the door of a stopped vehicle to briefly view the occupants,43 and they may use a flashlight or spotlight to illuminate the interior.44 Protective car searches: Officers may search the passenger compartment for weapons if they reasonably believed that a weapon—even a “legal” weapon—was located there. See Chapter 13 VEHICLE SEARCHES (Protective Searches).

Controlling detainee’s movements: Throughout the course of detentions and traffic stops, officers may control the movements of the detainee and, in the case of car stops, any other occupants of the vehicle.45 This is permitted because (1) it helps enable officers


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to conduct the detention in an orderly manner, and (2) it is a minimally-intrusive officer-safety measure.

Get out / Stay inside: If the detainee was an occupant of a vehicle, officers may order him and any other occupants to remain inside,46 exit the vehicle47 or, if the occupant had already exited, to get back inside.48 Sit or stand in a certain place: Officers may order the detainee and his companions to sit in a certain place; e.g., on the ground, on the curb, on the push bar of a patrol car.49 Lie on the ground: See Officer-safety precautions (Lie on the ground), above. Separate detainees: If officers have detained two or more suspects, they may separate them for officer-safety purposes and to ensure that the answers by one of the detainees will not influence the others.50 Confine in patrol car: A detainee may be confined inside a patrol car if there was reason to do so; e.g., the detention will be prolonged, detainee was rowdy, officers needed to focus their attention on another matter.51

Identifying the detainee: Officers may take steps to obtain “satisfactory” identification from the detainee, and to confirm his identity.52

What is “satisfactory” ID? Driver’s license: A current driver’s license is presumptively satisfactory ID.53

Exception: This presumption does not apply if there was reason to believe the license was forged or altered.54

Functional equivalent of a driver’s license: A document will be considered satisfactory ID if it contained all of the following: the detainee’s photo, brief physical description, signature, current mailing address, serial numbering, and information establishing that the document is current.55 Other documents: Other documents are not presumptively satisfactory ID, which means that officers may exercise discretion in making the determination.56 Verbal identification: A suspect does not satisfactorily identify himself by giving a name.57 But officers may exercise discretion in determining whether verbal identification is sufficient.58

Search for ID Search wallet: If the detainee denies having ID but is carrying a wallet, officers may either (1) order him to look through it while they watch to determine if it contains ID,59 or (2) search it themselves.60 Search vehicle: See Chapter 13 VEHICLE SEARCHES (ID and Registration Searches). No pat search: Officers may not pat search the detainee to determine if he has a wallet or ID.61

Question companions: Officers may question the detainee’s companions to confirm his identity.62 Refusal to ID: If the detainee refuses to identify himself, officers may expand the scope of the detention to ascertain and confirm his identity.63 This may include the following:

Arrest for Pen. Code § 148 Refusal to identify: A detainee who refuses to identify himself, or refuses to show his ID, would seem to be in violation of Pen. Code § 148 because he is intentionally delaying the officers in the performance of their duties.64 False name: A violation of Pen. Code § 148(a)(1) and Pen. Code § 148.9(a) results if the detainee gave a false name.65


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False DOB: A violation of Pen. Code § 148.9 results if the detainee lied about his DOB, even if he gave his true name.66

Arrest for 40302(a) VC: A traffic violator who fails to present satisfactory ID may be arrested under Veh. Code § 40302(a). See Chapter 3 TRAFFIC STOPS (Procedure, Obtaining ID). Arrest for Pen. Code § 853.6(i)(5): A person arrested for a misdemeanor who may be cited and released can be arrested if he could not provide satisfactory evidence of identification. Refusal as probable cause factor: A detainee’s refusal to identify himself is a relevant circumstance in determining whether there is probable cause to arrest him for the crime under investigation. See Chapter 31 PROBABLE CAUSE TO ARREST (Refusal to Cooperate, Refusal to identify).

Identify passengers in vehicle: It is arguable that officers have a right to identify all of the occupants of a vehicle that has been stopped, even though they do not have independent grounds to detain them all. This is because all passengers in a lawfully stopped vehicle are lawfully detained, even if officers only have grounds to detain the driver.67

Conducting the investigation Fundamentals

Focused investigation: The scope of the detention must be “carefully tailored” or “focused,”68 meaning that officers may ordinarily do only those things that are reasonably necessary to protect themselves and complete their investigation.69 Utilize reasonable means: Even if the officers’ investigation was properly focused, a detention may be invalidated if they did not pursue their objectives in a reasonable manner.70 Diligence: There is no time limit.71 Instead, officers must carry out their duties diligently.72

Diligence does not mean speedy: To say that officers must be diligent, does not mean they must “move at top speed.”73 Delay attributable to detainee, other circumstances: Delays resulting from the actions of the detainee, or from developments or other circumstances over which the officers had no control, will not result in a de facto arrest if the officers were diligent in responding to the changed circumstances.74

► Examples: See this endnote for examples.75 When the clock stops: The clock stops running when officers develop probable cause to arrest the detainee,76 or when they convert the detention into a contact. See Converting Detentions Into Contacts, below.

Questioning: The most direct and effective way for officers to confirm or dispel their suspicion is usually to question the detainee.77

Miranda: Although detainees are not free to leave, ordinary detentions are not “custodial” for Miranda purposes because the circumstances do not generate the degree of compulsion to speak that the Miranda procedure was designed to alleviate. See Chapter 42 MIRANDA: WHEN COMPLIANCE IS REQUIRED (Detained suspects). Not required to answer: Detainees are not required to answer investigative questions.78 Questions pertaining to officer safety: Officers may ask questions that are reasonably necessary for their safety if the questioning was brief and to the point.


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Weapons? Parole? Officers may ask the detainee if he possesses any weapons, or if he is on probation or parole.79 Drugs? Asking the detainee if he possesses drugs would seem to be relevant to officer safety because of the close connection between drugs and weapons, and because drug users tend to be unpredictable.80

Off-topic questioning: The “measurably extend” test: Questioning about matters that do not pertain directly to officer safety or the crime under investigation will not invalidate a detention so long as the questioning did not “measurably extend” the detention.81

Warrant checks: Officers may run a warrant check on the detainee because (1) warrant checks further the public interest in apprehending wanted suspects, and (2) they further officer safety as officers will be better able to determine if the detainee is apt to resist.82

Delays: Although a detention may be invalidated if there was an unreasonable delay in obtaining warrant information, a more lengthy delay is permitted if officers had obtained preliminary information that a warrant was outstanding.83

Canine sniffing: Officers may walk a K9 around the detainee, his vehicle, or containers in his possession if it does not unreasonably extend the duration of the stop.84

Not a “search”: Utilizing a K9 to detect drugs or explosives in a place in which the officers have a right to be does not constitute a search; i.e., sniffing does not infringe on a reasonable expectation of privacy.85 Dog touches vehicle: A vehicle “search” does not result merely because the dog put his paws on the vehicle.86 Dog sticks nose in vehicle: The Tenth Circuit has ruled that the instinctive action of a dog jumping into an open part of a car it is sniffing does not violate the Fourth Amendment.87 K9 assists in consent search: Officers who have obtained consent to search for drugs or explosives may use a K9 to help with the search unless the suspect objects. See Chapter 9 CONSENT SEARCHES (Scope of Consent, Searches conducted by K9s). K9 alert establishes probable cause: An alert by a K9 constitutes probable cause to search the location to which he alerted. See Chapter 32 PROBABLE CAUSE TO SEARCH.

Showups: See Chapter 51 LINEUPS AND SHOWUPS (Showups). Transporting the detainee: A detention ordinarily becomes a de facto arrest if the detainee was transported from the scene of the detention; e.g., to the crime scene, the police station.88 This is because the act of moving the detainee to another location is much more akin to an arrest than a detention, plus there are usually less intrusive means of accomplishing the officer’s objective. Exceptions:

Consent: A detainee may consent to be driven somewhere.89 The requirements are essentially the same as those for consent searches. See Chapter 9 CONSENT SEARCHES. Good cause: Transporting the detainee is permissible if there was probable cause to believe it was necessary; e.g., a hostile crowd had gathered; a showup was needed but the victim was injured at the crime scene.90 Short trip: There is authority for transporting a detainee a short distance if it would help resolve the investigation.91


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Consent searches: Officers may seek the detainee’s consent to search. See Chapter 9 CONSENT SEARCHES. Field contact cards: Officers may briefly prolong a detention to complete a field contact card.92 Fingerprinting the detainee: Officers may fingerprint the detainee if (1) they reasonably believed that fingerprinting would help confirm or dispel their suspicion, and (2) the procedure was carried out promptly.93

Warrant for fingerprinting? The U.S. Supreme Court has indicated that, if the above requirements are met, a judge might issue a warrant—based on reasonable suspicion—authorizing the removal of the detainee to a police station for fingerprinting.94

Photographing the detainee Consensual: The detainee may be photographed if he consented.95 Nonconsensual: We are not aware of any cases in which the court ruled on whether a detainee could be photographed if he did not consent. But because taking a photo is, if anything, less intrusive than taking fingerprints, it is likely that this procedure is lawful if, as with fingerprinting, (1) the officers reasonably believed that the photo would confirm or dispel their suspicion, and (2) the procedure did not unduly prolong the detention.96

Search for discarded evidence: If officers reasonably believed that the detainee had discarded evidence before he was stopped, they may prolong the detention for a reasonable time to search for it.97 Obtaining information from others: In attempting to confirm or dispel their suspicions, officers may need to speak with victims, witnesses, dispatchers, or other officers by phone or radio; e.g., to verify information furnished by the detainee or to determine whether property in the detainee’s possession had been reported stolen. A delay for this purpose is permissible if officers were diligent.98 Terminating the detention: Officers must permit the detainee to leave within a reasonable time after (1) they determine that grounds for the detention did not exist; (2) they determine that further detention would be unlikely to confirm or dispel their suspicions; or (3) in the case of traffic stops, when they have issued a citation or warning.99

Converting Detentions Into Contacts: Officers may be able to eliminate the time and scope limitations on detentions by converting them into contacts.100 To do so, they must make it clear to the suspect that he is now free to go, as follows:

Return documents: All documents and property obtained from the suspect must be returned to him.101 “Free to go”: Although not technically a requirement,102 officers should tell the suspect that he may leave.103

Conflicting circumstances: Telling a suspect that he is free to go will have little significance if there were other circumstances that reasonably indicated he could not leave.104

Officers’ candor: The courts sometimes note whether the officers explained to the suspect why they wanted to talk with him, why they were seeking consent to search, or why they wanted to run a warrant check, and so forth. These explanations may help convert the detention into a contact because such openness is more consistent with a contact than a detention, and it would indicate to the suspect that the officers were seeking his voluntary cooperation. See Chapter 4 INVESTIGATIVE CONTACTS (Key indicators, Officer's attitude, Candor).


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1 CAL: P v. McLean (1970) 6 CA3 300, 306 [“The purpose of temporary detention for questioning is to enable law enforcement officers to determine whether to make an arrest, investigate further or take no action because they are satisfied with the explanation given.”]; P v. Manis (1969) 268 CA2 653, 665 [detention “essentially amounts to a halfway house between the station of arrest on probable cause and that of official inaction”]; P v. Haugland (1981) 115 CA3 248, 255 [“The whole purpose of a detention … is to enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.”]. 2 OTHER: US v. Pontoo (1C 2011) 666 F3 20, 30 [“Sometimes, the line can be drawn by asking whether a reasonable man in the suspect's position would have understood his situation as being an arrest. But it is an oversimplification to suggest that every case will fall along this continuum. Terry stops must be tailored to fit the exigencies of particular situations, and the mere presence of arrest-like features is not fatal to the validity of a particular stop.”]. 3 OTHER: US v. Tilmon (7C 1994) 19 F3 1221, 1226 [court notes that it “has adopted a sliding scale approach to the problem. Thus, stops too intrusive to be justified by suspicion under Terry, but short of custodial arrest, are reasonable when the degree of suspicion is adequate in light of the degree and the duration of restraint.”]; Lopez Lopez v. Aran (1C 1988) 844 F2 898, 905 [“[W]here the stop and interrogation comprise more of an intrusion, and the government seeks to act on less than probable cause, a balancing test must be applied.”]. NOTE: Some indirect authority for this position is found in two US Supreme Court cases: In Michigan v. Summers (1981) 452 US 692, 703 the Court ruled that, when officers are executing search warrants for contraband in a residence, they may subject the occupants to more lengthy and intrusive detentions than would be permitted on the street, even though the officers lack probable cause to arrest them. In Brown v. Texas (1979) 443 US 47, 50-51 the Court said that a determination of the constitutionality of detentions “involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” 4 USSC: US v. Place (1983) 462 US 696, 706. CAL: P v. Bell (1996) 43 CA4 754, 769. 9th CIR: US v. Hernandez (9C 2002) 313 F3 1206. OTHER: US v. McBride (4C 2012) 676 F3 385, 392-93; US v. Marrocco (7C 2009) 578 F3 627. 5 OTHER: US v. Burgard (7C 2012) 675 F3 1029, 1032 [“When officers fail to seek a search warrant, at some point the delay becomes unreasonable and is actionable under the Fourth Amendment.”]. 6 9th CIR: US v. Hoang (9C 2007) 486 F3 1156, 1162 [“[N]o seizure occurs if a package is detained in a manner that does not significantly interfere with its timely delivery in the normal course of business.”]. 7 CAL: P v. Bennett (2011) 197 CA4 907; P v. Hart (1999) 73 CA4 852. 9th CIR: US v. Choudhry (9C 2006) 461 F3 1097, 1103 [California “has not removed parking regulation from the division of the Vehicle Code that covers moving traffic violations.”]. 8 QUOTE FROM Florida v. Bostick (1991) 501 US 429, 436. USSC: Brendlin v. California (2007) 551 US 249, 254 [“A person is seized by the police … when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.”]; US v. Drayton (2002) 536 US 194, 201 [“If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”]. 9 USSC: Brendlin v. California (2007) 551 US 249; Arizona v. Johnson (2009) 555 US 323. 10 USSC: California v. Hodari D. (1991) 499 US 621, 626 [the term “seizure” “does not even remotely apply to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee”]; Brendlin v. California (2007) 551 US 249, 254 [“but there is no seizure without actual submission; otherwise, there is at most an attempted seizure”]. 11 USSC: California v. Hodari D. (1991) 499 US 621, 626. 12 USSC: County of Sacramento v. Lewis (1998) 523 US 833, 844. CAL: P v. Green (1994) 25 CA4 1107, 1110. OTHER: US v. Griffin (7C 2011) 652 F3 793, 801 [“Griffin discarded the drug during a low-speed police chase before he submitted to the officers’ show of authority”]. 13 9th CIR: US v. Caseres (9C 2008) 533 F3 1064, 1069. ALSO SEE US v. Martin (10C 2010) 613 F3 1295, 1301-1302 [detention did not result because the suspect did not comply with an officer’s command to place his hands on a wall]. 14 9th CIR: US v. Smith (9C 2011) 633 F3 889, 893 [“Smith turned toward the officer, asked some questions, took a few steps toward the patrol car, but then backed away”]. OTHER: US v. Salazar (10C 2010) 609 F3 1059 [backing a vehicle away from a police car with flashing lights was not a submission to authority]; US v. Holloway (5C 1992) 962 F2 451, 455-58 [defendant stopped, then rammed a police car]. 15 USSC: California v. Hodari D. (1991) 499 US 621. 16 USSC: Terry v. Ohio (1968) 392 US 1, 28 [“The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all.”]. 17 USSC: City of Ontario v. Quon (2010) __ US __ [130 S.Ct. 2619, 2632] [“This Court has repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.”]; Atwater v. City of Lago Vista (2001) 532 US 318, 350 [the “least-restrictive-alternative limitation” is “generally thought inappropriate in working out Fourth Amendment protection”]; US v. Sokolow (1989) 490 US 1, 11 [“The reasonableness of the officer's decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.”]; US v. Sharpe (1985) 470 US 675, 694-95 9 [conc. opn. of Marshall, J.] [“defining what means are ‘least intrusive’ is a virtually unmanageable and unbounded task”]. CAL: P v. Steeley (1989) 210 CA3 887, 892 [“The fact that there may be less intrusive means of protecting a vehicle and its contents does not render the decision to impound unreasonable.”]; P v. Bell (1996) 43 CA4 754, 761, fn.1 [“The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or pursue it.”]. 9th CIR: Gallegos v. City of Los Angeles (9C 2002) 308 F3 987, 992


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[“The Fourth Amendment does not mandate one and only one way for police to confirm the identity of a suspect. It requires that the government and its agents act reasonably.”]; US v. Meza-Corrales (9C 1999) 183 F3 1116, 1123 [“common sense and ordinary human experience rather than bright-line rules serve as our guide”]; US v. Brooks (9C 2004) 367 F3 1128, 1135-36 [“The Supreme Court has repeatedly refused to declare that only the least intrusive search practicable can be reasonable under the Fourth Amendment.”]. OTHER: US v. Rodriguez-Morales (1C 1991) 929 F2 780, 786 [the “critical” question “is not whether the police needed to impound the vehicle in some absolute sense, or could have effected an impoundment more solicitously, but whether the decision to impound and the method chosen for implementing that decision were, under all the circumstances, within the realm of reason.”]. 18 USSC: US v. Sharpe (1985) 470 US 675, 686 [“[t]he question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it”]. 19 USSC: US v. Sharpe (1985) 470 US 675, 685 [“common sense and ordinary human experience must govern over rigid criteria”]. OTHER: US v. Ruidiaz (1C 2008) 529 F3 25, 29 [“the requisite objective analysis must be performed in real-world terms … reasonableness requires a practical, commonsense determination”]. 20 QUOTE FROM US v. Sharpe (1985) 470 US 675, 686-67. CAL: In re Joseph F. (2000) 85 CA4 975, 989 [“The reasonableness of a particular use of force is judged from the perspective of a reasonable officer on the scene, not by the 20/20 vision of hindsight.”]. OTHER: US v. Childs (7C 2002) 277 F3 947, 953 [“reasonableness … depends on what the police do, not on what they might have done”]. 21 OTHER: US v. Brigham (5C 2004) 382 F3 500, 507; US v. Ellis (6C 2007) 497 F3 606, 614 [the officer “was entitled to assess the circumstances and defendants in light of his experience”]. 22 9th CIR: Gallegos v. City of Los Angeles (9C 2002) 308 F3 987, 991 [“We look at the situation as a whole; we do not isolate each fact in a vacuum.”]; US v. Charley (9C 2005) 396 F3 1074, 1080 [“[W]e examine the totality of the circumstances in deciding whether an investigative detention has ripened into an arrest.”]. 23 USSC: Scott v. Harris (2007) 550 US 372, 385 [“we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger”]; Muehler v. Mena (2005) 544 US 93, 99 [officers may “use reasonable force to effectuate the detention”]; Graham v. Connor (1989) 490 US 386, 396 [“the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it”]. CAL: P v. Rivera (1992) 8 CA4 1000, 1008 [restraint by police dog]; P v. Johnson (1991) 231 CA3 1, 12 [“The right to verify or dispel suspicion is meaningless unless officers may, when necessary, forcibly detain a suspect.”]. 9th CIR: US v. Thompson (9C 1977) 558 F2 522, 524 [“A police officer attempting to make an investigatory detention may properly display some force when it becomes apparent that an individual will not otherwise comply with his request to stop, and the use of such force does not transform a proper stop into an arrest.”]. OTHER: US v. Dykes (DCC 2005) 406 F3 717, 720 [tackling suspect “in full flight” was reasonable]; 24 QUOTE FROM Graham v. Connor (1989) 490 US 386, 396. 25 CAL: P v. Johnson (1991) 231 CA3 1, 13, fn. 2 [“Given their right to forcibly detain, California precedent arguably would have allowed the officers to arrest for flight which unlawfully delayed the performance of their duties.”]; P v. Allen (1980) 109 CA3 981. OTHER: US v. Campbell (5C 1999) 178 F3 345. 26 QUOTE FROM Brendlin v. California (2007) 551 US 249, 258. 9th CIR: US v. Meza-Corrales (9C 1999) 183 F3 1116, 1123 [“[W]e allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers.”]; US v. Del Vizo (9C 1990) 918 F2 821, 825 [“[A]n investigatory stop will not be converted into an arrest simply when the officers take reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed.”]. 27 USSC: Muehler v. Mena (2005) 544 US 93, 99 [officers may “use reasonable force to effectuate the detention.”]; Florida v. Royer (1983) 460 US 491, 499 [“Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.”]. CAL: P v. Celis (2004) 33 C4 667, 675 [“[S]topping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest.”]; P v. Rivera (1992) 8 CA4 1000, 1008 [“case law teaches that physical restraint does not convert a detention into an arrest if the restraint is reasonable under the circumstances.”]; P v. Campbell (1981) 118 CA3 588, 595-96 [a de facto arrest will result “if the restraint employed by the police goes beyond that which is reasonably necessary for a detention”]; Wilson v. Superior Court (1983) 34 C3 777, 784 [de facto arrests are “restraints on an individual’s liberty which are comparable to an arrest”]. 9th CIR: US v. Buffington (9C 1987) 815 F2 1292, 1300 [“use of force during a stop does not convert the stop into an arrest if it occurs under circumstances justifying fears for personal safety”]; US v. Meza-Corrales (9C 1999) 183 F3 1116, 1123 [“[W]e allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonably response to legitimate safety concerns on the part of the investigating officers.”]; US v. Willis (9C 2005) 431 F3 709, 716 [“Our cases have justified the use of force in making a stop if it occurs under circumstances justifying fear for an officer’s personal safety.”]. OTHER: US v. Pontoo (1C 2011) 666 F3 20, 30 [“the limits of a Terry stop are not automatically transcended by an officer's use of other prophylactic measures. When officer safety is a legitimate concern, a Terry stop appropriately may involve the application of handcuffs; or effecting a stop at gunpoint; or ordering a suspect to the ground. In an appropriate case, such prophylactic measures can be employed in combination.” Citations omitted.]; US v. Chaney (1C 2011) 647 F3 401, 409 [“Where an investigatory stop is justified at its inception, it will generally not morph into a de facto arrest as long as the actions undertaken by the officers following the stop were reasonably responsive”]; US v. Melendez-Garcia (10C 1994) 28 F3 1046, 1052 [“[T]he use of firearms, handcuffs, and other forceful techniques does not


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necessarily transform a Terry detention into a full custodial arrest—for which probable cause is required—when the circumstances reasonably warrant such measures.”]; US v. Sanders (5C 1993) 994 F2 200, 206-207 [while “pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect—whether singly or in combination—do not automatically convert an investigatory detention into an arrest,” such procedures are permissible unless “the police were unreasonable in failing to use less intrusive procedures to conduct their investigation safely.”]; Gallegos v. City of Colorado Springs (10C 1997) 114 F3 1024, 1030 [“At least nine courts of appeals, including this circuit, have determined that the use of intrusive precautionary measures (such as handcuffs or placing a suspect on the ground) during a Terry stop do not necessarily turn a lawful Terry stop into an arrest”]; US v. Tilmon (7C 1994) 19 F3 1221, 1226 [“The mere use or display of force in making a stop does not necessarily transform a stop into an arrest if the surrounding circumstances give rise to a justifiable fear for personal safety.”]. NOTE: In determining whether the use of force was reasonable, the courts view the circumstances from the perspective of a reasonable officer on the scene. See Graham v. Connor (1989) 490 US 386, 396 [“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”]; In re Joseph F. (2000) 85 CA4 975, 989; Burchett v. Kiefer (6C 2002) 310 F3 937, 944 [“This standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary”]. NOTE: The Supreme Court has occasionally suggested that a detention may be deemed a de facto arrest regardless of whether the officers’ actions were reasonably necessary. See, for example Florida v. Royer (1983) 460 US 491, 499 (plurality decision) [“Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.”]; Michigan v. Summers (1981) 452 US 692, 700 “[E]very seizure having the essential attributes of a formal arrest is unreasonable unless it is supported by probable cause.”]. But, as we discuss later, even if officers handcuffed the suspect or detained him at gunpoint (both quintessential indications of an arrest), a de facto arrest will not result if the precaution was reasonably necessary. 28 QUOTE FROM Michigan v. Long (1983) 463 US 1032, 1052. USSC: Pennsylvania v. Mimms (1977) 434 US 106, 110 [it is “too plain for argument” that officer safety concerns during detentions are “both legitimate and weighty”]; Arizona v. Johnson (2009) 555 US 323, 331 [the risk of a violent encounter “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop”]; Maryland v. Wilson (1997) 519 US 408, 414. 29 OTHER: US v. Vega (7C 1995) 72 F3 507, 515 [“[W]e have over the years witnessed a multifaceted expansion of Terry. For better or for worse, the trend has led to permitting of the use of handcuffs, the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.”]. 30 CAL: P v. Superior Court (Simon) (1972) 7 C3 186, 206, fn.13 [officers may direct a detainee to keep his hands “when appropriate”]; In re Frank V. (1991) 233 CA3 1232, 1239 [“merely asking a suspect to take his hands out of his pockets is not a detention”]; P v. Padilla (1982) 132 CA3 555, 558 [“[The officer] could merely have asked defendant ‘to keep his hands in sight’”]. 31 CAL: P v. Brueckner (1990) 223 CA3 1500, 1505-6. 32 9th CIR: US v. Taylor (9C 1983) 716 F2 701, 709 [detainee was “extremely verbally abusive” and “quite rowdy”]; US v. Buffington (9C 1987) 815 F2 1292, 1300 [detainee “had been charged in the ambush slaying of a police officer and with attempted murder”]; US v. Jacobs (9C 1983) 715 F2 1343, 1345 [ordering bank robbery suspects to “prone out” was justified]. OTHER: Courson v. McMillian (11C 1991) 939 F2 1479, 1496 [detainees were “uncooperative” and intoxicated, one was “unruly and verbally abusive,” officer was alone late at night]; US v. Tilmon (7C 1994) 19 F3 1221, 1227 [“it may even be acceptable to make him lie prone on the ground”]; US v. Sanders (5C 1993) 994 F2 200, 207 [“[O]rdering a person whom the police reasonably believe to be armed to lie down may well be within the scope of an investigative detention.”]. 33 QUOTE FROM Muehler v. Mena (2005) 544 US 93, 100. 34 USSC: Muehler v. Mena (2005) 544 US 93, 99 [handcuffing “was undoubtedly a separate intrusion in addition to detention”]. CAL: In re Antonio B. (2008) 166 CA4 435, 442 [officer’s “’policy’ of handcuffing any suspect he detains” was unlawful]. OTHER: US v. Bautista (9C 1982) 684 F2 1286, 1289 [“handcuffing substantially aggravates the intrusiveness of an otherwise investigatory detention and is not part of a typical Terry stop.”]; US v. Meadows (1C 2009) 571 F3 131, 141 [“[P]olice officers may not use handcuffs as a matter or routine.”]. NOTE: One court has observed that “handcuffing—once problematic—is becoming quite acceptable in the context of Terry analysis.” US v. Tilmon (7C 1994) 19 F3 1221, 1228. ALSO SEE US v. Stewart (7C 2004) 388 F3 1079, 1084 [“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs”]. 35 CAL: P v. Osborne (2009) 175 CA4 1052, 1062 [“[A] police officer may handcuff a detainee without converting the detention into an arrest if the handcuffing is brief and reasonably necessary under the circumstances”]; In re Carlos M. (1990) 220 CA3 372,385 [“The fact that a defendant is handcuffed while being detained does not, by itself, transform a detention into an arrest.”]; In re Antonio B. (2008) 166 CA4 435, 442 [handcuffing unreasonable based on possession of a joint]. 9th CIR: Haynie v. County of Los Angeles (9C 2003) 339 F3 1071, 1077 [“A brief, although complete, restriction of liberty, such as handcuffing, during a Terry stop is not a de facto arrest, if not excessive under the circumstances.”]. OTHER: US v. Acosta-Colon (1C 1998) 157 F3 9, 18 [“officers engaged in an otherwise lawful stop must be permitted to take measures—including the use of handcuffs—they believe reasonably necessary to protect themselves from harm, or to safeguard the security of others.”]. 36 EXAMPLES: The following are examples of circumstances that are relevant in determining whether handcuffing was reasonably necessary:


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• Detainee attempted to flee, or appeared ready to do so. See P v. Brown (1985) 169 CA3 159, 167 [detainee

“started to run”]; US v. Wilson (7C 1993) 2 F3 226, 232 [“Mr. Wilson was certainly very actively evading an officer, and showed every indication that he would again attempt to do so.”]; US v. Meadows (1C 2009) 571 F3 131, 142 [the detainee “had fled from a traffic stop”]; US v. Bautista (9C 1982) 684 F2 1286, 1289 [detainee “kept pacing back and forth and looking, turning his head back and forth as if he was thinking about running”]; US v. Wilson (7C 1993) 2 F3 226, 232 [flight risk];

• Detainee was hostile. See P v. Johnson (1991) 231 CA3 1, 14 [“[D]efendant struggled violently with the officers for five minutes. The need for handcuffing was patently justified by concern for officer safety.”]; Haynie v. County of Los Angeles (9C 2003) 339 F3 1071, 1077 [“Haynie became belligerent”].

• Detainee became agitated. See US v. Smith (8C 2011) 645 F3 998, 1002-3 [detainee became agitated to the extent that the officer “feared he might begin fighting”].

• Onlookers were hostile. See US v. Meza-Corrales (9C 1999) 183 F3 1116, 1123 [“uncooperative persons were inside the residence, and uncertainty prevailed”].

• Detainee pulled away from officers. See US v. Purry (DCC 1976) 545 F2 217, 219-20. • Detainee tensed up during pat search. P v. Osborne (2009) 175 CA4 1052, 1062 [detainee tensed up “as if he

were attempting to remove his hand” from the officer’s grasp]. • Detainee refused to keep in hands in sight. See US v. Dykes (DCC 2005) 406 F3 717, 720 [“Dykes had kept his

hands near his waistband” and refused “to remove his hands into plain view”]. • Detainee repeatedly attempted to reach inside his clothing. See US v. Thompson (9C 1979) 597 F2 187, 190. • Circumstantial evidence that the detainee was armed. See US v. Meadows (1C 2009) 571 F3 131, 142; US v.

Meza-Corrales (9C 1999) 183 F3 1116, 1123 [“weapons had been found (and more weapons potentially remained hidden”]; US v. Glenna (7C 1989) 878 F2 967, 973 [ammunition plus tip that detainee was armed]; US v. Johnson (9C 2009) 581 F3 993 [detention of suspected bank robbers]; US v. Robinson (8C 2012) 670 F3 874, 877 [“officers had specific information that Robinson possessed a firearm just minutes earlier, and they knew that Robinson was potentially intoxicated or hostile”].

• Felony stop: Detainee was stopped to investigate a felony, especially one involving violence or weapons. See P v. Celis (2004) 33 C4 667, 676 [handcuffing “may be appropriate when the stop is of someone suspected of committing a felony”]; P v. Soun (1995) 34 CA4 1499, 1517 [murder suspect]; P v. Brown (1985) 169 CA3 159, 166 [bank robbery suspect]; US v. Stewart (7C 2004) 388 F3 1079, 1085 [bank robbery]; US v. Johnson (9C 2009) 581 F3 993 [bank robbery]; Gallegos v. City of Los Angeles (9C 2002) 308 F3 987, 989 [burglary].

• Need to transport: It was necessary to transport the detainee to another location, and there was no reason to believe the detainee did not pose a threat. See In re Carlos M. (1990) 220 CA3 372, 385; Gallegos v. City of Los Angeles (9C 2002) 308 F3 987, 991; US v. Bullock (7C 2011) 632 F3 1004. COMPARE P v. Campbell (1981) 118 CA3 588, 596 [handcuffing during transport unreasonable because there was no reason to believe the detainee posed a danger].

• Showups: It was necessary to await the arrival of the victim for a showup. See P v. Bowen (1987) 195 CA3 269, 274 [“The fact that appellant [a suspect in a purse snatch] was handcuffed while detained awaiting the victim’s arrival does not mean that appellant was under arrest during this time.”].

• Officers were outnumbered. See P v. Celis (2004) 33 C4 667, 676 [suspected drug dealers, officers out numbered]; US v. Meza-Corrales (9C 1999) 183 F3 1116, 1123 [“A relatively small number of officers was present”].

37 CAL: In re Carlos M. (1990) 220 CA3 372, 385 [“a patdown search is not an infallible method of locating concealed weapons”]. 38 9th CIR: US v. Bravo (9C 2002) 295 F3 1002, 1011 [the officer’s “statements that the handcuffs were only temporary are a factor … his reassurances helped negate the handcuffs’ aggravating influence and suggest mere detention, not arrest”]. 39 9th CIR: Palmer v. Sanderson (9C 1993) 9 F3 1433, 1436 [“abusive application of handcuffs” was unlawful]; Meredith v. Erath (9C 2003) 342 F3 1057. OTHER: Stainback v. Dixon (7C 2009) 569 F3 767, 772 [“an officer may not knowingly use handcuffs in a way that will inflict unnecessary pain or injury on an individual who presents little or no risk of flight or threat or injury”]; Heitschmidt v. City of Houston (5C 1998) 161 F3 834, 839-40 [“Once police secured the premises there was no justification for requiring Heitschmidt to remain painfully restrained.”]; Burchett v. Kiefer (6C 2002) 310 F3 937, 944 [“applying handcuffs so tightly that the detainee’s hands become numb and turn blue certainly raises concerns of excessive force”]. 40 USSC: Muehler v. Mena (2005) 544 US 93, 100 [“[T]he 2- to 3-hour detention in handcuffs in this case does not outweigh the government's continuing safety interests.”]. 9th CIR: US v. Hernandez (9C 2002) 322 F3 592, 597 [detainee was “temporarily placed in handcuffs”]; Haynie v. County of Los Angeles (9C 2003) 339 F3 1071, 1077 [handcuffing for 16-20 minutes not unreasonable]. OTHER: US v. Campbell (5C 1999) 178 F3 345, 349 [handcuffing OK “during the time it took to investigate [his associate’s] alibi and the serial numbers on the $20 bills”]. 41 CAL: P v. Glaser (1995) 11 C4 354, 366 [the issue is whether “detention at gunpoint [was] justified by the need of a reasonably prudent officer”]; P v. Celis (2004) 33 C4 667, 676 [“Faced with two suspects, each of whom might flee if Detective Strain stopped one but not the other, it was not unreasonable for him to draw his gun to ensure that both suspects would stop. Doing so did not turn defendant’s investigative detention into an arrest”]; P v. Taylor (1986) 178 CA3 217, 227, fn.7 [“police officers have a right to use force, including the blocking of a vehicle and the display of a weapon, to accomplish an otherwise lawful investigatory stop or detention provided the force is reasonable in the circumstances”]; P v.


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Campbell (1981) 118 CA3 588, 595 [“When appellant did not react violent to be accosted, [the officer] immediately replaced his gun in his belt”]; P v. McHugh (2004) 119 CA4 202, 211 [“A police officer may use force, including … displaying his or her weapon, to accomplish an otherwise lawful stop or detention as long as the force used is reasonable under the circumstances to protect the officer or members of the public or to maintain the status quo.”]; P v. Soun (1995) 34 CA4 1499, 1513, 1519 [robbery-murder]. 9th CIR: Gallegos v. City of Los Angeles (9C 2002) 308 F3 987, 991 [“Our cases have made clear that an investigative detention does not automatically become an arrest when officers draw their guns.”]. OTHER: US v. Sanders (5C 1993) 994 F2 200, 205 [“the mere act of drawing or pointing a weapon during an investigatory detention does not cause it to exceed the permissible founds of a Terry stop or to become a de facto arrest”]; US v. Serna-Barreto (7C 1988) 842 F2 965, 968 [“Although we are troubled by the thought of allowing policemen to stop people at the point of a gun when probable cause to arrest is lacking, we are unwilling to hold that an investigative stop is never lawful when it can be effectuated safely only in that manner. It is not nice to have a gun pointed at you by a policeman but it is worse to have a gun pointed at you by a criminal, so there is a complex tradeoff involved”]. 42 CAL: P v. Soun (1995) 34 CA4 1499 [robbery-murder]; P v. Celis (2004) 33 C4 667, 676 [drug trafficking]; P v. Anthony (1970) 7 CA3 751, 761 [armed robbery]. 9th CIR: Gallegos v. Los Angeles (9C 2002) 308 F3 987, 991 [burglary]; US v. Alvarez (9C 1990) 899 F2 833, 838 [possession of explosives]; US v. Buffington (9C 1987) 815 F2 1292, 1300 [bank robbery]; US v. Jacobs (9C 1983) 715 F2 1343, 1345-46 [bank robbery]; US v. Del Vizo (9C 1990) 918 F2 821, 825 [drug sales, but precautions too intrusive in light of circumstances]. OTHER: US v. Johnson (3C 2010) 592 F3 442 [shooting]; US v. Shareef (10C 1996) 100 F3 1491, 1506 [drug trafficking]; US v. Campbell (5C 1999) 178 F3 345, 348-49 [bank robbery]; US v. Tilmon (7C 1994) 19 F3 1221, 1227 [bank robber]y. ALSO SEE P v. Saldana (2002) 101 CA4 170, 173 [a “felony extraction” “involves stopping all other traffic and ordering the driver out of the vehicle at gunpoint. Appellant was directed to stop the station wagon, throw the keys out, get out, back up with his hands in the air, and get down on his knees”]. 43 OTHER: US v. Ramos (1C 2010) 629 F3 60, 64 [“the nature of the intrusion in opening the front passenger door was minimal”]; US v. Newell (8C 2010) 596 F3 876, 880 [the officers “could not see inside because of the heavily-tinted windows”]; US v. Meredith (5C 2007) 480 F3 366, 369-70. ALSO SEE US v. Stanfield (4C 1997) 109 F3 976, 981 [“[W]henever, during a lawful traffic stop, officers are required to approach a vehicle with windows so heavily tinted that they are unable to view the interior of the stopped vehicle, they may, when it appears in their experienced judgment prudent to do so, open at least one of the vehicle’s doors and, without crossing the plane of the vehicle, visually inspect its interior in order to ascertain whether the driver is armed, whether he has access to weapons, or whether there are other occupants of the vehicle who might pose a danger to the officers.”]. 44 USSC: Texas v. Brown (1983) 460 US 730, 740; US v. Dunn (1987) 480 US 294, 305. CAL: P v. Superior Court (Mata) (1970) 3 CA3 636, 639. 45 USSC: Arizona v. Johnson (2009) 555 US 323, 333 [a passenger is not free to “move about at will”]; Brendlin v. California (2007) 551 US 249, 250 [it would be unreasonable to expect officers “to allow people to come and go freely from the physical focal point of [a detention]”]. 9th CIR: US v. Williams (9C 2005) 419 F3 1029, 1034 [“Giving officers the authority to control all movement in a traffic encounter is sensibly consistent with the public interest in protecting their safety.”]. ALSO SEE P v. Glaser (1995) 11 C4 354, 369 [court notes the need to control the movements of people at drug houses during the execution of search warrants so that they cannot “come up behind the officers”]. 46 USSC: New York v. Class (1986) 475 US 106, 115 [“Keeping the driver of a vehicle in the car during a routine traffic stop is probably the typical police practice.”]. CAL: P v. Vibanco (2007) 151 CA4 1, 9-10 [officers may, “as a matter of course,” order the occupants “to remain in the car during a lawful traffic stop if the officers deem it necessary for officer safety”]; P v. Castellon (1999) 76 CA4 1369, 1374 [“[W]hether the passenger is ordered to stay in the car or get out of the vehicle is a distinction without a difference.”]. OTHER: Rogala v. District of Columbia (DCC 1999) 161 F3 44, 53 [“[A] police officer has the power to reasonably control the situation by requiring a passenger remain in a vehicle during a traffic stop, particularly where, as here, the officer is alone and feels threatened.”]. 47 USSC: Pennsylvania v. Mimms (1977) 434 US 106, 111, fn.6 [“officers may order the driver to get out of the vehicle”]; Maryland v. Wilson (1997) 519 US 408, 415 [officers “may order passengers to get out of the car pending completion of the stop”]; Ohio v. Robinette (1996) 519 US 33, 38 [officer lawfully ordered the driver to exit even though he had already decided not to cite him]; New York v. Class (1986) 475 US 106, 115 [“[Officers may] exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.”]. CAL: P v. Lomax (2010) 49 C4 530, 564 [“officers may order the driver and passengers out of the car pending completion of the [traffic] stop”]; In re Frank V. (1991) 233 CA3 1232, 1238 [“even an inchoate and unparticularized suspicion that it would be better for the officer’s safety for the passenger to alight is sufficient”]; P v. Hoyos (2007) 41 C4 872, 892 [“an officer making a traffic stop may order the driver and passengers to exit a car”]; P v. Vibanco (2007) 151 CA4 1, 9-10 [officers may, “as a matter of course,” “order a passenger or passengers either to get out of the car … during a lawful traffic stop if the officers deem it necessary for officer safety”]. 48 9th CIR: US v. Williams (9C 2005) 419 F3 1029, 1032, 1033 [“We think the difference in ordering the passenger back inside the car is immaterial.”]. OTHER: US v. Sanders (8C 2007) 510 F3 788, 790 [officer “did not violate the Fourth Amendment when he ordered [the passenger] to reenter the car”]; US v. Clark (11C 2003) 337 F3 1281. 49 CAL: P v. Celis (2004) 33 C4 667, 676 [ordering detainee to sit on the ground for a “few minutes” “did not turn [the detainee’s] investigative detention into an arrest”]; P v. Vibanco (2007) 151 CA4 1, 12 [officers were justified in ordering the passengers to “sit on the curb for officer safety reasons”].


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50 CAL: P v. Maxwell (1988) 206 CA3 1004, 1010 [“[U]pon effecting the early morning stop of a vehicle containing three occupants, the officer was faced with the prospect of interviewing the two passengers in an effort to establish the identity of the driver. His decision to separate them for his own protection, while closely observing defendant as he rummaged through his pockets for identification, was amply justified.”]. 51 CAL: P v. Natale (1978) 77 CA3 568, 572 [“A suspect’s mere presence in a patrol car does not unambiguously state that the elements of an arrest have been satisfied.”]; P v. Craig (1978) 86 CA3 905, 913 [OK to detain in patrol while awaiting the arrival of the victim for a showup]; P v. Gorak (1987) 196 CA3 1032, 1038 [OK to detain in patrol car while waiting for backup]; P v. Lloyd (1992) 4 CA4 724, 734 [“Once it was discovered that someone was still inside the business, it was reasonable for the police to temporarily detain Lloyd in the car until they could stabilize the situation”]. 9th CIR: Haynie v. County of Los Angeles (9C 2003) 339 F3 1071, 1077 [“Because Haynie was uncooperative and continued to yell, Deputy Mertens placed him the back of the patrol car”]. OTHER: US v. White (8C 1996) 81 F3 775, 778 [officers may request that the driver “sit in the patrol car”]; US v. Rodriguez (7C 1987) 831 F2 162, 166 [“[S]itting in a patrol car for several minutes was merely a normal part of traffic police procedure for identifying delinquent drivers”]; US v. Stewart (7C 2004) 388 F3 1079, 1084 [“The permissible scope of a Terry stop has expanded in recent years to include … temporary detentions in squad cars”]; US v. Jackson (7C 2004) 377 F3 715, 717 [“proper” to “detain Jackson in the cruiser after he did not hand over a driver’s license, and information from the police database raised doubts about his identity”]. 52 USSC: Hiibel v. Nevada (2004) 542 US 177, 186 [“Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.”]; Hayes v. Florida (1985) 470 US 811 [“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him”]. CAL: P v. Loudermilk (1987) 195 CA3 996, 1002 [“Without question, an officer conducting a lawful [detention] must have the right to [ask the suspect to identify himself], otherwise the officer’s right to conduct an investigative detention would be a mere fiction. ¶ As part of this inquiry, the police officer may require the suspect to produce proof of identification, if he has it.”]; P v. Long (1987) 189 CA3 77, 87 [“To accept the contention that the officer can stop the suspect and request identification, but that the suspect can turn right around and refuse to provide it, would reduce the authority of the officer ... to identify a person lawfully stopped by him to a mere fiction. Unless the officer is given some recourse in the event his request for identification is refused, he will be forced to rely either upon the good will of the person he suspects or upon his own ability to simply bluff that person into thinking that he actually does have some recourse.”]; P v. Rios (1983) 140 CA3 616, 621 [“And where there is such a right to so detain, there is a companion right to request, and obtain, the detainee’s identification.”]; P v. Hart (1999) 74 CA4 479, 488 [“Once detained, the defendant was obligated to identify herself.”]; P v. Valencia (1993) 20 CA4 906, 919 [“[The officer] was within his discretion in insisting on documentation of who [the driver] was, rather than simply relying on the word of [his passengers].”]. ALSO SEE Hill v. California (1971) 401 US 797, 803 [“But aliases and false identifications are not uncommon.”]. 53 CAL: P v. McKay (2002) 27 C4 601, 620; P v. Monroe (1993) 12 CA4 1174, 1186. 54 CAL: P v. McKay (2002) 27 C4 601, 620; P v. Monroe (1993) 12 CA4 1174. 55 CAL: P v. McKay (2002) 27 C4 601, 620-22; P v. Monroe (1993) 12 CA4 1174, 1187. 56 CAL: P v. McKay (2002) 27 C4 601, 622 [“[W]e do not intend to foreclose the exercise of discretion by the officer in the field in deciding whether to accept or reject other evidence—including oral evidence—of identification.”]. 57 CAL: P v. McKay (2002) 27 C4 601, 622 [“the driver is expected to surrender the specified document to the peace officer for examination, not merely to recite the information contained therein”]. 58 CAL: P v. McKay (2002) 27 C4 601, 622 [“[W]e do not intend to foreclose the exercise of discretion by the officer in the field in deciding whether to accept or reject other evidence—including oral evidence—of identification.”]. 59 CAL: P v. Loudermilk (1987) 195 CA3 996, 1002 [“Having discovered defendant’s wallet during a lawful patdown search for weapons, the officer was justified in taking it from defendant’s pocket to identify him.”]; P v. Long (1987) 189 CA3 77, 89 [“We also find reasonable the direction to hand over the wallet for the officer’s personal inspection in order to locate identification.”]; P v. Rios (1983) 140 CA3 616, 621. 60 CAL: P v. Loudermilk (1987) 195 CA3 996, 1002-4; Ingle v. Superior Court (1982) 129 CA3 188; P v. Faddler (1982) 132 CA3 607; P v. Rios (1983) 140 CA3 616, 621. 61 CAL: P v. Garcia (2006) 145 CA4 782, 788 [“[Terry] by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest.”]. 62 CAL: P v. Grant (1990) 217 CA3 1451, 1459; P v. Spicer (1984) 157 CA3 213. 63 CAL: P v. Huerta (1990) 218 CA3 744, 750 [“Once defendant had provided false information which needed to be checked further, the officers had reason to extend the detention.”]; Ingle v. Superior Court (1982) 129 CA3 188, 196 [“The initial delay beyond that normally needed to cite a speeding motorist was caused by petitioner when she falsely identified herself and withheld her driver’s license.”]. 9th CIR: US v. Christian (9C 2004) 356 F3 1103, 1107 [“Narrowly circumscribing an officer’s ability to persist [in determining the detainee’s ID] until he obtains the identification of a suspect might deprive him of the ability to relocate the suspect in the future.”]. OTHER: US v. Martin (7C 2005) 422 F3 597, 602 [“failure to produce a valid driver’s license necessitated additional questioning”]. 64 USSC: Hiibel v. Nevada (2004) 542 US 177, 188 [“A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.”]. CAL: In re Muhammed C. (2002) 95 CA4 1325; P v. Quiroga (1993) 16 CA4 961, 972 [“A felony suspect’s refusal to reveal his identity in the booking interview potentially places on society an added burden of investigation and inquiry”]. OTHER: US


15

v. Jackson (7C 2004) 377 F3 715, 717 [“Once Jackson failed to produce a driver’s license, the police could not put him back in the car and watch him motor off.”]. NOTE: What constitutes a “delay?” “The meaning of ‘delay’ includes ‘put off,’ ‘prolong, the time of or before,’ … ‘hinder for a time,’ ‘lessen the progress of ...’ ‘cause to be slower or to occur more slowly than normal.’” P v. Belmares (2003) 106 CA4 19, 25. NOTE: 9th Circuit cases: Although there are three Ninth Circuit cases that say or imply that an arrest for resisting or obstructing would not be permissible [Martinelli v. City of Beaumont (9C 1987) 820 F2 1491; Carey v. Nevada Gaming (9C 2002) 279 F3 873, 880-82; Lawson v. Kolender (9C 1981) 658 F2 1362], Martinelli and Carey provide no analysis—both relied on Lawson which merely invalidated California’s vagrancy statute, Pen. Code § 647(e). But Lawson hardly supports the sweeping rule that a violation of the Fourth Amendment results if officers arrest a person for refusing to identify himself when the person has been lawfully detained for the purpose of investigating criminal activity. It simply invalidated an infamous statute that was plainly unconstitutional for a variety of reasons. NOTE: Not a Fifth Amendment violation: Requiring a detainee to identify himself does not intrude on the Fifth Amendment right not to incriminate himself. Hiibel v. Nevada (2004) 542 US 177, 191 [“Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.”]; P v. Farnam (2002) 28 C4 107, 180 [the term “interrogation,” as used in Miranda, “does not extend to inquiries that are essentially limited to the purpose of identifying a person found under suspicious circumstances or near the scene of a recent crime.”]; P v. Quiroga (1993) 16 CA4 961, fn.2 [“The arrest had already been effected; appellant’s noncooperation did not serve to delay or thwart his lawful detention,” thus implying a violation of Pen. Code § 148 would have resulted if the noncooperation occurred before the defendant was arrested; i.e., during the detention]. 65 CAL: P v. Christopher (2006) 137 CA4 418, 429 [“Christopher’s postarrest act of willfully obstructing the police by misleadingly identifying himself with a false name … was a criminal offense under either statute.”]. 66 CAL: In re Ivan J. (2001) 88 CA4 27. 67 USSC: Brendlin v. California (2007) 551 US 249. OTHER: US v. Rice (10C 2007) 483 F3 1079, 1084 [“[B]ecause passengers present a risk to officer safety equal to the risk presented by the driver, an officer may ask for identification from passengers and run background checks on them as well.”]; US v. Chaney (1C 2009) 584 F3 20, 26 [officer’s inquiries re passenger’s ID “did not measurably extend the duration of the stop”]. 68 QUOTE FROM Florida v. Royer (1983) 460 US 491, 500 [“carefully tailored”]. CAL: P v. Gentry (1992) 7 CA4 1225, 1267 [“focused”]. 69 USSC: Terry v. Ohio (1968) 392 US 1, 23 [“The officers were authorized to take such steps as were reasonably necessary to … maintain the status quo during the course of the stop.”]. CAL: P v. Manis (1969) 268 CA2 653, 665 [“The purpose of detention is to keep things as they are during the investigation”]; P v. Harris (1975) 15 C3 384, 390 [“A detention of an individual which is reasonable at its inception may exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances.”]. 9th CIR: Gallegos v. Los Angeles (9C 2002) 308 F3 987, 991 [“[We consider] whether the methods used by police were reasonable given the specific circumstances.”]. 70 USSC: Terry v. Ohio (1968) 392 US 1, 28 [“The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all.”]; Hayes v. Florida (1985) 470 US 811, 815-16 [“at some point in the investigative process, police procedures can qualitatively and quantitatively become intrusive with respect to a suspect’s freedom of movement and privacy interests as to [require probable cause]”]. CAL: P v. Rivera (1992) 8 CA4 1000, 1007 [“what started as a detention may be converted into an arrest, which must then be justified by probable cause”]; P v. Gorrostieta (1993) 19 CA4 71, 83 [“When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.”]; P v. Gomez (2004) 117 CA4 531, 538 [“A detention that is unreasonably prolonged amounts to a de facto arrest which must be supported by probable cause to be constitutionally valid.”]. 9th CIR: Meredith v. Erath (9C 2003) 342 F3 1057, 1062 [“the reasonableness of a detention depends not only on if it is made, but also on how it is carried out”]; Orhorhaghe v. INS (9C 1994) 38 F3 488, 494 [“When an encounter between a law officer and another person escalates to the point where it is considered a ‘seizure,’ the officer must have a reasonable, articulable basis for his actions.”]. ALSO SEE US v. Torres-Sanchez (9C 1996) 83 F3 1123, 1127 [“There is no bright-line for determining when an investigative stop crosses the line and becomes an arrest, and this determination may in some instances create difficult line-drawing problems.”]. 71 CAL: P v. Gorak (1987) 196 CA3 1032, 1037 [“The US Supreme Court has refused to adopt any outside time limitation on a lawful detention.”]; P v. Gallardo (2005) 130 CA4 234, 238 [“There is no hard and fast limit as to the amount of time that is reasonable”]. 9th CIR: US v. Torres-Sanchez (9C 1996) 83 F3 1123, 1129 [“‘Brevity’ can only be defined in the context of each particular case.”]. 72 USSC: Florida v. Royer (1983) 460 US 491, 500 [“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”]; US v. Sharpe (1985) 470 US 675, 686 [“we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly”]; US v. De Hernandez (1985) 473 US 531, 543 [“common sense and ordinary human experience must govern over rigid [time] criteria”]. CAL: Pendergraft v. Superior Court (1971) 15 CA3 237, 242 [“No hard and fast rule can be formulated for determining the reasonableness of the period of time elapsing during a detention.”]; P v. Gomez (2004) 117 CA4 531, 537 [“a detention will be deemed unconstitutional when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible”]; P v. Dasilva (1989) 207 CA3 43, 50 [“no rigid time limitation”]; P v. Soun (1995) 34 CA4 1499, 1520 [30 minute detention OK because the investigating officer “fully accounted for this period of time”]; Ingle v. Superior Court (1982) 129 CA3 188, 196 [“Each step in the investigation conducted by [the officers] proceeded logically and immediately from the previous one.”]; In re Carlos M. (1990) 220 CA3 372, 382, fn.4 [“[N]othing suggests [the officer] dallied.”]; P v. Russell (2000) 81 CA4 96, 101 [detention is unlawful


16

“when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible”]. 9th CIR: US v. Torres-Sanchez (9C 1996) 83 F3 1123, 1129 [“‘Brevity’ can only be defined in the context of each particular case.”]; Gallegos v. Los Angeles (9C 2002) 308 F3 987, 992 [“While the length of Gallegos’s detention [45 minutes] remains relevant, more important is that [the officers’] actions did not involve any delay unnecessary to their legitimate investigation.”]; Haynie v. County of Los Angeles (9C 2003) 339 F3 1071, 1076 [“An investigative stop is not subject to strict time limitations as long as the officer is pursuing the investigation in a diligent and reasonable manner.”]. NOTE: Although the US Supreme Court suggested in 1983 that the abstract length of a detention might render it a de facto arrest (US v. Place (1983) 462 US 696, 709-710), it later ruled that diligence is the key factor. See. Still, the Tenth Circuit recently noted that was unable to find a case upholding a detention lasting over 90 minutes. Manzanares v. Higdon (10C 2009) 575 F3 1135, 1148. 73 QUOTE FROM US v. Hernandez (11C 2005) 418 F3 1206, 1212, fn.7. OTHER: US v. Harrison (2C 2010) 606 F3 42, 45 [no requirement to terminate “at the earliest possible moment”]. 74 USSC: US v. Montoya De Hernandez (1985) 473 US 531, 543 [“Our prior cases have refused to charge police with delays in investigatory detention attributable to the suspect’s evasive actions.”]; US v. Place (1983) 462 US 696, 709, fn.10 [officers must be permitted “to graduate their responses to the demands of any particular situation”]; US v. Sharpe (1985) 470 US 675, 687-88. CAL: P v. Johnson (1991) 231 CA3 1, 13 [“Levels of force and intrusion in an investigatory stop may be legitimately escalated to meet supervening events”]; Pendergraft v. Superior Court (1971) 15 CA3 237, 242 [“The significance of the events, discoveries, and perceptions that follow an officer’s first sighting of a candidate for detention will vary from case to case.”]. 9th CIR: US v. Christian (9C 2004) 356 F3 1103, 1106 [“police officers must be able to deal with the rapidly unfolding and often dangerous situations on city streets through an escalating set of flexible responses, graduated in relation to the amount of information they possess”]. OTHER: US v. Stepp (6C 2012) __ F3 __ [2012 WL 1728826] [“the police may extend a stop beyond the scope of what was originally permissible if something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity is afoot”]; US v. Ruidiaz (1C 2008) 529 F3 25, 29 [“A Terry stop is not necessarily a snapshot of events frozen in time and place. Often, such a stop can entail an ongoing process. [Thus, the officer’s] ensuing actions must be fairly responsive to the emerging tableau.”]; US v. Shareef (10C 1996) 100 F3 1491, 1501 [“When a defendant’s own conduct contributes to a delay, he or she may not complain that the resulting delay is unreasonable.”]. 75 EXAMPLES: The following are examples of delays that were deemed reasonably necessary:

• Delay for increased officer-safety measures: See Muehler v. Mena (2005) 544 US 93, 100 [“[T]his case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons.”]; P v. Castellon (1999) 76 CA4 1369, 1374 [“At the point where Castellon failed to follow [the officer’s] order to remain in the car [the] focus shifted from a routine investigation of a Vehicle Code violation to officer safety.”].

• Delay because detainees split up: US v. Sharpe (1985) 470 US 675, 687-88 [“The delay in this case was attributable almost entirely to the evasive actions of [a second suspect], who sought to elude the police”].

• Delay caused by detainee’s flight: P v. Allen (1980) 109 CA3 981, 987 [“The actions of appellant (running and hiding) caused a delay”].

• Delay awaiting the arrival of an officer with special training and experience: See US v. Sharpe (1985) 470 US 675, 687, fn.5 [“[A]s a highway patrolman, he lacked Cooke’s training and experience in dealing with narcotics investigations.”]; P v. Gorak (1987) 196 CA3 1032, 1038 [inexperienced officer awaited arrival of officer with experience in DUI-drugs].

• Delay awaiting the arrival of a drug-sniffing dog when officers reasonably believed the detainee was carrying drugs: See US v. Bloomfield (8C 1994) 40 F3 910, 917 [the officer “acted diligently to verify his suspicions . . . [he] radioed for the drug dog only about six minutes after stopping Bloomfield, and specifically requested that a dog be sent as soon as possible from the closest possible location”].

• Delay for showup: See P v. Bowen (1987) 195 CA3 269, 273-74. • Delay because of language difficulties: See P v. Avalos (1996) 47 CA4 1569, 1577 [15-20 minute delay was

necessary to await a Spanish-speaking officer]; P v. Garcia (2007) 145 CA4 782, 788 [the officer “should have called for assistance from a Spanish speaking officer”]; US v. Rivera (8C 2009) 570 F3 1009, 1013 [“the extra time can largely be attributed to Rivera’s confused answers and language difficulties”]; US v. Mendoza (8C 2012) 677 F3 822, 828 [20-25 minute delay for interpreter OK].

• Delay to confirm detainee’s identity: See P v. Grant (1990) 217 CA3 1451, 1459 [“the officer needed to exhaust all avenues to reliably identify the driver”]; US v. Ellis (6C 2007) 497 F3 606, 614 [“Defendant Ellis gave Trooper Topp a false alias that Top was unable to confirm”]; US v. Long (7C 2005) 422 F3 597, 602 [“failure to produce a valid driver’s license necessitated additional questioning”].

• Delay caused by detainee’s failure to directly answer the officer’s questions: See US v. Sullivan (4C 1998) 138 F3 126, 132-33; US v. Suitt (8C 2009) 569 F3 867, 872 [“Suitt repeatedly gave hesitant, evasive, and incomplete answers”].

• Delay to confirm detainee’s answers with his companions: See US v. Brigham (5C 2004) 382 F3 500, 508 [OK to “verify the information provided by the driver”].

• Delay cause by detainee’s lying: P v. Huerta (1990) 218 CA3 744, 751. • Delay because of multiple detainees: See P v. Soun (1995) 34 CA4 1499 [six detainees]; US v. Shareef (10C

1996) 100 F3 1491, 1506 [six detainees]; US v. Holzman (9C 1989) 871 F2 1496, 1501 [5-7 minute delay was


17

reasonable because officer was busy with defendant’s accomplice]; Courson v. McMillian (11C 1991) 939 F2 1479, 1493 [single officer detained three suspects, one of whom was unruly].

• Delay because of changing or uncertain developments: See P v. Huerta (1990) 218 CA3 744, 751 [“The officers ‘were having to make decisions. We had a lot of things going on.”].

• Delay attributable to computer problems: See US v. Rutherford (10C 1987) 824 F2 831, 834 [“the computer problem causing a delay of 25 minutes does not transform this admittedly legal initial detention into an unlawful de facto arrest”].

• Delay because officers developed grounds to investigate another crime: See P v. Russell (2000) 81 CA4 96, 102 [“Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention.”]; US v. Banks (8C 2009) 553 F3 1101, 1105 [“[W]hen a suspect’s response to an investigatory question raises reasonable suspicion unrelated to the original offense, the officer may expand his inquiry to satisfy the suspicion.”]; US v. Mayo (9C 2005) 394 F3 1271, 1276 [“The period of detention was permissibly extended because new grounds for suspicion of criminal activity continued to unfold.”]; P v. Castaneda (1995) 35 CA4 1222, 1228 [possible stolen car]; US v. Brigham (5C 2004) 382 F3 500, 508 [possible stolen car]; US v. Torres-Sanchez (9C 1996) 83 F3 1123, 1129 [“numerous suspicious factors” that required [the officer] to further investigate whether the occupants were participating in criminal activity.”]; US v. Mayo (9C 2005) 394 F3 1271, 1276 [“new grounds for suspicion of criminal activity continued to unfold”]; US v. Ellis (6C 2007) 497 F3 606, 614 [passenger gave false name; when asked if vehicle contained drugs, the driver said “not that I know of,” driver said he didn’t know his passenger’s name]; US v. Sowers (1C 1998) 136 F3 24, 27 [“Based on unfolding events, the trooper’s attention shifted away from the equipment violations that prompted the initial stop toward a belief that the detainees were engaged in more serious skullduggery. Such a shift in focus is neither unusual not impermissible.”].

76 CAL: P v. Williams (2007) 156 CA4 949, 960 [“Furthermore, the detention was not unduly prolonged because the deputies had probable cause to arrest appellant after searching his backpack.”]. 77 USSC: Hiibel v. Nevada (2004) 542 US 177, 185 [“Asking questions is an essential part of police investigations.”]; Berkemer v. McCarty (1984) 468 US 420, 439 [“[Typically] the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.”]. CAL: P v. Manis (1969) 268 CA2 653, 665 [“When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning”]; P v. Loudermilk (1987) 195 CA3 996, 1002 [“Inquiries of the suspect’s identity, address and his reason for being in the area are usually the first questions to be asked”]. 78 CAL: P v. Bell (1996) 43 CA4 754. 9th CIR: Ganwich v. Knapp (9C 2003) 319 F3 1115, 1120 [unreasonable “to condition the plaintiffs’ release on their submission to interrogation”]. OTHER: US v. $404,905 (8C 1999) 182 F3 643, 647, fn.2 [the detainee “may not be compelled to answer, and may not be arrested for refusing to answer”]. 79 CAL: P v. Castellon (1999) 76 CA4 1369, 1377 [“[The officer] asked two standard questions [Do you have any weapons? Do you have any narcotics?] in a short space of time, both relevant to officer safety.”]; P v. Brown (1998) 62 CA4 493, 499 [“[The officer’s] questions about defendant’s probation status did not constitute a general crime investigation. They merely provided the officer with additional pertinent information about the individual he had detained.”]; P v. McLean (1970) 6 CA3 300, 307-8 [asking a detainee “if he had anything illegal in his pocket” is a “traditional investigatory function”]. 9th CIR: US v. Willis (9C 2005) 431 F3 709, 717 [“Once the police stopped Willis, they could, within reason … question Willis about weapons for their own safety.”]. OTHER: US v. Everett (6C 2010) 601 F3 484, 495 [questions about weapons are “reasonably related to the legitimate and weighty consideration of officer safety”]; US v. Holt (10C 2001) 264 F3 1215, 1224 [“[A]llowing officers to ask about the presence of loaded weapons in a lawfully stopped vehicle will promote the government’s ‘legitimate and weighty’ interest in officer safety.”]; US v. Long (8C 2008) 532 F3 791, 795 [“Asking an off-topic question, such as whether a driver is carrying illegal drugs … does not violate the Fourth Amendment.”]. NOTE: Although many violators who possess weapons will not reveal this to officers, a sufficient number will, so the question is justified. See US v. Holt (10C 2001) 264 F3 1215, 1224. Questions about weapons are also relevant because, even if the violator denies having a weapon or refuses to answer the question, the manner in which he responded (e.g., nervousness, evasive answers) may provide “valuable clues.” Ibid. 80 CAL: P v. Lee (1987) 194 CA3 975, 989; P v. Thurman 1989) 209 CA3 817, 822; P v. Simpson (1998) 65 CA4 854, 862; P v. Samples (1996) 48 CA4 1197, 1209; P v. Glaser (1995) 11 C4 354, 367-68; P v. Osuna (1986) 187 CA3 845, 856. OTHER: US v. Childs (7C 2002) 277 F3 947 954 [“By asking one question about marijuana, [the officer] did not make the custody of Childs an unreasonable seizure.”]. ALSO SEE US v. Everett (6C 2010) 601 F3 484, 495 [delay caused by “several extra words” was de minimis]. 81 CASE REFERRED TO: Arizona v. Johnson (2009) 555 US 323, 333 [“An officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Edited. OTHER: US v. Stepp (6C 2012) __ F3 __ [2012 WL 1728826] [six minutes of “extraneous” questioning plus 3 ½ minutes waiting for K9 to arrive and sniff measurably extended the stop]; US v. Mason (4C 2010) 628 F3 123, 132 [“The one to two of the 11 minutes devoted to questioning on matters not directly related to the traffic stop constituted only a slight delay that raises no Fourth Amendment concern.”]; US v. Everett (6C 2010) 601 F3 484, 491 [“another definition of the word ‘measurable’ is ‘significant’ or ‘great enough to be worth consideration.’ Only this definition is consistent with [Arizona v. Johnson].”]; US v. Harrison (2C 2010) 606 F3 42, 45 [5-6 minutes]; US v. Rivera (8C 2009) 570 F3 1009, 1013 [brief inquiries concerning weapons in the vehicle and the detainee’s occupation “did not measurably extend the seizure”]; US v. Chaney (1C 2009) 584 F3 20, 24 [court applies


18

“measurably extend” test]. ALSO SEE Muehler v. Mena (2005) 544 US 93, 101 [“We have held repeatedly that mere police questioning does not constitute a seizure.”]. NOTE: Prior to Johnson, many courts would ask whether the off-topic questions “appreciably extended” or “unreasonably extended” the stop, which is essentially the same thing as “measurably extend.” See, for example, US v. Alcaraz-Arellano (10C 441 F3 1252, 1259; US v. Turvin (9C 2008) 517 F3 1097, 1102; US v. Stewart (10C 2007) 473 F3 1265, 1269; US v. Purcell (11C 2001) 236 F3 1274, 1279 [delay of three minutes was de minimis]; US v. Sullivan (4C 1998) 138 F3 126, 133 [“brief one-minute dialogue” was insignificant]; US v. Martin (7C 2005) 422 F3 597, 601-2 [off-topic questions are permitted if they “do not unreasonably extend” the stop]; US v. Long (8C 2008) 532 F3 791, 795 [“Asking an off-topic question, such as whether a driver is carrying illegal drugs, during an otherwise lawful traffic stop does not violate the Fourth Amendment.”]; US v. Childs (7C 2002) 277 F3 947, 954 [“Questions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention. They do not signal or facilitate oppressive police tactics that may burden the public—for all suspects (even the guilty ones) may protect themselves fully by declining to answer.”]. COMPARE US v. Peralez (8C 2008) 526 F3 1115, 1121 [“The off-topic questions more than doubled the time Peralez was detained.”]. 82 USSC: US v. Hensley (1985) 469 US 221, 229 [checking detainee’s ID “promotes the strong government interest in solving crimes and bringing offenders to justice”]. CAL: P v. Harness (1983) 139 CA3 226, 231 [warrant check OK because, “unlike a normal traffic violation where a traffic offender can obtain his release upon giving his written promise to appear, the officer in the instant case was confronted with a penal violation”]; P v. Stoffle (1991) 1 CA4 1671, 1679 [warrant check OK because the detention “was based on a misdemeanor committed in [the officer’s] presence, it lasted only three to four minutes, and [the officer] ran the warrant check pursuant to standard police procedure while he checked the driver licenses and the car registration”]; P v. Brown (1998) 62 CA4 493, 498 [“officers may routinely run warrant checks on traffic infraction detainees, provided the check does not unreasonably prolong the detention”]; P v. McGaughran (1979) 25 C3 577, 583 [“[T]he right to custody manifestly includes the right to detain for a warrant check.”]; Carpio v. Superior Court (1971) 19 CA3 790, 792-93 [40-minute delay for warrant check OK because detainee was stopped for speeding, “evasive action,” and driving on an expired temporary permit; the officer testified that “in his experience, the failure of the DMV to issue a permanent license usually indicated that traffic tickets or warrants were outstanding.”]; P v. Herrera (1975) 52 CA3 177, 182 [warrant check during detention of suspected burglar OK]. 9th CIR: US v. Christian (9C 2004) 356 F3 1103, 1107 [“This [warrant check] information could be as important to an officer’s safety as knowing that the suspect is carrying a weapon.”]. OTHER: Klaucke v. Daly (1C 2010) 595 F3 20, 26 [“most circuits have held that an officer does not impermissibly expand the scope of a Terry stop by performing a background and warrant check, even where that search is unrelated to the circumstances that initially drew the officer’s attention.”]; US v. White (8C 1996) 81 F3 775, 778 [officers may “run a computer check to … ascertain whether there are outstanding arrest warrants for the occupants of the car”]; US v. Nichols (6C 2008) 512 F3 789, 796 [“[T]he decision to check for outstanding warrants on Elbert Nichols did not require reasonable suspicion—indeed, it did not require any suspicion at all.”]; US v. Shareef (10C 1996) 100 F3 1491, 1501 [“Clearly, the officers’ actions [running computer checks on the detainees] were within the bounds of a permissible traffic stop”]; US v. Villagrana-Flores (10C 2006) 467 F3 1269, 1277 [“[P]ermitting a warrants check during [detentions] promotes the strong government interest in solving crimes and bringing offenders to justice. Indeed, an identity's utility in informing an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder would be non-existent without the ability to use the identity to run a criminal background check.”]; US v. Holt (10C 2001) 264 F3 1215, 1221-22 [“By determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop.”]. 83 CAL: Carpio v. Superior Court (1971) 19 CA3 790, 792 [40-minute delay not unreasonable because detainee had told the officer that he had an “unpaid traffic ticket”]. 84 USSC: Illinois v. Caballes (2005) 543 US 405, 410 [“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”]; Indianapolis v. Edmond (2000) 531 US 32, 40 [“The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search.”]; US v. Place (1983) 462 US 696, 709 [90-minute delay for arrival of dog was unreasonable under the circumstances]; Florida v. Royer (1983) 460 US 491, 505-6 [“The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage ... If it had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out.”]. CAL: P v. Bell (1996) 43 CA4 754, 769 [“A ‘sniff’ by a trained drug-sniffing dog in a public place is not a ‘search’ within the meaning of the Fourth Amendment.”]; P v. Daugherty (1996) 50 CA4 275, 281, fn.1. OTHER: US v. Claude X (8C 2011) 648 F3 599, 602 [K9 sniff occurred before officers had completed their duties pertaining to the arrest of an occupant of the vehicle]; US v. Mohamed (8C 2010) 600 F3 1000, 1005 [traffic stop not unlawful when it was extended for five minutes for canine sniff]; US v. Rivera (8C 2009) 570 F3 1009, 1014 [“Our cases hold that such a brief detention for a dog sniff at the end of a traffic stop is de minimis”]. ALSO SEE Florida v. Royer (1983) 460 US 491, 505-6 [“The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage … If it had been used, Royer and his luggage could have been momentarily detained while this investigative procedure was carried out.”]. 85 USSC: Illinois v. Caballes (2005) 543 US 405, 410; Indianapolis v. Edmond (2000) 531 US 32, 40 [“The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search.”]; US v. Place (1983) 462 US 696, 707. CAL: P v. Stillwell (2011) 197 CA4 996, 1004 [“it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a ‘search’”]. 86 CAL: P v. Stillwell (2011) 197 CA4 996, 1007 [dog did not exceed the permissible scope of an inspection of the suspect’s pickup truck by placing his front paws on the truck].


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87 CASE REFERRED TO: US v. Stone (10C 1989) 866 F2 359, 364. 88 USSC: Kaupp v. Texas (2003) 538 US 626, 630 [“Such involuntary transport to a police station for questioning is sufficiently like arrest to invoke the traditional rule that arrests may constitutionally be made only on probable cause.”]; Hayes v. Florida (1985) 470 US 811, 815 [“[T]ransportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.”]; Dunaway v. New York (1979) 442 US 200, 212 [“Petitioner was not briefly questioned where he was found. Instead, he was … transported to a police station”]. CAL: P v. Harris (1975) 15 C3 384, 391 [insufficient justification for transporting the detainee to the crime scene]. 9th CIR: US v. Parr (9C 1988) 843 F2 1228, 1231 [“[A] distinction between investigatory stops and arrests may be drawn at the point of transporting the defendant to the police station.”]. 89 CAL: Ford v. Superior Court (2001) 91 CA4 112, 125 [“The Fourth Amendment does not prevent a person from agreeing to accompany officers to the police station and remain there for interrogation.”]; In re Gilbert R. (1994) 25 CA4 1121, 1225 [“when a person agrees to accompany the police to a station for interrogation or some other purpose, the Fourth Amendment is not violated”]; P v. Farley (1979) 90 CA3 851, 863 [“consent to prearrest transportation does not violate [the Fourth Amendment]”]; 9th CIR: US v. Charley (9C 2005) 396 F3 1074, 1081 [the detainee “voluntarily accompanied [the officer] to her home”]. OTHER: US v. Shaw (6C 2006) 464 F3 615, 622 [“Although he did not express any resistance to going with SA Ford, neither was he given the option of choosing not to go.”]; US v. Garcia (7C 2004) 376 F3 648 [cited driver consented to be driven home to look for ID]. COMPARE P v. Campbell (1981) 118 CA3 588, 596 [court rejects the argument that “a person who is handcuffed and asked to accompany an officer, freely consents to do so”]; In re Dung T. (1984) 160 CA3 697, 714 [“the police simply ‘loaded up the occupants, put them in police cars, transported them to the police facility”]. 90 USSC: Florida v. Royer (1983) 460 US 491, 504 [“[T]here are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention”]. CAL: P v. Soun (1995) 34 CA4

1499, 1519-20 [“A three-block transportation to an essentially neutral site for these rational purposes did not operate to elevate [the suspects’] custodial status from detention to arrest.”]; P v. Harris (1975) 15 C3 384, 391 [“If, for example, the victim of an assault or other serious offense was injured or otherwise physically unable to be taken to promptly view the suspect, or a witness was similarly incapacitated, and the circumstances warranted a reasonable suspicion that the suspect was indeed the offender, a ‘transport’ detention might well be upheld.”]; In re Carlos M. (1990) 220 CA3 372, 382 [permissible to transport a rape suspect to a hospital for a showup because the victim was undergoing a “rape-victim examination” which officers believed would take about two hours]; P v. Campbell (1981) 118 CA3 588, 596-97 [insufficient justification for transport]; In re Lynette G. (1976) 54 CA3 1087, 1094 [transport a half block away OK when “the victim is injured and physically unable to be taken promptly to view the suspects”]; P v. Courtney (1970) 11 CA3 1185, 1192 [“Certainly there was no Fourth Amendment compulsion on the police to choose between an on-the-spot continuation of their investigation at the probable cost of their own safety, or abandoning the investigation”]; P v. Gatch (1976) 56 CA3 505, 510 [“this case is one in which it was less of an intrusion to convey the defendant speedily a short distance to the crime scene” for a showup]. 9th CIR: US v. Charley (9C 2005) 396 F3 1074, 1080 [“[T]he police may move a suspect without exceeding the bounds of an investigative detention when it is a reasonable means of achieving the legitimate goals of the detentions given the specific circumstances of the case.”]. OTHER: US v. Bullock (7C 2011) 632 F3 1004, 1015-16 [transporting a detainee a short distance to a house to be searched pursuant to warrant was justified because grounds to arrest the detainee would exist is evidence had been found]; US v. Meadows (1C 2009) 571 F3 131, 143 [person detained inside his house could be transported outside because of “the threat of enclosed spaces and secret compartments to officers who are legitimately in a home and are effecting a [detention]”]. 91 CAL: P v. Harris (1975) 15 C3 384, 391 [“the surrounding circumstances may reasonably indicate that it would be less of an intrusion upon the suspect’s rights to convey him speedily a few blocks to the crime scene, permitting the suspect’s early release rather than prolonging unduly the field detention”]; P v. Daugherty (1996) 50 CA4 275, 287 [detention at airport, OK to walk the detainee 60 yards to the police office for canine sniff of luggage]. 9th CIR: US v. Holzman (9C 1989) 871 F2 1496, 1502 [“the movement of Holzman from the open floor to the more private counter area” is “not the sort of transporting that has been found overly intrusive”]; US v. Bravo (9C 2002) 295 F3 1002, 1011 [30-40 yard walk to border patrol security office]; US v. $109,179 (9C 2000) 228 F3 1080, 1085 [“only a short distance down the hall”]. OTHER: Pliska v. City of Stevens Point (7C 1987) 823 F2 1168, 1176 [“The mere fact that [the officer] drove the squad car a short distance does not necessarily convert the stop into an arrest.”]. 92 CAL: P v. Harness (1983) 139 CA3 226, 233 [“Field identification cards perform a legitimate police function. If done expeditiously and in an appropriate manner after a lawful stop and in response to circumstances which indicate that a crime has taken place and there is cause to believe that the person detained is involved in same, the procedure is not constitutionally inform.”]; P v. Gale (1973) 9 C3 788, 797. 93 USSC: Hayes v. Florida (1985) 470 US 811, 817 [“There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime, and if the procedure is carried out with dispatch.”]; Davis v. Mississippi (1969) 394 US 721, 727-28. CAL: Virgle v. Superior Court (2002) 100 CA4 572. 94 USSC: Hayes v. Florida (1985) 470 US 811, 817 [“We also do not abandon the suggestion in [Davis v. Mississippi (1969) 394 US 721 and Dunaway v. New York (1979) 442 US 200] that under circumscribed procedures, the Fourth Amendment might permit the judiciary to authorize the seizure of a person on less than probable cause and his removal to the police station for the purpose of fingerprinting.”]. CAL: Virgle v. Superior Court (2002) 100 CA4 572, 574.


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95 CAL: P v. Marquez (1992) 1 C4 553, 578 [there was “no impropriety in … asking defendant for his permission to be photographed”]. 96 USSC: Hayes v. Florida (1985) 470 US 811, 816-17. CAL: P v. Rodriguez (1993) 21 CA4 232 [photo taken during illegal detention]. ALSO SEE P v. Thierry (1998) 64 CA4 176, 184 [court notes that the officers “merely used the occasion of appellant's arrest for that crime to take a photograph they would have been entitled to take on the street or elsewhere without an arrest”]. 97 USSC: Michigan v. Summers (1981) 452 US 692, 700, fn.12. 98 USSC: Michigan v. Summers (1981) 452 US 692, 700, fn.12. OTHER: US v. Watts (8C 1993) 7 F3 122, 99 USSC: Arizona v. Johnson (2009) 555 US 323, 333 [“Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.”]. CAL: P v. Superior Court (Simon) (1972) 7 C3 186, 199 [traffic violator must be released “forthwith” when he gives “his written promise that he will appear”]; P v. Grace (1973) 32 CA3 447, 451 [“[The officer’s] right to detain the driver ceased as soon as he discovered the brakelight was operative”]; P v. Bello (1975) 45 CA3 970, 973 [no reason to continue detention after the officer determined that the detainee was not DUI]. 9th CIR: US v. Washington (9C 2004) 387 F3 1060, 1070 [after completing their duties, officers persisted in obtaining the suspect’s consent to search his room]. OTHER: US v. Watts (8C 1993) 7 F3 122, 126 [“an investigative stop must cease once reasonable suspicion or probable cause dissipates”]; US v. Pena-Montes (10C 2009) 589 F3 1048, 1055 [the “investigation was complete when [the officer] saw that the vehicle actually had a plate”]; US v. Blair (6C 2008) 524 F3 740, 752 [“Once the purpose of a traffic stop is completed, a police officer may not further detain the vehicle or its occupants”]; US v. Sullivan (4C 1998) 138 F3 126, 131 [“[W]hen the purpose justifying the stop is exceeded, the detention becomes illegal unless a reasonable suspicion of some other crime exists.”]; US v. Childs (7C 2002) 277 F3 947, 952 [“A person stopped on reasonable suspicion must be released as soon as the officers have assured themselves that no skullduggery is afoot.”]. 100 OTHER: US v. Anderson (10C 1997) 114 F3 1059, 1064 [“[I]f the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning, no further Fourth Amendment seizure or detention occurs.”]; US v. Sullivan (4C 1998) 138 F3 126, 131 [“When the stop is over and its purpose served, mere questioning by officers, without some indicated restraint, does not amount either to custody for Miranda purposes or a seizure under the Fourth Amendment.”]. 101 USSC: Florida v. Royer (1983) 460 US 491 504 [“[B]y returning his ticket and driver’s license, and informing him that he was free to go if he so desired, the officers might have obviated any claim that the encounter was anything but a consensual matter”]. OTHER: US v. Clariot (6C 2011) 655 F3 550, 554 [“any seizure became consensual once they returned the identifications and commenced a conversation that had no threatening or incriminating overtones to it”]; US v. Farrior (4C 2008) 535 F3 210, 219 [”The fact that Officer Morris had returned Farrior's license and registration also strongly indicates that the encounter was consensual and that no seizure occurred.”]; US v. Alcaraz-Arellano (10C 2006) 441 F3 1252, 1259 [after returning the driver’s license, the officer asked if he would be willing to answer some questions]; US v. Walker (10C 1991) 933 F2 812, 817 [traffic stop not converted into a contact because the officer “retained defendant’s driver’s license and registration during the entire time he questioned the defendant.”]; US v. Sullivan (4C 1998) 138 F3 126, 133 [“[The officer] did not question Sullivan until after he had returned Sullivan’s license and registration, thus ending the traffic stop and affording Sullivan the right to depart.”]; US v. White (8C 1996) 81 F3 775, 779 [“White was no longer seized within the meaning of the Fourth Amendment after [the officer] returned White’s identification and issued a warning ticket.”]; US v. Werking (10C 1990) 915 F2 1404, 1409 [Before [the officer] asked Werking any further questions, he returned Werking’s driver’s license and registration papers”]; US v. Holt (10C 2000) 229 F3 931, 936, fn.5 [“This circuit has consistently applied at least one bright-line rule in determining whether an officer and driver are engaged in a consensual encounter: an officer must return a driver’s documentation before the detention can end.”]; US v. Sandoval (10C 1994) 29 F3 537, 540 [“no reasonable person would feel free to leave without such documentation”]; US v. Elliott (10C 1997) 107 F3 819, 814 [“[W]e have consistently concluded that an officer must return a driver’s documentation before a detention can end.”]. BUT ALSO SEE P v. Terrell (1999) 69 CA4 1246, 1254 [no seizure even though officer did not return ID where the suspect spontaneously handed it over and did not ask to have it back, the encounter was otherwise plainly a contact, and the encounter was brief]. 102 USSC: Ohio v. Robinette (1996) 519 US 33; US v. Mendenhall (1980) 446 US 544, 555. CAL: P v. Profit (1986) 183 CA3 849, 877. OTHER: US v. Anderson (10C 1997) 114 F3 1059, 1064 [“While [the officer] did not specifically tell [the suspect] that he was free to leave, that is not required for an encounter to be consensual.”]; US v. Sullivan (4C 1998) 138 F3 126, 132 [“The mere fact that [the officer] did not affirmatively advise Sullivan that he could refuse to answer [the officer’s] questions or that he was free to go did not transform the encounter into a custodial interrogation.”]. 103 USSC: Berkemer v. McCarty (1984) 468 US 420, 436 [“Certainly few motorists would feel free [to] leave the scene of a traffic stop without being told they might do so.”]. CAL: P v. Profit (1986) 183 CA3 849, 877 [“delivery of such a warning weighs heavily in favor of finding voluntariness and consent”]; P v. Daugherty (1996) 50 CA4 275, 280 [officer “advised Daugherty she was not under arrest, she was free to go at any time, and she did not have to speak with him”]. 9th CIR: Morgan v. Woessner (9C 1993) 997 F2 1244, 1254 [“Although an officer’s failure to advise a citizen of his freedom to walk away is not dispositive of the question of whether the citizen knew he was free to go, it is another significant indicator of what the citizen reasonably believed.”]. OTHER: US v. Farrior (4C 2008) 535 F3 210, 218 [“the traffic stop ended once Officer Morris returned his license and registration, orally warned him to fix his tag light, and told him that he was free to go”]; US v. Ledesma (10C 2006) 447 F3 1307, 1315 [“Although [the officer] did not explicitly inform [the driver] and her passenger that they were free to leave, [the officer’s] words of farewell suggested that any subsequent discussion was


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consensual.”]; US v. Beck (8C 1998) 140 F3 1129, 1134 [“After running his background checks, [the officer] promptly returned Beck’s license and rental agreement, and informed Beck that he was free to leave.”]. 104 OTHER: US v. McSwain (10C 1994) 29 F3 558, 563 [although the officer returned the driver’s ID, he kept “leaning over and resting his arms on the driver’s door when he asked for consent to search” and did not tell the driver he was free to go]; US v. Ramos, (8C 1994) 42 F3 1160, 1162-64 [although the driver’s license was returned to him, he was asked to remain in the patrol car while the officer spoke with the passenger]; US v. Sandoval (10C 1994) 29 F3 537, 540 [“After the point at which the driver has his or her other documentation back, the touchstone of our analysis is simply whether … the driver has an objective reason to believe that he was not free to end his conversation with the law enforcement officer and proceed on his way.”].

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Investigative Detentions - le.alcoda.org