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Thread: Laws of arrest

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    Regular Member cowboyridn's Avatar
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    Mar 2010
    Madison, Wisconsin, USA

    Laws of arrest

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    People familiar with the criminal justice system often comment on the tremendous power of Judges and ADA’s. ADA’s can indict people, Judges can sentence people to long periods in jail or prison and yet ADA’s and Judges will tell you that it is the police officer who has an awesome responsibility. It is the police officer and only the police officer who has the discretion to stop or not stop someone, to detain or not detain someone, to arrest or not to arrest.

    As a citizen we must remember that an arrest, no matter how small the offense, results in the loss of an individual’s personal freedom.


    The taking of a person into custody to answer for a crime and to arrest is to deprive a person of his or her liberty by legal authority.


    The primary amendment is the Fourth Amendment. It is the search and seizure amendment which also refers to “seizing” people. The right of the people to be secure in their persons . . . shall not be violated. The word “persons” refers to stops, detention, and arrests.

    The Fifth Amendment: No person shall be deprived of life, liberty, or property without due process of law. The term “liberty” refers to arrest.

    Consider the following questions:

    • what is needed to stop someone?
    • what is needed to “frisk” someone?
    • what is involved in an investigatory detention?
    • what is needed to arrest someone?
    • what is needed to do a vehicle stop?

    We will be looking for legal answers to these questions. To answer them, however, we need to understand and define legal terms such as reasonable suspicion and probable cause. Law enforcement, lawyers and the general public are all familiar with these terms. Unfortunately, it is difficult to come to a common agreement as to what these terms mean.


    • What is reasonable suspicion?
    • What is probable cause?
    • What is the difference between the two?

    It’s difficult to explain. That’s because reasonable suspicion and probable cause, like many legal terms, mean different things to different people.


    An example may be the best way to clarify and understand reasonable suspicion and probable cause. Suppose it is 2:00 in the morning and you a law enforcement officer on patrol in your vehicle. You’re not in a high crime area. There is a business across the street. It can be any kind of business but this one sells televisions and DVD’s and so forth. The business is now closed.


    The Law Enforcement Officer sees a man or woman walking through the parking lot in front of the store open carrying a firearm. The parking lot in front of the store is well-lit.

    • As a Law Enforcement Officer would you run out and stop the man or woman?
    • As a Law Enforcement Officer would you demand ID?
    • As a Law Enforcement Officer would you arrest him for concealing ID if he or she refused to give you ID?


    An officer can question the man or woman but not ask for ID the officer cannot stop (detain) the man or woman unless he or she has reasonable suspicion.

    Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business.

    In Wisconsin the man or woman may refuse to provide ID or answer questions. If the Law Enforcement Officer doesn’t have reasonable suspicion to detain him or her, a Law Enforcement Officer cannot arrest him or her for open carrying a firearm or for refusing to provide an ID.

    What if you have an ID on you and the officer asks if you have an ID on you and you do, but, state to the Law Enforcement Officer that you don’t and the Law Enforcement Officer discovers you do, then what could happen? In Wisconsin, can you be arrested for not providing an ID when you have an ID on your person?

    Wisconsin Statute 968.25

    This section authorizes officers to demand identification only when a person is suspected of committing a crime, but does not govern the lawfulness of requests for identification in other circumstances. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, 98−0931.

    A police officer performing a Terry stop and requesting identification could perform a limited search for identifying papers when: 1) the information received by the officer was not confirmed by police records; 2) the intrusion on the suspect was minimal; 3) the officer observed that the suspect’s pockets were bulging; and 4) the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, 99−1686.


    It’s still 2:00 o’clock in the morning. You’re patrolling the same area and see a car in the well-lit parking lot.

    • A man or woman are standing besides the car both open carrying a firearm.
    • The business alarm has just gone off.
    • You notice a broken window in front of the business.

    Do we have enough reasonable suspicion to detain this person? (yes)

    To stop someone to investigate, to stop someone to the point they’re not free to leave, a Law Enforcement Officer needs more than a hunch or a gut feeling. A Law Enforcement Officer needs a reasonable suspicion that a crime has occurred, is occurring, or is about to occur.
    Law Enforcement Officer are suspicious, of course. But it’s not enough to say this looks suspicious. Is our suspicion reasonable?

    We need to articulate our reasons for thinking so.

    • 2:00 o’clock in the morning.
    • Business closed.
    • Broken window.
    • Man or woman walking away is the only person in the parking lot open carrying a firearm.
    • Alarm is going off.


    Law Enforcement Officers have enough reasonable suspicion to stop this individual. At this point we do not have enough probable cause to arrest him.

    A simple, common-sense definition of Reasonable Suspicion:

    You’re suspicious and it’s reasonable that this person has done a crime or is involved in a crime.


    Law Enforcement Officers need sufficient reasonable suspicion to detain a person. To arrest someone, we need more: we need probable cause. We now will try to understand probable cause by continuing with this scenario. After a backup officer detains the subject, an officer might approach the crime scene investigation in the following way:


    • You notice fresh blood on the window sill.
    • You look inside the business and note that no one is inside.
    • You see a row of boxes of TV sets. In the middle of the row one TV box is missing.
    • There appears to be torn clothing by the broken glass.


    • Inside the nearby vehicle you see a box similar to the row of boxes in the business.
    • You run the license plate and it comes back to John Smith.
    • John Smith lives on the other side of town.
    • You notice some fresh blood on the door handle.


    • The person appears to be nervous and sweating (it’s a cool night) and he or she is armed.
    • The person has fresh blood on his hands.
    • His clothing is torn and appears to match the torn clothing by the broken window.
    • The person gives you his ID. His name is John Smith.
    • He says he is looking for a friend’s house but doesn’t know where he lives.
    • The person has conflicting stories about the TV set in the back seat of his vehicle.

    Given the above factors, is there enough probable cause to arrest this person? (yes)

    A simple common-sense definition of Probable Cause

    A crime has been or is being committed and this person “probably” did it. The important word is “probably”; this person more likely than not did this crime.

    There appears to be sufficient probable cause to arrest this individual. Another difference between reasonable suspicion and probable cause; reasonable suspicion is when an officer arrives at a crime scene; probable cause is when an officer leaves the crime scene.


    An officer needs reasonable suspicion to stop someone. The following case, involving an officer stopping a person to ask for ID, provides a good introduction to reasonable suspicion. Later on, when we get to vehicle stops, we will further discuss the issue of asking people for ID.

    Stop - ID Request


    An officer was in a neighborhood well known for drug trafficking. Two male subjects were standing in an alley open carrying a firearm, a few feet apart. When the subjects observed the police vehicle, the two male subjects walked in different directions.

    The officer stopped one of the male subjects because the situation “looked suspicious.” The officer “had never seen that subject in the area before.” The subject became angry and refused to give the officer any identification but the individual didn’t have any ID on him. He was arrested for concealing ID.
    • Was the officer correct in arresting the citizen for concealing ID? (NO)


    This case came from the United States Supreme Court. The officer had a right to talk to defendant and ask for identification. But when the defendant didn’t have his identification, and wanted to leave, it became a stop. He was being detained.

    The problem is that the officer lacked reasonable suspicion to believe the defendant had been or was involved in criminal contact. The stop, once it became non-consensual, and given the absence of reasonable suspicion, was unlawful.


    When Law Enforcement Officer stops someone to talk to them, and they’re free to leave, Law Enforcement Officers need to make this clear to the court. STOP means not free to leave. More helpful words to assist the court might be:

    • Approach - free to leave
    • Made contact - free to leave
    • Consensual encounter - free to leave

    You’re an officer on the witness stand. How would you answer the following questions?

    • “Officer, could we agree that you stopped my client because you had a hunch he was involved in criminal activity?”

    • “Officer, would it be fair to say that you stopped my client because you had a gut feeling she had just committed a crime?”

    • “Officer, isn’t it true that you stopped my client because you felt things looked suspicious?”

    • Many officers use these words as if they had the same meaning. Unfortunately, if you answered yes to any of the above, it may mean dismissal of the case.


    The legal standard to STOP someone is REASONABLE SUSPICION. Anything less (a hunch, a gut feeling, it looked “suspicious”) is not enough. The important thing is to articulate – go into detail – why you made a stop.

    Seizure – Free to Leave




    In this section, we will look at a number of cases. If a pat down is good, the evidence will be admissible. If not, the evidence will be inadmissible. And one thing comes through in these cases, loud and clear: the extraordinary importance of articulating why we do what we do.


    Terry v. Ohio (1968). One of the most famous cases in American legal history. Stop & frisk, a pat down, a Terry stop . . . it’s all the same thing. It’s mid afternoon. A police officer is standing across the street from a jewelry store. He watches two men walk up to the jewelry store, look in, and continue walking. They come back and look in again. They do this about a dozen times. Soon they talk to a third man. The officer believes a robbery is about to take place. He confronts them and asks for ID. They are wearing heavy, out of season jackets. When one starts mumbling, he pats them down. On Terry he finds a handgun. Terry v. Ohio (1968).

    The Stop:

    A Terry stop is a “seizure” where someone is stopped and not free to leave. To do a Terry stop or pat down, fourth amendment guidelines must be followed. The legal standard for a Terry stop is reasonable suspicion. If an officer is able to articulate facts to support reasonable suspicion, this will be a good stop.

    The Frisk:

    A stop and a frisk is a two step process. The justification for the stop may not justify a frisk. A frisk is a search for weapons. If the officer is able to articulate facts to support reasonable suspicion the person is armed and dangerous, this will be a good frisk.

    • Are we able to articulate facts to support a stop? (yes) A pat down? (yes)


    The facts support reasonable suspicion for a stop. (1) Going back and forth and looking inside a jewelry store window. This suggests the three subjects are waiting for the cashier to be alone so that they can rob him or her. (2) The heavy out-of-season coats. These likely contain pockets to carry stolen jewelry.

    The facts also support reasonable suspicion for a pat down: (1) a possible robbery which is a violent crime, (2) the subjects wore heavy coats which can hide weapons, (3) there were three subjects confronting one officer, and (4) mumbling. Mumbling might indicate a person under the influence of alcohol or drugs or planning to “jump” the officer to make a getaway. United States Supreme Court upheld conviction of concealing a weapon, a felony offense in Ohio.

    An example of police department SOP for a stop and frisk: A “frisk” or feeling of the outer garments of an individual with the sole purpose of detecting a weapon.

    • If during the pat down for weapons we find drugs, and it is immediately apparent that we found drugs, the drugs will be admissible.


    In Lea County Officer A stopped defendant for speeding (41/25). As Officer A approached the vehicle, he smelled marijuana. Defendant stated he had a rifle in his car. Upon exiting the vehicle, Officer A asked Defendant if he had any weapons on him. Defendant said he had a pocketknife on him. Defendant acted “real nervous and fidgety.” After getting Defendant’s consent, Officer A performed a pat down but didn’t find anything. The initial pat down was proper. But then . . .
    Officer B arrived. With Defendant’s consent, Officer A searched the car but didn’t find anything. Officer A suspected Defendant had drugs on him and asked Officer B to do a pat down. Officer B saw a bulge in defendant’s sock and found meth. Officers testified at a motion hearing that the purpose of the second pat down was officer safety.

    · Was the second frisk (pat down) good? (no)

    · Is “officer safety” alone enough to justify a pat down? (no)

    · What facts or reasons might be used to justify officer safety?


    Court of Appeals held that the second pat down was illegal. Based upon the facts, the Court felt the motivation for the second search was not officer safety but to look for drugs.

    “Officer safety” is a valid concern but by itself the term doesn’t mean much. We need to articulate reasons or expand on the term to make it mean something. Example: “I patted him down for officer safety because he was intoxicated, moving his arms back and forth as if to fight or reach for a weapon, and was yelling at me.”
    Stop and Frisk (Pockets)

    Tucumcari police stopped a car because neither defendant nor his passenger was wearing a seat belt. Passenger was acting in a nervous manner. Passenger was patted down and arrested as a result of the pat down. Instead of patting Defendant down, officer asked him to step out and empty his pockets. Drugs (cocaine and marijuana) were found.

    · A pat down search permits an officer to pat down the outer clothing to feel for weapons.

    · Did the officer exceed the bounds of the pat down search in directing Defendant to empty his pockets? Is this a good pat down?


    Court of Appeals held the search was improper. A pat down search (also known as a Terry search) for weapons may not be expanded into a search for evidence of a crime. In directing Defendant to empty his pockets, the officer exceeded the bounds of a Terry search. Evidence suppressed.


    An officer can forcibly stop (detain) someone when they have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. We will now discuss what happens after a person is detained, the investigatory detention.

    • Doing an investigation.
    • May clear subject or lead to an arrest.
    • Think of it as a “street stop” or “field stop” or “traffic stop.”
    • Person’s freedom of movement is restricted – not free to leave.
    • Detention is meant to be as brief as possible.
    • If an officer determines there is no probable cause the subject should be released from custody.

    Introduction to questions on investigatory detention

    Some questions we will discuss include:
    How long are we allowed to detain someone?
    What guidance is there for handcuffing people who are detained?
    What issues exist regarding asking for ID?
    What issues regarding a show-up?



    Madison police were contacted by an informant who gave his name but asked to remain anonymous. The informant advised that defendant would be delivering meth in a pickup truck that had a personalized license plate to a named address. Information was proved accurate when defendant was stopped just prior to reaching the address.

    Defendant refused to give permission to search her truck. A drug dog was called and she was told she was free to leave which she did. The dog, arriving 35 to 40 minutes later, alerted to the truck. A search warrant was obtained and meth was found in her purse and the truck. Defendant was charged with drug trafficking.

    • Was this a good stop? (yes)
    • Is detaining the vehicle for 35-40 minutes to wait for a drug dog too long?
    • Will the evidence (drugs) seized be admissible) (yes)


    Court of Appeals held that the tip was sufficiently reliable because the informant was identified and the tip accurately predicted future movement of the defendant. This reliability gave the officers reasonable suspicion to stop the vehicle.

    The investigatory detention was reasonable in length. This was not a typical vehicle stop; it was a stop to investigate for drugs. The truck was detained to quickly confirm or dispel the officer’s suspicions. The drug dog was necessary to accomplish this and waiting 35-40 minutes for the dog was reasonable. Evidence was admissible.

    Some officers ask if there is a set amount of time to do an investigation. There isn’t because a detention can vary depending upon the complexity of the case. The courts have stressed, however, that officers are not to go on “fishing expeditions”; in other words, a person should be released if there isn’t enough reasonable suspicion to detain them.


    In Alamogordo, a police officer saw a vehicle in front of a house under investigation for drugs. Defendant was in the driver’s seat and another man was leaning in the window, talking to him. The officers suspected drug activity and followed the vehicle which was stopped for a cracked windshield.

    He recognized both the driver and passenger from previous drug activity. Defendant was nervous. When Defendant refused consent to search, he told him he could stay or go but he would call a drug dog. The dog arrived about ten minutes later, alerted, and defendant’s father who showed up gave consent. Officers found a handgun and meth.

    • Was there reasonable suspicion for the ten minute delay? (no)
    • Will the evidence (handgun and meth) be admitted or suppressed?


    The initial stop for the cracked windshield was valid. But what about the ten minute detention? To detain someone there must be reasonable suspicion that the person is breaking or has broken the law. There must be reasonable suspicion, for example, that there are drugs in the vehicle.
    Talking to another person in front of a drug house is not reasonable suspicion. Being nervous is not reasonable suspicion. Having a criminal history is not reasonable suspicion. Supreme Court held that the officer did not have reasonable suspicion to detain the vehicle. Going from a cracked windshield to a vehicle search requires more. Evidence suppressed.


    On Interstate 40 New Mexico State Police stopped a vehicle going 84 in a 75. The driver gave the officer his California driver’s license and a vehicle rental contract. The contract revealed that Defendant was not listed as the renter or as an authorized driver.

    For about twenty-five minutes following the stop, the officer reviewed the contract, asked the driver and passenger about their travel plans, issued a speeding citation, and unsuccessfully sought to contact the rental company. At one point he asked if they had drugs and got consent to search. He looked into the trunk and found an estimated 20,000 small pills later identified as ecstasy.

    • Was the duration of the stop longer than necessary?
    • Did the officer articulate – justify – reasons for asking about drugs?
    • Will the evidence (drugs) seized be admissible?


    The duration of the stop was reasonable. The scope of the detention, specifically whether the officer could inquire about drugs, presented a more difficult question.

    Fortunately, the officer was able to articulate – justify – why he was asking about drugs. He testified his reasonable suspicion was based on his experience and the following observations: (1) Defendant was not on the rental contract, (2) inconsistent stories from Defendant and the passenger regarding travel plans, and (3) Defendant’s nervousness. Supreme Court held that the scope of the detention was reasonable.


    • Officers detain many people, make many traffic stops, without using handcuffs.
    • But sometimes, during a routine traffic stop or investigation, handcuffs are used.
    • In those cases it is helpful to articulate why a particular person was handcuffed.

    How would you judge the following civil lawsuit?


    In Albuquerque, at Wal-Mart, a lady wrote a check for $208 for groceries and art supplies. The cashier looked at her driver’s license and noticed the hologram was missing. The cashier called police. An Albuquerque police officer cuffed her and she sat in the loss prevention room for 45 minutes while police investigated. She didn’t resist being handcuffed or attempt to flee. Finally, she was released and told the event would be written up as an “incident.”

    A federal jury ruled against the city and she settled for $100,000. Settlements were also made with MVD Express and Wal-Mart. The Judge noted, “A generalized suspicion that a person is attempting to use a fraudulent check or driver’s license . . . is not enough to justify the immediate intrusive use of handcuffs.” Albuquerque Journal, June 26, 2006

    • It is important to articulate – state reasons – why a person presents a threat to you.



    Eyewitnesses saw, from across the street, Defendant spraying cars with paint, and described (sort of) the men to the police. Ten days later police called the witnesses to a parking lot where they picked out the only brown car as the painter’s car. Police officers then brought a man outside and from 400 to 500 yards the witnesses identified him.


    Court of Appeals held the identification was unreliable. The show-up was “highly suggestive” and tainted the in-court identification of the defendant.

    Lesson learned:

    Be careful when doing a show-up. Recommend noting the extent of what the witness saw of the suspect prior to the show-up.



    In the following section we will address concerns regarding arrest.

    • Differences between a felony and misdemeanor arrest.
    • Arrest with a warrant.
    • How location (defendant’s home or another) can affect an arrest warrant.
    • Examples of exigent circumstances.
    • Arrest and domestic violence - is an arrest mandatory or discretionary?
    • Special circumstances: Protective custody, mental disorders.
    • Drug overdose and arrests.
    • Consular Notification – what to do when a foreign national is arrested.
    • What to do with children when an adult is arrested.

    But before we begin these topics, let’s try to understand what a citizen’s arrest is.

    • A citizen’s arrest, which means to detain, allows a citizen to detain an offender until police arrive.


    Defendant in Lincoln County was watching television when he noticed headlights in the driveway. Curious, he went to his porch, looked out, and saw his truck backing down the driveway! He grabbed a pistol and drove after the truck.

    When he caught up with the truck, he confronted two repo men and pointed his gun at them. He fired a shot in the air and ordered the repo men to leave. They did. Neither he nor any member of his family attempted to call law enforcement. He argued that he was allowed to detain the two repo men because he had the right to make a citizen’s arrest. Is there a crime here? Are his actions justified?


    A citizen’s arrest is meant to help law enforcement. Here, Defendant wasn’t seeking to assist law enforcement; this was about helping himself, being the vigilante. Defendant, a former certified police officer, pled no contest to two counts of aggravated battery with a deadly weapon.

    Lesson Learned

    “Citizen’s arrest” is not an accurate term. A citizen can detain a person but a citizen cannot arrest a person. We’ll continue to call it “citizen’s arrest” but it’s really “citizen’s detention.”

    Difference between felony and misdemeanor


    • An officer doesn’t have to witness a felony to make an arrest. He or she can rely on hearsay – statements from others – as a basis for a felony arrest.


    • Misdemeanors are a different matter. A peace officer, with certain exceptions, can only make a misdemeanor arrest if it occurs in his or her presence.


    We discussed Stops, Stop & Frisk, Investigatory Detention, and Arrest. Another area, with many legal questions, involves vehicle stops. The standard for stopping a vehicle is the same as that of stopping a person:



    There are many questions – and a lot of case law – about what happens on a vehicle stop. We will address the following questions.

    • Reasonable suspicion to stop a vehicle.
    • At what point does someone become guilty of concealing ID?
    • Are there guidelines about asking for ID on a vehicle stop?
    • What happens if we stop a vehicle in another jurisdiction?
    • What about a stop based upon a “wanted flyer” from another jurisdiction?
    • Can a vehicle be stopped based upon an anonymous tip?
    • What about the community caretaker exception?
    • What’s involved in a DWI checkpoint?
    • Is there a limit as to what questions an officer can ask at a vehicle stop?
    • When is an officer in “uniform?”

    Reasonable suspicion to stop a vehicle

    A Sheriff’s deputy in Dona Ana County stopped a vehicle because he couldn’t see the expiration date on a renewal sticker. The sticker was blocked by a silver frame placed around the license plate. Court of Appeals said this was sufficient reasonable suspicion to stop the vehicle.

    At what point does someone become guilty of concealing ID?

    • Concealing Identity consists of concealing one’s true name or identity, or disguising oneself with intent to intimidate, hinder or interrupt any public officer or any other person in a legal performance of his or her duty or the exercise of his or her rights under the laws of the United States or of this state.

    • PENALTY: Petty Misdemeanor


    State Police stopped defendant for speeding. Defendant gave his full name but did not produce a driver’s license. He refused to give his address, DOB, and SS number. He was convicted of Aggravated DWI, Concealing ID, and other charges. He argued on appeal that the concealing ID conviction was invalid because he gave his full name to officers.

    • Was giving only his name sufficient?
    • Was the driver required to give additional information?


    Court of Appeals affirmed conviction. Identity is not limited to a name alone. The use of the word or (name or identity) indicates that failure to give either name or identity may violate the statute.
    A New Mexico driver must carry a driver’s license and exhibit it upon demand. The license must contain name, DOB, and NM residence address. Therefore, in an otherwise valid traffic stop, drivers have no reasonable expectation of privacy in their driver’s license or the information contained therein.


    A UNM police officer saw a Dodge pickup with a camper shell parked on UNM property. A permit was required to park there but the vehicle had neither a license plate nor a UNM parking sticker. She saw Defendant in the camper, lying in bed reading.
    She asked Defendant for ID but he refused. Her Sergeant came to assist but Defendant would only give his last name. A third officer came and Defendant finally gave his full name. In addition to criminal trespass, Defendant was also charged with Concealing ID. State v. Dawson(1999).

    • Is Concealing ID an appropriate charge? (yes)
    • Is delay in giving ID to a police officer the same as concealing ID? (yes)


    The Court of Appeals held that section 30-22-3 requires a person to furnish identifying information immediately upon request or, if the person has reasonable concerns about the validity of the request, so soon thereafter as not to cause any “substantial inconvenience or expense to the police.” The delay cannot serve to “hinder” or “interrupt” police officers.

    Are there guidelines about asking for ID on a vehicle stop?

    • The following cases point out the need to articulate reasonable suspicion prior to detaining someone. If we don’t have reasonable suspicion, or are unable to articulate it, what is seized may be inadmissible.

    Stop - ID request of a person in a parked vehicle


    An officer in Lovington, New Mexico was looking for Mr. Contreras who had outstanding felony warrants. Arriving at his residence, the officer saw a vehicle parked in front, with a man in the front driver’s seat. The man was talking to a lady who was leaning from the passenger side into the vehicle. It was about 10:00 o’clock at night.
    He pulled in behind the vehicle. No emergency lights were used. He approached the vehicle and realized, based upon previous encounters, that it wasn’t Mr. Contreras. Instead, it was Mr. Williams, the defendant. He requested ID and found that defendant had a warrant. Upon arrest, and a search of the vehicle, drugs were found.

    • When an officer requests ID, he is detaining a person (the person isn’t free to leave).
    • Police officers need reasonable suspicion to stop and detain citizens.
    • If we stop someone to ask for ID, without reasonable suspicion, the stop will be invalid and anything found from the stop will be inadmissible.
    • Will the drugs be admitted into evidence?


    Prior to requesting ID, prior to detaining this person, the officer did not suspect criminal activity. The only fact concerning defendant was that he was present in front of a house. Without more, without reasonable suspicion to suggest he was involved in criminal activity, the officer improperly detained him when asking for ID. Court of Appeals held evidence was inadmissible.

    Vehicle Stop - Requesting ID from passengers on a traffic stop


    Late at night a Ruidoso police officer saw a car drive into a parking lot of a closed business. There were four occupants, including Patterson, who was sitting in the front passenger seat. There had been several burglaries in the neighborhood. The officer asked for ID of all occupants to see “who he was dealing with” and to assist him if there were burglaries later that evening. As Patterson was getting out of the car, he was observed hiding drugs.

    In San Juan County an officer observed a car pull into a parking lot about 150 yards before a DWI roadblock. There were three occupants in the car, including Swanson who was in the front passenger seat. Each person was asked for ID and patted down. On Swanson the officer found drugs and paraphernalia.

    • Will the drugs seized in these cases be admissible? (no)

    State lost both cases! A person can be detained when there is “a suspicion that the law has been or is being violated.” But to detain someone, where the person is not free to leave, there must be an individualized reasonable suspicion that the person is involved in criminal activity. Mere presence, however, is not enough to show an individualized reasonable suspicion that a person is involved in a crime. Court of Appeals noted that the State was unable to articulate facts concerning either Patterson or Swanson sufficient to indicate individualized reasonable suspicion that they were violating the law.

    Vehicle stop: Passenger


    Shortly after midnight, in Chaves County, an officer stopped a vehicle for a faulty license plate light. Asking for ID from the driver was proper but what about the passenger? There was no suspicion that the passenger was involved in criminal activity (or armed or dangerous) but the officer asked him for his ID. After doing a warrants check, he learned that the passenger had a warrant. Upon arrest, and while doing a pat down, the officer found meth and drug paraphernalia.

    • Was it appropriate to ask the passenger for his ID? (no)


    Even though the officer was pleasant and the passenger voluntarily provided information, the passenger was being detained. To run the license through warrants meant continued detention. For continued detention there must be reasonable suspicion that the passenger had been or was engaged in additional criminal activity.

    With no suspicion, much less reasonable suspicion, regarding criminal activity on the part of the passenger, the officer had no legitimate basis to ask for ID for the purposes of checking for a warrant. Evidence seized was inadmissible.

    Vehicle stop: Owner-passenger


    Albuquerque police officer made a routine traffic stop but the driver became frustrated and confused when asked for registration and insurance. The passenger, sitting in the front passenger seat, stated it was his vehicle. The officer asked the owner-passenger for ID, did a computer check, and found he had a warrant. An inventory search resulted in the seizure of cocaine. State v. Rubio (2006).

    • Was asking for ID and doing a warrant check on the passenger lawful? (yes)
    • Will the drugs seized be admissible? (yes)

    As the owner of the stopped vehicle, Defendant, although a passenger, was responsible for assuring that the vehicle was properly registered and insured. It was reasonable for an officer to turn to the owner-passenger for answers. Court of Appeals held evidence was admissible.

    Lesson Learned

    After going over all the previous cases, it should be evident that officers are not to request ID from passengers for the purpose of looking for warrants. Other factors, however, such as a passenger trying to hide something could be a basis for asking for ID.

    What happens if we stop a vehicle in another jurisdiction?

    Vehicle stop: Fresh pursuit


    A Los Alamos police officer observed defendant driving in an erratic manner. The officer turned on the emergency lights. At first it appeared defendant would pull over approximately one-half mile from the Los Alamos-Santa Fe County Line. Defendant, however, continued to drive and stopped one-half mile beyond the county line, in Santa Fe County. The defendant determined that defendant was DWI and arrested him.

    • NMSA 1978, Section 31-2-8 gives officers authority to arrest a misdemeanor fresh pursuit traffic violation.
    • “Fresh pursuit” means the pursuit of a person who has committed a misdemeanor in the presence of the pursuing officer.


    Supreme Court of New Mexico said the stop was good.

    Vehicle stop: Venue


    A police officer in Santa Fe County clocked a car speeding and chased after it. When the vehicle pulled over, it had just crossed over the county line and was in Rio Arriba County. Defendant had an outstanding warrant and was arrested. During an inventory search, the officer found cocaine, heroin, and drug paraphernalia.
    The officer chose to file charges in Santa Fe County. Defendant argued charges should have been filed in Rio Arriba County where the drugs were found.

    • Did the officer choose the correct venue (location)?


    Venue – where a case is going to be heard – is an important part of every case. Court of Appeals held that venue was proper in Santa Fe County. NMSA 1978, Section 30-1-14 states that a trial can “be held in any county in which a material element of the crime was committed.” Possession of drugs is a “continuing offense” which occurred in each county through which Defendant traveled while in possession of drugs.

    What about a stop based upon a “wanted flyer” from another jurisdiction?

    • A stop may be based upon a “wanted flyer” issued by another department, so long as the issuing department possessed a reasonable suspicion justifying the stop. But there must be reasonable suspicion to justify a detention.

    News item:

    Mr. Martinez was accused of mailing three packages bombs but was cleared after going to trial in the 1980’s. He was placed on the FBI terrorist watch list. In 2005 he was handcuffed, put in a police car and held for an hour while the state police conferred with the FBI after being pulled over a few miles north of Santa Fe, New Mexico. State Police and others were found liable (he was given $106,000) because he was detained without reasonable suspicion that he had committed a crime or was a terrorist.

    Can a vehicle be stopped based upon an anonymous tip?


    Tucumcari Police received an anonymous tip at approximately 4:30 p.m. that (1) a Hispanic male with a long black ponytail would be transporting cocaine from Albuquerque to Tucumcari, (2) driving a green, older model Ford Econoline van, (3) heading from the direction of Albuquerque toward Tucumcari, and (4) arriving in Tucumcari at about 10:30 p.m.

    A deputy went to 1-40 and saw the vehicle heading toward Tucumcari. The time was 10:14 p.m. He stopped the vehicle and had the Defendant get out. Suddenly, the Defendant took off running. Cocaine was found in the area where the Defendant might have thrown it. He was convicted of possession of cocaine. Did the deputy, based upon an anonymous tip, have reasonable suspicion to make the stop? Did the tip have sufficient corroboration? (yes)

    Supreme Court was impressed that the anonymous tip was able to predict Defendant’s future behavior. This suggests the caller had inside information. It is reasonable that a person with access to such information is likely to have access to reliable information about the defendant’s activities.


    In Dona Ana County deputies stopped a vehicle based upon an anonymous tip of a possible drunk driver who was driving a grey van, towing a red GEO, and driving erratically. The driver was charged with Aggravated DWI. No erratic driving was observed by the deputies. State v. Contreras (2003). Is this a valid stop? (yes)


    Yes. Dispatch gave sufficient information to find the vehicle. A tip is far more reliable if it can be shown there was personal observation. Based upon the facts given, one could infer that the caller was an eyewitness.

    Dispatch operators and officers are encouraged to record the names of concerned callers and obtain as many facts as possible to determine the reliability of each caller.

    What about vehicles and the community caretaker exception?

    Officer was driving a motorcycle on Eubank Boulevard, a multi-lane street in Albuquerque. He was weaving from the right side of his traffic lane to the left side in a continuous pendulum-type movement. His motorcycle was leaning from side to side during the weaving.

    An officer stopped him. There was no reasonable suspicion that the offender had committed or was committing a crime. Officer stopped the offender because of concern for the offender’s welfare. The offender was DWI and arrested for it.

    • No reasonable suspicion? Is there a basis for the stop?


    Court of Appeals held that a peace officer may stop a vehicle for a specific, articulable safety concern, even in the absence of reasonable suspicion that a violation of the law has occurred or is occurring. Such a stop is justified by the officer’s role as a community caretaker. Conviction affirmed.

    Interstate 10, Southern New Mexico. A state police officer observed a small pickup truck, traveling at night, with its emergency lights flashing. He saw three men riding on the tailgate, their feet hanging close to the ground. Concerned for their safety, he stopped the truck.

    He approached the truck and asked for a driver’s license, registration, and proof of insurance. The driver only has a license. Investigation revealed the truck was stolen.

    • After a valid safety stop, is it permissible to detain driver for the purpose of requesting ID, registration, and proof of insurance?


    Supreme Court said there was no search here. To be a “search,” the object must be something in which a person has a reasonable expectation of privacy. New Mexico requires a driver to produce such documentation upon demand by a peace officer. There was a seizure - asking for documents - but it was reasonable.


    What’s involved in a checkpoint?

    Are checkpoints/roadblocks permitted to search for weapons? (no)

    Checkpoints are permitted only if authorized by the courts or by state statutes. There is no authorization for checkpoints or roadblocks to search for weapons.

    • An example of a valid checkpoint/roadblock would be when exigent (emergency) circumstances exist. Example: escaped convict.

    • Conservation officers may . . . establish . . . checking stations at points along established roads . . . or roadblocks, for the purpose of detecting and apprehending persons violating the game and fish laws . .

    • Checkpoints are permissible to ask for driver’s license, registration, and proof of insurance.

    Lesson Learned

    We need reasonable suspicion to stop a vehicle. However, there are at least two exceptions to this legal requirement: (1) community caretaker and (2) roadblocks.

    Is there a limit as to what questions Law Enforcement can ask on a vehicle stop?

    • Questions concerning ID have already been discussed. The following includes additional questions asked during a traffic stop.

    Sometimes an officer asks questions at a routine traffic stop that leads to the seizure of contraband. One surprise for officers is to find that it was “one question too many” and the evidence is suppressed. Officers may have to justify and articulate why certain questions are asked. The following situations provide some guidance in this confusing area.


    Officer in San Juan County stopped Defendant’s vehicle for littering. While doing a warrants check, he asked Defendant if he had any guns, alcohol, or illegal drugs in the car. It was a routine question: the officer did not have any basis to believe Defendant had contraband in his car. Defendant said no but gave consent to search his car. In a cigarette package the officer found several rocks of crack cocaine. State v. Taylor (1999).

    • Are these questions appropriate? (no)
    • Will the evidence be admitted? (no)


    The scope of an officer’s activities during a valid investigatory stop is limited by the facts giving rise to the officer’s reasonable suspicion. We would expect the officer to ask questions about littering and the traffic stop. But the officer went beyond the scope of the investigation in asking about illegal drugs and alcohol. These questions had nothing to do with the stop.

    To articulate – to include a lot of details of why you do something – can have a positive impact
    A Quay County Deputy stopped Defendant for driving without a seat belt. It was a routine traffic stop and Defendant was requested to furnish his driver’s license and registration. The deputy also asked Defendant if he had any weapons and conducted a pat down search. A vial of methamphetamine was located in one of Defendant’s front pockets.

    Generally, these questions would not be permitted and anything seized would be suppressed. But the officer in this case articulated some additional facts:

    • Failure to make eye contact.
    • Shaking hands.
    • Unusual level of nervousness.

    NOTE: Being nervous by itself is not unusual. Many people become nervous when stopped by a peace officer. But this person was extremely nervous.

    Defendant’s conviction was affirmed.

    A state police officer stopped a car on State Road 26 (the Deming-Hatch bypass) for improper display of a temporary tag. He noticed several items in the car: a cell phone, a two-ton car jack, an overnight bag, and the odor of raw gasoline. There were numerous problems with the bill of sale. The driver was very nervous, more than normal, and her hands were shaking. She seemed to be making up a story about the bill of sale as she went along. Asked about travel plans, the driver and passenger had different stories.

    But now it gets interesting. To the driver: do you have any drugs in the car? Mind if I search the car? After consent, the officer placed a fiber optic scope in the gas tank and observed numerous plastic bags of marijuana.

    • Did the officer articulate sufficient reasons to ask for consent to search? (yes)


    Because the officer sufficiently articulated facts that led him to ask for consent, the Supreme Court held that his actions and additional questions were proper.


    A Ruidoso Downs police officer stopped a vehicle involved in a possible forgery. A passenger in the front seat was the suspect. He was asked to get out of the vehicle. While being questioned, the officer found drugs on him, and he was arrested.

    It’s what happened next – two questions - that attracted the attention of the Supreme Court. The officer asked the driver if there was anything in the vehicle he needed to know about. Driver said no. The officer then asked for consent to search the vehicle. Driver agreed and the officer found meth.

    • Were these two questions of the driver appropriate? (yes)
    • Will the meth be admissible or will it be suppressed? (admissible)


    These questions were proper. The fact that an occupant of the vehicle had just been found with drugs provided the officer with a reason to believe more drugs might be found in the vehicle. It also helped that the officer was seeking to search the vehicle, not the driver, for drugs. Defendant’s conviction was affirmed.

    Lesson Learned: When asking for consent to search a vehicle for drugs, it is important to articulate reasons why you asked for consent.

    When is an officer in uniform?


    An officer, off-duty and wearing civilian clothes, was driving on a multi-lane road, Coors Boulevard, in Albuquerque, New Mexico. Suddenly, another car pulled up along beside him. The driver of the other car looked at the officer and then accelerated. The officer paced the other driver for about a mile, going at 70 miles per hour. Defendant was stopped at a point where Coors is posted at 45 miles per hour.

    The officer retrieved his windbreaker from the back seat. The windbreaker had a cloth shield on the front and a patch on the shoulder, both of which had the words “Albuquerque Police” on it. Driver was cited for speeding. Driver, a former police officer, argued that the stop was invalid because the officer was “not wearing a uniform clearly indicating his or her status”

    • Is this a valid stop? (yes) Was the officer in uniform? (yes)


    Court of Appeals noted that the question is whether there are sufficient facts that would lead a reasonable person to believe the person purporting to be a peace officer is a police officer. Conviction affirmed.


    A reminder about reasonable suspicion and probable cause

    • Need reasonable suspicion to stop and detain someone.
    • Need reasonable suspicion a person is armed or dangerous to do a “pat down.”
    • Need probable cause to arrest someone.
    • There are exceptions: community caretaker, protective custody, roadblocks.
    Last edited by cowboyridn; 03-11-2012 at 01:23 PM. Reason: add .pdf file

  2. #2
    Herr Heckler Koch

  3. #3
    Regular Member Motofixxer's Avatar
    Join Date
    May 2010
    Somewhere over the Rainbow
    A good compilation of info, I linked it to my New to OC thread for easy reference, under RAS.
    Click Here for New to WI Open Carry Legal References and Informational Videos--- FAQ's

    The Armed Badger A WI site dedicated to Concealed Carry in WI

    "To disarm the people... was the best and most effectual way to enslave them." -- George Mason, Speech of June 14, 1788 to DL useful Info

  4. #4
    Regular Member
    Join Date
    Dec 2010
    Mequon, WI
    Not sure if it helps, but when I was in academy an instructor made us remember the definition of reasonable suspicion as:
    "A set of facts or circumstances that would lead a reasonable person (meaning not a police officer, but any reasonable person) to believe that a crime has been, is being, or will be committed and that the person in question likely did commit, is committing or will commit that crime."

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