Dan: [00:00:04] In police stations across the country, officers start their shifts in The Briefing Room.

Dave: [00:00:09] It’s a place where law enforcement can speak openly and candidly about safety, training, policy, crime trends, and more.

Dan: [00:00:17] We think it’s time to invite you in.

Dave: [00:00:19] So, pull up a chair.

Dan and Dave: [00:00:21] Welcome to The Briefing Room.

[The Briefing Room theme playing]

Dan: [00:00:35] On this week’s episode of The Briefing Room, we’re talking about case law. Terry v. Ohio, a landmark decision that laid the foundation and boundaries for a police officer’s ability to detain and perform cursory searches of citizens. We’ll get into the background of Terry v. Ohio and we’ll discuss the relevance of the decision and how it applies to the streets today.

Dave: [00:00:58] So, it’s a case that occurred in Cleveland, Ohio, back in 1963. It was heard by the Supreme Court in 1967. So, you see kind of the delay in finally making it through all the appeals to finally make it to the US Supreme Court. But the basic gist of it is what people refer to as stop and frisk. There’s all kinds of discussions about stop and frisk and whether or not it’s constitutional, whether it’s applied evenly, those kinds of things, but a lot of situations that police encounter amount to a Terry stop. We call them Terry stops.

Dan: [00:01:38] One of the reasons we wanted to talk about this issue is to clarify what is legal under case law and what isn’t.

Dave: [00:01:44] Right. In this case in Cleveland, we have a plainclothes officer, his detail is working a foot beat. He walks around downtown in Cleveland, and he is specifically looking for shoplifters, pick-pocketers, robbers, people that are up to no good. 39-year police veterans, 35 of which he’s been a detective. So, this guy has a lot of experience people watching.

[00:02:14] On an October afternoon, he is on his foot patrol and notices two men who are about 300ft, 400ft away from him. He said that a lot of times he would just stop and watch people, just observe and see what they are up to. He doesn’t recognize these two gentlemen. He says that he sees these two men talking. One of them departs, walks down the street a little ways, stops in front of a store, looks into the window, walks a little bit further past the store, turns around, walks back, stares in the same store window, comes back to Mr. Terry.

[00:02:58] Terry then walks, does the same exact thing as his partner, Mr. Chilton, and goes up to the same store window, peers in the window, walks a little bit further past, comes back, looks in the window again, comes back down the street, confers with Mr. Chilton. Terry and Chilton repeat this each five or six times.

Yeardley: [00:03:21] Is the store open or closed?

Dave: [00:03:23] Store is open. So, this detective finds this to be suspicious behavior. I think that’s fair.

Dan: [00:03:30] What about you, Yeardley?

Yeardley: [00:03:33] I do, especially since you said the store is open. If you want to know what’s in the store, why don’t you go inside?

Dave: [00:03:39] Right. So, you talk about this officer with three decades, almost four decades of experience. He’s in his beat, in his neighborhood that he’s supposed to be patrolling. He has decades of trying to recognize suspicious activity. He sees this, and appropriately, his suspicions are aroused, like, “What are these guys up to?” A third person approaches these two gentlemen, and they talk for a little bit. And that person, the third person, walks away and goes in an opposite direction.

[00:04:13] This detective starts to pay more attention to this duo, Terry and Chilton, and thinks something’s going on. Are they about to do an armed robbery? He doesn’t know. So, he follows this group as Terry and Chilton, a little bit later, go the same direction as the third person who had approached them. They end up meeting back with this third person and this detective is like, “Okay, these guys are planning something. I’m going to go contact them.”

[00:04:45] This detective approaches this trio of people and identifies himself as a police officer. He’s at an obvious disadvantage. I mean, he’s outnumbered, he doesn’t have any back up there with him. He ends up putting his hands on Terry, spinning him around, and tells these three guys, “Hey, we’re going to go inside this business.” I’m guessing this officer wanted them in a more confined space to limit their movements and to ask the shop owner, “Can you call the police department, have them send a wagon down here? I need more bodies.” He performs a pat-down search of these three gentlemen.

[00:05:27] So, detective pats down Terry first, and he’s just patting the outer clothing. He doesn’t get intrusive, like going inside garments or anything like that, but he’s patting down for weapons. And inside Terry’s jacket coat pocket, he feels a pistol. So, he retrieves that, got one gun off of the three so far. He pats down Mr. Chilton, and Mr. Chilton has a gun on him as well. The third subject does not have a gun. So, two out of three have guns and it’s the two guys that this detective had been watching for many minutes. Terry and Chilton get arrested for carrying concealed weapons. At their trial, they go through a suppression hearing, basically saying, “This is a Fourth Amendment violation. This detective didn’t have the right to search us.”

Yeardley: [00:06:18] So, law enforcement’s right to stop and frisk these three men is the crux of this case. As in, does this detective have a reason to detain these gentlemen and pat them down or is that a violation of their right to privacy?

Dave: [00:06:34] Correct. So, when we talk about pat downs on a Terry stop, if I stop you on the basis of a Terry stop, which is reasonable suspicion, it’s not probable cause. It’s reasonable suspicion. So, less than 50%. Probable cause is more likely than not, so 51%. Reasonable suspicion is I have to articulate why I’m suspicious about this person that I’m stopping and why I believe they could possibly be armed. That can be difficult to do or it can be simple to do.

If I see a knife clipped to somebody’s pocket, I recognize that’s a knife clipped to somebody’s pocket. If I see a bulge in your pocket, I have an obvious responsibility to my own safety to say, “I don’t want that to be a big rock in your pocket, something hard that you can strike me with. I can pat down that pocket for my safety, because that’s potentially a weapon that could be used against me.” Now, if I pat it down and it’s a sock, that’s different, right, like a balled-up sock.

Yeardley: [00:07:42] Right. But you wouldn’t know that until you patted the person down.

Dan: [00:07:46] Right. It’s important to distinguish that when we talk about a pat down search or a frisk versus an actual search, they are different terms. A pat-down search is outside the clothing, over the clothing, where I’m patting pockets trying to determine whether or not I feel a gun or what’s obviously a knife or something that’s hefty that could be considered a bludgeoning weapon that could be used against me. It’s an officer safety issue. If you’re continuously putting your hands in your pockets after I tell you no, I might do a pat-down search to make sure that you’ve got nothing on you that you can hurt me with or potential evidence like a bag of drugs that you might throw in your mouth when you get your hand out of your pocket, so you destroy evidence. So, there’s reasons for us to be able to pat down.

[00:08:36] Folks, it’s for our safety. If we are inquiring about a crime, if we have reasonable suspicion, there are reasons for us to do pat-down searches. So, stop and frisk is like a pat-down search. You can feel through a pocket what a gun or a knife or something that’s hefty feels like versus a cell phone or car keys. I know what a meth pipe feels like as opposed to a marijuana pipe through clothing. So, it’s all kinds of different things.

[00:09:07] A search that we get either via consent or incident to an arrest, I can get into your pockets, I can check your waistband, I can check all these areas and more intrusively even without your consent. Obviously, you’re under arrest. I got to make sure you’re not bringing any contraband into the jail, and you’ve got nothing in the back seat while I transport you that you can hurt me with, like a gun in the small of your back. It’s happened. Cops have been shot from the back seat after missing guns on a search.

[00:09:38] So, I’ve seen people with drugs rubber banded inside their biceps, on the inside of their arms, so when they put their arms down, you can’t see anything. I’ve seen the same thing around calves. We’re really good at patting down mid sections and pockets, jeans pockets, and then we go down your legs, and a lot of times we’ll miss right behind your knees, the backside of your knees. And so, people will rubber band things trying to conceal them. They’ll put them in their socks, in their shoes, things where they don’t think the police are going to be able to feel this object. So, criminals are really creative about concealing things they don’t want the police to find. I’ve been fooled before. The worst is missing a handcuffed key in someone’s pocket, when you book them into the jail. Jail people do another search of your pockets, and they pull out, “Hey, you missed this” and you’re like, “Oh, I’m stupid.”

Yeardley: [00:10:32] Is that a universal handcuff key or they stole it from you?

Dave: [00:10:35] No, it’s universal.

Yeardley: [00:10:36] Really?

Dave: [00:10:37] Yeah. I can use one handcuff key to open every set of handcuffs I’ve ever come across in law enforcement.

Yeardley: [00:10:43] Then, why wouldn’t every suspect carry a handcuff key?

Dave: [00:10:47] A lot of them do.

Dan: [00:10:48] I’ve seen them on necklaces. They can even make them out of this hard plastic. I’ve seen them as part of a necklace of some other design and it breaks apart, and it’s a handcuff key, specifically for opening handcuffs. It’s not for any other reason to have.

Yeardley: [00:11:05] I was today years old when I found that out.

Dave: [00:11:08] Right. So, when we search someone incident to arrest, not just a pat-down search, but I’m getting in your pocket so I’m going to make sure that you’ve got nothing on you that can hurt me, it’s also for weapons and implements of escape, handcuff keys, because when you go into the jail, as the officer, I need to make sure that you’ve got no property on you, that I’ve done due diligence in making sure that I’m not bringing a suspect in who’s got a weapon or drugs.

Dan: [00:11:37] But again, the case we’re talking about today is about the more limited pat-down searches.

Dave: [00:11:44] So, in this case, Terry and Chilton, they try to get the discovery of their guns suppressed. I understand why. Like you’re charged with carrying a concealed firearm, I understand why you’d want that evidence thrown out, because then the case goes away. The trial court says, “No, sorry. This is all coming in.” And Terry and Chilton plead guilty. That triggers a series of appeals that ultimately finds its way to the US Supreme Court.

Yeardley: [00:12:15] Right. We actually have a clip of the defense argument before the Supreme Court. This is the actual audio from those arguments made on December 12th, 1967.

[clip begins]

Defense Lawyer: [00:12:27] But the product, once it has been removed, the danger has been removed. And we’re saying that in this case, since it was not based upon probable cause, we should not protect the constitutionally impermissible arrest by permitting the yield of that arrest to come into evidence against the defendant.

[clip ends]

Dan: [00:12:50] That’s legal speak, but what the defense is saying is that the guns the detective found cannot be the grounds for the charges, because they’re a fruit of an unlawful search.

Dave: [00:13:01] So, I think we’ll put a link to the case law.

Yeardley: [00:13:05] Yes, we’ll put the link in the episode description.

Dave: [00:13:08] It is fairly interesting, but the court basically said, “Under the Fourth Amendment of the US. Constitution, a police officer may stop a suspect on the street and frisk him or her without probable cause to arrest if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime, and has a reasonable belief that the person may be armed and presently dangerous.” So, while you need probable cause, PC, for an arrest, police can detain you with reasonable suspicion.

Yeardley: [00:13:42] Right. And here’s the state making that very argument to the Supreme Court, the argument that won the day.

[clip begins]

Judge: [00:13:50] This police officer in this instance had the right to investigate crime. He did see what one might, well say, were suspicious acts on the parts of people whom he thought might be preparing to commit a crime. He had a right, did he not, to pursue that farther to determine whether or not that he would have probable cause, perhaps for an arrest.

[clip ends]

Yeardley: [00:14:25] Okay, I’d like to break down what that Supreme Court audio was talking about in real-world terms, because probable cause means something very specific to you all in law enforcement. But most laypeople like me probably don’t know what those parameters are. So, Dave, can you give us a real-world example to help clarify that?

Dave: [00:14:47] Yeah. I had an example two years ago. I was a sergeant driving through a neighborhood that had been getting just hammered with people breaking into cars in the middle of the night. So, I would make it a point to drive through that neighborhood at 2, 3 in the morning, blacked out, no headlights, really slow, so you don’t hear the engine coming up, trying to catch somebody in the act. In the process of that, this neighborhood has railroad tracks bordering it to the south and a bike path bordering it to the north. This bike path is well known for being a highway that’s off the beaten path for people to get between neighborhoods without being detected by the police. Spike path, we don’t usually drive those. So, I made it a point to drive those.

Yeardley: [00:15:39] They’re wide enough for you to drive?

Dave: [00:15:41] Yeah. Single car can drive down that. It’s not what it’s made for, but I don’t expect to encounter too many people that are out for a jog at 02:30 in the morning.

Dan: [00:15:52] Right before I became a detective, I was on day watch. I would drive that same path and local residents, who were out walking their dogs or a couple were going for a walk, they would stop me and thank me for patrolling that path, because they’ve seen so much other stuff that goes on at night on that path. Stolen bikes. I’ve even recovered a stolen car on that bike path and they went back there to part it out, because you’re basically hidden from view of really anyone. It’s pretty heavily wooded and it’s remote.

Yeardley: [00:16:29] Interesting.

Dave: [00:16:30] So, in this case, I’m driving down this path, and I see a guy walking, and I had seen a bike, like the back red reflector on a bike, I had seen a flash of that as I had my spotlight and it just disappeared around a corner. I was like, “Oh, there’s a bicyclist who just came out of that neighborhood. I’m going to go find him.”

Yeardley: [00:16:51] So, just to play really dumb, what makes you think that guy on the bike isn’t just an insomniac and he’s out for a midnight ride?

Dave: [00:17:01] It’s a good question, and it comes down to the totality of the circumstances. This guy is in a neighborhood I patrol often at an hour that I know. Residents are typically not stirring. They’re not out for a walk. They’re not walking their dog. They’re not exercising. Garage doors are closed. House lights are off. So, to see a male in a hoodie wearing all dark clothing with a backpack on a BMX bike coming out of a neighborhood, I wouldn’t expect there to be any activity in, no paper boys, et cetera. And then to feel like he ducked out on me when he hit the bike path to avoid me, I’d say given the number of times that I’ve patrolled that neighborhood, all the observations I just went through that I would have a reason to believe that person is probably not from that neighborhood. So, I’m going to check him out.

[00:17:54] In this case, the guy doesn’t have bike lights. He doesn’t have a headlight, so he can’t be riding his bicycle around on city streets. So, I have PC to at least stop him, compel him to give me his identification. And if he doesn’t want to play ball, then we go from there. And so, I’m driving down this bike path, and all of a sudden, there’s a guy walking, and I’m like, “There’s no bike. I don’t see the bike. Did this guy just ditch the bike? What’s going on?”

Yeardley: [00:18:21] Does it look like the same guy, his same clothing? Can you tell that much?

Dave: [00:18:25] Different clothing. And so, I’m like, “I don’t think it’s the same guy.” So, it’s not against the law to walk down a bike path in the middle of the night. I’m looking for a bicyclist. There’s no sign of a bike, and there’s no way this guy changed outfits like Superman.

Yeardley: [00:18:39] [laughs]

Dave: [00:18:40] So, I’m thinking, I’ve got nothing on this guy. I really wanted to talk to that bicyclist. But I get out anyway and I said, “Hey, man, did you see a bicyclist just ride by?” And he’s like, “Actually, I did. Yeah, he’s going eastbound.” I was like, “Within the last 10 seconds?” He’s like, “Yeah.” I’m like, “Where did he go?” He wouldn’t answer me. He’s just really quiet and he’s like, “Can I go?” I said, “Hey, man, what’s your name?” And he goes, “You don’t have the right to ask me that.” I said, “Well, I can ask you that. You don’t have to tell me.” And he’s like, “Well, I’m not going to tell you.” I asked where he was going and he said he was headed east, but I didn’t get his name, and I conceded. I said, “You know what? You’re right. Have a good night, man.”

[00:19:20] So, he continues walking eastbound. I turn around and go back out to this other neighborhood that the bike path connects to my original target neighborhood. Look around for a few minutes and who do I come across? The guy who was walking and he’s on the opposite side of this neighborhood in the opposite direction that he had been walking and told me where he was headed. Now, I’m suspicious.

Yeardley: [00:19:45] Oh-kay. Right. So, he said, “I’m going east,” and then you encounter him again, and now he’s going west.

Dave: [00:19:51] He’s west and he’s on the west side of this neighborhood. It’s far enough that I’m like, “This guy must have ran.” So, I get out and I contact him, I stop him, and I said, “Hey, it’s me again.” And he’s like, “I told you I don’t want to talk to you.” And I go, “Well, before, you were right. You didn’t have to give me your name. But now, I’m suspicious.” He’s like, “Well, why?” “Because you are on the opposite side of a neighborhood in an opposite direction that you told me you were going in. You’re beating with sweat and you’ve got a backpack. Do you have a house in this neighborhood? What are you doing in this neighborhood?” And he says, “I’m just out for a walk, man.” I said, “Well, I’m going to need your name.”

[00:20:34] This begins a standoff. He’s not going to give me his name and he explains why he’s not. “I’m not required to. You just contacted me five minutes ago and said that I didn’t have to give you my name.” And I said, “Well, you ever heard of a case law called Terry v. Ohio?” And I explained Terry v. Ohio to him in a very simple way, but basically, I have now reasonable suspicion to believe that you’re up to something, and I believe that to be criminal activity, and I’m going to need to see some ID. You’re not free to leave. I want to make that clear. What’s your name?” “I’m not telling you.” “Okay.” So, I’m on the radio. Send me another unit. I already know how this is going to go.

[00:21:18] This guy made the mistake of having face tattoos. [Yeardley chuckles] So, I just start reading off to our dispatchers. “Can you run this guy? He’s got a tattoo under his right eye of a diamond. He’s got a tattoo on his neck of this.” And pretty soon, one of our officers named Connor, he gets me on the radio, and he goes, “It’s this guy.” I say the guy’s name. I said, “Oh, hey-” I think the guy’s name was Travis or something. “Hey, Travis.” And he looks at me like, “How the fuck did you figure that out that quick?” Just as I see the headlights of another police car coming up the street, I look at him, and I said, “Don’t run,” because I could see it on him. He’s flexing his hands, he’s starting to blade his stance like he’s going to run the opposite direction. And I’m like, “Here we go.” So, I just started to walk towards him just to put my hands on him, so you’re not getting away and the chase is on.

[00:22:13] He takes off. He made the mistake of wearing slides. He’s got the Adidas sandals on and basically just runs out of his shoes and stumbles and falls down and takes him into custody. I remember him being very upset with me until we’re in the car, and he said, “Can you explain that to me again?” And I explained, “Travis, I have reasonable suspicion and this is why. I’ll put that all in my report. You were right the first time. The second time, I was right. I’m not out here to jam you up until I have a lawful reason to.” But I think most people would agree, if you tell me you’re going one direction, and then I find you in the opposite direction, and now you’re covered in sweat, I think most people go, “Yeah, that seems a little bit suspicious. What’s he doing in that neighborhood now?”

Dan: [00:23:14] Now, where a lot of officers bungle this is the court decision is pretty clear. It has to be more than a hunch. You have to have articulable facts as to why you have reasonable suspicion that a crime is being committed, is about to be committed, or just has been committed. So, if you can’t articulate those things– And this is where sometimes young officers will just say, “He was acting suspicious.” Well, what’s suspicious? You have to articulate it. That’s where these cases, they end up going to suppression hearings, because you didn’t articulate in your report what was making you suspicious. It’s all based on your training and experience, the neighborhood you’re in. In the last three weeks, this neighborhood has been riddled with car thefts. People breaking into cars. That’s why specifically I was patrolling this neighborhood. These are all things that are relevant when you articulate these facts.

[00:24:13] If you just say, “He was acting funny. He gave me a weird feeling,” I’ve seen that in a report, what is that? What is a weird feeling? Can you tell me what a weird feeling is? Because I can tell you this. It’s not going to pass the smell test in front of a judge. But like Dave said, you just have to be able to articulate and take the loss when you have to take the loss like Dave did. Five minutes later, now, he’s developed some articulable facts and it’s a right to stop.

Dave: [00:24:44] That was a neighborhood that I would go through at least once a night, sometimes twice a night, every time I worked, and I would go at varying times. So, I had the rhythm of that neighborhood. I knew which guys went to work at 5, I knew which guys went to work at 3 in the morning. So, I had the rhythm of that neighborhood down very well. I had never seen this person ever in this neighborhood. That’s another articulable fact. It’s not like I just said, “Oh, there’s a pedestrian. I’m going to go out and contact him.”

Yeardley: [00:25:16] Dave, this Travis, as we’re calling him, was he the guy on the bike?

Dave: [00:25:21] He was not the guy on the bike. I ended up finding that guy on the bike later that night.

Yeardley: [00:25:26] [laughs] Don’t mess with Detective Dave. So, once you stop Travis the second time, and then dispatch gives you this information on him, who he is, stuff like that, other than the fact that you have this hunch that you have checked several boxes that give you reasonable suspicion that something isn’t right here, was anything going on with him? What was in his backpack? What was he up to?

Dave: [00:25:52] He had a warrant. He wasn’t being overly belligerent. He wasn’t screaming at me, calling me every name in the book or anything like that. He wasn’t compliant with his hands, I remember that. In his backpack, I think he had, we call it a rinse bag, like a little bag of drugs that wouldn’t even amount to one use, but clearly methamphetamine and some charger cords and stuff, like more than you or I would keep.

Yeardley: [00:26:18] To jump start a car kind of thing?

Dave: [00:26:21] Like phone charger cords.

Yeardley: [00:26:23] Oh.

Dan: [00:26:24] Every car burglar that I’ve ever encountered had a backpack and it was full of either burglary tools, so shaved keys, window punches, and they have charging cords everywhere.

Yeardley: [00:26:38] Those things are expensive.

Dan: [00:26:40] Yeah. And just to be clear, Terry v. Ohio also affords us the liberty and the right to pursue people when they run from us, if we can check those boxes of articulable facts that give us reasonable suspicion.

Yeardley: [00:26:54] So, just to be clear, the first time you contact Travis, he says, “I don’t have to tell you my name,” and he’s right about that.

Dave: [00:27:02] Yeah. I was looking for a guy on the bike with certain clothing on and it was clearly not him. So, I don’t have any articulable set of facts on the pedestrian. My whole focus was on this bicyclist, who I had seen peel off out of this neighborhood and catch the onramp to the bike path. So, I knew this bicyclist had just been in the neighborhood, I was going to be patrolling. And then I come across this pedestrian and I’m like, “Where did this guy come from?” But he was never my target and truly was just walking on a bike path when I first contacted him.

Yeardley: [00:27:36] So, the second time you contact him 5 or 10 minutes later, he’s now headed in the opposite direction he said he was going and he’s covered in sweat. And it’s based on your judgment when you say, “Give me your name,” that he is now obligated under the law to give you his name, he’s not allowed to refuse?

Dave: [00:27:56] On the second contact, no, because I’m covered by Terry v. Ohio.

Judge: [00:28:01] The question which was put to them by the officers, “What are your names?”, as to this, there was a mumbled, incoherent response made in reply to that particular question. And this, of course, coupled with his observations and conclusions which he had made previously. There was probable cause for this officer to further investigate for weapons under these circumstances to determine and to protect his own life here.

Yeardley: [00:28:34] So, I guess, what I’m getting at is to Travis, pedestrian, to him, the situation feels the same, even though he knows he may be up to some funny business. You are saying, “In my perception, the situation has changed, and now I’m compelling you to give me your name.”

Dave: [00:28:52] Right. I felt like I had a different set of facts between the first and second time that we met. I would hope that a reasonable person would go, “Okay, yeah, I think those are different facts.”

Dan: [00:29:02] Which is why we call it reasonable suspicion. So, for instance, you’re in a neighborhood. You as just a normal citizen say you’ve got a dog and you’re just letting your dog out. It’s 02:30 in the morning. You can’t sleep. Your dog wants to go out. You stand in your front yard. It’s a dark street. You’re not in the street, you’re not on the sidewalk. So, typically, streetlights will cast down on the sidewalk, and on the street back towards your house in your yard, it’s darker, right? You see down the street, a silhouette going back and forth across the street from driveway to driveway. Spends 10 seconds in one driveway, crosses the street, goes to another driveway, back and forth, back and forth. Reasonably, you would think, “Hey, that’s either a paperboy– It ain’t the mailman. It’s not UPS or Amazon. It’s either a paperboy, but I don’t see a big bag with a bunch of papers. I see a backpack and I see a flashlight flicker every time he goes to a driveway.”

[00:30:06] A reasonable person is going to say, that guy’s checking out cars to steal stuff. I think anybody in their right mind would side with the police, if the police stop that person, say, “Heck, yeah, stop that guy. What is he doing?” But you have to articulate it that way. If a police officer sees this happening, which Dave and I have both done, you just sit at the end of a street and just watch. You’re typing reports, you’re all blacked out in your car, and you’ve got a perfect view. And you can see silhouettes hundreds of yards away making their way towards you or away from you. You can see bike lights and those are the things that we would look for is, “I keep seeing the silhouette go back and forth, back and forth. Now, I’m going to go find that guy.”

[00:30:55] Other situations, private business at night, after hours, they’re obviously not open, and you’re driving by, and you see someone staring in the windows. I think that that’s suspicious. They’re not open. Are you window shopping?

Yeardley: [00:31:10] [laughs] Right, because it’s 2:30 in the morning and the shop closed at 06:00.

Dan: [00:31:15] Exactly. Not only that, you’ve probably got a righteous trespass in that situation also. The business isn’t open. I’ve also been to businesses– and this is why you go there, and you talk to someone. Our job is to investigate. So, I drive over there and I go, “Hey, man, what’s going on?” “Nothing.” “Do you work here?” “Yeah.” “Oh, yeah, what’s your boss’ name?” Then, we start going down the path. “Do you really work here?” “No, man, I was just looking in the window.” “Okay. Can I see some ID?”

Yeardley: [00:31:44] And you ask for identification in that case, because you are going to write at least a small report?

Dan: [00:31:52] No, I have a right to identify him though.

Yeardley: [00:31:55] Is that to see if he or she is wanted for any other crimes or–?

Dan: [00:32:01] If they have warrants, I also might do an FI, which is a field interview, which is a little card. It’s a 3×5 card. We’ve talked about FIs in the past. They’ve been really helpful in solving some crimes just by placing someone in a neighborhood when something bigger happened. You say, “You know what? I was in that neighborhood an hour before that incident, and I contacted a guy and I filled out an FI card. Let me find that Fi card,” and boom, you’ve got it. And you say, “Oh, the person that was in that neighborhood, he had a backpack. He had a pair of bolt cutters hanging out of the back of his backpack. I remember that, because it’s on this FI card that I wrote right here and say it was a car lot or something that got broken into and a padlock got clipped.” That’s a pretty good suspect.

Yeardley: [00:33:01] So, it seems like the first question law enforcement always asks is, “What’s your name?” It’s a starting point in terms of gathering information. It’s something, because you never know what’s going to happen down the line, whether it’s an hour from now, a week, a month.

Dan: [00:33:19] Or seconds from now, when he runs from you and you don’t find him.

Dave: [00:33:23] I want to know who I’m dealing with. When I run your name and dispatch comes back with a return, they tell me this is this person. They give me some brief identifiers. They also will list off any significant criminal history. So, I know if I’m dealing with somebody who’s got a history of assault, a history of theft, drugs, or sometimes, no contacts at all. Sometimes, they’ll say victim entries, which means they have been the complainant. They’ve been a victim of a crime before. It all informs me about the type of person I’m dealing with. I want more information. And so, we talk about officer safety when a police officer contacts you. It’s just normal for people to put their hands in their pockets, especially when it’s cold. Cops are afraid of pockets.

[00:34:12] We’re taught from day one, “Can you take your hands out of your pockets?” Because that’s where weapons get stored. I don’t want your hands in your pockets. I understand you want to put your hands in your pockets because you’re cold. So, I’d say, “Hey, can I at least pat your pockets down so I know there’s nothing in there? Then you could put your hands in your pockets, no problem. Just get out in front of it.” But people don’t like being told what to do by the government, right? So, sometimes when you ask somebody, “Hey, when you take your hands out of your pockets” and they refuse, that gets my blood pressure going, because I go, “Why wouldn’t you just take your hands out of your pockets? Now, I’m worried about who you are. Now, I’m also worried about what you have in your pockets and why you’re being noncompliant with a really simple request. Just take your hands out of your pockets, man. We’re a nervous bunch. I don’t want your hands in your pockets.”

[00:35:05] Or when somebody turns away and tries to conceal or secrete one of their hands so you can only see one plane of their body. I see those on body cam videos, and I’m like, “Here it comes. They’re going to pull a gun, they’re going to pull a knife, they’re going to pull a bag of drugs.” They call them furtive movements. When you’ve dealt with people in the criminal element for even a matter of weeks, that gets ingrained into your brain that you recognize when somebody’s doing the feigned compliance, or they’re about to run, or they’re about to fight clenching their fists, grinding their teeth, you can see the veins in their neck pop.

Yeardley: [00:35:46] So if you, as a law enforcement officer, feel a growing sense of danger, does that trigger the probable cause provision of Terry v. Ohio? Can you search a person or pat them down at that point?

Dan: [00:35:58] If I can articulate that I have concerns for my officer safety or safety for others around me, then I have reached that threshold and I can pat someone down for weapons.

Yeardley: [00:36:08] Okay.

Dan: [00:36:09] It’s not something that we’re really gauging. It’s a very fluid situation.

Yeardley: [00:36:14] Sort of on a case-by-case basis.

Dan: [00:36:16] Yeah. If you’ve been doing it long enough and you are experienced and you’ve trained and you’re knowledgeable, you just know when you’ve reached that threshold.

Yeardley: [00:36:26] Right.

Dan: [00:36:27] One of the first big fights that I got into, it was a guy that had been abusing his wife, and he was not on scene when I showed up. Her friends had showed up to support her, and we were standing in the front yard, and this victim’s husband came back, and she says, “Well, that’s him right there.” And I go, “Oh, well, hey, let’s go have a chat over here.” This doesn’t really have to do with Terry v. Ohio, but I’d always been told and I never really believed that when people are getting ready to fight you, they actually show you that they’re about ready to fight you.

[00:37:03] I remember watching this guy clench his fist while I was talking to him. He was looking back and forth over his shoulder, like, “Where am I going to run to after I hit this cop.” And then he literally pushed his sleeves up like a cartoon.

Yeardley: [00:37:20] [laughs] Like Popeye?

Dan: [00:37:21] When they get ready to fight with you, he pushed his sleeves up to his elbow and I was like, “Huh, I think this guy’s getting ready to punch me,” and he took a swing at me, and he missed, and the fight was on, and he went to jail. But that always stuck in my head. I just noticed these things and I was like, “Holy, they really do it. They really do do it.”

Yeardley: [00:37:46] [laughs]

Dave: [00:37:47] It’s funny. You can tell when somebody is going to fight, you can tell when somebody’s going to run, I got to be fairly good at it. A lot of people ran from me. I might not have caught them, but I was pretty good on a radio, so I could put people in a position to catch somebody. But I got fairly good at recognizing, “Okay, I’m about to be in a race that I’m probably going to lose.” I would say, “Do you want to stretch out before you take off?”

Yeardley: [00:38:11] [laughs]

Dave: [00:38:13] Just because I want him to know that I know you’re about to outrun me, but I saw it first. So, you see things like that. Every experience just goes in the piggy bank, right? You’re like, “I’ve seen this before.” So, going back to Terry stop, the ruling, and I think this is important, says, a stop and a frisk amount to “a minor inconvenience and a petty indignity.” That when a Terry stop is done correctly, it’s minor. It’s not that intrusive.

Judge: [00:38:45] The court stated further that this, of course, was just a minor inconvenience with the personal liberty that is guaranteed and that therefore, each citizen ought to be willing to give up this amount of his personal liberty in order that they might have effective law enforcement in the community.

Dave: [00:39:07] If a police officer has reasonable suspicion to stop you, it’s not up to you, the suspect or the citizen being stopped, to define what’s reasonable. I promise you, you probably don’t know the law as well as police officers do. You might, but if a police officer feels like he has a reasonable suspicion to stop you and says, “Hey, you’re not free to leave,” it’s time to start complying. It doesn’t mean you’re going to jail. It doesn’t mean it’s even going to take three minutes. It just means, “Hey, I have a reasonable suspicion to stop you, identify you, and make sure that everything’s on the up and up.” The courts recognize, that’s a minor inconvenience to the citizen. But it’s an essential job function for police officers.

Yeardley: [00:39:53] Yeah, but what if I don’t agree with you stopping me? What if I have a problem with that?

Dan: [00:39:59] I’d say you’re welcome to your opinion about that, and you may feel like you’re not being legally detained. I can tell you that that’s not the time to protest. You’d rather use the legal system to protest it, so in court, potentially. That’s when you protest. What we’re looking for in that situation is compliance. That is not the time for debate and that’s safest for everybody involved. Now, I’m not saying that there aren’t officers who abuse that, because obviously they do. And this is why we have case law.

Yeardley: [00:40:33] Right. I know there was a controversial use of stop and frisk in New York City, which led to a class action lawsuit and changes in the policy when that policy was challenged in 2013. Can you tell me how did what they were doing in New York differ or did it differ from Terry v. Ohio?

Dan: [00:40:55] There were two main criticisms. Stop and frisk was being used way too often and it was racially motivated. Those are problems. I know they were in some neighborhoods that were high crime neighborhoods, but they found some disparities racially among who was actually being stopped and frisked. That created the controversy, is that it wasn’t– Again, it wasn’t about articulable facts. It was just, “Hey, see those guys walking down the street right there? Let’s go stop them and frisk them.”

Dave: [00:41:25] Applied too liberally and unevenly, and without articulable facts, then we’re not operating in this sweet spot that’s between reasonable suspicion and probable cause. If you can get to reasonable suspicion and probable cause, you’re covered. But if you fall short of reasonable suspicion, you’re not operating within the law.

Dan: [00:41:47] This is where police lose some of our liberties, because case law changes and they rewrite the rule book on us. There were officers that I worked with, where they did some questionable things, and you go talk to them and say, “Dude, you can’t do that.” I’d hear him defend it, I’d hear him say, “Well, so and so taught me.” And I would say, “Well, so and so is wrong.” This conversation could go on and on. That’s why it’s imperative that you have good FTOs that are up on case law that understand procedure. So, yeah, we’re always a decision away from losing some of these–

Dave: [00:42:24] Authority.

Dan: [00:42:25] Yeah. Terry v. Ohio, when applied correctly, it’s invaluable to the police. Applied incorrectly, it’s terrible.

Yeardley: [00:42:36] Right. So interesting. I love these discussions about case law and the things that law enforcement need to comply with to do the job in the best possible way. There are some incredibly nuanced, but all really valuable and I think it’s great for the public to know. So, thank you, both.

Dave: [00:42:57] Yeah, it’s just important to note that throughout that decision, the word reasonable and unreasonable is used over and over and over again just like the other cases.

Yeardley: [00:43:08] Reasonable should be put at the top of every door of every precinct.

Dave: [00:43:12] Educated and well trained and well-intentioned cops are very familiar with that term.

Dan: [00:43:17] I don’t know. Putting a sign over every door, it seems a little unreasonable though.

Yeardley: [00:43:21] [laughs] [The Briefing Room theme playing]

Dave: [00:43:27] These Terry issues are challenged in courtrooms every day across the country. I’ve been on the losing end of a couple of these challenges and guess what? I learned. I didn’t take it personally and I made the adjustment.

Thanks again to our listeners. We’re back next week with a 2-parter, a lengthy discussion with someone from the dark side, one of my favorites, Lisa, the defense attorney.

[music]

Yeardley: [00:43:55] The Briefing Room is produced by Gary Scott and me, Yeardley Smith and coproduced by Detectives Dan and Dave. This episode was edited by Soren Begin, Gary Scott, and me. Our associate producers are Erin Gaynor and the Real Nick Smitty. Our social media is run by the one and only Monika Scott. Our researcher is Delaney Britt Brewer. Our music is composed by Logan Heftel and our books are cooked and cats wrangled by Ben Cornwell. If you like what you hear and want to stay up to date with the podcast, please visit us on our website at smalltowndicks.com/thebriefingroom. Thank you to SpeechDocs for providing transcripts. And thank you to you, the best fans in the pod universe for listening. Honestly, nobody’s better than you.

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