For You Lawyers Out There

Yesterday one of the students I coach asked me a question about criminal constitutional rights -- how long can a cop detain you at a Terry stop if you choose not to answer any of his questions?  I had no idea how to answer.  If you do, it would help me look smart. 

And also yesterday I thought about the Federal Sentencing Guidelines, of all things, during an athletic department meeting when we were discussing whether the athletic department should have a uniform policy across teams that addresses alcohol abuse among players, or whether the university's policy was sufficient, or whether individual coaches should each set their own policies.  The circularity and repetition during the athletic department conversation made me long for my days as a lawyer.  It's an interesting and important and complicated discussion -- how coaches model and enforce codes of social behavior on their teams, the benefits of uniformity and consistency versus the value of discretion and individualized responses, the effectiveness of the college's policy and its enforcement on campus, the risk that a hard-line policy would drive abuse underground and close off the chance for players to give coaches tips about who on their team needed help or support or monitoring -- and it was full of passion and divergent views that were worth listening to.  But it went around and around and veered off topic, too.  A roomful of lawyers would have managed the discussion differently, and used different words.  I suspect a roomful of lawyers wouldn't make better decisions on the topic.  But they would have sounded more articulate and been way way more organized when talking about it.

Comments

[mad]

To initiate a "Terry stop" or investigative detention, a cop must have reasonable suspicion, grounded in specific facts, that the person is involved in a crime or is wanted in connection with a completed crime. The stop may continue only long enough to dispell the officer's suspicion (unless, in the course of the stop, probable cause develops that the person has committed a crime, in which case the officer can arrest her).

Thus, if the person refuses to answer any questions, the officer cannot detainer her further unless he has probable cause. If probable cause exists, the cop can turn the Terry stop into an arrest.

As a practical matter, there are a great many circumstances that could follow the person's refusal to answer questions that might or might not turn the detention into an arrest (for example, cop requesting permission to do a search of the person's backpack; cop putting person in the police cruiser while he runs a driver's license check for warrants, etc.).

Also, I'm not so sure you'd get a more coherent discussion about the sentencing guidelines from a bunch of lawyers. ;-)

[Nancy Drew]

From my recollection of Crim Law, I would guess it's some sort of "reasonableness" standard. Isn't it always? I hate when people ask me legal questions in areas of which I know nothing - which is generally everything with a few niche exceptions. But the great thing about being a lawyer, is if you can give a vague response with confidence (and lots of extra big words), the person asking comes away thinking they got an answer but they just don't understand it. Stated with confidence, "As is usually the case with most legal questions, the answer to your question depends on the circumstances. Were you involved in questionable activity, did you attempt to walk away from the officer before stopping, et cetera, et cetera. Generally, a reasonableness standard would be applied to this type of Terry Stop situation. Of course, unless the officer is brought up on charges for violating your rights in this instance, there is no clear definitive answer. If, however, you feel constitutional rights have been violated to the extent that you are compelled to file a civil rights violation against the officer in accordance with applicable federal, and possibly, state laws, then it's probable the actions of the officer has 'shocked the senses' and been 'unreasonable' in his actions. Of course, that would be up to a judge and jury to decide."

[The Happy Feminist]

Mad said it all.

My two cents it that the cops often think that refusal to answer questions in itself constitutes further reasonable suspicion or even probable cause. This is patently false but the reality is that a person may wind up being detained longer than is lawful. That person's remedies may include suppression of any statements he or she makes during the unlawful detention, or a civil rights claim (which may or may not be worth much depending on how long the unlawful detention lasted and what its circumstances were).

Why does a university or any of its sporting departments need an "alcohol abuse" policy? Surely it is a question for individuals to resolve: Too much booze will stop them playing well or studying well, but that is their choice, and does not affect the rest of the organisation any more than their withdrawing because they disliked the policy.

[girltuesday]

My recollection is that the Maine Law Court follows Terry. Police may make brief, investigatory stops of people on the basis of “‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’” State v. Moulton, 1997 ME 228, P10, 704 A.2d 361, 364 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). An officer does not violate the Fourth Amendment “by merely approaching an individual on the street or in another public place, or asking her if she is willing to answer some questions.” Id. (citing State v. LaPlante, 534 A.2d 959, 962 (Me. 1987)).

If it is a Terry-type stop, the detainment must be brief and participation voluntary. (I concur with HF's two-cents: refusal to answer questions may give rise (if only in the minds of police) to reasonable suspicion or even probable cause for futher detainment.)

[PG]

"Why does a university or any of its sporting departments need an 'alcohol abuse' policy?"

Because 18 year olds, despite most laws to the contrary, are not adults. Even if it turns out that there was no violent crime committed in the Duke case, I think it is increasing the amount of discussion among college administrators and especially coaches on oversight of their players' lives. I don't think this is meant in a purely punitive way, either. I didn't play sports in college, but I was in a particular academic program and also lived in residential colleges, and I appreciated that certain grownups felt an obligation to check in on me, even when their questions sometimes made me sullen and uncomfortable (I don't know why I didn't get that paper written, I just didn't, OK?!). I'm glad Scherazade's players have someone like her to play that role in their lives.

[Scheherazade H.]

From an English lawyer to be: what on earth is a Terry stop? I know about the custody timelines here but they are probably very different from the US ones.

[gt]

sh: "Terry stop" is named for the type of detainment at issue in the US supreme court case Terry v. Ohio. as noted above, it (usually) permits brief stop & frisk by the police based upon reasonable suspicion. cute, no?

[Richard Ames]

Terry only told the police what kind of reasonable suspicion they have to make up for the stop to appear constituional, in effect making almost any stop constitutional, since almost any policeman can make up facts to fit Terry.

[womanofthelaw]

The cops will detain you long enough to shove their hands in your pockets, arrest you for possession of a weapon (pocket knife) or drugs (personal use marijuana) and then you spend days waiting to see a judge, at which point when you do finally see a judge the case either gets dismissed or otherwise resolved.

6 months a public defender, and already I've thrown my hands up in defeat. Law has no place in the courtroom, it seems.

[The Happy Feminist]

I must object to the broad assumption implicit in Richard's comment that "almost any policeman" is going to lie to make up facts to fit Terry. While I have certainly met policemen who are less than honest, I do not believe that they are all bunch of liars. Far more common in my experience are police officers who violate people's constitutional rights simply by virtue of screwing up or being confused about the law or tending to interpret the law to allow themselves more power than they are supposed to have. That's why it's good to have caselaw like Terry to clarify the appropriate standards.

[Ima Fake]

When God became man, and walked among us, the very first miracle he performed was to bring booze to a party. Wine is God’s gift to man.
Schools attempt to crush the human being, to make us all part of the fascist state. Of course, they want a central policy. Any kid that drinks too much must have his life ruined. People today need to know that the state is everything and that those who do not fall into line will be destroyed.

[oem software]

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