When is suspicion reasonable?

To the court’s credit, it at least stated that the decision was a “close call.”  I don’t personally feel that it was; I think the call was easy and clear.  Then again, I would have decided the case exactly opposite of what the Second District decided in State v. Foxx, a case in which the court determined that police had reasonable suspicion to effectuate a traffic stop based upon the following:

1. A gas station had very recently been robbed

2. the robber had fled on foot

3. it was the early morning hours

4.there were only 2 routes away from the gas station in the direction the robber had fled on foot

5. there were only 2 cars on the route the arresting officer chose to patrol, the car in which the defendant was a passenger and a taxi cab

5. the police arrived in the area within 3-4 minutes of the robbery.

As many likely know, in order to effectuate a traffic stop police must have reasonable suspicion (if not probable cause) that the person to be seized is up to no good.  Courts like to state that the police must be able to point to specific, articulable facts giving rise to a reasonable suspicion that “crime is afoot.”  A hunch or a gut sense is not enough, the officer must be able to identify specific facts that would objectively cause a reasonable officer in his position to feel that the defendant is engaging or about to engage in a crime.  If so, the officer is permitted to detain the individual in order to investigate and either affirm or dispel the suspicion.  This is referred to as a “Terry stop.”  The duration and intensity of the stop is guided by one of our old friends: reasonableness.  This means the stop (seizure, in 4th Amendment parlance) can last no longer than is necessary in order to affirm or dispel the suspicion that the defendant is engaging in criminal conduct.

So do the facts mentioned above rise to level of reasonable suspicion?  I don’t think so.  Sure the officer knew that someone had just committed a crime.  But how in the world was he sure that the robber was in the car he pulled over?  Reasonable suspicion, like probable cause, is person specific.  An officer must be able to state with particularity observations about this particular person or that particular car which makes the officer suspicious that he or she has committed a crime.  Simply being in the vicinity of a recent crime should not be enough to seize persons and subject them to questioning or even a pat-down search.  We all have the right to be left alone.

In reading the decision, the appellate panel focuses on the fact that the car was in the area right around the time of the robbery, that there were limited routes of escape, and that there were few others on the road at 1:40 a.m.  However, and this is important, the court did not rely on any independent observations about this particular car.  The officer had also testified that he personally observed the target car commit traffic violations and that alone would have permitted a traffic stop, but the court didn’t rely on that to uphold the seizure.

In fact, the court specifically declined to address the state’s alternative argument that the traffic violations permitted the officer to pull the car over.  It’s unfortunate the court didn’t decide the issue on that basis because that would have been an easier and better way to resolve the “close” case.  Instead, defense attorneys are left with a very unhelpful bit of precedent on the books.   Anytime there is a middle-of-the-night crime and there are few persons in the area and the police respond quickly, a prosecutor is going to throw Foxx in the face of the trial judge and say, “see there is clearly precedent for this sort of stop.”  We’ll just have to hope there are enough distinguishing facts in our case to convince the judge that the court clearly stated this was “close” and under our particular facts, it should not apply.

 

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