Investigatory Stop Or Voluntary Citizen Initiated Contact With Police?
An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.
With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.
The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.
Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.
This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.
Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.
At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described by the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.
(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)
As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,
As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.
And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.
(Suppression Transcript p. 6)
The prosecutor asked him when he turned on his emergency lights and he said,
I just pulled in behind her, and she started to pull over. That’s when I lit her up.
(Suppression Transcript p. 6)
On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,
I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.
(Suppression Transcript p. 13)
Defense counsel focused on the blinking left-turn signal with a few questions.
Q: Okay. And apparently, your testimony is that she had on her turn signal?
A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.
Q: So I guess there’s at least a possibility she was going to move into the left lane and –
Q: — saw your vehicle and elected not to?
A: Correct. That’s possible.
(Suppression Transcript pp. 12-13)
Defense counsel asked him to describe when she activated her right-turn signal. He said,
A: She turned her other turn signal on when she was going into the emergency lane just to stop.
Q: When she was getting ready to pull over?
(Suppression. Transcript p. 15)
When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)
Q: So, technically, you did stop the vehicle?
A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.
Q: When you fell in behind her, she pretty much –
A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.
Q: Safe assumption under those circumstances?
(Suppression Transcript 14-15)
Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.
In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.
(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)
The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?
We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.
He was the only witness who testified at the suppression hearing.
We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.
Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives. We’re still married, btw.
Cross posted at my new law blog and at the Smirking Chimp.