Most people understand when they are under arrest because it usually involves an explicit statement from police advising the status, restraint by handcuffs, being placed in the back of a police car, and having rights recited.

However, many do not fully understand the legality of a temporary detention by police. Popular misconception has somewhat polarized the status of police encounters into one of two categories: arrest and charges supported by probable cause, and immediate release.

In fact, there exists a distinct medium between the two, and it is one that has been ardently contested in courtrooms.

Terry Stop

In deciding the landmark case, Terry v Ohio, the United States Supreme Court established rules governing police stops of citizens based on reasonable suspicion, and resultant seizing of evidence. This type of temporary detention has become known as a Terry stop or a stop and frisk.

One main distinction between a Terry Stop and a full custodial arrest is the level of restraint used. Under normal circumstances, the level or restraint used in a stop and frisk is the same level used in a traffic stop. If that level is heightened without good cause, such as non-compliance by the detainee requiring restraint for the safety of all present, the detention will be considered an arrest.

Police may temporarily suspend the liberty of a citizen for purposes of investigating the citizen’s suspected involvement in criminal activity. The burden of proof needed by police to support this type of investigatory stop is reasonable suspicion, which amounts to less certainty than probable cause, but much more than mere hunch. It must be supported by evidence or observations by police that reasonably lead them to believe that criminal activity is afoot, and the subject of the stop is an offender. If police cannot articulate to a judge the circumstances supporting the suspicion, the evidence gathered will not be allowed in court.

The concept here is that the investigation conducted during a properly executed Terry stop will allow the gathering of evidence and therefore lead to probable cause and full custodial arrest.

What Can Police Do During a Terry Stop?

Police are able to question the subject of an investigatory stop without advising of any Fifth Amendment rights, and responses to these questions are admissible in court. The holding in Miranda v. Arizona, (a landmark case creating the rule that arrestees must be advised of Fifth Amendment rights if questioned about the crime involved in the arrest) takes effect only subsequent to arrest. A person temporarily detained in a Terry stop is not under arrest.

Weapons on Person

If police can articulate a reasonable fear that the detainee has a weapon on his person, they can conduct a pat-down search of the outer garments for weapons. Suspicion of this type can arise out of circumstances such as an observed bulge the clothing around a waistline. Weapons seized in this fashion are admissible as evidence on court.

What Can Police Not Do during a Terry Stop?

Police cannot detain the subject of an investigatory stop for an unreasonable amount of time. Usually, this will be a maximum of approximately 20 to 30 minutes.  Beyond this time, the detention will be considered an arrest.

Also, under most circumstances police cannot move the detainee from one location to another without the detention being transformed into an arrest. Exceptions might be made if the scene of detention becomes unsafe for either police or detainee.

Get Legal Assistance

If you or a loved one has been arrested and charged with a crime as a result of a stop by police that led to the gathering of physical evidence or incriminating statements, protect your rights as bestowed by the Fifth and Fourth Amendments. The circumstances involved in determining reasonableness of a stop and the level of restraint used is the totality of the circumstances, meaning any and all relevant bits of relevant information. Police will be sure to reveal in court all information supporting suspicion and level of restraint; make sure you do the same. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation.