WHAT IS REASONABLE SUSPICION & HOW TO KNOW IF POLICE HAVE IT!
Aug. 25, 2020
This is Dennis Boren. I’m a former felony prosecutor, but most of my career I’ve been a criminal defense attorney. I’m here today to talk to you about what is “reasonable suspicion.”
I recently had a client who would have gone to prison for a very long time, just because he had a cartoon on his front seat. It was on a cover of a magazine that depicted Donald Duck smoking marijuana. I’ll come back to Donald later.
The question is, based on reasonable suspicion, “Can a law enforcement officer stop you or engage you, which could lead to a detention into a search and arrest and possible prosecution in court?”
WHAT EXACTLY IS REASONABLE SUSPICION?
Let me start with reasonable suspicion. What it is and what it is not, according to the courts. It’s very important to know that it’s not just a hunch, and not just some subjective feeling that the officer may have. It must be based on articulable facts.
This means that it must be able to be expressed in some objective way, and not just based on a feeling. They have to believe that there’s some kind of criminal activity possibly afoot. So this means that the officer would have to use his senses, whether smell, sight, touch, or hearing, whatever it may be.
THERE’S NO SPECIFIC STANDARD
Unfortunately, there’s really no specific standard for what is reasonable. In general, what might make it reasonable is whether an average person in the position of the officer would have done and felt and believed reasonably, that this event was in fact a possible criminal episode.
Of course, it is from the officer’s point of view, and the court will consider the fact that the officer has had some specific training and perhaps experience in this kind of thing. So it’s not just the perspective of a man on the street but from another officer reasonably situated in the same position.
Additionally, courts really take into consideration what’s called the totality of circumstances. So everything will be considered in determining reasonableness.
WHAT HAPPENED IN MY CLIENT’S CASE
Now, back to Donald, for a second. The officer initially stopped my client because he believed he was following too closely in a traffic situation. Now, this stop, I believe, would be deemed as reasonable and would be based on a reasonable suspicion that the officer had that my client was violating a traffic ordinance or law.
Well, that’s as far as it would have gone if he just had cited him, given him a ticket for that and let him go. But I wouldn’t have met my client had the officer not gone further and believed he could search the vehicle based on Donald.
The search resulted in finding an amount of marijuana, and more importantly, THC. And it was an amount that could have landed my client in prison for up to 20 years.
THE GOOD NEWS
The good news is I was able to talk to the DA and she saw as I did. She did not file the case, based on the fact that the officer had a lack of reasonable suspicion and probable cause to conduct a search. This was very important for my client because even a charge would have ended his teaching career.
So this couldn’t even appear on his record because if it had appeared on his record, his life really would have been upended. Of course, this Donald Duck situation is based on a traffic offence, but this applies generally to all interactions with law enforcement.
WHAT YOU SHOULD DO
If you have any questions about reasonable suspicion and related topics, reach out to me, and I’ll be happy to talk with you. And always remember, if you’re interacting with a police officer, turn on your audio or better yet your video on your smartphone.