You and I, as citizens of the state of Texas, and of the United States of America, are supposed to be free of intrusion into our personal lives and goings on by police, unless the police can establish a justification for their intrusion. To arrest, this means probable cause. But what does an officer need to stop you on the street, and to detain you from going on about your business? The standard for a brief detention, or seizure, is “reasonable suspicion.” Think of reasonable suspicion as what a cop needs to check something out a little further; to look into something the cop believes may be related to criminal activity.
Standard for Reasonable Suspicion (i.e. What the Law Says)
Think of the Fourth and Fourteenth Amendments of the United States Constitution; Article I, Section 9 of the Texas Constitution, and art. 38.23 of the Texas Code of Criminal Procedure as armor protecting you from harassment and annoyance by police. These laws are what prevent cops from detaining everyone for any reason whatsoever. In short, they establish that a cop must have a good reason, and sufficient basis to detain or seize you.
To detain you, a cop must have specific articulable facts that, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Note that a critical part of this is that the cop can specifically articulate what he saw and what criminal behavior he thought was brewing. A cop must be able to articulate more than an inchoate and unparticularized suspicion or hunch. So, for example,
a cop testifying that a car “raised [the officer’s] curiosity as far as suspicion goes,” is absolutely impermissible—this is the kind of suspicion or hunch that our laws prohibit. A cop cannot detain someone because he thinks they might be up to something because he has have a gut feeling his stomach. If this were permissible, every cop everywhere would all of the sudden have “gut feelings” about everyone. Our law requires more than that.
Our law requires specificity. Meaning, the cop must have reasonable suspicion that some activity out of the ordinary is occurring or had occurred; some suggestion to connect the detained person with the unusual activity; and some indication that the activity is related to crime. The conduct the cop observes doesn’t have to be criminal (i.e. the cop does not have to witness a criminal offense being committed), but it does have to be out of the ordinary, and suggest a relationship to criminal activity.
And we don’t let cops use the meth they find on a person they have detained as a reason to support the detention (that led to the discovery of the meth.) This would make no sense at all. It would be to permit cops to justify detaining someone by what they found because they detained someone. It’s tautological, and makes no logical sense. So, the seizure must be measured by what the officers knew before they conducted the seizure. Reasonable suspicion cannot be obtained retroactively. A cop either has it at the very moment when he seizes a citizen, or he doesn’t.
Standard for Reasonable Suspicion (i.e. In Plain English…Kind Of)
If there is one thing that the law is good at, it’s making things sound far more complex than they are. You read the explanation of reasonable suspicion above, and think, “Wow! That sounds like a really easy standard to meet! The cop just has to say he saw X, Y, and Z, and this led him to believe Citizen was about to commit a crime! Too easy!”
Contrary to what you might see in current case law which gives immense deference to the intuition and feelings of cops, the reasonable suspicion standard is actually supposed to be tough enough to keep us all from being detained everyday by overzealous new cops fresh out of the academy who are scared of their shadow.
All of the following fact scenarios were held by the highest criminal court in Texas to NOT be sufficient reasons to detain a citizen:
That D was present in a high crime area; that it was 3:00am; that D was standing near or walking towards a residence to which officers had been in the past (officers had been to the residence nearly a 10 times combined within the year); that D watched the marked police car, and walked away from it; were insufficient to create reasonable suspicion to justify an investigative detention of D.
That D was present in a “high crime area”; thefts had been committed at the location where D was present before; D and others were driving on a dark, sparely traveled street at 1:30am; and materials were observed in their car as it drove past.
That D was driving on a sparsely travelled street at 4:45am; three burglaries had occurred in the area before, usually between the hours of 3:00am and 5:00am; and the D drove in a “zig-zag pattern” to or through the area.
So, you see that it actually used to take an actual justification to detain a citizen. All the above examples are, tellingly, from pre-9/11 cases. The standard for reasonable suspicion has not changed, but justifications such as “officer safety” and “community caretaking” have eroded the protection of constitutional armor.
What Can I Do To Prevent Cops From Harassing Me?
The best advice that I can give you is this: if a police officer stops you, and begins to ask you questions, refuse to answer and ask (repeatedly) “Am I free to leave?” If the answer is “no” or any variation thereof, you have been seized. If the answer is “yes,” then get the hell out of there. Never consent to speaking with police; never go down to the station to chat with police; and never agree to let police search you or your property unless you see a warrant.