Why can the police not pull you over at any time? Or stop and search you when walking down the street? The answer is “reasonable suspicion.”
Under the Fourth Amendment of the United States Constitution, and Article II, § 8 of the Arizona Constitution, you have the right to be free from unreasonable searches and seizures. Searches and seizures performed without a warrant are per se unreasonable, subject to only a few exceptions. See State v. Fisher, 141 Ariz. 227, 236 (1984) (citing Jones v. United States, 357 U.S. 493, 499 (1958)).
In 1968, the United States Supreme Court held that brief investigatory detentions are reasonable if the officer has “reasonable suspicion.” Terry v. Ohio, 392 U.S. 1, 20–22 (1968). For example, if an officer sees you speeding, a common traffic violation, the officer can pull you over. The subsequent investigation must be “brief,” meaning the traffic stop cannot last longer than necessary to complete the purpose of the stop. See State v. Sweeney, 224 Ariz. 107, 112 (App. 2010) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Typically, that consists of checking your identification records, such as license and registration, and issuing a ticket for the violation. In fact, the Supreme Court has advised that traffic stops lasting just a second longer than the time it reasonably takes to effectuate the purpose of the stop are unlawful. See Rodriguez v. United States, 575 U.S. 348, 354–55 (2015).
Of course, there are a few exceptions. Reasonable suspicion is again one of them. If, during a traffic stop, the police officer develops reasonable suspicion of a different offense, the officer may lawfully extend the stop to investigate that offense. See United States v. Landeros, 913 F.3d 862, 867 (9th Cir. 2019) (citing Rodriguez, 575 U.S.at 356–57); see also Sweeney, 224 Ariz. at 112; State v. Kjolsrud, 239 Ariz. 319, 323 (App. 2016).
The key question, then, is what exactly constitutes reasonable suspicion. Because the initial detention and subsequent investigation must be brief, the standard for reasonable suspicion is very low. Imagine a spectrum: “beyond a reasonable doubt,” the standard for a criminal conviction at trial, would be on one end as the highest standard in the law; on the opposite end would be reasonable suspicion. By definition, “reasonable suspicion” is a minimal, though specific and objective, basis to believe that a person is or has been involved in criminal activity. See United States v. Sokolow, 490 U.S. 1, 7 (1989). Reasonable suspicion cannot merely be based on a hunch or unparticularized suspicion. And while courts afford deference to an officer’s training and experience, simple good faith on the officer’s part is not enough. See e.g., Terry, 392 U.S. at 22.
Going back to our previous example, let’s say you get pulled over for speeding. Without more evidence, the officer would not have reasonable suspicion that you’re DUI to order you out of the car to participate in field sobriety tests. If it’s also 10 PM, your eyes are red, and you say you’re coming home from a restaurant that the officer knows serves alcohol, that could raise some suspicion. But you have a strong argument that there is still no specific and objective basis to think you are under the influence. Indeed, red eyes have many innocent causes, none of the National Highway Traffic Safety Administration’s published cues of impaired driving have been observed, and there is no evidence that you even consumed alcohol.
For defendants, being able to identify when an officer lacked reasonable suspicion is critical. This is because the usual remedy for an unlawful police search is to suppress the evidence found as a result. See Mapp v. Ohio, 367 U.S. 643 (1961); see also Kjolsrud, 239 Ariz. at 326. And without any evidence, there can be no conviction.
Too often, reasonable suspicion is overlooked and taken as a given. But beyond the decisive legal issue it can present, reasonable suspicion is paramount to protecting one of our most important constitutional rights. Without the requirement for reasonable suspicion, any person could be stopped, searched, and investigated at any time and for any reason, or no reason at all.
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ABOUT THE AUTHOR
Shayna focuses her practice in the areas of commercial litigation and contract disputes, catastrophic personal injury, and criminal defense, including right-to-counsel issues, DUIs, and board advocacy for licensed professionals. In particular, Shayna has developed a niche practice handling administrative cases and representing licensed professionals before the Arizona State Board of Nursing. She also defends clients in matters involving university campus police.