Terrorism Based Terry Stops

II. Case Law

A. Supreme Court

1. Investigative Detentions Require Reasonable Suspicion, not Probable Cause

a) Terry v. Ohio, 392 U.S. 1, 21 (1967)

“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion…This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence… And simple “‘good faith on the part of the arresting officer is not enough.’ . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate…”

b) Alienage Alone Does Not Justify Reasonable Suspicion

U.S. v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)

“Although we may assume for purposes of this case that the broad congressional power over immigration (citation omitted) authorizes Congress to admit aliens on condition that they will submit to reasonable questioning about their right to be and remain in the country, this power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. For the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens.”

“Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.”

“The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens.”

c) Alienage Is a Permissible Factor When Coupled With Articulable Facts

U.S. v. Cortez, 449 U.S. 411, 631 (1981) (Justice Marshall concurring in the judgment that there was reasonable suspicion to stop a vehicle containing illegal aliens)

“The Border Patrol officers in this case knew, or had rationally deduced, that “Chevron” had repeatedly shepherded illegal aliens up from the border; that his treks had commonly ended early in the morning around milepost 122 on Highway 86; that he usually worked on weekends; that he probably had made no trips for two weeks; and that trips were most likely when the weather was good. Knowing of this pattern, the officers could reasonably anticipate, even if they could not guarantee, the arrival of another group of aliens, led by Chevron, at milepost 122 on the first clear weekend night in late January 1977. Route 86 leads through almost uninhabited country, so little traveled in the hours of darkness that only 15 to 20 westbound vehicles passed the police during the five hours they watched that Sunday night. Only two vehicles capacious enough to carry a sizable group of illegal aliens went by. One of those two vehicles not only drove past them, but returned in the opposite direction after just enough time had elapsed for a journey to milepost 122 and back. This nocturnal round trip into “desolate desert terrain” would in any event have been puzzling. Coming when and as it did, surely the most likely explanation for it was that Chevron was again shepherding aliens.

In sum, the Border Patrol officers had discovered an abundance of “specific articulable facts” which, “together with rational inferences from “[them],” entirely warranted a “suspicion that the [vehicle] [contained] aliens who [might] be illegally in the country.” (citing Brignoni-Ponce).

B. Investigative Detentions Based on Informant Tips Need Some Indicia of Reliability

1. Reliable Informants

Adams v. Williams, 407 U.S. 143, 147 (1972)

“The informant was known to [the officer] personally and had provided him with information in the past. This is a stronger case than …an anonymous telephone tip. The informant here came forward personally to give information that was immediately verifiable at the scene.”

“Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations -- for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime -- the subtleties of the hearsay rule should not thwart an appropriate police response.”

2. Anonymous Informants – Corroborate Details Predictions

Alabama v. White, 496 U.S. 325 (1990)

“Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop.”

“[B]ecause an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.”

“We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted… What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information -- a special familiarity with respondent’s affairs… Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.”

C. The U.S. Supreme Court on Terror Related Justifications for Terry Stops

1. Bomb Tips

Florida v. JL, 529 US 266, 273 (2000)

“The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U.S. 1, 83 L. Ed. 2d 165, 105 S. Ct. 308 (1984) (per curiam), and schools, see New Jersey v. T.L.O., 469 U.S. 325, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.”

2. Roadblocks

Indianapolis v. Edmond, 531 US 32, 44 (2000)

“Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. (citation omitted). The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.”

D. Recent Decisions Involving Terrorism Based Stops

1. Anonymous Tip Corroborated by Articulable Facts

U.S. V. Ullah, 2003 U.S. Dist. LEXIS 4166 (S.D.N.Y. 2003)

On October 24, 2001 witnesses observed an Arab man dressed as a postal worker riding a city bus in New York City. Some passengers followed him when he got off the bus and noticed him take some items from his mailbag and toss them into two separate mail boxes. A nearby Port Authority police officer was summoned and when he approached the mail carrier, he began to back away and looked scared. The officer observed the man placing something into a mail box and, aware of recent anthrax mailings, asked him what he was doing. Instead of answering, the man turned around and walked away. The officer grabbed him by the arm and a struggle ensued. Not believing the man was really a postal worker, the officer handcuffed him and seized the mailbag. The man was questioned by postal inspectors and the FBI. A Hazmat team inspected the bag and the mailboxes where he was seen depositing the items.

Ultimately, it was discovered that the defendant really was a postal carrier, but he was engaged in visa fraud. His voluntary statements made while in custody were the subject of a motion to suppress, claiming the stop was not based upon reasonable suspicion and his removal from the scene was not based upon probable cause. In rejecting both claims, the court stated, “There was probable cause to believe that the defendant was engaging in terrorist activities or impersonating a postal employee or both, and that the mailbag he was carrying contained a dangerous substance. It was reasonable for the authorities to believe that their own safety, as well as that of the public, would have been compromised absent immediate action. If this case does not present exigent circumstances, there is none that will.”

2. Ethnicity Is A Factor That Need Not Be Ignored

U.S. v. Vite-Espinoza, 2003 U.S. App. LEXIS 17624; 2003 App. 0300P (6th Cir.)

Joint task force executed a federal search warrant at a residence based on probable cause to believe it was being used to produce counterfeit immigration and identification documents. During the investigation leading up to the warrant, officers recovered trash from the residence, finding remnants of marijuana and Mexican birth certificates. Upon arriving to execute the warrant, officers observed two Hispanic males in the back yard. They were frisked and a weapon was discovered. They admitted to being in the U.S. illegally and evidence of the counterfeit documents was also discovered in the residence.

Ruling that the defendants appearance was a permissible factor to consider in determining reasonable suspicion to detain them, the court noted, “rational inferences warranted reasonable suspicions that those encountered on the premises would either be counterfeiters themselves or their illegal alien customers, because legal residents have of course little need for counterfeit documents, or that they would be armed and dangerous, because drug traffickers tend to be so.”

Reaffirming that ethnicity alone is insufficient to establish reasonable suspicion, but together with other articulable facts, it may be considered, the court stated, “The ‘racially-biased assumption that . . . a man of color wearing dreadlocks . . . must have been an illegal alien from Jamaica’ in combination with the ‘long-discredited drug source city rationale’ was insufficient to create reasonable, articulable suspicion. (citation omitted). Even if ‘the totality of the circumstances [created] a reasonable basis for suspecting that some roofers [in a town] might be illegal aliens,’ it did not by itself create reasonable suspicion that a particular Hispanic roofer was an illegal alien. (citation omitted). To fairly quote these precedents is to refute the defendant’s argument. All of these precedents merely hold that some particular suspicious circumstances present here are by themselves insufficient to create reasonable suspicion; none of them hold that these circumstances are irrelevant or must be disregarded; many of them hold that they are valid factors in a determination of reasonable suspicion.”

3. Membership in a Criminal or Terrorist Organization

State v. Milette, 727 A.2d 1236 (R.I. 1999), cert. denied 528 U.S. 1157; 120 S. Ct. 1164 (2000)

During a traffic stop for speeding, trooper (who was a former Secret Service agent familiar with gang culture) observed tattoos indicating the two male occupants were skinheads. The ACLU argued on behalf of the defendants that the subsequent frisk and discovery of an unlawfully possessed firearm was improper. The court responded, “We reject this novel exposition on the breadth of the First Amendment and conclude that Milette’s First Amendment rights, including his rights to freedom of expression and association, were not compromised merely because an experienced police officer utilized known law enforcement criteria to formulate an articulable suspicion. Police officers in the field are simply not required to weigh free speech or political correctness considerations in reaching either probable cause conclusions or in formulating an articulable suspicion that a suspect may be armed and dangerous. The suggestion that the search of the vehicle was motivated by Milette’s political beliefs or an expression of his ideas is simply without merit.”

The court concluded with, “This is not to say that evidence of an individual’s association in a radical or subversive organization standing alone can justify a search and supply the requisite probable cause to obtain a search warrant. However, an officer’s actual knowledge of an organization’s political goals and modus operandi, including its penchant for illegal weapons, is a valid factor that an officer may consider, along with other articulable facts, in concluding that criminal activity may be afoot. In conclusion, we are satisfied that no First Amendment rights are compromised by the utilization of known facts about a terrorist or subversive organization, along with other objective criteria available to an experienced police officer in the field.”

4. Citizen “Concern” About Terrorist Not Sufficient to Establish Probable Cause for Vehicle Search

People v. Elio, 193 Misc. 2d 533; 750 N.Y.S.2d 738; 2002 N.Y. Misc. LEXIS 1478 (City Court of New York, Mount Vernon 2002)

“As an initial matter, this case presents the novel issue of whether heightened awareness and concern about terrorist activity after September 11, 2001 changes the scope or nature of the exceptions that permit warrantless searches of automobiles. With respect to the facts and circumstances of this case, the court finds that it does not.”

The defendants were charged with trespass and possession of graffiti instruments discovered during a warrantless vehicle search. On January 2, 2002, at approximately 1:00 A.M. a witness saw two individuals on an embankment near railroad tracks in the City of Mount Vernon--an area where, he believed, only railroad workers would be located. The witness said the two suspects were wearing hooded clothing and carrying knapsacks, and did not look like railroad employees. He saw the individuals return to a vehicle parked on the street area near the tracks. He testified that he saw the individuals crossing the train tracks and carry items back and forth from the vehicle to the tracks in knapsacks. Fearful that terrorist activity was afoot, the witness contacted the local police. He also continued his own surveillance until the police arrived. He led the police to the spot on the train tracks where he had last seen the individuals. The two were spotted and ran. After the police chase was unsuccessful in apprehending them, the witness led the police to the vehicle. The police opened the unlocked car doors, one of which had been ajar, and searched the vehicle and removed some knapsacks--which were open--to survey their contents.

When defendants returned to the vehicle approximately one hour later, they were arrested and the witness returned to verify identification in a showup. Although the witness testified that at the time of the incident he had been apprehensive about the contents of the vehicle (he thought the car might contain some type of terrorist devices), there was no evidence other than his concerns about such a situation. No credible evidence was presented that any exigent circumstances existed to permit the search of the vehicle without a warrant. The witness’s heightened concern about terrorist activity even in the wake of September 11, 2001, without more, is insufficient to establish exigent circumstances or probable cause.

5. Need to Identify Driver During Traffic Stop Justified by Terrorism Risk

Hiibel v. Sixth Judicial Dist. Court, 59 P.3d 1201 (Nev. 2002)

Nevada Supreme Court affirmed a conviction for resisting a public officer when a DWI suspect refused to identify himself after 11 requests by an officer, stating, “… we are at war against enemies who operate with concealed identities and the dangers we face as a nation are unparalleled. Terrorism is ‘changing the way we live and the way we act and the way we think.’ n24 During the recent past, this country suffered the tragic deaths of more than 3,000 unsuspecting men, women, and children at the hands of terrorists; seventeen innocent people in six different states were randomly gunned down by snipers; and our citizens have suffered illness and death from exposure to mail contaminated with Anthrax. We have also seen high school students transport guns to school and randomly gun down their fellow classmates and teachers. It cannot be stressed enough: ‘This is a different kind of war that requires a different type of approach and a different type of mentality.’ n25 To deny officers the ability to request identification from suspicious persons creates a situation where an officer could approach a wanted terrorist or sniper but be unable to identify him or her if the person’s behavior does not rise to the level of probable cause necessary for an arrest.”

n24 Interview by Tony Snow with Senator Tom Daeschle, United States Senate, Washington, D.C. (Oct. 21, 2002), http://www.foxnews.com/story/0,2933,66236,00.html

n25 President George W. Bush, Address During a News Conference (Oct. 11, 2001), http://www.cnn.com/2001/US/10/11/gen.bush.transcript/index.html

6. First Amendment Does Not Protect Defendant Charged with Inciting a Riot and Disorderly Conduct Who Aggressively Praised Terrorist Attack

People v. Upshaw, 190 Misc. 2d 704; 741 N.Y.S.2d 664; 2002 N.Y. Misc. LEXIS 203 (Criminal Court of The City of New York, New York County 2002)

Within days of the September 11, 2001 terrorist assault on the World Trade Center and on 42nd Street in the vicinity of Times Square, defendants shouted at a gathering crowd of approximately 50 people in praise of the terrorist attack and the resulting deaths of police officers, firefighters, and civilians. They vehemently expressed their shared disappointment that the carnage had not been greater; and accosted people in the crowd, yelling in the onlookers’ faces, “We’ve got something for your asses.” Arguments ensued between defendants and some of the crowd, and the defendants refused to disperse after police officers asked them to do so.

“In analyzing whether the allegations in the complaint evince defendant’s intent that his alleged conduct lead to riotous behavior, and whether his alleged conduct created a clear and present danger of riotous behavior, it is necessary to consider defendant’s words and deeds in the context in which he and his alleged accomplices spoke and acted. (See Schenck v United States, 249 US 47, 52 [1919] [in analyzing question of “clear and present danger,” court must look to circumstances in which the speech occurred and nature of the words].) The alleged crime took place only days after one of the greatest catastrophes this nation has suffered --the overwhelming brunt of which was felt most keenly here in New York--and within sight of the massive smoke plume emanating from the still-smoldering mass grave site that had been the twin towers of the World Trade Center. It took place while many New Yorkers were grieving for the loss of loved ones or praying in hope that the missing might yet be found, and as New Yorkers, indeed, all Americans, held their collective breath at what, at the time, appeared to be the likelihood, if not the inevitability, of additional terrorist attacks. It was under these circumstances that defendant and his cohorts allegedly chose a crowded 42nd Street near Times Square as their venue not merely to engage in what any reasonable person would consider to be a vile and morally reprehensible diatribe, but to intentionally confront the gathering crowd, at point blank range, for the purpose of inciting riotous behavior…The talismanic phrase “freedom of speech” does not cloak all utterances in legality. ‘It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.’ (Feiner v New York, 340 US 315, 321 [1951].)”

III. DOJ Policy on Racial Profiling

http://www.usdoj.gov/opa/pr/2003/June/racial_profiling_fact_sheet.pdf

Available for download at the DOJ website is a six page “Fact Sheet” stating the policy with examples of what is prohibited and what is allowed. All federal law enforcement agencies are bound by the President’s policy, and not just those within the Department of Justice. The policy specifically restricts law enforcement activity to a greater degree than constitutionally required, except for identifying terrorist threats and preventing potential catastrophic attacks. This policy is only binding on federal law enforcement, and not on any state or local law enforcement agency.

A. Regular Law Enforcement

In “routine or spontaneous law enforcement decisions” federal officers may not use race to any degree, except when a specific suspect description exists.

B. National Security Related Law Enforcement

Race and ethnicity may still be used in terrorist identification to the extent permitted by the Constitution. Generalized stereotypes are still prohibited by the Constitution, but officers engaged in border protection, airport and transportation security, preventing threats to national security or other catastrophic acts may continue to consider race or ethnicity if there is a particular reason or threat warning.