CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, December 6, 2021

Bloom on Terry Stops

Aliza Hochman Bloom (New England Law | Boston) has posted When Too Many People Can Be Stopped: The Erosion of Reasonable Suspicion Required for a Terry Stop in the Eleventh Circuit (Alabama Civil Rights & Civil Liberties Law Review, Vol. 9) on SSRN. Here is the abstract:
The Supreme Court and the Eleventh Circuit each acknowledge that the 'reasonable suspicion' required by the Fourth Amendment for a warrantless stop is imprecise. Nearly five decades after the Supreme Court’s decision in Terry v. Ohio, courts find it difficult to explain what level of detail constitutes reasonable suspicion to stop a potential suspect following a completed crime. Given that judicial review of investigatory stops is based upon the totality of the circumstances before a law enforcement officer at a particular time, all relevant legal precedents are highly fact specific, making it difficult to determine the level of detail required to support reasonable. Moreover, some factors that the Supreme Court has found pertinent to assess reasonable suspicion are irrelevant when the warrantless stop occurs following a completed crime.

A review of Eleventh Circuit decisions assessing Terry stops following completed crimes reveals the erosion of particularity required to provide reasonable suspicion. These cases show the tendency of courts to provide retroactive justification of a law enforcement officer’s particular decision to detain an individual, and don’t appropriately distinguish warrantless stops following completed crimes. As others have noted, the ability for highly general suspect descriptions to provide reasonable suspicion for a Terry stop has disproportionately deleterious effects on young minorities in 'high crime' communities. Moreover, a cyclical problem has been created in large part by the standard of review, wherein fact specific decisions provide little guidance for law enforcement and the trial courts reviewing their stops, leading to continued erosion of the reasonable suspicion standard.

Most recently, the Eleventh Circuit held, in an unpublished decision, that a particularly vague suspect description was sufficient to stop an individual following a completed crime who barely met even that description. In light of the paucity of published precedent on this issue, and the procedural difficulties with Fourth Amendment doctrine, practitioners must brainstorm methods to halt the erosion of the reasonable suspicion requirement for warrantless Terry stops following a completed crime.

This article attempts to explain why, in the context of a completed crime, some of the factors that the Supreme Court has held can support reasonable suspicion are actually irrelevant. Most importantly, once a crime has been completed, an individual’s particular location within a “high crime neighborhood” is not a relevant factor supporting a warrantless stop. Next, in the context of a completed crime, there are two critical questions inadequately answered by the existing precedent: (1) how specific does a tip need to be in order to provide the reasonable suspicion required by the Fourth Amendment; (2) to what degree does an individual need to match that description in order for the officer’s Terry stop to be constitutional. This article suggests that the answers to these two questions are interrelated with negative correlation: if a description or tip is reliable, and provides a detailed suspect description, then stopping an individual who does not perfectly meet each detail within that description may still comport with the Fourth Amendment. Conversely, when law enforcement possesses merely a vague, general description, it is critical that the person they stop meet that description exactly. In other words, the broader the description, the more critical it is that the individual who is stopped meets that wide, broad description.

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