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Do misdemeanors constitute reasonable suspicion?

Stop based on reasonable suspicion of a completed misdemeanor held to be unconstitutional

A patrol officer spots a car closely matching the description of a vehicle used to flee an armed robbery twelve days earlier. Although the officer sees no traffic violation, the officer hits the red and blue lights and makes an investigative stop. Lawful stop? Sure, based on reasonable suspicion that the vehicle and occupants were involved in a forcible felony, even though the felony was committed nearly two weeks prior and in the neighboring city. The United States Supreme Court found this very stop to meet constitutional requirements for an investigative detention (or "Terry" stop) in United States v. Hensley, 469 U.S. 221 (1985).  However, would the same rule apply if the stop were based on suspicion of a completed misdemeanor crime instead of a violent felony?

The Ninth Circuit United States Court of Appeals became the first federal appellate court to tackle that question head on in the recent case of United States v. Grigg, 2007 WL 2379615 (9th Cir. 2007).  The Court said “no.”  Different rules apply to stops based on reasonable suspicion of completed commission of a misdemeanor crime.  However, as described below, there are often perfectly legal reasons to make an investigative stop when the crime under investigation is a misdemeanor.

Two officers responded separately to a complaint of a car with an obnoxiously loud stereo in a residential neighborhood.  The complainant said that he was the victim of ongoing noise harassment from juveniles playing their car stereos at excessive volume levels as they drove past his home.  The complainant pointed out the suspect vehicle parked in a residential driveway down the street.  He said that the Mercury Cougar was the car that had been “booming” down the street multiple times in recent days.  While the first officer was speaking with the complainant, Grigg got into the Cougar and drove down the street.  Grigg drove by without the volume pumped up and obeying all traffic laws.  The officer radioed to the second officer to stop Grigg and identify him.

Grigg took a few seconds before stopping in a residential driveway.  Grigg got out of the car, but the officer ordered him to get back into the car.  As the officer approach, Grigg told the officer that he had a “hunting rifle” in the car.  The officer then spotted an SKS rifle, later determined to fire in full auto mode, on the passenger seat.  The officer also saw loose handgun ammo in the car.  A frisk revealed that Grigg held concealed brass knuckles and the officer arrested him.  Grigg was eventually convicted in federal court for possession of an unregistered automatic weapon.

Grigg challenged the legality of the investigative stop, claiming that the alleged noise violation was too insignificant of a crime to justify intruding on his Fourth Amendment rights.  Unlike the armed robbery at issue in United States v. Hensley, “it is difficult to imagine a less threatening offense than playing one's car stereo at an excessive volume.”  The officer testified that he stopped Grigg because all of the parties to the complaint were “right there.”  The trial court found that the officer could have easily gone to the house where the Cougar was parked, knocked on the door, and asked who had just been driving the car.  Though the complainant had called about the loud stereo on other occasions, the officer would not have been able to get Grigg’s name from the records division or from dispatch because no one had yet identified Grigg as a noise violation suspect.  Calling the decision a “close call,” the trial judge ruled that the stop was a proper Terry investigative detention.

A few state appellate courts have previously considered whether the rule of United States v. Hensley would allow an investigative stop based on suspicion of a completed misdemeanor crime.  The results are mixed.  Most of these courts recognize that the United States Supreme Court balanced the seriousness of the completed crime, in relation to investigation of the completed crime as well as future crime prevention, against the individual’s Fourth Amendment privacy right.  The Minnesota Court of Appeals went so far as to create a bright line prohibition on stops based on completed misdemeanor crimes in Blaisdell v. Commissioner of Public Safety, 375 N.W.2d 880 (Minn. App.1985), aff'd on other grounds, 381 N.W.2d 849 (Minn.1986).

The Louisiana Court of Appeals applied the balancing test from United States v. Hensley to a case where an officer stopped a car passing across the Louisiana-Arkansas state line based on a teletype report that the car struck a road sign in Arkansas.  The officer did not see any traffic violation committed in Louisiana.  However, the court observed that the reckless driving that resulted in striking an Arkansas road sign might be repeated in Louisiana.  When the driver was stopped in Louisiana, the officer noted signs of impairment and ultimately arrested the driver for operating a vehicle under the influence of alcohol.  Though the level of the completed Arkansas crime was relatively low, the court ruled that the public interest outweighed the driver’s privacy interest and the later stop in Louisiana was lawful.  State v. Myers, 490 So.2d 700 (La. App. 1986).  Similarly, North Dakota’s Supreme Court upheld a stop of a vehicle driving away from a bar based on a report that the occupants had been involved in an argument that might have evolved into a fight, but did not.  City of Devils Lake v. Lawrence, 639 N.W.2d 466 (N.D. 2002),

Though the Ninth Circuit ruled that stopping Grigg was not constitutionally proper, the court did leave open the possibility that other completed misdemeanors might lawfully justify an investigative detention.  The Court of Appeals held that a decision to stop a vehicle based on a report of a completed misdemeanor crime:

Must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger ( e.g., drunken and/or reckless driving), and any risk of escalation ( e.g., disorderly conduct, assault, domestic violence).  An assessment of the “public safety” factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.

One question left unanswered by the facts recited in United States v. Grigg is why the officers didn’t ask for a wants and warrants check on the registered owner of the Mercury Cougar?  Though it is only speculation that a check would have borne fruit, it may have provided an independent, lawful basis for the stop.  And though it would have been less convenient, the first officer might have waited for the complainant to sign a formal complaint, then stopped Grigg to serve the complaint and summons.  Alternatively, the second officer might also have merely followed Grigg.  Chances are good that the officer could have found an independent reason to stop and identify Grigg.  The officer could also have watched as Grigg stopped his car and then approached Grigg to conduct a purely voluntary encounter and ask for Grigg’s name and identification.  The quick answer to these questions is that the complaint was for a minor noise violation and officers don’t have time to spin their wheels on such minor matters.  However, in this case, the fruit falling from the poisonous tree was an automatic weapon.

The Court of Appeals concluded that, especially considering the possible alternative means to identify Grigg, “simple efficiency and expediency of law enforcement efforts do not automatically override the other crucial element of the Hensley balancing test-personal security from governmental intrusion in the operation of one's vehicle.”  This is the same philosophy underlying the general rule that an officer cannot arrest for a misdemeanor crime that is completed and did not occur in the officer’s presence.  Officers investigating completed misdemeanor crimes that do not hold a potential for future harm should pause before making a stop and ask whether the stop is constitutionally justified.

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