In Nebraska’s first case on the issue: Handcuffs do not automatically convert a stop on reasonable suspicion into an arrest. State v. Wells, 290 Neb. 186, 2015 Neb. LEXIS 34 (February 20, 2015):
This court has not discussed under what circumstances the use of handcuffs would transform an investigatory detention into a custodial arrest. The use of handcuffs has been approved when it was reasonably necessary to protect officer safety during an investigative stop. For example, in United States v. Thompson, the defendant attempted to reach inside his coat pocket several times while an officer was performing a Terry frisk. The officer warned the defendant to stop or else he would place him in handcuffs. After the defendant again tried to reach in his pocket, the officer put the defendant in handcuffs. The Ninth Circuit held that the use of handcuffs was a reasonable precaution for officer safety and did not transform the stop into a custodial arrest. And in United States v. Purry, an officer detained a suspected bank robber. The officer placed the suspect in handcuffs after the suspect “‘turned and pulled away'” when the officer put his arm on the suspect. The District of Columbia Circuit determined that given the circumstances, the use of handcuffs constituted reasonable force and did not transform the stop into a custodial arrest.
But the use of handcuffs may not be justified when the facts do not justify a belief that the suspect may be dangerous. In State v. Williams, an officer was dispatched to investigate a burglar alarm sounding inside a nearby home. The officer noticed a car parked outside the front of the house, and as the officer approached, the car’s headlights turned on and the car began to move. The officer pulled his patrol car in front of the vehicle and instructed the defendant to get out of the car. The officer then handcuffed the suspect and put him in the back of his patrol car. The Washington Supreme Court determined that the use of handcuffs could be appropriate under certain circumstances, but was not a reasonable precaution in this situation, because “[h]e did not threaten the police nor did the facts of the alleged crime justify assuming that the suspect was armed or likely to harm the police.” The use of force in that situation exceeded the scope of the Terry stop.
Whether the detention was reasonable under the circumstances in this case depends on a multitude of factors. We find useful those factors listed in United States v. Jones, an Eighth Circuit case examining the reasonable use of force during a Terry stop, including
the number of officers and police cars involved, the nature of the crime and whether there is reason to believe the suspect might be armed, the strength of the officers’ articulable, objective suspicions, the erratic behavior of or suspicious movements by the persons under observation, and the need for immediate action by the officers and lack of opportunity for them to have made the stop in less threatening circumstances.
The officers blocked the defendant’s car from moving and unholstered their weapons while the defendant was out of their sight. The defendant argued that blocking the car and the use of weapons constituted a custodial arrest. The Eighth Circuit determined that the officers’ use of force was reasonable and did not transform the investigatory stop into a full-blown arrest. In this case, we find that the district court did not err in its determination that the detention constituted an investigatory stop. The record indicates that Cronin detained Wells in a reasonable manner under the circumstances, which stopped short of a full custodial arrest. Cronin had a strong suspicion Wells was in possession of a controlled substance. As Cronin approached the car, he witnessed Wells appear to be digging into his pocket, and when Cronin arrived at the car, Wells’ right arm was concealed underneath his jacket. The nature of Wells’ suspected crime, trafficking narcotics, further justified Cronin’s action. In Cronin’s past experience as a member of the Lincoln/Lancaster County drug task force, he knew that narcotics users and traffickers often carry weapons. Also, the suspects outnumbered the investigators at the scene and Parker was on the other side of the car at the time of detention. Based on Wells’ furtive movements and his apparent attempt to conceal something, Cronin had an immediate need for action. It does not appear that Cronin could have made the stop and, at the same time, ensured his safety in a less threatening manner. Finally, we note that Wells was detained only for a brief period of time before he allegedly assaulted Cronin and was placed under arrest. Considering these circumstances, we conclude that Cronin’s decision to gain control of Wells’ arm and handcuff him while Cronin conducted his investigation was a “reasonable precaution … to protect [officer] safety and maintain the status quo.” (footnotes omitted)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)