With a due comparison to Det. Martin McFadden’s actions in observing John W. Terry and Richard D. Chilton in Terry v. Ohio, the officer on the totality was justified in inquiring of defendant what he was doing. Plaintiff wasn’t arrested, but he sued the officer, and the case was dismissed as a “discretionary function” and here affirmed. Schreiner v. Hodge, 2017 Kan. App. LEXIS 81 (Nov. 9, 2017):
To summarize, Officer Hodge is entitled to discretionary function immunity because he detained Schreiner for a few minutes to conduct an investigation upon a reasonable belief that criminal activity was occurring. In his deposition testimony, he stated his thoughts concerning the suspicious vehicle and his reason for the investigatory detention as follows:
“Initial thoughts upon arrival were why do I have a vehicle parked in a residential area and the driver did not enter a residence. He entered the woods instead of a residence. To me in my mind, what’s running through my mind is where [is] this person at, is he over in the apartment complex committing vehicle burglaries, is he walking around in the neighborhood looking in windows, is he up at the businesses just to the south trying to steal a car, trying to commit burglaries. Same things go with the apartment complex just to the west. That’s what was running through my head.”
In light of the holdings in Mendoza and Robertson, we find it logical to hold that an officer’s decision to temporarily detain a suspect for an investigatory detention based upon reasonable suspicion is a discretionary function.