CA11: A Terry stop has to happen when the observations of criminal activity likely being “afoot” are made, not a week later

A Terry stop has to happen when the observations of criminal activity likely being “afoot” are made, not a week later. Defendant’s stop suppressed. Terry is premised on “swift action.” United States v. Valerio, 718 F.3d 1321 (11th Cir. 2013):

Robert Joseph Valerio appeals the district court’s denial of his motion to suppress evidence that led to his arrest for growing marijuana. Following the denial of his motion to suppress, Mr. Valerio was convicted after a bench trial of growing more than 100 marijuana plants in a Deerfield Beach warehouse, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(2). The central issue presented in this appeal is whether Terry v. Ohio, 392 U.S. 1 (1968), authorized law enforcement officers to effectuate an investigative seizure of Mr. Valerio nearly one week after last observing him do anything suspicious. Because the constitutional authority to make a Terry stop is dependent upon the exigencies associated with “on-the-spot observations of the officer on the beat[,]” id. at 20, we conclude that the officers’ seizure here was not authorized by the Fourth Amendment. We therefore hold that the district court erred in denying his motion to suppress the evidence against Mr. Valerio and vacate his conviction.

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The investigative stop contemplated by Terry is not a policing tool that can be constitutionally deployed in any context in which law enforcement has reasonable suspicion that an individual is involved in criminal activity. Rather, it may be used only within the “rubric of police conduct” addressed in Terry, for which the timing and circumstances surrounding the investigative stop matter. The exception established in Terry to the general Fourth Amendment requirement that all seizures be supported by probable cause is justified by the exigencies associated with law enforcement “dealing with … rapidly unfolding and often dangerous situations on city streets ….” Terry, 392 U.S. at 10. Terry stops are thus limited to situations where officers are required to take “swift action predicated upon the on-the-spot observations of the officer on the beat[.]” Id. at 20. Indeed, the Court in Terry emphasized that in creating a narrow exception to the probable cause requirement, it did not “retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances.” Id. (emphasis added and internal citations omitted). In other words, the police may not use Terry as an end-run around the warrant requirement in the context of a standard, on-going police investigation.