Reasonable Suspicion

[adeutch]

I was wondering if anyone would care to comment on a fact pattern I am looking at.
First off, I'm not a cop (though hope to be one soon). I work for a civil judge, but sometimes our court encounters elements of criminal law. Today we heard an appeal of an administrative license revocation for implied consent/refusal.

Basically the defense strategy is to get the case thrown out based on no reasonable suspicion to stop. I'll try to give the facts briefly and can elaborate later if anyone is interested.

LEO is driving down street at 3:30 a.m. and sees a car parked in a Wendy's parking lot. Driver is in the car, which appears to be running. Passenger is standing outside of car. Wendy's is closed. Lights are on outside the restaurant, but the drive-through menu is not lit. No other cars in lot. LEO turns around up the road to check it out. By the time LEO gets back, the car has just pulled out, so LEO follows and makes the stop. LEO smells alcohol, DWI arrest ensues.

Like I said, the defense is trying to get the case thrown out for lack of reasonable suspicion to make the stop. I still have to read the transcript of the LEO's testimony, but does anyone have some theories or want to make an attempt at articulating reasonable suspicion for this stop?

[NextGenOfc]

Not a LEO either but I would say there is RS, it's 3:30 AM, Wendy's is close, there is no one in the parking lot and there is an individual standing outside of the car next to it. Seems a little suspicious given the time of day, what could they possibly be doing other than maybe figuring out where they are or if there are problems with the vehicle? At the least, I would say mere suspicion is present.

[PhilipCal]

Based on the facts cited in your post, it was a good stop, good subsequent DUI arrest. Defense Attorney is fulfilling his/her obligation to the client in moving for a dismissal. Happens every day.

[iamacop]

Yup, I too agree.. Any reasonable person would have known that the restaurant was closed. CCP, say we can investigate suspicioius person(s) in suspicious places...I would articulate it to the point of a possible burglary. I have never pulled into a closed restaurant when the signs are off, along with the drive thru menu.... Good police work there.

[adeutch]

Based on the facts cited in your post, it was a good stop, good subsequent DUI arrest. Defense Attorney is fulfilling his/her obligation to the client in moving for a dismissal. Happens every day.

Oh yeah.. I understand exactly what the defense attorney is doing. I'm just putting it out there to see how different LEO's and wannabes like myself might try to articulate reasonable suspicion under those circumstances.
Ultimately, my judge is gonna have to rule on this one based on whether or not there was reasonable suspicion. Legally, he can only go on the facts and legal arguments of the hearing. But I thought it might make a good discussion topic for this forum.

[adeutch]

Yup, I too agree.. Any reasonable person would have known that the restaurant was closed. CCP, say we can investigate suspicioius person(s) in suspicious places...I would articulate it to the point of a possible burglary. I have never pulled into a closed restaurant when the signs are off, along with the drive thru menu.... Good police work there.

And you are the State's argument in a nutshell. And I think it's a good argument, almost rock solid.
I can tell you've encountered this scenario before because guess what the defense's argument was... Defendant was there to see if the Wendy's was open.

Whether this gets overturned or not, I think the cop did the right thing. He thought he was preventing a burglary and he ended up preventing a drunk from driving. Even if the person gets their license back, the cop protected lives and property.

[TexasAggieOfc]

Yup, I too agree.. Any reasonable person would have known that the restaurant was closed. CCP, say we can investigate suspicioius person(s) in suspicious places...I would articulate it to the point of a possible burglary. I have never pulled into a closed restaurant when the signs are off, along with the drive thru menu.... Good police work there.

In addition to the CCP, we have a city ordinance outlawing Loitering Under Suspicious Circumstances

Sec. 13-7. Loitering under suspicious circumstances.
Whoever shall, in the nighttime or any other time under suspicious circumstances, in or about any public or private building or premises where such person has no right or permission to be, under suspicious circumstances, and without being able to give a satisfactory account of the same, shall be deemed guilty of a misdemeanor.

[L-1]

I don't know how the arresting officer articulated the stop, but here is how I would have presented it.

It is a late and unusual hour.

It appears that there are two people (one in a vehicle) trespassing in the parking lot of a closed commercial business.

The hour is such that the business has been closed for some time and is unlikely to have employees present. This is when most commercial burglaries occur.

The officer turns his patrol car around to go back and investigate the trespassing and possible burglary, only to discover that the car has now left. Among other things, this is consistent with him having interrupted either or both of these crimes as they were about to take place, or after they just occurred and that one of the of the suspect's is now fleeing.

The officer stops the car to investigate whether its driver was trespassing in the closed parking lot and a possible burglary. In doing so, he coincidentally discovers the DUI. No harm, no foul.

[just joe]

What he said.

[iamacop]

And you are the State's argument in a nutshell. And I think it's a good argument, almost rock solid.
I can tell you've encountered this scenario before because guess what the defense's argument was... Defendant was there to see if the Wendy's was open.

Whether this gets overturned or not, I think the cop did the right thing. He thought he was preventing a burglary and he ended up preventing a drunk from driving. Even if the person gets their license back, the cop protected lives and property.

If the people were there to see if the restaurant was opened, and they weren't intoxicated, NO PROB! But, an officer only needs to believe that criminal activity is afoot to make a legal detention to investigate further... As long as the officer articulates all the aforementioned information, the ALR hearing should favor the state's side.. Like somebody said, the guy hired a lawyer, and the lawyer is just doing whatever he can..

[adeutch]

If the people were there to see if the restaurant was opened, and they weren't intoxicated, NO PROB! But, an officer only needs to believe that criminal activity is afoot to make a legal detention to investigate further... As long as the officer articulates all the aforementioned information, the ALR hearing should favor the state's side.. Like somebody said, the guy hired a lawyer, and the lawyer is just doing whatever he can..

Yep, the ALR hearing found reasonable suspicion. But now it's been appealed to County Court. The sole question before the court at this point is basically did the Totality of the Circumstances support reasonable suspicion.

L-1, I like your articulation, and that's pretty much what the officer on the scene testified to. I think one thing the defense is trying to do here is paint him into a corner as far as exactly WHAT he was supicious of. They argue he was suspicious of burglary and the circumstances don't support a possible burglary(i.e. in the front parking lot of a business in a well lit area on a major street). However, let's not forget that the grand-daddy of them all, Terry v. Ohio, arose from an arrest that happened when two guys were casing a place in broad daylight. So, in my mind, whether there was good lighting is not necessarily going to deter a burglary.

TexasAggieOfc, I like the idea of using the loitering statute. Seems like there is plenty of reasonable suspicion for that one too.

[az4code23]

The defense will most likely argue that there was probable cause. The defense will set forth an argument disclosing the justifications for the officers investigation. They will look at the time; in which was 3:30 AM; knowing that most Wendy’s restaurants close between the hours of 1 and :30 AM and open between the hours of 5-6 AM; It also looks at the individuals being in a lone parking lot, within those hours; in which automatically sets grounds for a possible attempted burglary; in which justifies every reason for the officers investigation.

An example:
Terry v. Ohio stated that Officer Martin McFadden violated the Fourth Amendment when he stopped and frisked petitioner on the streets of Cleveland without probable cause. The Supreme Court affirmed Terry's conviction for carrying a concealed weapon. In Terry, the Supreme Court said police officers do not need probable cause to stop and frisk suspicious people who might be carrying weapons. With an 8–1 decision, the Supreme Court affirmed Terry's conviction. Writing for the Court, Chief Justice Earl Warren approved the stop-and-frisk tactic as a legal police procedure.

[oneoldcop]

reasonable= if you went by at 3:30am and saw the car there would it seem out of place? YES. When an officer makes a stop based on reasonable suspicion, he/she is either confirming or dispelling whether or not a crime is, has or is about to take place based on his/her training and experience.

BTW, you have gotten some really good answers here...just in case this is for school work...


just sayin...

[adeutch]

reasonable= if you went by at 3:30am and saw the car there would it seem out of place? YES. When an officer makes a stop based on reasonable suspicion, he/she is either confirming or dispelling whether or not a crime is, has or is about to take place based on his/her training and experience.

BTW, you have gotten some really good answers here...just in case this is for school work...


just sayin...

I agree, some very good answers. And this isn't for school work. It's kind of for WORK work. Actually, it's really only related to work. I just thought it would be interesting to discuss.

And you actually hit a point that I was considering in my own analysis. The standard is what a reasonable officer would find suspicious, so it's irrelevant to me what possible excuses the people in the parking lot might have had for being there. It's the officer's job to detect and prevent crime by investigating his suspicions. It's not his job to sit in his car coming up with excuses as to what the people are doing there. It's just like if a cop sees someone driving and they swerve within their lane. There's any number of things that could account for that (contact fell out, spilled coffee in their lap, etc.) But it's still reasonable to be suspicious that maybe they're DWI.

Although I work for a civil judge, before he was a judge he did Law Enforcement defense for the State. So he's pretty well versed in criminal law and especially police work for a civil judge. In all likelihood the ALR's findings will be affirmed.

Just wanted to make sure folks here don't peg me for a sheister defense atty or something.

[ArkansasFan24]

Handy list here...

12 Points of Reasonable Suspicion: Any combination of the following factors may be considered in determining whether R/S exists. You need more than one of the following. This is a good starting point to understand R/S.

1. demeanor of suspect
2. gait and manner of suspect
3. knowledge had by the officer pertaining to suspect's background or character
4. manner in which suspect is dressed, including buldges in clothing, when considered in light of all other factors
5. overheard conversation of suspect
6. particular streets or areas involved
7. information received from third persons whether known or unknown
8. whether the suspect is consorting with others whose conduct is reasonably suspect
9. suspect's proximity to known criminal conduct
10. incidence of crime in the immediate neighborhood
11. suspect's apparent effort to conceal an article
12. suspect's apparent effort to avoid identification and/or confrontation by officer