By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
This question came from an officer in Missouri. He says it is a common practice in Kansas City, Missouri. Some of the officers there feel the practice is unlawful.
Today’s question is a little complex, so you have to bear with me on this one. I might need to take a little bit of your time to get through it. But the question is, are orders to detain and transport the suspect back to the station for a formal interview lawful?
What is a stop order or a person of interest order?
Not all states may have this, but there’s still an interesting situation here. An officer from Missouri says that it is a common practice in Kansas City, Missouri, where the state prosecutors issue an order. It’s called a stop order, or a POI, a person of interest order. That’s entered into the computer system, and when the person is found, they are then handcuffed, transported back to the station for a formal interview.
Okay, so, common practice. Now, this is not a fresh arrest, right? This is not where somebody got arrested and they’re transported and we’re going to interview them. These are based off these orders issued by the state prosecutors. Some of the officers feel that this is an unlawful practice, that this is basically an unlawful arrest, and that you would have to have either an arrest warrant, probable cause, or consent.
Is a stop order the same thing as an arrest warrant?
So let’s go through this. First of all, let me say that if you have probable cause to arrest a person, and the stop order is based on probable cause, we don’t have an issue. I don’t see the issue, because we can just call that an arrest and just arrest the person. You see my point here. The only issue is going to be if these stop orders or POIs are based on reasonable suspicion or anything less than probable cause. So let me assume that that’s what’s going on.
Now, they also talked about fresh PC. We don’t have fresh PC. I don’t think it’s going to matter. I don’t see the issue there. As long as you have probable cause, whether it’s stale or fresh, if it’s still probable cause, then there is a right to arrest the person. We can just call this stop order or POI an arrest warrant, right? It’s not called an arrest warrant, but I think we just call it that constitutionally, because it looks the same. That’s what it kind of looks like, right?
So if these stop orders or POIs are not based on probable cause, Houston, we have a problem.
Where does the rule on station house detention come from?
So let me just go through some. I’m getting my source here from the great Wayne LaFave. If you’ve been in my classes, you know that Wayne LaFave is a god in search and seizure history, and he’s the most cited and credentialed search and seizure expert according to the U.S. Supreme Court and so forth. And he has a treatise called the Search and Seizure treatise.
So here is a case. Here’s what the Supreme Court said about something like bringing the guy back to the police station.
Does taking a suspect to the station for an interview count as an arrest?
The detention of the petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room.
Sound familiar?
He was never informed that he was free to go, and indeed he would have been physically restrained if he had refused to accompany officers or had tried to escape their custody.
So, very similar to what’s kind of going on in Missouri, it seems like.
The application of the Fourth Amendment requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an arrest under state law. The mere facts that petitioner was not told he was under arrest, was not booked, and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any exception that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are reasonable only if based on probable cause.
So that is our basic, overall, overarching rule. What is happening in Missouri is unconstitutional if it’s not based on probable cause. If it’s based on probable cause, this is not the case. So that’s important.
Can a judicial order be used to get fingerprints, lineups, or DNA?
Okay, now next. The courts around the country, including the Supreme Court, have either talked directly or indirectly about using these orders, these judicial orders, to take a person off the street, bring them back to the police station for fingerprinting, lineups, hair samples, DNA, so forth. But all of them, according to Wayne LaFave, have distinguished that from interrogation.
So here’s another example. Dunaway is another Supreme Court decision, and Wayne LaFave says the Dunaway Court, which makes another issue about transporting people, makes absolutely no mention of the statutes, court rules, or appellate decisions discussed here authorizing station house detention on less than full probable cause for investigative purposes other than the interrogation.
Okay, so here is my final. So we’re good for lineups and so forth, right?
Why is fingerprinting treated differently than an interrogation?
So the next question. This is from a case, I believe. So the next question is whether a brief detention at the station is reasonable only with respect to certain types of investigative procedures. Davis, right, the U.S. Supreme Court, suggests that the answer is yes. For the Court there said that such a detention might comply with the Fourth Amendment even though probable cause is lacking, because of the unique nature of the fingerprinting process.
Yet most of the provisions cited earlier permit investigative detentions for many other types of purposes as well, such as obtaining witness identification for use in lineups, photos, voice exemplars or handwriting exemplars, obtaining fingerprints or other prints or body measurements or impressions, obtaining specimens of such things as blood, urine, saliva, hair or fingernails, and obtaining identification material from the surface of the body.
However, the court also emphasized that fingerprinting, and all these other things, involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.
Is there any case law authorizing a station house detention just for an interview?
So the takeaway is that we see no support, or very little to say the least. I mean, not no. There’s always something out there. But we see very little support that the U.S. Supreme Court would uphold taking people off the street for an interrogation at the station house without probable cause. That is not the type of reasonable intrusion that courts have found with other things like the fingerprinting and DNA and so forth.
So my answer is, if it’s not based on probable cause, I would not do it unless my prosecutor can show me. Just a thought.
What if my prosecutor or a judge tells me to do it anyway?
Now, first of all, back up. If your prosecutor’s telling you to do something, just so you know, you do have some immunity that comes with that. I mean, you’re gonna point the finger to them. If they’re telling you to do it, and you do it, and you get sued, you point the finger at your prosecutor and you say, I’m doing it because they gave me a piece of paper that says to do it.
Now, it wasn’t clear in the comments. I’ve never seen these things before, these POIs and stop orders. But if a judge signs off on it, you do it. Right? You do it. You don’t second-guess a judge. The judge is always right until the appellate court tells them that they’re wrong. But as far as you’re concerned, the judge is always correct. You just do what the judge tells you, always. Right? I mean, pretty much always.
The prosecutor, of course, they’re not judges. They don’t have the same power as a judge.
How do I ask my prosecutor about a stop order?
But this is pretty easy. You call the prosecutor and say, hey look, I’m having some doubts on this, it doesn’t seem legit. I’m watching also this Blue to Gold guy, and he’s saying he can’t find any case law that authorizes snagging people off the street for interviews without probable cause. So what’s going on here?
If they say, well look, no, we do have probable cause, that’s what this is based on, then you say, okay good, I can do it then. Right? That’s different.
And if they say, well no, we don’t have probable cause, but this guy’s a person of interest, it’s the same thing as if we needed fingerprints, then you say, well look, I would love for you to kind of look at what Anthony’s saying here. And I’ll give you the section of the treatise by Wayne LaFave. Most of your prosecutors will have access to this. It’s section 9.8(b). The section is called Appearance at the Station Absent Grounds to Arrest. So, 9.8(b), Wayne LaFave, Search and Seizure treatise. They can kind of look at that and make their own conclusion about whether or not they’re constitutional.
That’s what I have for you. Very interesting question, maybe not for everybody, but hey, you know what, this is still moving the ball forward, and these are great conversations. Stay safe, guys.
The short version
- If you have probable cause to arrest a person, and the stop order is based on probable cause, we don’t have an issue, because we can just call that an arrest and just arrest the person.
- As long as you have probable cause, whether it’s stale or fresh, if it’s still probable cause, then there is a right to arrest the person.
- If these stop orders or POIs are not based on probable cause, Houston, we have a problem.
- The courts have talked about using these judicial orders to bring a person back to the station for fingerprinting, lineups, hair samples, DNA, but all of them have distinguished that from interrogation.
- We see very little support that the U.S. Supreme Court would uphold taking people off the street for an interrogation at the station house without probable cause.
- If it’s not based on probable cause, I would not do it unless my prosecutor can show me.
- If a judge signs off on it, you do it. You don’t second-guess a judge.
Related from Blue to Gold
This article is an edited transcript of Roadside Chat Ep. #124. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
