Sunday, July 29, 2012

A fine line: When should police stop someone? - Pittsburgh Post Gazette

The Jordan Miles trial unfolding in U.S. District Court underscores a question that has long bedeviled police-community relations: When is it appropriate for a police officer to stop someone, and what should that person do?

The answer isn't always simple.

The civil case stems from a 2010 encounter between the then Homewood high school student and three Pittsburgh police officers, who Mr. Miles says chased and beat him without cause as he walked in his neighborhood. Mr. Miles' supporters say the officers used force against him when they should have let him walk away, as they were conducting a "mere encounter" in which they had no suspicion to stop him and he had no burden to comply.

But backers of officers Michael Saldutte, David Sisak and Richard Ewing say the late-night confrontation was actually an "investigative detention" that gave them the right to stop the 18-year-old, who they believed was sneaking around a house on Homewood's Tioga Street, a high-crime area. The trial enters its third week of testimony on Monday.

The line between the types of police encounters is a fine one that, if blurred, can lead to problems in court and distrust in communities where aggressive police efforts can create the perception of profiling.

"If you expect people on the street to figure out a mere encounter from an [investigative detention], it's unlikely, really," said University of Pittsburgh law professor David Harris, a specialist in search and seizure. "To the untrained, civilian eye, they can look and feel exactly the same."

Pittsburgh Police Bureau policy describes a mere encounter as a "request for information by an officer to a citizen" that need not be supported by any level of suspicion or probable cause. A person approached in this way has no obligation to respond and can walk away.

For an "investigative stop," an officer must have reasonable suspicion or "articulable facts" that lead him to believe a person has been or will be involved in a crime. "Its purpose is to confirm or dispel the officer's suspicions as quickly as possible," bureau policy says.

As the Miles case shows, the difference is sometimes in the eye of the beholder.

A mere encounter often escalates to an investigative stop -- sometimes called a stop-and-frisk or a jump-out -- if an officer spies something suspicious. Officers who routinely conduct those type of stops say that could be a range of things, from the stench of marijuana or a tug at a waistband, to a furtive movement or a face that resembles that of a burglary suspect.

In that case, a person can face arrest if they don't comply.

"The first thing we're always trained to do is to identify ourselves," said Pittsburgh police Lt. William Mathias, whose undercover narcotics detectives perform such encounters daily and consider them among the most effective ways to get illegal drugs and guns off the street. They might explain what they're doing and ask, "Do you mind if I talk to you?" or "Can I ask you a few questions?"

At that point, the person can decline or walk away.

The interaction becomes an investigative stop, for instance, when the detective notices a bulge in the person's pocket that he believes could be a weapon. He might say, "I notice you've got a bulge, or I notice the smell of marijuana, do you have any on you?" Lt. Mathias said, and announce the need to pat the person down if he denies it.

If the search turns up drugs or guns, the encounter can end in arrest.

So, what should one do if stopped and searched?

"Basically, you cooperate with the officer. They have more power at that time than any other person at that time," said Elizabeth Pittinger, executive director of the city's Citizen Police Review Board. She and other community leaders successfully urged Pittsburgh City Council to pass legislation last year requiring police to share more information with the public about stop-and-frisk encounters.

"Being cooperative and respectful is the most successful way to deal with a police encounter. Deal with your questions afterward."

That's what should happen. Problems arise when a stop doesn't go that smoothly, as in the Miles case, which has ignited concern in some communities that such police encounters are often unwarranted and target minorities.

"I think the police officers ... are used to dealing with a certain type of individual, and they begin to treat all community members as certain types of individuals," said Brandi Fisher, chair of the Alliance for Police Accountability, who has sat through much of the testimony in the Miles trial. "They view high crime rate areas as targets instead of as areas where they should be protecting the citizens. ... Either our police officers need a serious retraining or we have a serious case of racial profiling in the city of Pittsburgh."

Police say their stops are based on reasonable suspicion, acknowledging that the standard is subjective.

"You can't pull out a handbook and say, I have this, this and this, great, I have reasonable suspicion. It doesn't work that way," Lt. Mathias said. "We've lost cases where there is no doubt we've followed case law."

Police said they rely on training and consider the context. The sight of a man walking on a sidewalk in a neighborhood that has seen a spike in burglaries might warrant a mere encounter in the daytime, while the same man could be momentarily detained if he also matches the description of the suspect or is walking off the sidewalk at night. If police approach him and he refuses to talk or walks away, he might be free to go. But if he knows they are officers and runs at the sight of them, that could make him suspicious, if he is in a high-crime neighborhood.

A furtive glance won't warrant a search. But a furtive glance plus a tug at the waistband could.

Defense attorneys often capitalize on the subtleties.

"That's the first thing I look at," said Blaine Jones, a lawyer who has handled thousands of cases that revolve around whether an officer had reasonable suspicion to stop a defendant. A judge can toss out evidence if it was gleaned inappropriately.

Mr. Jones said he has known cases in which a high-five can appear to an officer as a drug deal or a "window obstruction" can prompt a traffic stop -- even if it's nothing more than an air-freshener dangling from a windshield.

"I've had stuff like that," he said. "It's just not enough."

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