Many of us have had contact with law enforcement. For some people, interactions
with cops have led to arrests, and for some people, no arrest. Sometimes
when stopped for a minor traffic infraction, police may place a person
in their cruiser; other times, a person may stay in the driver’s
seat of their own car.
The Fourth Amendment provides that the “right of the people to be
secure in their person, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated ....” U.S. Const. Amend. IV.
In short, the Fourth Amendment protects against searches and seizures of
property and the seizure of a person. A “seizure” of property
occurs when there is some meaningful interference with an individual’s
right to possess a piece of property.
E.g., United States v. Place, 462 U.S. 696 (1983). Similarly, a “seizure” of a person is
when law enforcement interferes with an individual’s freedom of
See, Michigan v. Summers, 452 U.S. 692, 696 (1981);
Terry v. Ohio, 391 U.S. 1, 16 (1968).
Three Types of police-citizen Encounters:
As defined by courts in Nebraska, there are three categories of encounters
that people have with law enforcement. Each separate category has its
own rules regarding what police can and cannot do. The three types of
police-citizen encounters are noted:
1. Voluntary encounters which are not seizures and do not implicate the
2. Investigative detentions, which are seizures under the Fourth Amendment
and must be supported by
3. Arrests which must be supported by
The first type of encounter might occur when the entire interaction between
an officer and a citizen is completely voluntary. These have been defined
by courts as “tier-one” encounters.
Tier-one encounters occur every day between citizens and police. As an
example, if you had a flat tire on the interstate and flagged down an
officer and asked for some assistance, the encounter would be considered
“voluntary” and there would be no Fourth Amendment issues.
If you were walking downtown, observed a traffic accident and were later
questioned by the police, the encounter would be considered “voluntary”.
As described by Nebraska Courts, a tier-one encounter involves the voluntary
cooperation of the citizen elicited through noncoercive questioning, and
does not involve any restraint of the liberty of the citizen involved.
State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
The second type of encounter occurs when an officer believes there may
be some sort of suspicious activity occurring which may justify police
involvement. This interaction is called a tier-two encounter.
A tier-two encounter constitutes an investigatory stop as defined by Terry
v. Ohio. [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed 889 (1968).] Such an encounter involves
a brief, nonintrusive detention during a frisk for weapons or preliminary
questioning. Because of its less intrusive nature, a tier-two encounter
requires only that an officer have specific and articulable facts sufficient
to give rise to a reasonable suspicion that criminal activity is afoot.
Hedgcock, at 478 - 479.
Generally, the Fourth Amendment requires that law enforcement obtain a
warrant based upon probable cause to justify the search or seizure of
an individual. A tier-two encounter is an exception to the warrant requirement.
The United States Supreme Court has determined that a brief, investigative
detention does not require a warrant.
See, Terry v. Ohio, 391 U.S. 1, 16 (1968). Under
Terry, “an officer may, consistent with the Fourth Amendment, conduct
a brief, investigatory stop when the officer has a reasonable, articulable
suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
What that means is if officer want to stop a person and investigate a possible
crime, the officer must have “a reasonable suspicion supported by
articulable facts that criminal activity is afoot.”
United States v. Sokolow, 490 U.S. 1, 7 (1989).
As a practical matter, such “reasonable suspicion” can exist
with any combination of facts that could lead a reasonable officer to
conclude some sort of illegal activity may be occurring. If an officer
observed a person standing outside of a bank wearing a ski mask, or if
an officer observed a person running from a fire with a gas-can and a
bundle of newspaper, the officer would have “reasonable suspicion”
to conduct a brief, nonintrusive detention during a frisk for weapons
or ask the person questions about the possible crime.
The third type of encounter between police and citizens involves an arrest.
This is called a tier-three encounter.
A tier-three encounter constitutes an arrest. An arrest involves a highly
intrusive or lengthy search or detention.
Hedgcock, at 479. In order for an officer to arrest an individual, the officer
must have probable cause. Probable cause to support a warrantless arrest
exists only if law enforcement has knowledge at the time of the arrest,
based on information that is reasonably trustworthy under the circumstances,
that would cause a reasonably cautious person to believe that a suspect
has committed or is committing a crime.
State v. McClain, 285 Neb. 527, 827 N.W.2d 814 (2013).
Defending People who have been Arrested or Detained Illegally
If you have been contacted by law enforcement and charged with a crime,
your criminal defense attorney should be doing everything possible to
try and categorize the contact between you and law enforcement as a tier-two
or tier-three encounter. Conversely, the prosecutor will try to convince
a court the encounter is a tier-one or tier-two encounter. If the contact
is restrictive, more rights are afforded to a citizen.
The use of depositions, subpoenas and
subpoena duces tecum are tools a good criminal defense attorney can use to help investigate
all of the facts and help convince a court that the facts of a case do
not support a legal justification for law enforcement to detain a client.
If the detention is held to be unlawful, there is a good chance that any
evidence resulting from the detention will be inadmissible in a subsequent trial.
Fruit of the poisonous tree is a legal metaphor describing the theory that
evidence cannot be used against a person if the evidence is obtained unlawfully.
The idea is that if the source of the evidence (e.g., the poisonous tree)
was illegal, then anything that derives from that tree (e.g., the fruit)
is tainted by the illegal actions and is therefore inadmissable in court.
As indicated, a good
criminal defense attorney will try and convince a court that any contact between law-enforcement
and a defendant was illegal and as such, any subsequent evidence resulting
from that contact was tainted by the illegal actions of law enforcement
and should not be used against the defendant because it is fruit of the