BB&K Police Bulletin: Police Order To Stay Put While Conducting Background Check Is A Seizure Under Fourth Amendment

by Best Best & Krieger LLP
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The Command Can Implicate Municipal Liability

Overview: The Ninth Circuit recently held that, when a police officer orders a suspect to “stay put,” that command constitutes a seizure under the Fourth Amendment of the U.S. Constitution and can implicate municipal liability under Monell.

Training Points: When officers conduct a “consensual encounter” with a person, unless they have reasonable suspicion that crime is afoot, they are not permitted to detain the person for any longer than to confirm if a crime has occurred [or is occurring]. Commands not to leave, absent probable cause to prolong the detention, will be considered a “seizure” under the Fourth Amendment. On appeal in Benson v. City of San Jose, the City argued that the officer approached Benson for a loitering offense. However, the court noted that the officer never stated why he approached Benson. Since the argument was made after the fact, and not at the time of the stop, the court rejected the argument that the officer had reasonable suspicion at the time of the stop. In light of this decision, officers should be mindful of two things: 1.) Always ensure that the person being contacted is informed of the purpose of the stop and 2.) Properly document the points of probable cause in the police report, including the admonition about the reason for the stop, along with other elements of probable cause for the contact.

Summary Analysis: In Benson v. City of San Jose, a police officer approached Benson for loitering and requested his identification. As he was running a background check, he told Benson to “stay put.” Benson sued the officer and the City claiming his Fourth Amendment rights were violated. The court reasoned that, while the initial encounter with Benson may have been consensual, the officer lacked reasonable suspicion for the seizure and, therefore, his command to Benson to “stay put” transformed the stop into a seizure under the Fourth Amendment.  Further, the court held that the officer was not entitled to qualified immunity because, as of the date of the encounter, it was clearly established that when an officer retains a person’s identification and commands a person not to leave, that constitutes a seizure. Finally, the court found the officer’s actions could implicate municipal liability since the police chief testified the officer acted reasonably and within department policy and procedure. This, the court found, constituted official approval and ratification of the officer’s decision and the basis for it.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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