Today, we will look at a recent 2019 case out of the 6th Circuit Court of Appeals. This case provides precedent for those of you in the states of Kentucky, Ohio, Michigan and Tennessee and looks at the facts that differentiate Reasonable Suspicion and Probable Cause with respect to an Investigative Detention or so- called “Terry Stop”. The case, King v. United States1, also reviews the force use during the stop and involves both federal and local officers involved in a joint task force.
In mid- July 2014, members of a joint task force in Grand Rapids, Michigan were searching for Aaron Davison – a 26-year-old white male who was wanted under a state warrant for felony home invasion. Members of the task force learned that Davison arrived at a local gas station and purchased a soft drink every day between 2:00 PM and 4:00 PM. The two task force officers also had two pictures of Davison – one picture was so dark that any identification was nearly impossible – the second photo was from the Michigan DMV and was 6 years old. Armed with the information and the two photos, the officers set up a surveillance at the gas station.
Around 2:30 PM the officers spotted the plaintiff – James King – a 21-year-old white male wearing glasses, who was about the same height as the suspect. The detectives observed King for a few minutes and determined that there was a “good possibility” that King “might” be the suspect. The detectives – dressed in plainclothes with badges on a lanyard around their neck – approached King and asked him his name. When he replied “James” the detectives ordered him to face the car and put his hands up. King complied because he had seen the badges and thought “they may be some kind of authority”. The detectives then removed a pocketknife from King’s pocket and his wallet.
King then asked, “are you mugging me” and attempted to run away but one of the detectives grabbed King by the neck and pushed him to the ground. King yelled for help and a number of citizens began filming the incident and calling 911. The detective put King in a choke hold and King claims he passed out. When he came to, King bit the detective on the arm and the detective then punched King multiple times in the face and head. King was handcuffed and transported to the emergency room for treatment. Before leaving the scene, the detectives ordered the citizens to delete their camera footage because the footage could reveal the identities of undercover officers. Many citizens complied and there was no video footage of the actual altercation. One citizen who called 911 reported that “They’re gonna kill this man – they’re suffocating him”.
Following treatment at the hospital, King was arrested and transported to the booking facility. All charges against King were eventually dismissed and this suit followed. The district court dismissed all claims against the federal government finding that the Federal Torts Claim Act barred any case against the United States. The district court then granted summary for the two individual officers finding that the officers were entitled to Qualified Immunity. This appeal followed.
6th Circuit Findings
Interestingly, the Appeals Court included the photographs of the suspect, Davison, as part of the record on appeal and we show those pictures below since the comparison between the plaintiff – James King and the subject – Aaron Davison make up a key piece of the court’s determination that probable cause was not present at the time of the stop.
Here is the DMV picture of the suspect Davison taken 6 years before the date of the incident:
And here is a picture of the plaintiff – King:
The first issue tackled by the 6th Circuit was whether the stop was permissible under 4th Amendment guidelines. Based on the information available to the officers at the time of the stop, did the officers have probable cause to make an arrest or the lesser standard – reasonable suspicion to make a Terry Stop? We know that when an officer has a valid arrest warrant and reasonably mis-identifies a person as a suspect, probable cause does not go away. However, in this case the defendant officers did not attempt to argue that there had been a reasonable mistaken identification allowing for probable cause. Rather, the defendants argued that, under the totality of the circumstances, the officers had reasonable suspicion to conduct the stop. The court disagreed listing the following factors as reasons why the information available did not even rise to the lesser standard of reasonable suspicion:
- The general description of a 26- year old white male between 5’10” and 6’3” was too broad to provide reasonable suspicion that a “particular person” was the suspect;
- Knowledge of Davison’s habit of buying the soda every day at the same time did not support the stop because the plaintiff did not stop at the gas station or purchase a soda, and, in fact, would have passed by the gas station because he was on his way to a second job;
- Finally, the court determined that a reasonable jury could determine that King did not bear any resemblance to Davison’s license photo.
The court concluded that, while the requirement for reasonableness allows some latitude for mistakes, “this standard does not become more forgiving as the quality of evidence (or of police work) decreases. Rather, as the description of a suspect becomes less reliable due to the passage of time or otherwise an officer’s reliance on that description becomes objectively less reasonable and less likely to support a warrantless detention, arrest, or search”.
The court also ruled on two additional issues – removing King’s wallet from his pocket and the force used by the officers during the ensuing struggle.
With respect to the wallet, the court determined that under the plain feel doctrine it must be immediately apparent to the officer that the item being touched is contraband or a weapon. Under these circumstances, there was no reason to believe the item was contraband or a weapon.
On the final issue – use of force – the court determined that even if the initial force was reasonable in the context of a Terry Stop, use of the choke-hold constituted deadly force and, therefore, would be excessive under clearly established law.
This case provides us with a number of training issues. First and foremost, officers need to evaluate the information they have at hand BEFORE they make the stop to determine whether they are acting on:
- Probable Cause – allowing them to take action up to and including an arrest;
- Reasonable Suspicion – allowing them to make a less-intrusive Terry Stop or Investigative Detention; or
- Less than reasonable suspicion – allowing ONLY a citizen encounter and giving the citizen the ability to walk away.
In addition, the
level of information available to you at the time of the stop will also limit
the scope of the search – frisk (Reasonable Suspicion) or search (Probable
Cause) – and affect the amount of force deemed reasonable to control the
suspect. Conducting a seizure not supported by the proper level of information
will only lead to a trip to the courthouse as we see here in the King case.
1King v. United States, #17-2101, 2019 U.S. App. Lexis 5438, 2019 Fed. App. 0027P (6th Cir.)