Below is the 2-3-4 rule. The “2” is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The “3” is for the three tiers of police-citizen encounters as outlined by the courts, and the “4” list the four ways in which a peace officer may legally enter a dwelling.
Two Types of Legal Authority (LA)
- Reasonable Articulable Suspicion (RAS): A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience to believe that criminal activity is afoot. Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
- Probable Cause (PC): A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person. IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.
Three Types of Police-Citizen Encounters
- Verbal/Consensual Encounter (Tier 1): No legal authority is needed to approach a citizen. The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer. An officer may ask for consent to search during a verbal encounter. Case References: Florida v. Bostic, 501 US 429; US v. Baker, 01-16585 (2002)
- Investigatory Detention/Brief Stop (Tier 2): An officer must have RAS to make an investigative stop. The suspect can only be held for a reasonable amount of time. Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer’s initial suspicion has been satisfied and all identification checks have been made. NOTE: An officer may handcuff a suspect during a brief stop only when necessary for the officer’s, the public’s, or the suspect’s safety. The suspect must be advised that they are not under arrest. An officer may frisk for weapons if the officer has RAS that the suspect is armed and presents a threat. Case References: Terry v Ohio, 392 US 1 (1968); United Sates v. Arvizu, 534 U.S. 266 (2002)
- Arrest (Tier 3): An officer must have PC to make an arrest. The officer should conduct a search incident to arrest. The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.
Four Legal Ways to Enter a Dwelling
- Consent: Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order). Consent can be given verbally or written. The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
- Warrant/Court Order: An officer can enter a suspect’s home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling. Case Reference: Payton v. New York, 445 U.S. 573 (1980)
- Exigent Circumstances: An officer may enter a dwelling without a warrant when exigent circumstances exist. Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
- Hot Pursuit: The officer must be pursuing the suspect for an arrestable offense. The suspect must know that he or she is being pursued, and the suspect must be in actual flight.