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Can the Police Detain a Witness Who They do not of Suspect Wrongdoing?


February 11, 2014 by Tom Roberts, Esq.

Question: Can the Police Detain a Witness Who They do not of Suspect Wrongdoing?

Answer: Yes – but only under very limited circumstances.

The Fourth Amendment – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  In defining this right, the United States Supreme Court has stated that when the police “seize” a person that seizure must be reasonable under the circumstances.  See Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (citing Dunaway v. New York 442 U.S. 200 207-208 (1979).  A person has been seized, for the purposes of the Fourth Amendment when, by means of physical force or show of authority, that person’s freedom of movement is restrained and, in the circumstances surrounding the incident, a reasonable person would believe that they are not free to leave.  United States v. Mendenhall 446 U.S. 544 (1980).  From Mendenhall and al-Kidd we can deduce that when the police restrict a person’s movement to such an extent that a reasonable person would not believe they are free to leave, then that person has been seized and the police must have acted reasonably.  If the police acted unreasonably, the seizure violates that person’s constitutional rights.  Under the United States Supreme Court’s interpretation of the Fourth Amendment, unless that seizure falls under an established exception, any search or seizure conducted without a valid warrant is unreasonable and therefore unconstitutional.  Maryland v. Dyson, 527 U.S. 465 (1999); Katz v. United States, 389 U.S. 347 (1967); California v. Acevedo, 550 U.S. 565 (1991); New Jersey v. T.L.O. 469 U.S 325 (1985).  There are multiple exceptions to the warrantless seizure prohibition, but the majority of the exceptions presume that the person seized has may have committed some trespass against a state stricture.  See, e.g. Chimel v. California, 395 U.S. 752 (1989)(Search Incident to Arrest); Arizona v. Gant, 556 U.S. ___ (2009) (Motor Vehicles); Coolidge v. New Hampshire, 403 U.S. 443 (1971) (Plain View); Schenckloth v. Busmonte, 412 U.S. 2187 (1973) (Consent); Terry v. Ohio, 392 U.S. 1 (1968) (Terry Stop); Carroll v. United States, 267 U.S. 132 (1925) (Exigent Circumstances).  In the case of witnesses to a crime, that background presumption is absent; do the police have the power to detain the witness?

Detaining a Witness:  When is it Constitutional?  When is it Not? – “Special Needs” – when the need for the detention outweighs its intrusiveness.

What happens when the person seized is not suspected of wrongdoing?  What is the standard for determining reasonableness where the police do not suspect the person seized of any wrongdoing? These seizures are considered “special needs” under the Supreme Court precedent and have rules of their own. See  Indianapolis v. Edmonds, 351 U.S. ___ (2000); New Jersey v. T.L.O. 469 U.S 325 (1985).  The court permits “special needs” detentions when the need for the detention outweighs its intrusiveness.  See Terry v. Ohio, 392 U.S. 1 (1968).  The constitutional propriety of the detention will turn on four factors (1) the seriousness of the crime witnessed, (2) the nature of the information the witness can reasonably expect to provide, (3) the level of proof that the witness can provide, and (4) whether there are less intrusive methods to obtain the same informationSee, e.g., New Jersey v. T.L.O., 469 U.S 325 (1985); Michigan State Police v. Sitz,  496 US 444 (1990); Skinner v. Railway Labor Executives, 489 U.S. 602 (1989).  In considering these factors, the more serious the offense, the more likely the court will hold that the special needs seizure as constitutional.  See Skinner v. Railway Labor Executives, 489 U.S. 602 (1989); New Jersey v. T.L.O. 469 U.S 325 (1985); Michigan State Police v. Sitz, 496 US 444 (1990); Chandler v. Miller, 520 U.S. 305(1997).  As with all factors tests, the more sever the crime, important and detailed the information the witness may have, and the absence of availability of less intrusive methods will all weigh in favor of constitutionality.  On the other hand, if the crime is not a major crime (violent misdemeanor or felony), the witness is not likely to be able to provide much quality information about the crime, and less intrusive methods are available the court is more likely to hold as unconstitutional the special needs search.  In practice, it may be constitutionally permissible to detain for half an hour the only eye witness to a gruesome homicide, detaining for hours a witness to someone smoking a marijuana cigarette in the privacy of their home may be less constitutionally defensible.

What should I do if the Police detained me because I they believed I was a Witness to a Crime?

If you have been detained by the police because the police believe that you may be a witness to a crime, your constitutional rights may have been violated and you need experienced legal counsel.  When the facts in the case are particularly egregious and damages are not merely nominal, contact the Lawyers of Thomas H. Roberts, and Associates, P.C. and Hull Street Law today.  Call 804-783-2000


Jonathan M. Arthur
Hull Street Law
A division of Thomas H. Roberts and Associates, P.C.
1010 Hull Street
Richmond, Virginia 23224


The facts and circumstances of each case are unique.  Therefore, the fact that any law firm has obtained significant verdicts and judgments in the past are in no way a guarantee that other cases will have similar results.  These materials have been created for informational purposes only.  No not act on any of this information without first having contacted an attorney.  There is nothing here that creates or is meant to create an attorney client relationship.


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