UNITED STATES v. HENSLEY
Legal provision: Amendment 4: Fourth Amendment
ORAL ARGUMENT OF KATHRYN A. OBERLY, ESQ. ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: We'll hear arguments next in United States against Hensley.
Ms. Oberly, I think you may proceed when you're ready.
Kathryn A. Oberly: Thank you, Mr. Chief Justice, and may it please the Court:
Respondent in this case was convicted of being a convicted felon in possession of a firearm.
The Court of Appeals reversed the conviction on the theory that the guns found in Respondent's car were the fruits of an illegal arrest.
The court's ruling was based on two grounds:
First, the court held that investigatory stops, commonly known as Terry stops, may only be made when the police reasonably suspect that a crime is ongoing at the moment of the investigatory stop.
Because that was not the case here... Respondent was stopped in connection with a robbery that had been committed two weeks earlier... the court concluded that this could not be a valid investigatory stop case.
The court then treated the case as an arrest case and concluded that the officers who made what we consider the stop, what the court considered an arrest, lacked probable cause for an arrest because the facts they were relying on were a wanted flyer issued by a neighboring police department saying that Respondent was wanted in connection with an armed robbery that had been committed in the neighboring jurisdiction.
In our view, the Court of Appeals' analysis was fundamentally flawed by its initial ruling on the scope of investigatory stops.
We actually find it somewhat hard to believe that the court meant what it said, because there is no decision of this Court that limits investigatory stops to ongoing crimes, and in fact the Court has repeatedly said, as have most of the other circuits, that a police officer having reasonable suspicion may stop when he suspects that a crime is being committed, is about to be committed, or has been committed in the past.
Unidentified Justice: Ms. Oberly, do you take the position that a Terry stop could be made to investigate a past misdemeanor offense?
Kathryn A. Oberly: I think that it probably could be, Your Honor, although this here is a past felony offense.
Unidentified Justice: Yes, I know.
Kathryn A. Oberly: But it would depend somewhat on the circumstances.
I don't think, for example, that police departments routinely issue wanted flyers for people who are suspected of having committed misdemeanors.
So that I don't think it would arise in the case of a misdemeanor.
But I don't think that there's any... in terms of law enforcement interests, the interest is clearly greater in apprehending suspected felons.
But there is still an interest on the law enforcement side in apprehending anyone suspected of committing a crime, whether it's a misdemeanor or a felony.
And so on one side you have the law enforcement interest in apprehending people suspected of committing crimes, and on the other hand, on the other side of the Terry balance as developed in subsequent cases, you have the intrusion on the individual being stopped.
And so long as the intrusion is sufficiently limited, as it was in this case... this was the most limited intrusion imaginable, the stop in this case... then I think that the law enforcement interest in apprehending people suspected of crimes would not dissipate simply because it was a misdemeanor.
But that is, I would stress, not our case here.
This is an armed robbery committed by someone who all police departments believed was armed and dangerous, who had a long criminal record, who was known to the police of both departments, and this was a very serious offense.
Unidentified Justice: May I ask if the law enforcement interest would have been served if the wanted flyer disclosed whether or not a warrant had been issued for the individual?
Could the police departments have a practice of either having the flyers say there was or was not a warrant?
Kathryn A. Oberly: They certainly could, Your Honor.
And flyers come, just like informant's tips, flyers come in all shapes and sizes.
Unidentified Justice: Except that the police can control what they put in the flyers, but you can't control the informer's tips.
Kathryn A. Oberly: Yes, Your Honor.
The testimony in this case was that this type of flyer is as common as a flyer that actually expressly indicates an arrest warrant has been issued; and that the Kentucky officers who made the stop found in their experience that this type of flyer generally was followed by an arrest warrant; and that one of the officers recalled having been told that a warrant would be forthcoming in this case.
All that testimony is in the joint appendix from the suppression hearings.
Unidentified Justice: But if the flyer had said there is no warrant outstanding, then I take it they wouldn't have even stopped him?
Kathryn A. Oberly: Not necessarily, Your Honor, because the flyer was issued six days before the Covington, Kentucky, police department came upon Respondent.
And at that point I think it still would have been reasonable for the Kentucky police to assume... or to at least wonder whether in that intervening six days the Ohio investigation had further progressed, so that there might either have been a warrant or additional information to supply probable cause for arrest, or some changes--
Unidentified Justice: Does the record tell us how long it normally takes to find out if a warrant is outstanding?
Kathryn A. Oberly: --No, but if it's been computerized it's a matter of minutes, and they--
Unidentified Justice: And had they been able to get that information in that matter of minutes, they could have avoided the necessity for a stop, is that not right?
Kathryn A. Oberly: --No, Your Honor, not on the facts of this case.
What happened here was the first officer... there were many officers involved.
The first Kentucky officer spotted the Respondent driving a car through Covington.
Unidentified Justice: I understand.
Kathryn A. Oberly: He radioed to his despatcher and said: I just spotted Tommy Hensley and he took off; could you check and see if there's a warrant on him?
At that point another officer, who was in his cruiser, overheard this radio communication between the first officer and the despatcher, and the second officer injected himself into the radio communication and he said: I think there is a warrant on this fellow from Cincinnati.
Then we switched... the radio communication switches to the despatcher trying to get information out of Cincinnati records about whether there is or is not an outstanding arrest warrant on this Respondent.
At the same time that that radio communication is going on, the officers are following Respondent to where they think he's going to go.
So that at the time they, the officers, converge on where the Respondent is and stop him and pull his car over, the inquiry, which is quite brief and can always be quite brief, about whether there was an outstanding arrest warrant was practically completed.
Unidentified Justice: And how much additional time would you judge was required to find out the answer?
Kathryn A. Oberly: Well, in this case they never had to find out the answer, because within minutes--
Unidentified Justice: I understand that.
I understand that.
Kathryn A. Oberly: --within minutes of stopping him--
Unidentified Justice: They arrested him for something else.
But the choice, I suppose, is between stopping him and detaining him for... how long a period are they permitted to detain him in the Government's submission?
Kathryn A. Oberly: --I don't think that... just as the Court has said in previous cases, in Florida versus Royer, there's no precise time limit.
Unidentified Justice: Well, would they have kept him for an hour?
Kathryn A. Oberly: I think that would be excessive here, Your Honor.
Unidentified Justice: Could they have kept for 15 minutes?
Kathryn A. Oberly: Probably 15 minutes would have been justifiable.
Unidentified Justice: Do you think they could have kept him under surveillance while he was in his car for 15 minutes?
He was not breaking any speed law, as I understand.
Kathryn A. Oberly: No, and I think that that fact is totally irrelevant.
The officer said no--
Unidentified Justice: Well, if they can tail the man who's abiding by the law while he's driving through the street for the same period of time it takes to get the information, why isn't that preferable?
Kathryn A. Oberly: --If they had enough officers to make sure that they weren't going to lose track of him, that might be one way to proceed.
But that doesn't make the way that they did proceed unreasonable by any stretch of the imagination.
I mean, this is... again I stress, this was the most limited intrusion possible.
Unidentified Justice: Well, they made him put his hands up on the car and they pulled a gun on him.
Kathryn A. Oberly: Which is clearly permissible under Pennsylvania versus Mimms.
The first officer who arrived--
Unidentified Justice: Well, it's not the same as Pennsylvania against Mimms, because that man had violated the law in the Pennsylvania case.
Kathryn A. Oberly: --That man had made a traffic violation.
This man was suspected of being an armed and dangerous felon, who was wanted for an armed robbery that had been committed in the very recent past.
And the officers had good... far more reason than the officers in Pennsylvania versus Mimms to fear for their own safety.
And ordering these... Respondent--
Unidentified Justice: There's a different legal justification?
They did not have a violation of law to go on.
Kathryn A. Oberly: --The officers here, Your Honor, were not relying on having seen him commit a traffic offense, having seen him do anything else wrong in their presence.
They were relying on the flyer that was issued by the St. Bernard police department.
Unidentified Justice: And on their own inability to keep him under surveillance for the time to determine whether the warrant was outstanding.
Kathryn A. Oberly: Because he was in a moving automobile.
Unidentified Justice: Right.
Kathryn A. Oberly: That's correct.
And I don't--
Unidentified Justice: Well, wasn't there testimony that "he took off"?
Kathryn A. Oberly: --Yes, there was, Your Honor.
As soon as he saw--
Unidentified Justice: You just said a minute ago that he wasn't violating the speed limit.
Can you "take off" without violating the speed limit?
Kathryn A. Oberly: --There's no testimony as to how fast he took off.
He took off fast enough to arouse their suspicions, but it doesn't say that he necessarily accelerated so rapidly that he was violating the speeding laws, and we're not contending that.
Unidentified Justice: Well, it's clear he did not violate the law--
Kathryn A. Oberly: That's correct.
Unidentified Justice: --or that surely would be in the record.
Kathryn A. Oberly: That's correct.
We're not contending that at all.
We think that whether or not he was violating a traffic law is totally irrelevant to the basis for the stop here.
Unidentified Justice: Well, when you take off, how fast are you going?
Kathryn A. Oberly: Well, my car doesn't take off too fast.
When you take off, you wouldn't necessarily immediately be violating the speeding laws.
Unidentified Justice: Then you wouldn't say he was taking off, would you?
Kathryn A. Oberly: Pardon?
Unidentified Justice: Isn't 55 miles an hour?
Kathryn A. Oberly: You have to start at zero, Your Honor, and then it depends on how rapidly you can accelerate.
Unidentified Justice: Ms. Oberly, would it make any difference in this case if the St. Bernard police in fact didn't have enough information to justify a reasonable Terry stop?
Kathryn A. Oberly: Yes, Your Honor, that would be critical.
In our view where the Court of Appeals went wrong here was in focusing on the information that the Covington officers knew.
What's relevant is what the St. Bernard officers knew.
The district court here found that the St. Bernard officers had enough information... had enough probable cause to arrest the Respondent.
This Court doesn't have to reach that issue.
All the Court has to conclude is that the St. Bernard officers had reasonable suspicion to justify a Terry stop of Respondent if they had encountered him first.
If they had, then what the Covington officers are doing is basically acting as the agents of the St. Bernard officers.
Unidentified Justice: And if the St. Bernard officers did not have sufficient information in their possession to justify issuance of the flyer, you would suggest the evidence should be suppressed, is that right?
Kathryn A. Oberly: Under this Court's ruling in Whiteley versus Warden, that would be the result, unless... and we don't contend it's present in this case, but the exception would be if the Covington officers had somehow prior to the stop developed their own information to justify a stop.
But since they were making the stop here solely in reliance on the St. Bernard flyer, the validity of that stop turns back to the validity of the issuance of the flyer.
Unidentified Justice: Do you take the position that the St. Bernard police could properly ask another police department to detain the Respondent until they got there for something like that, or are you just asking this Court to determine that a Terry stop can be made long enough to determine whether there is a warrant outstanding?
Kathryn A. Oberly: For this case, we only ask that you determine the latter, that the Terry stop may be made long enough to determine if there's a warrant outstanding.
Unidentified Justice: Well, are you suggesting, then, that we're to decide this case on the premise that the stop by the Kentucky officers was only until they had time enough to find out whether an arrest warrant had issued?
Kathryn A. Oberly: That's correct, and that's the uncontroverted arrest.
Unidentified Justice: In other words... I see.
This wasn't a stop, then, for purposes of interrogating him?
Kathryn A. Oberly: There was no interrogation, Your Honor, by the Kentucky officers, except to--
Unidentified Justice: No, I'm trying to get at what your position is as to why they stopped him.
Kathryn A. Oberly: --They stopped him... the uncontroverted testimony is they stopped him solely to find out whether there was an arrest warrant.
Unidentified Justice: And that's what you want us to decide--
Kathryn A. Oberly: That's correct.
Unidentified Justice: --if it was an admissible stop?
Kathryn A. Oberly: That's correct.
Unidentified Justice: But they didn't stop him as a source of information as to whether there was an arrest warrant.
Kathryn A. Oberly: No.
They stopped him because they needed time to... he was going to take off, as Justice Marshall has pointed out.
He'd already started to take off.
So they stopped him.
They did exactly what this Court said was permissible in Adams versus Williams, which is to maintain the status quo momentarily while they obtained more information.
The more information they needed was a computer check on whether there was an arrest warrant on Respondent.
Unidentified Justice: Well, Ms. Oberly, the flyer asked the police to stop this man, didn't it?
Kathryn A. Oberly: Yes, it did.
Unidentified Justice: And based on just reasonable suspicion, I suppose.
Kathryn A. Oberly: Correct.
Well, the district court found based on probable cause, but--
Unidentified Justice: Well, I know, but--
Kathryn A. Oberly: --we're willing to submit it--
Unidentified Justice: --the officer who issued it didn't even think he had probable cause.
Kathryn A. Oberly: --His testimony is conflicting.
Unidentified Justice: Yes.
Well, anyway, let's assume there was only reasonable suspicion.
Kathryn A. Oberly: Correct.
Unidentified Justice: So they asked another police department to stop him.
What do you think they wanted them to stop... the other police department to do when they stopped him?
Kathryn A. Oberly: For questioning.
Unidentified Justice: Right.
Kathryn A. Oberly: But the Covington officers who made the stop had no intention of detaining this fellow for questioning.
Unidentified Justice: All right.
Let's suppose that in the radio communication they were told: No, no warrant has issued yet, but our flyer is still good; please stop this man.
Kathryn A. Oberly: They could not and would not, according to the testimony, have done that.
Unidentified Justice: Why would you say they could not stop him?
Kathryn A. Oberly: Because they would have known, upon finding out that there was no warrant, that the St. Bernard... that the initiating department, the St. Bernard police, did not have probable cause.
Unidentified Justice: Well, I know, but I thought your point was they had reasonable suspicion to justify a stop.
Kathryn A. Oberly: To find out whether--
Unidentified Justice: I would think you... I thought your position was that the people who issued the flyer had reasonable suspicion to justify a Terry stop.
Kathryn A. Oberly: --That's correct.
Unidentified Justice: And if they had encountered the man first, they would have stopped him.
Kathryn A. Oberly: That's correct, and they could have.
Unidentified Justice: Why couldn't the people who received the flyer do the same thing?
Kathryn A. Oberly: They could have... well--
Unidentified Justice: Legally, under your position.
Kathryn A. Oberly: --They could have stopped him long enough to call the St. Bernard police or called the computer people and say, is there a warrant.
Let's say the answer comes back--
Unidentified Justice: Well, I know that.
But suppose there's no warrant.
Kathryn A. Oberly: --The answer comes back no... and I'm trying to follow up on the question.
The answer comes back no, but the St. Bernard police say, we would still like to question him.
At that point the Covington police would have to decide how long would they have to detain Respondent before the St. Bernard police could arrive to ask their questions.
And at some point the Government would concede that detention might be too long to exceed the permissible founds of the Terry stop.
Unidentified Justice: You say the St. Bernard police also could have made a Terry stop.
Kathryn A. Oberly: Absolutely, Your Honor.
Unidentified Justice: But now, they knew that there was no warrant, because the warrant would have been obtained by them.
What would they have been making the Terry stop for?
Kathryn A. Oberly: To ask... what they wanted to stop Respondent for was for questioning.
He would not have had to submit to the questioning.
They could have stopped him and said, we'd like you to come talk to us about this robbery.
And, absent probable cause, he could have said, I don't care to talk to you, and he would have been free to go on his way.
But they certainly had the authority, the St. Bernard police, certainly had the authority to make the initial stop to see whether the Respondent was willing to cooperate in questioning.
Unidentified Justice: The Covington police could have done the same thing in your view?
Kathryn A. Oberly: Yes, except the problem here is that the Covington police wouldn't have known what to question him about.
So that all the Covington police would do--
Unidentified Justice: Yes, but that isn't a legal argument.
That's just a practical argument.
Kathryn A. Oberly: --That's correct.
But I mean if--
Unidentified Justice: Suppose the St. Bernard police had said: Please ask him the following two questions.
Wouldn't you say that they could have stopped him and asked him those two questions?
Kathryn A. Oberly: --Yes, if they'd been given specific... that's an entirely different situation.
If they'd been given specific information by the initiating department, they're entitled to rely on that, just as they're entitled to rely on the flyer.
Unidentified Justice: How long after the stop did they observe the gun?
Kathryn A. Oberly: From the record, it appears that it was within three minutes.
Unidentified Justice: How long?
Kathryn A. Oberly: Three minutes.
The first officer stopped and waited for backup units to arrive and did nothing except keep the suspects under control until the backup units arrived.
That took three minutes or less.
Unidentified Justice: Now, was he out of the car?
Kathryn A. Oberly: Yes.
The first officer ordered them out of the car and asked them to put their hands on the roof of the car, for his own, the officer's own, protection and then waited for his backup units to arrive.
When the first backup unit arrived, the officer in that car immediately spotted part of the gun in plain view in the car, and at that point the warrant flyer completely drops out of the case and the basis for everything that happened after that point is the Covington officer's own independent observation of the gun in plain view in the car.
To sum up, it's our position on the two points in the Court's analysis that: Terry stops simply can't rationally be limited to ongoing crimes; and second, that this Court's holding in Whiteley versus Warden makes it quite clear that officers of one department are entitled to rely on information supplied by officers of a second department, so long as the first department has the requisite reasonable suspicion or probable cause, as the case may be, to justify the action that's taken.
Unidentified Justice: Ms. Oberly, if you're summing up, does the record tell us... because these words "took off" create an impression that may be inaccurate, does the record tell us the length of time between when the vehicle started to move and when it was stopped?
Kathryn A. Oberly: It does not tell us precisely, Your Honor.
But based on the radio transmission which was going on at the same time, it had to have been a period of two minutes or less.
All off this was happening simultaneously.
Unidentified Justice: And as I remember it, the magistrate indicated that one of the officers said there had been no violation, no speeding in violation of law that he observed before stopping him; is that right?
Kathryn A. Oberly: That's correct.
And they never testified or attempted to justify the stop based on their own observation of a violation of law.
Unidentified Justice: So should we judge the case as though the words "took off" merely meant they have started the vehicle in motion?
Kathryn A. Oberly: That is not the way I would judge... it's not a common sense reading of the words "took off".
Unidentified Justice: Well, what do you interpret them to mean?
Kathryn A. Oberly: I interpret it, in the context of a police radio transmission, that one officer says he sees the suspect, the suspect saw him and immediately took off, as an indication of flight.
But again, we're not--
Unidentified Justice: If it were an indication of flight, isn't it almost a certainty that they would have violated the speed limit within two minutes?
Kathryn A. Oberly: --I'd like to be able to say yes, Your Honor.
But since we have nothing in the record to support it, I don't feel that I could definitively say yes.
Unidentified Justice: The thing that puzzles me about the Government case is that it sounds as though the stop was necessary to prevent the man from getting away from the officers.
Kathryn A. Oberly: Correct.
Unidentified Justice: And I don't know if you're really arguing that or not.
Is there anything in the record to support that, other than the words "took off"?
Because normally, if a vehicle is not violating the speed limit, normally it can be kept in... you know, it can be followed for a considerable period of time without losing it.
Kathryn A. Oberly: If you have sufficient officers--
Unidentified Justice: And if you're only trying to find out if there was a warrant outstanding, I don't understand why a competent officer couldn't just keep the car in surveillance while he radios the station and says, tell us whether there's a warrant out for him.
Kathryn A. Oberly: --Your Honor, if you have sufficient officers that may all be possible.
Unidentified Justice: Even one.
Kathryn A. Oberly: With one car at this point, who seeks the vehicle take off... I can't tell you how fast that was because the record doesn't say.
It seems to me what you're proposing may have been one reasonable way to proceed.
But also, stopping the car for this very limited intrusion is equally reasonable and doesn't violate the Constitution any more than your proposal would.
Unidentified Justice: Why would it be necessary to order him out of the car while they check with the... asked about the--
Kathryn A. Oberly: For the officer's own safety, because the wanted bulletin that they were relying on said consider these men armed and dangerous, and the Covington officers knew from... they knew this Respondent.
He was a local boy.
Unidentified Justice: --I understand that, but couldn't they park their car--
Kathryn A. Oberly: They knew he was armed and dangerous.
Unidentified Justice: --Where were the two cars parked when they stopped him?
Kathryn A. Oberly: Two cars?
Unidentified Justice: The police officer's car--
Kathryn A. Oberly: The police officer wasn't parked, so far as I know.
He was cruising.
Unidentified Justice: --But I mean, when he stopped the other vehicle, his vehicle also came to a stop, I assume.
Kathryn A. Oberly: Right, correct.
Unidentified Justice: And where were the two cars, next to one another?
Couldn't they both have sat in their cars and he radiced and asked, is there a warrant outstanding?
Kathryn A. Oberly: I don't think that having the officer sit in his car ensures that the suspect's car is also going to remain immobile and stay where it is.
Unidentified Justice: You don't think so, with the lights flashing and the police car--
Kathryn A. Oberly: Not given what they knew about these suspects, not at all.
I just again would like to say that your proposed course of action is reasonable, but that does not make what the Covington officers did here unreasonable or unconstitutional in the Fourth Amendment sense.
What they did seemed to be the most prudent course of action to take at the time they were confronted with the situation where they had to make a swift decision.
That entire set of circumstances forms the basis for this Court's Terry cases and post-Terry cases, that we're not going to second guess officers on the beat who make a reasonable decision and say, well, you could have done it in another manner and therefore what you did was wrong.
I don't find anything wrong whatsoever with the way the officers proceeded in this case, even if there are multiple alternative methods that they could have employed.
And finally, I would just like to emphasize that this rule of the Court of Appeals that would prohibit one department from relying on a flyer issued by another department basically is a windfall for criminals who are able to get out of the first jurisdiction--
Once they've escaped the first jurisdiction, no other department can stop them.
And there's nothing in this Court's jurisprudence and nothing cited by the Court of Appeals that would suggest that criminals who are that fortunate to rapidly escape the jurisdiction in which they committed their crime should never thereafter be able to be apprehended again simply because they've moved into someone else's area.
Unidentified Justice: --Well, that's really not quite right, because if they would advise whether there's a warrant outstanding that would decide whether or not they could stop them.
As I understand your position, if they had been told there was no warrant they could not have stopped.
If they'd been told there was a warrant, then there's no question about the legality.
A very simple rule.
Kathryn A. Oberly: And we're in the middle ground, where they needed a very brief period of time to find out whether there was a warrant.
Again, that's a classic Adams versus Williams situation, the language in Adams, maintaining the status quo to find out more information, something that would have immediately resolved the matter one way or another with minimal intrusion on the defendant's privacy interest.
Unidentified Justice: Why in your view can't the second police department do anything the first police department could do if they were there on the ground?
Kathryn A. Oberly: I hope that I haven't said they couldn't.
I think that they can, if the first police--
Unidentified Justice: I got an implication that you negated that.
Kathryn A. Oberly: --My position is that, if the first police department has the requisite reasonable suspicion or probable cause, as the case may be, for the action that it would take if it had been the acting department, the second department can take the same action.
Unidentified Justice: Haven't we in one case said that the knowledge of the one policeman... it was a case out in Wyoming.
Kathryn A. Oberly: Whiteley versus Warden, Your Honor.
Unidentified Justice: The knowledge of one policeman is the knowledge of all, and the second one may act on what the first man tells him just as though he knew all of the things the first man did.
Kathryn A. Oberly: That's correct, and the only caveat to is that the information known to the first department has to be adequate, has to be either reasonable suspicion or probable cause.
Unidentified Justice: If you take that position, then the second officer must have known there was no warrant outstanding.
You don't want him to know that.
Kathryn A. Oberly: No, if he doesn't know--
Unidentified Justice: If he knows there's no warrant, you would agree he could not stop him?
Kathryn A. Oberly: --No.
No, because he has... the first department, Your Honor, could also make a Terry stop.
The first department, which clearly knows there's no warrant because it would have issued the warrant or obtained the warrant if there was one, could still male an investigatory stop and when they come across the Respondent say, we'd like you to come talk to us, we'd like to question you.
The Respondent doesn't necessarily have to submit, but that doesn't negate the authority of the first department to make the stop.
The second department in turn can likewise make a stop based on--
Unidentified Justice: To find out what they're presumed already to know?
Kathryn A. Oberly: --No.
No, Your Honor, they can't be presumed to know it.
To find out what they need to know to assess what their future course of action will be, which is either immediately release him or find out that there's an arrest warrant and therefore they arrest him.
Unidentified Justice: Are they or are they not presumed to know there was no warrant outstanding?
Kathryn A. Oberly: I don't see how they can be presumed to know that.
Unidentified Justice: Then they are not presumed to know everything that the other office knows.
Kathryn A. Oberly: They're presumed to take any action that the first department could take.
And it's clear here that the first department could have made a stop based upon reasonable suspicion, which is all that the second department did.
Unidentified Justice: So you're saying the presence or absence of a warrant really isn't material to your position?
Kathryn A. Oberly: That's correct, because what we're relying on here is an investigatory stop, which obviously does not require a warrant.
Unidentified Justice: And if all that the first jurisdiction had was reason to make an investigatory stop, would that be sufficient for the second jurisdiction to rely on?
Kathryn A. Oberly: Yes, that translates.
Unidentified Justice: Because there's no way you can tell from the flyer exactly the basis for the issuance of the flyer itself.
Kathryn A. Oberly: That's correct.
Unidentified Justice: I just don't see any relevance to the warrant argument.
Kathryn A. Oberly: The warrant argument addresses a wholly different set of facts which we don't have in this case.
I mean, it could arise frequently in the context of these interdepartmental cooperation cases.
But in our particular case all that's needed is that department A have reasonable suspicion, that reasonable suspicion is imputed to department B and department B can likewise make an investigatory stop.
And here they took the most reasonable action possible, which was immediately find out whether there was a basis for escalating their action.
I'll save the remainder of my time.
Chief Justice Warren E. Burger: Mr. Drennen.
ORAL ARGUMENT OF EDWARD G. DRENNEN, ESQ., ON BEHALF OF RESPONDENT
Edward G. Drennen Ii: Mr. Chief Justice, members of the Court:
This case, as it gets further along, tends to get more and more blown out of proportion.
The case that we originally dealt with at the district court level and the reason that the state court transcript is before you and was before the district judge was to demonstrate, in response to one of your questions, what did the officer mean by "take off".
If you read Officer Eger's testimony on page 40 of the joint appendix, his testimony was at that point in time he said hello to Mr. Hensley, told him he was obstructing traffic, and told him to move along.
And he then got on the radio and made an inquiry as to a flyer.
Now, it should be noted that then other officers began their conversations concerning this, and the despatcher said there is no flyer.
So you have to again look back at their testimony, and their testimony was that they didn't recall whether it had been two months that they had heard it, two weeks that they had heard it, or the day before.
It becomes even more prevalent when you notice that the despatcher hooked into the watch commander and the watch commander said: There's no warrant, there's no flyer.
They checked into Cincinnati: no flyer, no warrant.
The situation becomes even more blown out of proportion.
They talk as if only Officer Coke stopped the individual.
There were four cruisers that stopped in moments.
Mr. Hensley's whereabouts was known.
They gave two locations over the radio.
One was his home, the other one was his sister's home.
He didn't even illegally park when he was pulled over.
They say limited intrusion--
Unidentified Justice: Mr. Drennen, would you concede that the St. Bernard police could have made a Terry stop of the Respondent in their jurisdiction on reasonable suspicion, even though no warrant had issued.
Edward G. Drennen Ii: --No, I would not concede that.
There was absolutely no basis.
Unidentified Justice: All right.
Now, what if we disagree with you on that point and think the St. Bernard police could have made a Terry stop to do what Ms. Oberly's suggesting, to wit, ask him whether he'd be willing to come in and talk to them about a robbery?
Edward G. Drennen Ii: And he would have the freedom to leave.
Unidentified Justice: Yes.
Edward G. Drennen Ii: But we're not dealing with that particular case.
Unidentified Justice: All right, but I'm asking you to suppose for a moment that the St. Bernard police could have made a Terry stop.
Could the Covington police, acting on the same information, do the same?
Edward G. Drennen Ii: No, I don't believe they can, because you have to permit the defendant to leave.
And in the Dunnaway case... that's what you're asking in effect for me to discuss... are they permitted to stop an individual, question him concerning ongoing criminal investigation?
Do they have to advise that he's free to leave?
Do they not advise him that he's free to leave?
You're asking whether the St. Bernard police--
Unidentified Justice: Well, I'm asking you about the stop, not the content of the questions.
Edward G. Drennen Ii: --Well, that's correct, and if you look at the stop, would the St. Bernard police have stopped him in the same manner that the Covington police did?
Guns drawn, four cruisers, get your hands on the hood, slide all the way to the rear of the car, place your hands on the rear bumper or the rear hood of your vehicle, wait for the other cruisers to show up, then get you up on the sidewalk.
This didn't take a few moments.
Other officers then proceeded to leave.
The man was at gunpoint.
While he was being questioned on the sidewalk, another officer decided to search through his vehicle.
You know, so is that what you would want the St. Bernard police to be able to do?
Unidentified Justice: Well, I suppose the testimony is that an officer saw a gun in the open door of the vehicle.
Edward G. Drennen Ii: That is correct.
Unidentified Justice: And that provided the justification for a further search.
Edward G. Drennen Ii: That is correct.
Unidentified Justice: Within three minutes.
Edward G. Drennen Ii: I believe, Mr. Chief Justice, if you read the transcript, the transcript was that's how long it took the officers to get there, not necessarily how long it took all of this to transpire.
All the cruisers began to converge on Mr. Hensley, who had not committed any type of offense.
They were relying solely on a flyer which didn't say we want to question him, Covington police question him.
Unidentified Justice: The flyer said he was armed and dangerous, did it not?
Edward G. Drennen Ii: --It also said pick him up and hold him.
And Mr.... excuse me... Officer Coke's testimony in the original hearing was he was going to be held for investigation.
He didn't say he was going to let him go.
Page 15 of your joint appendix.
It said he was going to be held for investigation.
This idea of, well, I was only going to stop him momentarily, came up later, once it had been shifted from the state system to the federal system.
The situation you have to look at, what did the officer in Cincinnati, being St. Bernard, which has been intermingled... St. Bernard is a suburb of Cincinnati... what was his request?
His request was to have the man arrested.
That was his testimony.
He wanted the man arrested so he could come over and talk to him.
Now, how long is a reasonable period of time?
There was no warrant issued for five months.
The man was never charged.
He was never actually indicted for this alleged robbery that took place in St. Bernard.
As we see it, there's no question.
This was not an investigatory stop.
It was an arrest.
The purpose was to arrest him, to detain him, take him back to the station until St. Bernard could come down and talk to him.
The reason the warrant was issued in May was because that's when the officers from St. Bernard finally decided to come down and talk to him.
Unidentified Justice: Well, Mr. Drennen, I think the Court of Appeals took a little bit different view of these facts than you're now stating.
At least their opinion recites the officers' testimony that they only wanted to determine if there was a warrant and that Officer Coke testified he intended to release Hensley.
Edward G. Drennen Ii: That was the testimony that Officer Coke elicited before the district judge.
But the testimony was also, as appears in the transcript and was submitted to the district judge and was argued to the Court of Appeals, was that was not what happened.
Unidentified Justice: Well, we're not hear to parse through minute factual details in the record.
We have a holding of the Court of Appeals on a point of law that we think should be reviewed.
Edward G. Drennen Ii: That is right, and our position is that, though their wording is somewhat inconsistent with the actual findings as I would see them, their finding is correct.
The officers had elicited an illegal act by the Covington police department.
There were no specific, there were no articulable facts upon which to base their finding.
Mr. Hensley had done nothing wrong.
If you take the step and see what the flyer initiated, the flyer, as it was testified to, was based on an affidavit of an individual that it's bantered back and forth whether she was or was not actually involved.
It was our position at the district court, it was our position in the Court of Appeals, it's our position here, that woman was not involved; she was just relating what someone had told her.
The St. Bernard police relied on that information, relied on an affidavit which doesn't even mention my client's name.
It never did.
It relates to a man named Tommy.
Now, I think the difficulty is, if you're going to have flyers issued and when the officer says in his own testimony, I did not personally believe I had probable cause to get a warrant, if there's a judge involved then I think it can be made proper.
But when the police determine for themselves what is going to be probable cause solely for the purposes of investigation and solely for the purposes of arrest, then you're getting a situation that is tantamount to causing the police to have unbridled power to pick up anyone they so choose.
In this particular case, you've got a situation where, if the officer from St. Bernard had taken the information he had to a magistrate or a district judge and requested a warrant and that warrant was issued, then I don't think we would be here because I wouldn't have really any argument to try and second guess what was submitted and what is or is not probable cause to the judge.
But when the district court makes that determination, after the defendant's been arrested, after everything's been complete, he looks back and says, well, I disagree with the officer in St. Bernard, I think there was probable cause, I don't think he can do that.
This is closing the gate after the barn door... the horse has gotten out of the barn.
What we have is a situation that, if you're going to balance the tests, then the officers' in Covington sole knowledge is that what they receive from St. Bernard.
It was a flyer, a flyer which requested an illegal act, because it didn't ask them to question him; it asked them to hold him.
It didn't ask them to do--
Unidentified Justice: Do I understand you correctly that if a warrant is outstanding in St. Bernard, everything that happened here would have been all right?
Edward G. Drennen Ii: --I believe if a warrant had been issued for the man's arrest, the Covington police have no option but to arrest that person based upon that warrant.
But that was not what they did here.
They didn't go get a warrant.
They simply decided for themselves, and that's what the officer testified to: I don't think I had probable cause to get a warrant, so I issued a probable cause flyer.
But the probable cause flyer requested the man to be arrested.
It also elicited information that the man was armed and dangerous, which could have resulted in the death of the individual.
The situation that you have to relate is the proverbial balancing test: the individual's limited intrusion against the balancing of the enforcement of the law.
The difficulty is, what the Government is asking you to do is saying that an individual may be stopped, whether it's concerning investigating his activity at that moment, ongoing criminal investigation of a situation where they receive within moments or within an hour or so of a crime having been committed a description of a vehicle and a description of an individual and they stop the person based upon that.
This is weeks after an alleged robbery took place, based upon in effect hearsay information, they are asking that the man be stopped and arrested.
I do not think that's what Terry warrants.
I do not think that they can permit that type of conduct, because what it is in effect doing is permitting the officers to stop and harass any person that they know to be a criminal, simply because they want to stop him.
They do whatever they want.
You know, what we've got here is a situation that Mr. Hensley, having done nothing wrong, was solely being stopped to be questioned about some activity two to three weeks before.
The evidence that was elicited at trial and through the testimony and through the transcripts was that the officers knew: number one, there was no flyer within their department any longer; second, that there was no warrant within their department.
Now, does that cause an officer on the street to presume therefore there is no warrant?
Well, the Government's position: We need further information.
Unidentified Justice: But that information they got a little bit after they found the gun.
Edward G. Drennen Ii: To be exact, Justice Marshall, it took nine months to find that flyer.
Unidentified Justice: No, I'm talking about when they picked him up, when they found out that there was no warrant.
That was after they had found the gun.
Edward G. Drennen Ii: No, that is not correct, Justice Marshall.
They knew before they ever stopped Mr. Hensley: number one, that their department did not have a flyer; number two, that their department had no warrant.
Unidentified Justice: I said that the other side didn't, St. Bernard, did not have a warrant.
When did they find that out?
Edward G. Drennen Ii: St. Bernard knew--
Unidentified Justice: Before or after they found the gun?
Edward G. Drennen Ii: --Maybe I'm confused by your question.
St. Bernard never asked for a warrant until five months after Mr. Hensley was stopped.
Unidentified Justice: When?
Five minutes after?
Edward G. Drennen Ii: No, five months after he was stopped, they got a warrant.
Unidentified Justice: I'm talking about five months before.
I'm talking about when Mr. Hensley was stopped and they found the gun.
When in time did they find out that there was no outstanding warrant?
Before or after they found the gun on that particular day, not months before?
Edward G. Drennen Ii: I need to know which department.
Unidentified Justice: Sir?
Edward G. Drennen Ii: Are you asking about Covington?
Covington is the department that stopped him.
Is that the department that you're asking about?
If that is the department, they knew before they ever stopped him there was no warrant.
Unidentified Justice: Well, that's not according to the testimony I read.
I read the testimony that they called to find out.
Edward G. Drennen Ii: That is correct, and it was an ongoing situation.
It was not something they stopped him, then tried to verify.
Unidentified Justice: Well, let's take it easy.
They called to find out if there was an outstanding warrant.
Edward G. Drennen Ii: That is correct.
Unidentified Justice: Two, they found out there was no outstanding warrant.
Edward G. Drennen Ii: That is correct, through the despatcher.
Unidentified Justice: Three, they found the gun.
Edward G. Drennen Ii: That is correct.
Unidentified Justice: Now, have you got all three of those situations--
Edward G. Drennen Ii: That's how I see it.
Unidentified Justice: --Timewise, what was first?
Edward G. Drennen Ii: The officers first called in to the despatcher.
Unidentified Justice: Right.
Edward G. Drennen Ii: And maybe here is where--
Unidentified Justice: And what was second?
Edward G. Drennen Ii: --It depends on what you mean by "verify".
If you mean the dispatcher tells the officer on the street there is no flyer, there is no warrant.
Unidentified Justice: Are you taking the position you don't understand what I'm saying?
Edward G. Drennen Ii: Apparently not, because as I see it--
Unidentified Justice: Well, forget it.
Edward G. Drennen Ii: --No, no.
What I see, Justice Marshall, is that the officers attempted to verify when they called in to the despatcher, and when they called the despatcher there was no verification there available to them as to a flyer or a warrant.
Now, after they stopped Mr. Hensley, of course, they then went on to try and verify the existence of a flyer and the existence of a warrant.
They did it at both times.
It depends on whether you mean did they communicate with St. Bernard prior to the stop.
No, they did not.
They did not communicate until after, did they ever communicate with St. Bernard to find out, did you ever issue a warrant.
They were communicating back and forth to their department and their department said there is no flyer, there is no warrant.
Unidentified Justice: Mr. Drennen, can I ask you a question if I'm not interrupting your answer?
Supposing we change the facts just a little bit here and say that the Covington department knew there was no probable cause, knew there was no warrant, knew that the other department merely wanted to question the man on reasonable suspicion.
And they stopped... they saw the defendant and they stopped him in motion on the streets and just pulled him over to the side, got out of the car, went up to the window and said to him: I would like you to know you're under suspicion over in Cincinnati or the other town and they would like you to stop in and talk to them; you may want to exonerate yourself, or something like that.
And during such a conversation they saw through the window the guns.
Would that be unconstitutional?
Edward G. Drennen Ii: No, I don't think in any way, shape or form that's more than just a momentary inconvenience.
Unidentified Justice: But it's a stop.
Edward G. Drennen Ii: It is a stop, but their purpose was not to arrest or to hold; it was solely to advise an individual of something.
It was a momentary inconvenience.
There's a difference between stopping the man casually on the street as you walk by or you see him or coming to his home--
Unidentified Justice: No, I'm saying pulling a car over, pulling a car over.
Edward G. Drennen Ii: --or stopping him and pulling him over and saying: Mr. Hensley, St. Bernard has issued a flyer, they want to talk to you, blah, blah, blah, and he looks in and sees the gun.
You know, it's a situation with the officer where he should have been and I don't see that wrong in any way, shape or form.
Unidentified Justice: So your whole attack on this is based on getting him out of the car and drawing the gun?
Edward G. Drennen Ii: And it's whether or not, in addition to that, whether or not there are specific and articulable facts that that officer, when you look at what he had and what he knew... and in the Whiteley-Warden case, there was a warrant.
If the warrant's no good, then the ultimate action by the officer is not shielded by the wrong act.
Unidentified Justice: But you've conceded they could stop the vehicle even though there were no warrant and everybody knew there were no warrant?
Edward G. Drennen Ii: That's right.
I don't see anything wrong with an officer simply advising someone that another department wants to talk to him.
Unidentified Justice: Well, Mr. Drennen, your argument seems to turn, at least in part, on the thoughts in the mind of the Covington police officers who made the stop, rather than on objectively examining what they did and what happened.
You want us to look inside their head and say: Well, what they intended to do was to make some lengthy detention here which they have no authority to do.
Now, we don't do that normally, do we?
Don't we have to look at what happened, not at what was in one of the officer's heads at the time?
Edward G. Drennen Ii: I'm not asking you to look inside the officer's head.
I think the officers themselves have testified.
What I'm saying to the Court is that the situation is such that it is in this particular case--
Unidentified Justice: Well, if the officer could legitimately have made a brief stop, as you just indicated to Justice Stevens, and that objectively is what had happened here at the time the gun was seen, then don't we stop there?
Edward G. Drennen Ii: --No.
Your situation is one of, number one, that an officer in his normal course of business runs across many things.
If the officer is just simply following up information... he sees the individual, he is simply saying, look, someone wants to talk to you... I don't see that as necessarily an abusive act on his part.
But when the officer's intent was to arrest, when they were relying solely upon a flyer which requested an illegal act... and let's take the situation as presented.
If in that same set of circumstances the officer observes the weapon, we then have to look, what put that officer in that place, whether it was a warrant issued by a judge or a flyer issued by another department.
Now, if it's a flyer issued by another department, then again he is acting upon what another department has requested him to do.
If you then go back after the stop, they find the gun, he did nothing more than ask the man or tell the man something, it's then found out that the basis for him being there was improper, then his basis for being there is no longer good.
Unidentified Justice: Well, but suppose we agree with you that the St. Bernard police could not properly ask another department to make an extended detention of someone until they arrive.
But let's also suppose that the arresting officer in Covington knew that request was improper and all he was going to do was make a proper stop to say: Look, you ought to go across the river and talk to the St. Bernard police.
Isn't that all right?
Edward G. Drennen Ii: No, I don't perceive that as being all right, because he has to be... whatever his conduct for being where he is has to be based upon some proper information.
If the flyer is issued and he has acted upon the flyer, then we have to look at the flyer.
If the flyer's no good--
Unidentified Justice: Well, suppose part of the flyer is properly set forth information and part isn't, and he ignores the improper part.
Is that invalid?
Edward G. Drennen Ii: --Yes, I do, because I don't think the officer can pick and choose what he wants to be insulated against.
The officer in Covington is acting solely upon the information he receives, nothing else.
He can't say, I'm only going to accept this portion which I think is valid and this portion which is invalid, because what you're then asking the police officers on the street to do is tantamount to make them lawyers, make them all go to law school, make them all become judges.
I don't think that's proper.
And when an officer in another department places himself as a judge and requests an illegal act to be performed, the officer who performs it, even though he is doing it solely in totally good conscience, he is not insulated from that act.
And therefore what put him in the place, put him on the street, put him at the car of Mr. Hensley is no good and whatever he finds incidental to it is no good.
Thank you very much.
Chief Justice Warren E. Burger: Do you have anything further, Ms. Oberly?
REBUTTAL ARGUMENT OF KATHRYN A. OBERLY, ESQ., ON BEHALF OF PETITIONER
Kathryn A. Oberly: Briefly, Your Honor, the case seems in the last hour to have gotten somewhat confused by a lot of different factual situations, and I would just like to reiterate our two main points, which I don't think depend on all the hypotheticals.
One is Terry stops are not and cannot be limited to ongoing crimes.
It simply makes no sense to say that criminals are home free once they get away with their crime and they're not immediately detected, and we would strongly urge that that aspect of the Court of Appeals' ruling be reversed.
The second point is that it has long been recognized this Court and the Courts of Appeals that police departments must and are able to cooperate with each other; that it is not necessary that they cross-examine each other about the basis of the first department's knowledge.
And in this case there was no reason that the Covington officers had to know precisely what the St. Bernard officers had to know.
Yet that is exactly what the Court of Appeals required in this case.
They said the stop... the arrest was defective because the Covington officers did not have the personal knowledge that the St. Bernard officers had.
In our view that personal knowledge is not required.
Chief Justice Warren E. Burger: Thank you, counsel.
The case is submitted.