How Much Suspicion Is Required?

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Imagine a situation where law enforcement approaches an individual based upon suspicions of a potential crime.  Can this person tell the officer to leave them alone and walk away?  Or are they required to follow the instructions of law enforcement and possibly be subject to a search of their person?  We’ve likely all heard or maybe even seen this before, but how much suspicion is actually required before someone is not free to leave?  And is it suspicion alone that’s required or does the constitution require more?

What Does the Constitution Have to Say?

Under the U.S. Constitution, the Fourth Amendment requires that law enforcement have reasonable suspicion that criminal activity is afoot.  In 1968 the United State Supreme Court in Terry v. Ohio created a two-part test in order to determine when law enforcement may stop and briefly detain someone for investigatory purposes (aka a Terry stop): “1) Whether the office’s action was justified at its inception, and 2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”  When a judge is tasked with determining whether a Terry stop was constitutionally permissible as to the Fourth Amendment, they will evaluate the stop under the test and will look to the reasonableness of the stop using an objective standard, disregarding any “hunches” that a particular law enforcement office may have.

Under the Indiana Constitution, Article I, Section 11 has almost identical language to the Fourth Amendment, however the analysis is different and “[…] turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances.”  In Litchfield v. State, the Indiana Supreme Court identified three factors that should be considered in determining whether a stop and subsequent search: “1) The degree of concern, suspicion, or knowledge that a violation has occurred, 2) The degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) The extend of law enforcement needs.”  These Litchfield-factors impose a burden on the State of Indiana to show compliance with the Indiana Constitution in any stop and subsequent search or seizure.

Looking Suspicious is Not Enough

Frequently, cases are predicated on someone appearing “suspicious” and/or being in “high crime areas” as a basis for law enforcement initiating contact, but is this suspicion or unfortunate location enough?  In 2017, the Indiana Supreme Court cleared the air as it pertains to the Fourth Amendment and Article I, Section 11 that “suspicion” is NOT enough.  Rather, the Indiana Supreme Court made clear that under the Fourth Amendment “merely looking suspicious is not sufficient to overcome Fourth Amendment protections.”  Law enforcement must be able to show that their suspicions are reasonably directed toward criminal conduct, i.e. they have to present evidence that a person is doing something that reasonably supports suspicions that a crime is being committed or about to be committed.  Using the Litchfield-factors referenced above, the Indiana Supreme Court similarly concluded that those factors also require more than a subjective belief or suspicions of an individual, but must be linked to articulable criminal activity.

To some, this may seem like a clear cut and easy analysis, yet it is frequently overlooked or misunderstood.  The waters are further muddied if the situation involves a traffic infraction as a pretext for the stop.  Or perhaps if a K9 officer is used during a traffic stop.  Yet the result of a court concluding a constitutional violation (Federal or State) would likely be the exclusion of incriminating evidence, which can have a direct result in an individual’s case being dismissed or receiving a very favorable resolution.  As such, it’s imperative your attorney does an in-depth and thorough investigation to see if such a violation has occurred.

If you or somebody you know has recently been accused of a crime or has questions about the criminal case process, contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing