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Handcuffing didn’t create arrest during investigatory detention

A court rules that an officer was justified in handcuffing a subject during a detector dog sniff

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United States v. Pace, 2022 WL 4115728 (7th Cir. 2022)

Officer Crowder was the sole officer on duty in the small village of Pleasant Hill, Illinois. His nearest backup officer was approximately 20 minutes away but wasn’t available at 2230 hours when Officer Crowder saw a white SUV in the parking lot of a closed local business. The village may have been sleepy, but Officer Crowder was not.

Officer Crowder noted he hadn’t seen the SUV in Pleasant Hill before, nor had he seen the man sitting in it. In a town of just over 1,100 people, the police might be expected to know just about everyone, particularly those out late at night. Officer Crowder pulled into the parking lot to investigate. When he did, Roger Pace got out of the SUV and started speaking with him. Pace explained he was looking for his friend, Jennifer Johns, but was lost and needed directions to her house.

Pace was in luck. Officer Crowder knew of Johns and that she was involved with methamphetamine. Johns had previously provided information to Officer Crowder that resulted in an individual’s arrest for possession of methamphetamine. Officer Crowder was also aware of reports that Johns and her mother were using and dealing methamphetamine, having received complaints from Johns’ neighbors about frequent traffic at her home.

When Pace mentioned Johns’ name and his planned late-night visit, Officer Crowder became suspicious. He gave Pace directions. Officer Crowder then moved his patrol car behind the SUV and turned on his emergency lights. While Officer Crowder moved his patrol car, Pace stood in front of his SUV and made a phone call. The exit to the parking lot was in front of Pace’s car; nothing obstructed his ability to drive away.

Officer Crowder approached Pace again and asked for his driver’s license. Shining his flashlight inside the SUV, he did not see any weapons or contraband but did notice multiple musical instrument cases. Pace walked to the back of his SUV and told Officer Crowder he would get an instrument out and play a song for him. Pace’s behavior seemed “very odd and overly friendly,” yet nervous at the same time. Officer Crowder called a backup officer from another agency, but the officer was busy.

Dispatch confirmed Pace had a valid license and that he had no outstanding warrants, but found he had a history of drug possession including methamphetamine and other drugs. Officer Crowder checked and discovered Pace was on probation for possession of methamphetamine. Officer Crowder approached Pace again and asked whether Pace had any weapons in his possession. Pace denied that he did, consenting to a search of his person. However, Pace declined to consent to a search of the SUV.

Officer Crowder told Pace he was going to conduct a free air sniff of his SUV with his drug detector dog, explaining to Pace that he was not under arrest, but Officer Crowder was going to handcuff him during the sniff for officer safety. Officer Crowder then placed him in front of his patrol car. The dog gave a positive final indication of the odors of controlled substances. Officer Crowder then searched the SUV, finding both methamphetamine and cannabis.

Pace was charged with possession with intent to distribute methamphetamine. Pace asked the trial court to suppress all evidence obtained from the search. A magistrate judge ruled the initial interaction between Pace and Officer Crowder was consensual, rejecting Pace’s claim that Officer Crowder’s use of his emergency lights created a Fourth Amendment “seizure.” Even if it did, the judge found Officer Crowder had reasonable suspicion at that point to conduct a limited investigative stop to check Pace’s driver’s license. The judge ruled no arrest occurred when Officer Crowder handcuffed Pace and that Pace’s criminal history provided reasonable suspicion for the dog sniff. Pace appealed the denial of his suppression motion (and his five-year sentence).

An officer may approach a citizen, have a consensual conversation and ask questions without any level of suspicion – as long as no detention is involved. An officer/citizen contact remains “voluntary” as long as the officer does not restrict the freedom of the citizen, either by physical conduct or verbal direction. Another question courts consider in assessing the voluntariness of an officer/citizen contact is whether a reasonable person would feel free to turn and walk away from the encounter. As long as a reasonable person believes he or she can “disregard the police and go about his or her business,” the encounter remains voluntary (Florida v. Bostick, 501 U.S. 429 (1991)). If a reasonable person in similar circumstances would not feel free to leave, then the encounter has turned into a “seizure” (United States v. Ringold, 335 F.3d 1168 (10th Cir. 2003), cert. denied, 540 U.S. 1026 (2003)).

The court of appeals considered several factors in assessing whether Officer Crowder’s initial encounter with Pace was objectively consensual:

  • The encounter took place outside.
  • Officer Crowder did not force Pace to stop, as his vehicle was already parked.
  • Only one officer was present.
  • There was no threatening presence or show of authority.
  • Pace moved about freely during the initial interaction.
  • When he first stopped, Officer Crowder inquired whether Pace needed help.
  • Officer Crowder did not act in a manner that communicated to Pace he could not leave.

Thus, the appellate court affirmed the trial court’s determination that the initial contact was voluntary.

Pace also claimed Officer Crowder lacked reasonable suspicion for an investigatory detention. The appellate court considered Pace’s intended late-night visit to Johns, someone Officer Crowder suspected of dealing in methamphetamine. Officer Crowder had personal knowledge of facts connecting Johns to methamphetamine trafficking, as well as suspicions based on neighbors’ complaints about traffic that was consistent with drug trafficking. The court held that moving his patrol car and activating the emergency lights, then asking for Pace’s driver’s license were reasonable investigative steps to confirm or dispel the suspicion that Pace’s visit was drug-related and not just a visit to a friend.

The court also rejected Pace’s argument that Officer Crowder arrested him by placing him in handcuffs prior to the dog sniff. Pace emphasized that he had been cooperative and non-threatening during the encounter. Officer Crowder testified, “I explained to him that at this point that he was not under arrest, that I was going to place him in restraints for my officer safety at that point.” Officer Crowder handcuffed Pace’s hands in front of his body, he was not placed in the police car and he was not restrained from moving about.

Quoting its own earlier decisions, the court observed, “We have been unwilling to hold that the handcuffing of a suspect without probable cause to arrest is unlawful per se” (United States v. Smith, 3 F.3d 1088 (7th Cir. 1993)). We have “recognized a limited set of circumstances in which handcuffs are appropriate without converting a Terry stop into a full arrest. Chief among them is officer safety and the possibility of the presence of a weapon” (Howell v. Smith, 853 F.3d 892 (7th Cir. 2017)). Most other courts have reached the same conclusion. In this case, Officer Crowder was the only officer on the scene, and backup officers were over a 20-minute drive away. The court also said it was appropriate for Officer Crowder to consider that Pace was not a local resident, it was late at night, Pace was there to visit the home of a suspected methamphetamine dealer, Pace himself had a history of possessing methamphetamine and was on probation, and Pace had denied consent for the search of his vehicle. Finally, “Officer Crowder explicitly told Pace that he was not under arrest.” The court held he was justified in handcuffing Pace during the detector dog sniff.

Like thousands of officers, troopers, conservation officers and deputies, Officer Crowder was the only cop around for many miles. The 1,100 people in Pleasant Hill, Illinois, should be grateful he’s there, along with his K-9 Dobby.

Read more Ken Wallentine case reviews here.

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.