The police in Aurora, Colorado, faced a fascinating dilemma, From the Aurora Sentinel, the police closed down an intersection after a bank robbery, stopped about 20 cars and held about 40 people.
The incident started around 3:50 p.m. Saturday when police say the robber barged into a Wells Fargo Bank at East Hampden Avenue and South Chambers Road and pointed a gun several people in the bank.
The robber, who was wearing a mask that covered virtually all of their face, then fled the area.
Oates said officers determined that the robber had to be in one of 19 vehicles headed east on East Iliff Avenue near South Buckley Road at about 4:20 p.m. The intersection is about two miles northeast of the bank.
Oates declined to say exactly how officers knew the suspect was going to pass through the intersection, but stressed that investigators were certain he would.
While the details may be muddled, it appears that they stopped the cars, handcuffed the occupants and then sought (and obtained) consent to search the vehicles. They eventually found the person they believe to be the bank robber.
The police action was dictated by two things, the certainty that the robber would be found in one of the cars and the absence of any description of the person or the vehicle that would allow the police to limit their stop and search to only those fitting the description. For the sake of argument, let’s assume that the police claim of “virtual certainty” is accurate and well-founded.
Eugene Volokh says bullocks.
I’m not a Fourth Amendment expert, but I’m pretty sure this is unconstitutional. Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or — in the context of a brief investigative stop — “particularized suspicion” to believe that the person is dangerous to the investigators.
What is true for a search pursuant to a warrant is likewise true for warrantless seizures, such as the ones that occurred here. And even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop — perhaps, depending on the circumstances, including a patdown for weapons — I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.
It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion.
Strangely, my natural inclination toward suppression isn’t tingling here. Ignoring (as I do) Eugene’s opening disclaimer (his version of “I don’t nothin’ about birthin’ no babies), this bizarre scenario seems to present the only reasonable way for the police to have dealt with the situation.
Say the basis for the certainty that the armed bank robber was at the intersection was based upon a tracking device hidden with stolen currency, such that the cops knew within 100 feet where the robber would be found, and given the number of other vehicles and people at the intersection making it impossible to follow all the vehicles until each could be isolated, and given that the robber was armed, what alternative did they have?
Clearly, to stop and inquire of every vehicle/person without first assuring that they wouldn’t pull out the gun and blow some cop away (or a few others at the intersection who happened to be in the line of fire) wouldn’t work. The police aren’t obliged to be killed before they can take appropriate measures to secure their safety. So placing each person in handcuffs first, as a precaution, despite having no particular suspicion that they are the bank robber beyond the happenstance of their being at the same intersection seems, well, the only reasonable thing to do.
It’s not that Eugene didn’t see the problem.
Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people — in a situation where it was certain that the great bulk of the people were indeed innocent — for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.
If the police delayed their investigation, and thus held innocent people in custody for a moment longer than necessary, the point would be well-taken. But there is no claim of dilatory tactics, even though it may have taken more than an hour to find the culprit.
And what of the “dozens of innocent people?” Certainly the number of people who found out what it’s like to feel steel around their wrists is shocking, but does that alter the equation? Suppose there were only two cars at the intersection. Would that change the calculus? Are the rights of the nice innocent folks in the other car less worthy of constitutional protection?
The alternative option was for police to let the bank robber continue on in the hope that he would eventually be susceptible to isolation, and then that police could get to him, that he would still be findable, and that it would be under conditions where he could be stopped without endangering others. The variables involved present a number of questions that may have made this option untenable, but more to the point, they had an available means of capturing him at hand and would have had to forgo it without knowing whether the alternative would come to pass.
It’s a tough call. The commenters to Eugene’s post overwhelmingly favor his position, that this was an unconstitutional stop and seizure, and that the police should be liable to the innocent people stopped without individualized suspicion.
Notably, had I been one of the people stopped (and not the bank robber), I don’t think I would have taken issue with the choice. My having lost an hour of my time, and sat there cuffed, would have struck me as completely understandable under the circumstances. Inconvenient. Maybe even painful and humiliating. Maybe. But as a citizen, I would have supported the choice.
And yet, it’s breaking my heart not to scream about the outrageous police conduct. I suspect many will rip me a new one for my view here, but the police tactics strike me as reasonable under the circumstances, and contrary to Eugene’s view, I don’t find the price too steep to pay under these circumstances.