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Terry Stop OK; Eyewitness ID Not Suggestive: 1st Cir.

By Mark Wilson, Esq. on August 26, 2014 | Last updated on March 21, 2019

Terry stops allow a police officer to briefly detain someone if the officer has reasonable suspicion that the suspect is, or was recently, involved in criminality. An officer can conduct a Terry frisk if he has reason to believe the suspect is armed and dangerous.

The purpose of a Terry stop is to confirm or deny the officer's reasonable suspicion. Against that backdrop comes United States v. Arthur. Two black men wearing dark clothing robbed a Metro PCS store in Maine. Police responded to the silent alarm and attempted to find the culprits. About five minutes after the robbery, police found two black men wearing pea coats walking away from the scene. On their way, they saw no one else matching the suspects' description.

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Reasonable Suspicion

The suspects -- now the appellants -- challenged the officers' reasonable suspicion to detain them. The First Circuit upheld a district court's denial of a motion to suppress evidence based on the Terry stop. The court acknowledged that a description of two black men, by itself, wouldn't qualify as reasonable suspicion, but Terry cases are fact-intensive and depend on the "totality of the circumstances." In this case, the officer had a clothing description that matched, the men were walking away from the store in an area that could be traversed on foot five minutes from the store. And a person raking leaves had told the officers that two black men wearing heavy clothing had recently run in the direction where they were found.


Due process prohibits "suggestive" identification procedures. The two suspects were brought to the store's plate-glass window so the clerk, who had seen them during the robbery, could identify them. She identified both of them as the robbers.

The district court found the identification suggestive, because of the uniformed police and the clerk's belief that one of the suspects was handcuffed. Nevertheless, the district court didn't suppress this evidence, and taking into account the factors from Neil v. Biggers, the First Circuit affirmed. Notably, the clerk immediately recognized the men and the identification was made minutes after the robbery occurred.

While the court was mindful of "emerging social science theory" showing that witness identification can be erroneous in stressful situations, the First Circuit said that's no reason to categorically exclude identification evidence, and in this case, the totality of the circumstances convinced the court that the identification was reliable.

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