Bush Bobbing Leads to Valid Investigative Detention

State v. Stevens, 2019 (Mont. 2019)

An officer leaving the courthouse with an early morning prisoner transport noticed Jeremiah Stevens hiding in bushes across the street, “bobbing up and down.” The officer called for backup. Two officers arrived and approached Stevens, guns drawn and held at their sides, and ordered him to stand and turn around. The officers described Stevens as “very nervous” and immediately handcuffed him.

The initial officer asked Stevens what he was doing in the bushes. Stevens explained he was trying to hide an open container of alcohol. When the officer asked Stevens whether he had any weapons on him, Stevens said he did not, but he did have some methamphetamine. The officer searched Stevens and found a container with white powder, a Fentanyl patch, and a white crystal rock. A field test of the powder showed positive results for methamphetamine and Stevens was arrested.

Typically, an arrest requires authority to arrest, restraint of the arrested person, and intent to arrest.

Stevens argued his statements and the seized drugs should be suppressed, claiming he was initially detained without reasonable suspicion and subsequently arrested without probable cause. The Montana Supreme Court held that “‘bobbing up and down’ in the bushes across from a courthouse at 6:00 a.m. may be construed as strange, even suspicious, behavior.” Moreover, the officer was reasonably concerned Stevens might be planning to interfere with his prisoner transport. Thus, the officer had reasonable suspicion to investigate Stevens’ behavior.

Stevens claimed the drawn guns and immediate application of handcuffs created a de facto arrest at the moment the handcuffs were applied. At that point, there was only reasonable suspicion to detain, but not probable cause to arrest. The court disagreed Stevens was arrested at the point of applying handcuffs. Typically, an arrest requires authority to arrest, restraint of the arrested person, and intent to arrest.

The court held the officer did not intend to arrest Stevens when he placed Stevens in handcuffs. He was merely taking a reasonable safety precaution, given the behavior and circumstances. The court credited the officer’s general investigative questions during the handcuffing (asking Stevens about his behavior and whether he was armed) as evidence the officer had not yet decided to arrest Stevens. The court cited a time-honored passage from Terry v. Ohio (392 U.S. 1 (1968)):

Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance in their duties…. [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Applying handcuffs to Stevens provided “an opportunity to neutralize any potential threat so they could safely gather more information.” Stevens was not arrested at that point. His spontaneous admission that he was carrying methamphetamine provided probable cause for a lawful arrest. Therefore, Stevens was not entitled to suppression of his statements or the drug evidence.

Ken Wallentine

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 three 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.

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