6-5 Field Interviews and Pat Downs

Policy Type: Local

Responsible Office: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 4/5/2013

Current Revision Approved: 7/1/2021

General

The purpose of this policy is to assist officers in determining when field interviews and pat downs are warranted and the manner in which they shall be conducted. The field interview is an important point of contact for officers in preventing and investigating criminal activity. Even when conducted with respect for involved citizens and in strict conformance with the law, it can be perceived by some as a means of police harassment or intimidation conducted in a discriminatory manner against groups or individuals. In order to maintain the effectiveness and legitimacy of this practice and to protect the safety of officers in approaching suspicious individuals, law enforcement officers shall conduct field interviews and perform pat downs in conformance with the procedures set forth in this policy.

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any policy revisions are investigated and appropriate training, counseling and/or disciplinary action is initiated.

Definitions

DETENTION (STOP) – Brief detentions by police are permissible for the purpose of questioning, even without probable cause that the person has committed a crime, such a “stop” is not considered an arrest [Terry v. Ohio, 392 U.S. 1 (1968)]. Police observations prior to a stop may provide the objective basis for a reasonable belief that the suspect is engaged in criminal activity, and thus justify limited detention and questioning. Any facts and circumstances derived from such a limited stop may then escalate reasonable belief or suspicion to probable cause sufficient to justify an arrest. If a police officer reasonably believes, based upon the officer’s own observations or those of a reliable informant, that criminal activity may be afoot, then the officer may stop and briefly question a criminal suspect. The required reasonable belief or reasonable suspicion must be supported by some objective evidence that the suspect is engaged or is about to become engaged in criminal activity, or is a wanted criminal [U.S. v. Hensley, 469 U.S. 221(1985)].
DURATION - The duration of a stop shall be brief. While courts have placed no strict time limit on stops, decisions have stressed that the brevity of the stop will be based upon the amount of time that is reasonably necessary for the officer to dispel the suspicions concerning the individual(s) stopped.
SUSPICIOUS CIRCUMSTANCES - This is an oft-used term in which police are dispatched to investigate many types of citizen conduct. The officer must have a reasonable belief, based upon articulable information (more than a mere hunch), that the suspect has or is about to engage in illegal or criminal activity. The officer’s reasonable belief may be based on a reliable informant’s tip; however, the objective evidence requirement mandates that the information be confirmed as reliable prior to actually conducting a stop.
STOP AND FRISK (Terry stop) – A “Terry stop” or stop and frisk occurs when a police officer has a reasonable and articulable suspicion that a suspect has or is about to engage in illegal or criminal activity and the officer has reasonable and articulable suspicion that the suspect is armed and dangerous. The officer may, without probable cause or a warrant, perform a pat-down-and-frisk of the suspect’s outer garments for concealed weapons. A minimum level of justification must exist for reasonable suspicion to be established; presence in an area alone is insufficient, but common sense behaviors can be sufficient to warrant a stop-and-frisk.
CONSENSUAL ENCOUNTER – Police may approach a citizen to inquire about an incident that concerns public safety or the citizen’s safety. During these encounters, there is usually minimal contact between the officer and the citizen, and the citizen is free to leave or end the conversation at any time. To determine whether the contact between the officer and the citizen is consensual, the courts look at the facts of the case to decide whether a reasonable person would have believed that they were free to leave. Unless the officer tries to prevent the citizen from exercising their right to walk away, the encounter will likely be considered consensual, rather than a stop. A consensual encounter with a law enforcement officer is not considered a stop or search and therefore, is not entitled to Fourth Amendment protection.
CONSENT SEARCHES – Consent to search is a warrantless intrusion requiring no justification; an individual may waive their Fourth Amendment rights, as long as the waiver is voluntary and the scope of the search does not exceed the explicit or implicit terms of the consenting party.

Consensual Encounters

During a consensual encounter, the subject remains free to disregard the officer and to walk away. Only when an individual is no longer free to leave does an investigatory stop begin.
A consensual encounter may evolve into an investigatory stop based on a consideration of all of the circumstances surrounding the encounter through an objective test of whether the individual believed that they were being ordered to restrict their movement whereby the officer's words and actions would have conveyed that to a reasonable person.
Examples of circumstances under which a reasonable person may believe that they are not free to leave, include, but are not limited to, each of the following:
1. The presence of several officers
2. Cutting the person off or pulling in front of them to hinder their movement
3. The display of a weapon by an officer
4. Some physical touching of the subject by the officer(s)
5. The use of language or tone of voice indicating that compliance with the officer's request might be compelled

Field Interview Procedures

Justification for Conducting a Field Interview
1. Law enforcement officers may stop individuals for the purpose of conducting a field interview only where reasonable suspicion is present. Reasonable suspicion must consist of more than a mere hunch, but need not meet the threshold for probable cause necessary to execute an arrest. In justifying the stop, the officer must be able to point to specific facts which, when taken together with rational inferences, reasonably warrant the stop. Such facts include, but are not limited to, any of the following:
  1. The appearance or demeanor of an individual suggests that they are part of a criminal enterprise or are engaged in a criminal act
  2. The actions of the subject suggest that they are engaged in criminal activity
  3. The hour of day or night is inappropriate for the subject's presence in the area
  4. The subject's presence in a neighborhood or location is inappropriate (must have reasonable and articulable suspicion to support this)
  5. The subject is carrying a suspicious object
  6. The subject's clothing bulges in a manner that suggests that they are carrying a weapon
  7. The subject is located in proximate time and place to the alleged crime
  8. The officer has knowledge of the subject's prior criminal record or involvement in criminal activity
Initiating a Field Interview
1. Based on observance of suspicious circumstances or upon information from investigation, an officer may initiate the stop of a subject if they have reasonable and articulable suspicion to do so. The following guidelines shall be followed when making an authorized stop to conduct a field interview.
  1. When approaching the subject, the officer shall provide the subject with their name, identify the department, and explain to the subject the reason for the stop in a polite and courteous manner.
  2. Officers shall remain courteous at all times during the contact, but maintain caution and vigilance for furtive movements by the suspect(s) to retrieve weapons, conceal or discard contraband, or other suspicious conduct.
  3. Before approaching more than one subject, individual officers should determine whether the circumstances warrant a request for backup assistance and whether the contact can and should be delayed until such assistance arrives.
  4. Officers shall confine their questions to those concerning the subject's identity, place of residence and other inquiries necessary to resolve the officer's suspicions. However, in no instance shall an officer detain a subject longer than is reasonably necessary to make these limited inquiries.
  5. Officers are not required to give subjects Miranda warnings in order to conduct field interviews unless and until additional information is available and sufficient to establish probable cause for arrest.
  6. Subjects are not required, nor can they be compelled, to answer any questions posed during field interviews. Failure to respond to an officer's inquiries is not, in and of itself, sufficient grounds to make an arrest although it may provide sufficient justification for additional observation and investigation.
At the conclusion of the interaction, the officer(s) must provide the subject with a VCU Stop Card.

Pat-Down Procedures

Justification for Conducting Pat Downs
1. A law enforcement officer may perform a pat down of the outer garments of a suspect for weapons if the suspect has legitimately been stopped based on reasonable and articulable suspicion that criminality is afoot AND the officer is able to articulate reasonable suspicion that the suspect is armed and dangerous. The existence of more than one of the following factors may be required in order to support reasonable suspicion that the suspect is armed and dangerous in order to support a pat down, but the officer(s) should note that these factors are not all inclusive:
  1. The type of crime suspect - particularly in crimes of violence where the use or threat of deadly weapons is involved
  2. Where more than one suspect must be handled by a single officer
  3. The hour of the day and the location or neighborhood where the stop takes place
  4. Prior knowledge of the suspect's use of force and/or propensity to carry deadly weapons
  5. The appearance and demeanor of the suspect
  6. Visual indications that suggest that the suspect is carrying a firearm or other deadly weapon
  7. The age and gender of the suspect. Whenever possible, pat downs should be performed by officers of the same sex
  8. The officer has obtained consent to pat the suspect down for concealed weapons
Procedures for Performing a Pat Down
1. When reasonable suspicion exists to perform a pat down, it should be performed with due caution, restraint and sensitivity since they are only justifiable and may only be performed to protect the safety of the involved officer(s) and others, and may never be used as a pretext for obtaining evidence. Under these circumstances, pat downs should be conducted in the following manner:
  1. When approaching the subject, the officer shall provide the subject with their name, identify the department, and explain to the subject the reason for the stop in a polite and courteous manner.
  2. Whenever possible, pat downs should be conducted by at least two officers, one of whom performs the pat down while the other provides protective cover.
  3. As pat downs are cursory in nature, they should be performed with the suspect in a standing position or with hands placed against a stationary object and feet spread apart. Should a weapon be visually observed; however, a more secure position may be used, such as the prone position.
  4. While conducting a pat down, officers are only permitted to externally feel the outer layer of the suspect’s clothing. An officer may not place their hands in pockets, unless they feel an object that could reasonably be a weapon, such as a firearm, knife, club or other item.
  5. If the suspect is carrying an object, such as a handbag, suitcase, briefcase, sack or other item that may conceal a weapon, the officer should not open the item but instead place it out of suspect’s reach.
  6. If the external feeling of the suspect's clothing fails to disclose evidence of a weapon, no further search may be made. If evidence of a weapon is present, an officer may only retrieve that item. If the item is a weapon whereby the possession of which constitutes a crime, the officer may make a custodial arrest of the suspect and complete a full-custody search of the suspect incident to arrest.
At the conclusion of the interaction, the officer(s) must provide the subject with a VCU Stop Card.

Reporting and Documentation

As required by the Virginia Community Policing Data Collection Act, at the conclusion of the nonconsensual stop, the officer must relay to Dispatch the initial reason for the stop and the location of the stop, as well as the following information for all persons stopped, based on the officer’s observation or information provided to the officer by the persons stopped (see pages 6-7 for additional information regarding the Virginia Community Policing Data Collection Act):
1. Race
2. Ethnicity (Hispanic or Latino, Not Hispanic or Latino, or Unknown)
3. Age
4. Gender
5. Whether the person stopped spoke English
6. Whether a warning, written citation or summons was issued or whether any persons were arrested
7. If a warning, written citation or summons was issued, or an arrest was made, the warning provided, violation charged or the crime charged
8. Whether any subject and/or a vehicle was searched
9. Whether the law-enforcement officer used physical force against any person
10. Whether any person used physical force against any officer(s)
11. Also, advise Dispatch of the following (in addition to the above Community Policing required information):
  1. Whether the subject had a weapon in their possession
  2. Whether the subject had property in their possession
  3. Any associated subjects at the time of the interview
As CAD only permits a maximum of six (6) disposition codes to be assigned to an active event, reporting officers must adhere to the following procedures to ensure that all of the above required information is timely provided to Dispatch at the conclusion of the stop:
1. The reporting officer will clear the all with the first six (6) disposition codes
2. The Dispatcher will subsequently ask the reporting officer whether they have any additional clearing codes to provide for the required Community Policing Data (see (A)(1-10) above)
3. If the officer has additional codes to provide, the Dispatcher will have the officer standby until they close and then reopen the call in the backend entry format
4. The Dispatcher will then direct the officer to provide the remaining codes for entry
If after conducting a field interview there is no basis for making an arrest but the subject is warned regarding the reason for the stop, the officer shall record the facts of the interview via a Written Warning (complete all form fields). This form should include all of the following information:
1. Name
2. Address
3. Social security number and/or driver’s license information (provide in form field – “D.L. No.”)
4. Date of birth
5. Race
6. Ethnicity
7. Gender
8. The reason for the stop (provide in form field – “Violation”)
If the suspect was driving a vehicle, provide the following information to Dispatch at the conclusion of the stop to ensure the information is captured within the CAD narrative:
1. The license plate number and issuing state
2. The vehicle year, make, model and color
3. The number of occupants in the vehicle
The above information must be collected and reported for all investigatory stops, even if no law-enforcement action is taken (i.e., no arrest, warning or summons issued).

Community Policing Act Data Collection (Va. Code §§ 9.1-191, 15.2-1609.10, 15.2-1722.1, 52-30.1 to 52-30.4)

The Community Policing Act requires that each time a law-enforcement officer, sheriff, deputy sheriff or State Police officer stops a driver of a motor vehicle, stops and frisks a person based on reasonable suspicion, or temporarily detains a person during any other investigatory stop, the officer shall collect all of the following data, based on the officer’s observation or information provided to the officer by the driver, for all persons stopped:
1. The race, ethnicity, age and gender of the person stopped
2. Whether the person(s) stopped spoke English
3. The reason for the stop
4. The location of the stop
5. Whether a warning, written citation, or summons was issued or an arrest was made, the warning provided, violation charged, or crime charged
6. If a warning, written citation, or summons was issued or an arrest was made, the warning provided, violation charged, or crime charged
7. Whether the vehicle or any person therein was searched
8. Whether the law-enforcement officer used physical force against any person and whether any person used physical force against any officer(s)
For each nonconsensual stop, the officer is expected to collect and relay the aforementioned information to Dispatch as described within the preceding Reporting and Documentation section above, subsections (A) – (D).
1. Following issuance of a summons and/or a written warning, the issuing officer must promptly place a copy of each in the Record Division’s mailbox in the lobby by the end of tour of duty.
The Act further requires that each law-enforcement agency report the required Community Policing data to the Virginia State Police (VSP) on a quarterly basis. The Act also requires that VUCPD post the data that has been forwarded for inclusion in the Community Policing Reporting Database to the department’s website to ensure the data is available to the public.
1. The Records Division will ensure that all required stop data is collected and compiled using VSP’s preferred data production format and submitted to VSP on a quarterly basis.

Revision History

This policy supersedes the following archives policies:

4/5/2013 - 6-5 Field Interviews and Pat Downs

9/11/2020 - 6-5 Field Interviews and Pat Downs