Lawful Acts: Suspicious Behavior Or Innocent Activity?

A person engaged in lawful activity can be suspicious, and suspicion can be evaluated using the reasonable person standard, where a reasonable person in the same circumstances could reasonably suspect that an individual has been, is, or is about to be engaged in criminal activity. This standard is used by law enforcement officers to determine if they have the right to briefly detain a person without a warrant and use reasonable force to effect that detention. For example, a person digging a human-sized hole with a human-sized bag next to them in the middle of the night is indicative of criminal activity, and an officer is correct to stop and detain that person based on that behaviour alone. However, reasonable suspicion is not sufficient to conduct a search without consent, a court order, or a warrant.

Reasonable suspicion vs probable cause

A person engaged in lawful activity can indeed exhibit suspicious behaviour, and this is an important distinction to make when considering the difference between reasonable suspicion and probable cause.

Reasonable suspicion is a legal standard of proof that allows law enforcement officers to briefly detain, question, and frisk (or pat down) an individual or individuals with specific, articulable reasons to suspect criminal activity. This standard is based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with a specific individual. Reasonable suspicion is not enough to obtain an arrest or a full search of a person or vehicle, and it does not allow for a search of a person or vehicle unless they are on school property. For example, if an officer observes someone loitering around a closed store late at night, repeatedly glancing at the entrance, the officer could reasonably suspect that a crime might be imminent, which permits them to stop and question the individual.

Probable cause is the higher standard, for which more facts and clearer evidence of criminal activity must exist. It is the legal standard for arrests and warrants, and it generally means that a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed. Probable cause is typically enough for a search or arrest warrant and for a police officer to arrest if they observe a crime being committed. For example, if an officer has probable cause to believe that a person has committed a felony, the officer may arrest them. However, for most misdemeanour arrests, the officer must have witnessed the crime occur before an arrest can be made.

In summary, reasonable suspicion is a step before probable cause. At the point of reasonable suspicion, it appears that a crime may have been committed, but the situation escalates to probable cause when it becomes obvious that a crime has most likely been committed.

Lawful activity vs intent

A person's intent is a crucial factor in determining whether their behaviour is suspicious, even if the activity they are engaged in is lawful. While it is true that certain behaviours can be indicative of criminal activity and thus arouse suspicion, it is important to distinguish between lawful and unlawful activities and the intentions behind them.

Reasonable suspicion is a legal standard of proof in US law that allows law enforcement officers to briefly detain a person or conduct a search without a warrant. It is based on "specific and articulable facts" and "rational inferences" from those facts, and the suspicion must be associated with a specific individual. This means that an officer's suspicion must be based on observable actions or behaviours that suggest a person may be, or is about to be, engaged in criminal activity. For example, in the case of Maryland v. Pringle, an officer was permitted to arrest three individuals in a vehicle where marijuana was discovered, even though there was no evidence that any one of the occupants was responsible for the drugs. The court reasoned that probable cause existed for all three individuals because they were co-occupants of the vehicle and thus likely engaged in a common enterprise.

However, reasonable suspicion alone is not enough to conduct a full search or make an arrest. Probable cause, which requires more evidence of illegal activity, is necessary for these actions. Furtive behaviour, such as avoiding eye contact, fidgeting, or exhibiting signs of nervousness, can be indicative of suspicious or deceptive behaviour and may raise reasonable suspicion. Nonetheless, these behaviours can also occur for innocent reasons, and law enforcement must consider the totality of the circumstances to determine whether sufficient objective facts exist to create reasonable suspicion of criminal activity.

In some cases, a person's lawful activity, combined with other information, can be used to justify a search warrant. For example, purchasing a black ski mask, a gun, and other items that could be associated with a robbery, may be legal, but when combined with security footage or knowledge of a person's financial problems, it could arouse reasonable suspicion and lead to further investigation.

It is important to note that an individual's rights must be respected during any investigative detention or search. Law enforcement officers must follow specific protocols and have reasonable suspicion or probable cause to detain or search an individual, depending on the circumstances and the level of intrusion. Additionally, an individual is not obligated to answer questions or provide information that may compromise their safety or confidentiality.

An officer's right to search

In the United States, the Fourth Amendment to the Constitution protects citizens from unreasonable searches and seizures by the government. However, law enforcement officers can, where justified, search a person's home, car, or other property and seize evidence of a crime.

Search Warrant

In most cases, officers need a search warrant to search a person or their belongings, vehicle, or residence. To obtain a warrant, an officer must present their case to a judge, who decides whether or not to issue one. The warrant allows officers to search for contraband and criminal evidence, but only for the items mentioned in the warrant.

Exceptions to the Search Warrant

There are several exceptions where officers can conduct a search without a warrant:

• Search Incident to Arrest: Officers can perform a warrantless search during or immediately after a lawful arrest, limited to the person arrested and the area where they may gain possession of a weapon, effect an escape, or destroy or hide evidence.
• Plain View: If an officer sees contraband or illegal activity in plain view, they may enter and search the premises, vehicle, or person.
• Hot Pursuit: If an officer is pursuing a suspect, they can follow them into a residence or building and search anywhere the suspect might be hiding.
• Exigent Circumstances: Officers can search without a warrant in emergencies, such as when a person is in danger or evidence is being destroyed.
• Automobile Exception: If an officer has probable cause to believe a vehicle contains contraband or evidence of a crime, they can search it without a warrant.
• Protective Search: Officers can conduct a pat-down or frisk of a person's outer clothing if they have reasonable suspicion to believe they are armed and dangerous.
• Consent: An officer may search a person or their residence if consent is given. Any adult within a residence can give consent to search the common areas.

Refusing a Search

You have the right to refuse consent to a search, but officers may still proceed with the search if they have legal grounds. Do not physically resist, but you can file a complaint if you feel you have been wrongfully searched.

Remaining Silent

You have the right to remain silent and not answer questions during a search. If you are a suspect in a crime or traffic violation, you may be required to provide identification.

Nervousness and anxiety

While nervousness and anxiety can be normal human responses to everyday situations, they can also be signs of suspicious activity. People who are engaged in illegal or suspicious activities may exhibit nervousness or anxiety, which could be a result of them acting out of character due to an unexpected disturbance. This nervousness or anxiety can manifest in behaviours such as pacing, fidgeting, avoiding eye contact, or repeatedly checking their watch or phone. These actions could be intentional attempts to distract security personnel, divert attention, or draw crowds to a specific area for an ulterior motive.

It is important to note that nervousness and anxiety can have various causes and are not always indicative of suspicious activity. However, when combined with other suspicious behaviours or contextual factors, they can raise reasonable suspicion about an individual's trustworthiness or involvement in illegal activities.

For example, an individual exhibiting nervous behaviours such as excessive perspiration, especially in cool or temperate weather, could be a sign of increased heart rate or anxiety associated with illegal or suspicious activities. Additionally, individuals conducting illegal activity often position themselves near entrances or exits to facilitate a quick escape if their plan fails.

In summary, nervousness and anxiety can be indicators of suspicious activity, especially when accompanied by other suspicious behaviours or contextual clues. However, it is crucial to consider the totality of the circumstances and not solely rely on these factors as definitive proof of wrongdoing.

Furtive behaviour

A person acting furtively may also be nervous or anxious, pacing or repeatedly checking their watch or phone. This could be an intentional attempt to distract security personnel or divert attention. It is important to note that not all suspicious activity leads to criminal activity, and not all criminal activity is reported to law enforcement agencies. However, recognising behavioural cues and identifying suspicious activities can help to minimise the risk of a security issue.

In the context of law enforcement, reasonable suspicion is a legal standard of proof that is less than probable cause for an arrest or warrant. It must be based on specific and articulable facts and rational inferences from those facts. For example, in the United States, a police officer may detain an individual for investigative purposes if they have a reasonable suspicion that the individual is engaged in criminal activity, even if they do not have probable cause to arrest them. Similarly, in the United Kingdom, police officers can arrest individuals on reasonable suspicion.

In summary, furtive behaviour can be a sign of suspicious or deceptive activity, and it is often characterised by nervousness, avoidance of eye contact, and attempts to distract or divert attention. Recognising and responding to such behaviour is essential for maintaining public safety and preventing security issues.

Frequently asked questions