Loyd v. Douglas

• Decision Date: 01 July 1970
• Docket Number: Civ. No. 8-2208-C-2.
• Citation: 313 F. Supp. 1364
• Parties: Harvey N. LOYD et al., Plaintiffs, v. Vear V. DOUGLAS et al., Defendants.
• Court: U.S. District Court — Southern District of Iowa

313 F. Supp. 1364

Harvey N. LOYD et al., Plaintiffs, v. Vear V. DOUGLAS et al., Defendants.

Civ. No. 8-2208-C-2.

United States District Court, S. D. Iowa, Central Division.

July 1, 1970.

Edmund E. Fleming, Boston, Mass., for plaintiffs.

James F. Fowler, Philip T. Riley, John F. McKinney Jr., Gary H. Swanson, Robert McAllister, Jack L. Briggs, M. A. Iverson, Stephen R. Gadd, Eugene E. Olson and Gerald A. Kuehn, Des Moines, Iowa, for defendants.

MEMORANDUM AND ORDER.

HANSON, District Judge.

This action for declaratory and injunctive relief challenges the constitutionality of a police activity referred to as field interrogation. More specifically, plaintiffs allege that their constitutional rights were violated when they were stopped and questioned by members of the Des Moines police department.

Plaintiffs have asserted, and the Court accepts, violations of the Fourth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. Section 1983, and 28 U.S.C. Section 1343 as requisite jurisdictional bases for this action. The Court finds that the objections to subject matter jurisdiction are without merit. Suffice it to say that this Complaint alleges a violation of federal constitutional rights and, therefore, the Court is totally unconcerned about plaintiffs' failure to initiate any state action. Defendants' suggestion that this Court abstain from deciding the issue herein and deferring resolution to a state tribunal is utterly and completely rejected.

Defendants have moved to dismiss the claims of Harvey Loyd, John Gunn, and Roosevelt Crawford for the reason that these plaintiffs did not appear at trial. Said motion is sustained. Defendants have also moved to dismiss the claims asserted by plaintiffs against Thomas Chenoweth, individually and as Chief Administrator of the City of Des Moines; Thomas Urban, individually and as Mayor of Des Moines, and the six city councilmen, individually and in their official positions. The evidence at trial was completely devoid of any showing that these men were involved in any way with the policy here in question. Consequently, plaintiffs' claims against these defendants are dismissed.

The police activity challenged herein is, as noted above, commonly referred to as field interrogation. The Court believes it will be helpful to set out the mechanics of this practice as employed by the Des Moines police as well as the avowed objectives and purposes of such a practice. Field interrogation refers to the stopping and questioning of individuals by the police. The person stopped may be on foot or traveling in an automobile or other motor vehicle. Once the stop is made, police officers usually question the stoppee concerning his identity, address, destination, immediate previous whereabouts, purpose for being where he is, and any other information the officer feels germane. In certain instances, an arrest may follow the stopping. In the majority of cases, however, there is no arrest made nor is there a search made of any kind. As an adjunct to the stopping and questioning, the officer fills out a card designated as a Form 187 for the purpose of recording the information either elicited from or observed about the stoppee. These forms if filled out completely would contain the following data: stoppee's name; address; officer involved; date, time, and location of the stop; sex; age, and other physical characteristics; and the circumstances involved. The circumstances involved are the officer's reasons for stopping the person.

After the stop and questioning is completed, the officer returns the Form 187 to the police department. The Form 187 is copied and then distributed to various bureaus within the department.

This practice of field interrogation is encouraged, supported, and officially sanctioned by the Des Moines police department under the direction of Police Chief Wendell Nichols. Officers are given special instruction as part of their police training in field interrogation. The overall objective of this practice is stated to be that of preventing crime and apprehending criminals.

In training policemen in the technique of field interrogation, the police department has established guidelines for the officer to utilize in determining whom to interrogate. Obviously, because of the infinite variety of situations that an officer may face in street encounters with citizens, it is impossible to detail exact guidelines which would cover every situation. For that reason, general guidelines are set forth which depend in large part on the officer's good judgment. The general guideline is that persons should be stopped whenever the circumstances are such that an officer's suspicion of possible criminal activity or involvement is aroused. Suggested factors which may constitute "suspicion-arousers" are stated to be unusual dress or appearance, unusual actions, loitering in unusual locales, lateness of the hour, and so forth.

Police officers are instructed that if a person refuses to answer the posited questions and no grounds exist for arrest, the stoppee should not be detained nor should coercion or intimidation be used to obtain the information for the field interrogation reports. Consequently, in theory at least, the success of field interrogation rests heavily on the voluntary participation by the persons stopped.

Presumably as a safeguard against abuse of field interrogation, a superior officer reviews the Form 187's turned in by the men under his supervision. If the superior officer finds that the circumstances as shown on the Form 187 were insufficient reasons for the stop, the officer involved is so informed and cautioned. To assist reviewing procedures, officers are encouraged to be as exact as possible when listing the circumstances surrounding the stop.

The Form 187's are designed to assist the police in the investigation of crimes. When some kind of criminal activity is reported to the police department, the Form 187's may yield valuable information concerning who was in that particular area at a particular time. The evidence at trial, however, demonstrated that this purpose, while perhaps theoretically sound, has in actual practice produced few results in helping solve crimes.

Access to the information on these forms is mainly restricted to police business. Chief Nichols did state, however, that probation and parole officers have been granted access to these reports. The Form 187's are kept for diverse periods of time depending on the bureau involved. For example, the Intelligence Bureau retains copies of the Form 187's permanently whereas some other bureaus purge the Form 187's from the files every two to three years.

The issue thus presented to the Court is whether the police practice of field interrogation as described above violates the Fourth Amendment's prohibition against unreasonable searches and seizures.

The Fourth Amendment is one of the most fundamental protections guaranteed to citizens in a democratic country. This Amendment establishes "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." This protection is made applicable to the states and its many subdivisions through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The practice of field interrogation challenged herein does not involve searches and therefore the Court is faced initially with the issue of whether "stop and question" encounters constitute "seizures" as intended by the Fourth Amendment.

The scope of Fourth Amendment protection has been explicated by the courts numerous times. It has been held by the United States Supreme Court that the protection of the Fourth Amendment applies at all times whenever an individual has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Thus, it has been held that persons driving automobiles and persons walking on the streets are protected by the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Carpenter v. Sigler, 419 F. 2d 169 (8th Cir. 1969). The recent Supreme Court decision of Terry v. Ohio, supra, provides the standards in determining whether a certain act or course of conduct constitutes a Fourth Amendment seizure:

Whenever a police officer accosts and restrains his freedom to walk away, he has `seized' that person. 392 U.S. at 16, 88 S.Ct. at 1877.

Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. 392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16.

We * * * reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a `technical arrest' or a `full-blown search.' 392 U.S. at 19, 88 S.Ct. at 1879.

Certainly when a police officer requests an individual to stop for the purpose of conducting a field interrogation, that individual is, in a sense, restrained. His freedom is restricted in that he must take the time to stop and at least listen to the questions propounded. Furthermore, although the officer does not employ physical force as a means of restraint, his uniform and badge and, in some instances, his police car are sufficient to constitute the requisite show of authority. The Court is unable to distinguish with any meaningful difference the situations discussed in two recent Eighth Circuit opinions which were held to be "seizures" from the situation presented herein. United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970); Carpenter v. Sigler, supra. Consequently, the Court finds that the stop and question practice employed by the Des Moines police does constitute seizures of persons within the purview...