7
[i]f the [U.S.] Supreme Court were to address the issue [of
whether the nature of the offense being investigated is
relevant to whether reasonable suspicion can justify a traffic
stop], it might well be that the Court would conclude that
Terry stops upon less than probable cause cannot be made
with respect to all offenses, so that a goodly number of traffic
offenses would not be encompassed with the Terry
reasonable-suspicion standard.
Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too
Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843,
1851 (2004).
Indeed, our own jurisprudence notes the unsettled nature of the
law regarding when reasonable suspicion justifies traffic stops. See Pals,
805 N.W.2d at 774 (“Federal courts are divided on the issue of whether
the Fourth Amendment per se prohibits police from stopping a vehicle
based only on reasonable suspicion of a completed misdemeanor or civil
infraction.”) Additionally, there is a school of thought that Terry compels
a balancing test to justify the stop.
1
Perhaps the greatest distinction between a probable cause analysis
and a reasonable suspicion analysis is the purpose of the stop. Our
decisions have universally held that the purpose of a Terry stop is to
1
Professor LaFave has stated:
[T]he [U.S. Supreme] Court characterized the Terry rationale as warrant[ing]
temporary detention for questioning on less than probable cause where the
public interest involved is the suppression of . . . serious crime, and has said
that under Terry, seizures made on less than probable cause draw their
justification from both the limited intrusions on the personal security of those
detained and the substantial law enforcement interests being served. As several
of the Court’s other Fourth Amendment decisions illustrate, the seriousness of
the offense thought to be involved bears directly upon the substantiality of the
law-enforcement interest; as one member of the Court put it, the Supreme Court
has never suggested that all law enforcement objectives . . . outweigh the
individual interests infringed upon so as to support a stop on reasonable
suspicion.
LaFave, 102 Mich. L. Rev. 1843 at 1851–52 (footnotes and internal quotation marks
omitted).