The existence of reasonable grounds to suspect the commission or attempted commission of an offence, which may justify an identity check under Article 78-2 of the Code of Criminal Procedure, is not in itself sufficient to establish a situation of flagrante delicto.
Whether conducted for administrative policing or criminal investigative purposes, an identity check raises acute questions about protecting citizens against potentially arbitrary measures by public authorities that interfere with their freedom of movement and private life. Where based on one of the situations provided for in the first three paragraphs of Article 78-2 of the Code of Criminal Procedure, it also frequently constitutes the starting point of a flagrante delicto investigation, permitting even more coercive measures.
The finding of a situation of flagrante delicto following an identity check based on those provisions must not, however, obscure the fact that these measures rest on distinct criteria, proportionate to the degree of coercion they permit law enforcement officers to exercise.
The decision discussed here illustrates this perfectly and provides an opportunity to recall how the various criteria interact.
Insufficient grounds for establishing a situation of flagrante delicto
In this case, police officers on patrol checked the identities of two persons whose conduct appeared suspicious. The two individuals were « busy between a car and a scooter, (…) handling an object the officers could not identify, suddenly moving away when they noticed the patrol looking at them, leaning around the corner of two streets to observe its movements and communicating with each other ». Furthermore, when the officers left their vehicle, « the two men had rushed into a bar selling tobacco ». During the check, one of the persons concerned showed the officers 1 000 € from one of his pockets and 480 € from his shoulder bag. Finding that he could not explain the source of those sums, the officers arrested him and placed him in police custody. They then searched his home, where they discovered a total of 630 € in cash, 25 grams of cannabis resin and a professional private-hire driver’s card in a third party’s name.
Considering the evidence sufficient and the case ready for trial, the prosecution decided to prosecute the suspect under the immediate trial procedure for money laundering, possession of forged administrative documents and possession of narcotics as a repeat offender.
The criminal court rejected the pleas of nullity, convicted the individual of money laundering and possession of forged administrative documents, sentenced him to one year’s imprisonment and a fine of 2 000 €, and acquitted him of unlawful possession of narcotics.
The Criminal Division of the Court of Appeal upheld that decision, considering that the facts observed justified the officers’ suspicion of the individuals’ conduct, « giving rise to a presumption that an offence was being attempted or had just been committed and thereby establishing a situation of flagrante delicto ». This reasoning therefore assumed that the same conduct could both justify the identity check and establish a situation of flagrante delicto under the criteria laid down in Article 53 of the Code of Criminal Procedure.
In his appeal on points of law, the defendant argued, in particular, that:
- the police officers « decided to act under the flagrante delicto procedure in respect of money laundering only on the basis of the cash shown by Mr [B] after the security pat-down carried out on him, and the fact that “he could not explain its source” »;
- the Court of Appeal had substituted its own deductions for the officers’ reasoning by stating that they had acted under the flagrante delicto procedure « on the basis of the individual’s earlier conduct, which had nevertheless led the officers only to decide to conduct an identity check »;
- his inability to « explain the source » of the cash in his possession at the time of the check did not constitute an apparent indication of criminal conduct within the meaning of Article 53 of the Code of Criminal Procedure.
Relying on that Article, the Court of Cassation quashed the appellate judgment, holding that « although capable of establishing reasonable grounds to suspect that the individuals concerned had committed or attempted to commit an offence, or were preparing to do so, thereby justifying an identity check, the conduct described, like the possession of 1 400 € in a jacket pocket and a shoulder bag discovered during that check, does not in itself constitute apparent indications suggesting that an offence was being committed or was about to be committed ».
This decision thus usefully recalls that « reasonable grounds to suspect », in particular, that an individual has committed or attempted to commit an offence or is preparing to commit a serious or other criminal offence within the meaning of Article 78-2 of the Code of Criminal Procedure cannot be equated with « traces and indications suggesting » that an individual participated in a serious or other criminal offence being committed or just committed, which permit the application of the flagrante delicto framework.
This judgment serves as a reminder to practitioners, whom the Criminal Chamber calls upon to exercise the utmost rigour both in establishing a situation of flagrante delicto itself and in distinguishing its conditions from the criteria justifying an identity check under the first three paragraphs of Article 78-2, cited above. This exercise is particularly necessary where the two situations follow one another in close succession.
The interaction of the criteria where an identity check becomes a flagrante delicto investigation
This case first raises questions about the factual situations in which law enforcement officers may legitimately consider that a person « displays traces or indications suggesting participation in the serious or other criminal offence » that « is being committed or has just been committed », thereby justifying application of the exceptional flagrante delicto investigative framework. It also raises the question of the similarities and differences between those situations and the circumstances permitting identity checks under the first three paragraphs of Article 78-2 of the Code of Criminal Procedure, namely where law enforcement officers have « reasonable grounds to suspect » that an individual has « committed or attempted to commit an offence » or « is preparing to commit a serious or other criminal offence ». Beyond the differences in statutory wording, the interaction of these criteria, initially assessed by law enforcement officers, calls for consideration of the courts’ analysis when exercising their supervisory jurisdiction.
Without exhaustively reviewing each condition required for the flagrante delicto investigative regime to apply, it is useful to recall that the coercive gathering of evidence authorised under that regime is an exception to the ordinary rules governing preliminary investigations. It must therefore be justified by law enforcement officers identifying, in close temporal proximity to the conduct, objective grounds for considering that it may constitute a serious or other criminal offence punishable by imprisonment. Those objective grounds take the form of indications, each constituting a « factual element which, as distinct from a police officer’s mere suspicion, which is insufficient, must be apparent and render objectively plausible the current or very recent commission of an offence » (J.-Cl. Pénal, entry on Flagrant Serious and Other Criminal Offences, by J. Buisson, fascicle 20, § 47).
The officer must therefore observe a situation that is « sufficiently manifest (apparent indications) » (Rép. pén., entry on Flagrante Delicto Investigations, by R. Gauze, No. 9) to establish or reasonably infer criminal conduct. The contemplated criminal classification must also be sufficiently serious at the time of the observation, namely punishable by imprisonment, even if the conduct is ultimately classified as a minor offence (Criminal Chamber, 9 January 1990, No. 89-84.238 P).
This case also recalls the settled rule that the material establishing flagrante delicto must be observed beforehand: neither the use of coercion (Criminal Chamber, 5 October 2011, No. 11-81.125 P, D. 2011. 2775 📄, case note by S. Detraz 📄; ibid. 2012. 2118, commentary by J. Pradel 📄; AJ pénal 2011. 598, commentary by G. Roussel 📄) nor investigations subsequently conducted under that regime (see, for example, concerning indications obtained during a subsequent search, Criminal Chamber, 15 October 2014, No. 14-83.702) can remedy any initial deficiencies. Judges cannot therefore substitute « their own deductions for the initial observations of judicial police officers or agents » (Criminal Chamber, 7 January 2020, No. 19-83.774, Dalloz actualité, 7 February 2020, commentary by F. Charlent ; D. 2020. 14 📄; ibid. 1643, commentary by J. Pradel 📄; AJ pénal 2020. 306, commentary by G. Roussel 📄; 22 February 1996, No. 95-85.861 P).
The means by which the offence is discovered must also be lawful and must not circumvent the applicable rules. That is not the case, for example, where a shoulder bag is searched, in a measure equivalent to a search without consent, during an identity check that has not revealed the « existence of an indication that a flagrant offence has been committed » (Criminal Chamber, 23 March 2016, No. 14-87.370 P, D. 2016. 785 📄; AJ pénal 2016. 397, commentary by J. Andrei 📄).
Furthermore, as regards the nature of the indication or indications concerned, law enforcement officers may, for example, identify physical, behavioural, testimonial or contextual indications. Without providing an exhaustive list of the rulings in this area, it is useful to note that the judgment under review follows several earlier decisions establishing, for example, that:
- the mere observation of the presence of a person « well known » for engaging in an unlawful activity (in that case, prostitution) is insufficient to establish flagrante delicto (the offence concerned being procuring, Criminal Chamber, 8 November 1989, No. 89-90.728);
- a behavioural indication alone, such as an individual’s hesitation on seeing police officers (Rép. pén., entry on Flagrante Delicto Investigations, by R. Gauze, No. 14, concerning Paris, 12 December 1991, D. 1992. 155 📄) or during a search (Criminal Chamber, 21 April 2020, No. 19-85.521), is insufficient in itself and must be corroborated by other indications;
- a mere anonymous report, even corroborated by a physical element and a police database check (the presence, at the location specified in the report, of a vehicle belonging to an individual known to the police for conduct identical to that reported), does not establish flagrante delicto (Criminal Chamber, 11 July 2007, No. 07-83.427 P, D. 2007. 2237, commentary by M. Léna 📄; AJ pénal 2007. 486, commentary by C. Saas 📄).
This case therefore establishes that suspicious conduct combined with possession of cash likewise does not constitute sufficiently apparent indications to establish flagrante delicto in itself.
The first three paragraphs of Article 78-2 of the Code of Criminal Procedure provide that law enforcement officers may check an individual’s identity where they have « reasonable grounds to suspect » that the individual has « committed or attempted to commit an offence » or « is preparing to commit a serious or other criminal offence ».
Such a check is therefore lawful only if, before it takes place, « reasonable grounds » exist for suspicion concerning the person subjected to it, and if its sole purpose is to establish that person’s identity.
For example, the following do not constitute « reasonable grounds »:
- conduct consisting in « persistently staring at women passing by » (Paris, 26 May 1989, No. 3031/89);
- conduct consisting in « being found at night leaning over a broken-down vehicle while its owner is present » (Poitiers, 31 May 1990, No. 1047/89);
- « attempt[ing] to avoid being seen by police officers by hiding behind advertising panels » (Nanterre Criminal Court, 12 September 1990, Juris-Data No. 1990-046707);
- « hesitating on seeing the police and suddenly quickening one’s pace » (Paris, 12 December 1991, cited above);
- or turning around and rushing in the opposite direction on seeing police officers (Civil Chamber 1st, 10 May 2006, No. 04-50.145 P, D. 2006. 1485 📄; AJ pénal 2006. 409, commentary by H. Gacon 📄) ;
- or, more generally, any observation too vague to justify such a check.
The judgment under review therefore illustrates the necessary interaction between these concepts where a situation of flagrante delicto is identified following an identity check.
There is, in principle, no real difficulty in assessing these criteria where the facts observed by law enforcement officers clearly satisfy the conditions for flagrante delicto (for example, a particularly unequivocal and visible indication of an offence). In that situation, however, no identity check under the first three paragraphs of Article 78-2 of the Code of Criminal Procedure may be needed, since the flagrante delicto investigative framework allows that information to be obtained through coercive measures from the outset.
Where a separate identity check is carried out, however, it is necessary to examine rigorously whether law enforcement officers could establish a situation of flagrante delicto before that check.
Otherwise, it is the circumstances in which the check takes place (see, for example, J. Andrei, When the Circumstances of Flight Become an Apparent Indication of the Commission of an Offence, AJ pénal 2015. 549 📄, commentary on Criminal Chamber, 14 April 2015, No. 14-83.462 P) and/or the observations made during it (see, for example, Criminal Chamber, 2 May 2017, No. 07-81.517 P, AJ pénal 2007. 328, commentary by C. Girault 📄) that may enable the officers concerned to identify the apparent indications necessary to establish flagrante delicto.
The Court of Cassation held that this was not the case here, since the identity check had merely enabled law enforcement officers to observe, through the checked individual’s voluntary production of the cash, that he possessed 1 400 € in his jacket and shoulder bag, which was insufficient to establish any situation of flagrante delicto.
by Ghislain de Foucher and Chloé Méléard, Members of the Paris Bar