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Stop and Frisk

From lawbrain.com

The situation in which a police officer who is suspicious of an individual detains the person and runs his hands lightly over the suspect's outer garments to determine if the person is carrying a concealed weapon.

One of the most controversial police procedures is the stop and frisk search. This type of limited search occurs when police confront a suspicious person in an effort to prevent a crime from taking place. The police frisk (pat down) the person for weapons and question the person.

A stop is different from an arrest. An arrest is a lengthy process in which the suspect is taken to the police station and booked, whereas a stop involves only a temporary interference with a person's liberty. If the officer uncovers further evidence during the frisk, the stop may lead to an actual arrest, but if no further evidence is found, the person is released.

Unlike a full search, a frisk is generally limited to a patting down of the outer clothing. If the officer feels what seems to be a weapon, the officer may then reach inside the person's clothing. If no weapon is felt, the search may not intrude further than the outer clothing.

Though police had long followed the practice of stop and frisk, it was not until 1968 that the Supreme Court evaluated it under the Fourth Amendment's protection against unreasonable searches and seizures. Under Fourth Amendment case law, a constitutional search and seizure must be based on probable cause. A stop and frisk was usually conducted on the basis of reasonable suspicion, a somewhat lower standard than probable cause.

In 1968 the Supreme Court addressed the issue in Terry v. Ohio 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889. In Terry an experienced plainclothes officer observed three men acting suspiciously; they were walking back and forth on a street and peering into a particular store window. The officer concluded that the men were preparing to rob a nearby store and approached them. He identified himself as a police officer and asked for their names. Unsatisfied with their responses, he then subjected one of the men to a frisk, which produced a gun for which the suspect had no permit. In this case the officer did not have a warrant nor did he have probable cause. He did suspect that the men were "casing" the store and planning a robbery. The defendants argued the search was unreasonable under the Fourth Amendment because it was not supported by probable cause.

The Supreme Court rejected the defendants' arguments. The Court noted that stops and frisks are considerably less intrusive than full-blown arrests and searches. It also observed that the interests in crime prevention and in police safety require that the police have some leeway to act before full probable cause has developed. The Fourth Amendment's reasonableness requirement is sufficiently flexible to permit an officer to investigate the situation.

The Court was also concerned that requiring probable cause for a frisk would put an officer in unwarranted danger during the investigation. The "sole justification" for a frisk, said the Court, is the "protection of the police officer and others nearby." Because of this narrow scope, a frisk must be "reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." As long as an officer has reasonable suspicion, a stop and frisk is constitutional under the Fourth Amendment.

After Terry this type of police encounter became known as a "Terry stop" or an "investigatory detention." Police may stop and question suspicious persons, pat them down for weapons, and even subject them to nonintrusive search procedures such as the use of metal detectors and drug-sniffing dogs. While a suspect is detained, a computer search can be performed to see if the suspect is wanted for crimes. If so, he or she may be arrested and searched incident to that arrest.

Investigatory detention became an important law enforcement technique in the 1980s as police sought to curtail the trafficking of illegal drugs. In United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989), the Supreme Court ruled that police have the power to detain, question, and investigate suspected drug couriers. The case involved a Terry stop at an international airport, during which the defendant aroused suspicion by conforming to a controversial "drug courier profile" developed by the Drug Enforcement Agency (DEA). The Court said that the DEA profile gave the officer reasonable suspicion, "which is more than a mere hunch but less than probable cause."

The Supreme Court has become increasingly permissive regarding what constitutes reasonable suspicion. In Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), the Court upheld a Terry stop of an automobile based solely on an anonymous tip that described a certain car that would be at a specific location. Police went to the site, found the vehicle, and detained the driver. The police then found marijuana and cocaine in the automobile. The Court observed that it was a "close case" but concluded that the tip and its corroboration were sufficiently reliable to justify the investigatory stop that ultimately led to the arrest of the driver and the seizure of the drugs.

However, the Court retreated from this holding in Florida v. J. L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (U.S. 2000), in which it ruled that an anonymous tip identifying a person who is carrying a gun is not, without more reason, sufficient to justify a police officer's stop and frisk of that person. The U.S. Supreme Court concluded that the tip, stating that a young black male was standing at a particular bus stop, wearing a plaid shirt, and carrying a gun, lacked sufficient reliability to provide reasonable suspicion to make a Terry stop. After announcing its decision in Florida v. J. L., the Court vacated two other state court decisions with similar fact patterns, one from Ohio (Morrison v. Ohio, 529 U.S. 1050, 120 S.Ct. 1552, 146 L.Ed.2d 457 [U.S. 2000]) and one from Wisconsin (Williams v. Wisconsin, 529 U.S. 1050, 120 S.Ct. 1552, 146 L.Ed.2d 457 U.S. [2000]).

In the Ohio case, the Ohio Court of Appeals upheld a Terry stop that was based on a phone call to the police from an anonymous informant who stated that there were two males walking westward on a particular avenue in a particular area and that one of the males was carrying a weapon in his pocket. According to the Ohio Court of Appeals, the Terry stop was supported by sufficient reasonable suspicion because significant aspects of the anonymous caller's predictions were verified. In the Wisconsin case, the Wisconsin Supreme Court ruled that the police had reasonable suspicion to conduct an investigatory stop based on an anonymous tip that individuals were dealing drugs from a vehicle parked within view of the tipster and their confirmation, within four minutes of the tip, of readily observable information offered by the tipster, even though the officers did not independently observe any suspicious activity. In Florida v. J. L., however, the U.S. Supreme Court stated that an accurate description of a subject's readily observable location and attributes does not show that the tipster had knowledge of concealed criminal activity.

Further Readings

Drummond, Rob. 2000. "Phone Calls, Guns, and Searches." American Journal of Criminal Law 27.

Erlinder, Peter. 2001. "Withdrawing Permission to 'Lie with Impunity': The Demise of Truly Anonymous Informants and the Resurrection of the Aguilar/Spinelli Test for Probable Cause." University of Pennsylvania Journal of Constitutional Law 4.

Lisenby, Amanda. 2001. "Informant Reliability Under the Fourth Amendment in Florida v. J. L. Northern Kentucky Law Review 28.

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