STOP AND FRISK LAW:
A GUIDE TO DOCTRINES, TESTS, AND SPECIAL CIRCUMSTANCES
Frequently, the police will observe somebody who needs to be checked
out. That is the purpose of a stop and frisk, which has many different names: a
field interview, a field inquiry, a threshold inquiry, or just routine
questioning. Terry v. Ohio (1968), an 8-1 decision
with only Justice Douglas dissenting, gave police the right to temporarily
detain somebody if there are specific articulable facts leading a reasonable
police officer to believe a crime might be occurring. This standard is known as
"reasonable suspicion," although some people call it
articulable suspicion or more than mere suspicion. It is not necessary for the
officer to articulate or identify a specific crime they think is being
committed, only that a set of factual circumstances exist that would lead a
reasonable officer to believe that criminal activity is occurring. Note that
arrest, search, and seizure require probable cause, or what a "reasonable
person" would believe. Stop and frisk, by contrast, requires what a "reasonable
officer" would believe. Reasonable suspicion is one step below probable cause
and one step above a hunch.
STOP
A "stop" by definition is a type of seizure with
two subtypes: show of force and show of authority. It is a seizure of the
person, or more specifically, a deprivation of their liberty. Innocent contacts
or police-citizen encounters, such as stopping to ask for directions, do not
constitute a stop. Nor do innocent slaps on the back count as stops. The officer
must physically lay hands on the individual with the intent of detaining them.
Grabbing the shoulder of someone and saying "Wait a minute, I'd like to talk to
you" constitutes a stop by intentional use of force. Another possibility is the
show-of-authority stop which does not involve any touching, but the officer by
their look, demeanor, and display of authority persuades the citizen to submit
or at least acquiesce to that authority. An example would be an officer
following the smell of marijuana burning at a concert, and by sniffing the air
and/or tapping on their ticket book produce an unseen swallowing of the joint
and the words "Can we help you officer?" A required element of a
show-of-authority stop is that citizens submit to the show of authority, believe
they have been seized, feel compelled to cooperate, or feel unfree to leave.
In determining legality, a stop must meet the "totality of
circumstances" test, looking at the whole picture, from the perspective
of both the officer and the suspect. Was the officer too intimidating or the
suspect too cooperative? Was the suspect from a neighborhood where they feared
police brutality? Was the officer badgering the suspect with difficult questions
so that only evasive answers could be given? What direct and indirect
information did the officer have to produce reasonable suspicion? The length of
the stop also must be reasonable. Stops of 20 or 30 minutes have been considered
reasonable, but a 90 minute stop might be declared unreasonable by the courts. I
don't want to give you the impression there's a time limit on the duration of a
stop because all the law says is that it must be temporary and not any longer
than necessary under the circumstances. Two actions widely held lawful are
asking for a person's identity and "freezing" a situation for further
investigation. The duration, location,
invasiveness, and freedom to walk
away are all factors in the "totality of circumstances" test.
A stop is justified in any combination of the following circumstances:
-
the suspect doesn't seem to
"fit" the time or place
-
the suspect fits a
description of a wanted person in a flyer
-
the suspect is acting
strangely, emotional, angry, frightened, or intoxicated
-
the suspect is loitering,
hanging out, or looking out for something
-
the suspect is running away
or engaging in furtive movements
-
the suspect is present in a
crime scene area
-
the area is a high-crime
area (not sufficient by itself or with loitering)
FRISK
A "frisk" by definition is a type of search that
requires a lawful stop. It is best thought of as a separate act, but in
practice, a suspect who refuses to answer questions in a stop may be providing
the officer with sufficient justification to frisk. A frisk does not necessarily
follow a stop, however. The one and only purpose of a frisk is to dispel
suspicions of danger (to the officer and other persons; i.e., that this person
isn't armed & dangerous). A frisk is a search for concealed weapons, necessarily
involving an invasion of privacy. A frisk should not be for anything other than
a dangerous weapon or contraband. However, if other evidence, like a suspected
drug container, is felt, it can be seized by the officer under the "plain feel"
doctrine. Plain feel is a hotly debated issue because many commentators argue
that there are few objects that one can feel through clothing that have an
"immediately apparent" character or quality of being contraband or evidence.
The test for plain feel is that the item's contraband nature be
"immediately apparent". The officer can't probe or move or roll the item around
in their fingers to become better acquainted with its contours. According to
People v. Rivera (1964), a frisk involves contact or patting of the outer
clothing to detect by sense of touch if a concealed weapon is being carried. The
law of frisk is based on the "experienced police officer"
standard. Police, by their experience, are able to read more into
circumstances surrounding complex criminal behavior than the average layman.
Police are expected, for example, to know which crimes and what kinds of
criminals usually involve weapons. Crimes of violence almost generally allow a
frisk. If officers turn out to be wrong, the frisk remains lawful. And, officers
are allowed to feel under bulky clothing if they have to.
Another test is whether the officer has a reasonable fear for their
own safety, and sometimes that varies from officer to officer. This makes it
controversial. An officer working in a department that doesn't provide
bulletproof vests might be justified in making more frisks, or a rookie officer
might be justified in making more frisks, but generally, a frisk is only
permissible when there are articulable facts which indicate the person is armed
or dangerous.
A frisk is ALWAYS justified in the following circumstances:
-
there are concerns of safety
for the officer and for others
-
there is suspicion that the
suspect is armed & dangerous
-
there is suspicion that the
suspect is about to commit a crime & a weapon is commonly used
A frisk MAY be justified in the following circumstances:
-
the officer is alone and
backup has not yet arrived
-
the number of suspects and
their physical size
-
the emotions, behavior, and
look of the suspects
-
the suspect gave evasive
answers (that didn't dispel fear) during the initial stop
-
the time of day, and the
geographical surroundings (not sufficient by themselves to justify a frisk)
SPECIAL SITUATIONS
AUTOMOBILE STOPS. If a vehicle has been stopped and the
occupants exit the vehicle, the officer has a right to search the passenger
compartment of the vehicle for weapons (any area involving quick access) even if
the occupants check out and will be released. This prevents them from returning
to the vehicle and using the weapons against the officer.
BORDERS. For purposes of questioning, an immigration
officer can detain people believed to be illegal aliens. The person need not be
entering the country. Anyone found in a "border area" is subject to search on
reasonable suspicion, and this includes the "functional equivalent" of border
areas; e.g., Chicago O'Hare airport is the functional equivalent of El Paso.
Immigration officials can also conduct surprise "factory surveys" where illegal
aliens might be employed.
CANINE INSPECTION. A longer-than-usual stop is justified if the purpose is
to call in narcotics detection dogs to check something or somebody out for
drugs.
DRUG COURIER PROFILING. Nervous appearance and ostentatious apparel, among
other behaviors, justify stopping a person as a suspected drug smuggler.
Reasonable suspicion is all that is necessary to detain "alimentary canal
smugglers" who may have swallowed balloons containing drugs.
FINGERPRINTING. Officers have the right, without probable cause, to take
fingerprints at a crime scene. However, probable cause is needed to take
fingerprints at the stationhouse.
GOVERNMENT EMPLOYEES. Workplace searches of desks and filing cabinets can be
done under certain circumstances such as to find a missing file or if there are
indications of on-the-job misconduct.
HOT PURSUIT. Speed is essential here, as only an immediate and continuous
pursuit from the scene of a crime, depending upon the gravity of the situation,
will justify triggering exceptions to the warrant rule.
INTERROGATION. Questioning during a stop does not require
Miranda warnings, but the questioning must be done at the place where the
initial stop took place. Otherwise, Miranda warnings must be given.
PRETEXT STOPS. These are illegal in some states, and involve a dual motive
of the officer in traffic stops. The real motive is to search for contraband or
evidence of a crime.
SCHOOLS. Searches by school officials are governed by stop and frisk law,
but are not restricted to weapons.
SEXUAL SOLICITATION PROFILING. Ritualistic driving behavior of someone who
appears to be a "john" shopping for prostitutes justifies a stop.
SOBRIETY CHECKPOINTS. A systematic process or predetermined pattern is
required; either all cars, or every fourth car, for example.
INTERNET RESOURCES
About.com Civil Liberties: On the Road/Fright-Flight Defenses
ACLU Review: The Fourth Amendment on the Road/Agoraphobia Defenses
Effective Search and Seizure
Legal Update on the Original Stop and Frisk Case
PRINTED RESOURCES
Creamer, S. (1980). The Law of Arrest, Search and Seizure. NY: Holt.
McWhirter, D. (1994). Search, Seizure, and Privacy. Phoenix: Oryx Press.
Last updated: 01/06/04
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