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Search and Seizure
Part 1-Volume 1
Chapter Introduction
 

 

 



 


 

  
 

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
Syllabus for JUS 410
Syllabus for JUS 325
MegaLinks in Criminal Justice

 


 


 

  

      
   

  

 

 

                  

 


 



                                     

















































































































































































































































 

 


Fourth Amendment-Search and Seizure-Part 1 Table of Contents