Stop and frisk

Despite Fourth Amendment protections against unreasonable searches and seizures, police officers may stop pedestrians and subject them to a “pat-down search” without a search warrant under certain circumstances. The process has come to be called a “stop and frisk.”
The landmark case approving a stop and frisk search was Terry v. Ohio, 392 U.S. 1 (1968). In that case, the Court acknowledged that “we deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.”
The Court went on to rule that for a warrantless stop to be constitutionally acceptable, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The Court went on to suggest an objective test for review of an officer’s actions: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”
Notice, there is nothing in the Court’s instructions about protecting a pedestrian’s expectations of privacy. Instead, the Court said there must be a balancing between “the need to search [or seize] against the invasion which the search [or seizure] entails.” The Court specifically held that “inarticulate hunches,” or good faith alone, would not be sufficient to justify a stop or a search. “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”
There are two elements to a stop and frisk: the stop and the search. Initially, the courts were quite strict in limiting the justifications for stopping citizens. Slowly, the courts adopted a more liberal “reasonable suspicion of criminal activity” test to justify the stops. Law enforcement agencies instructed police that justifiable reasons for a Terry stop included but were not limited to: (1) a person does not seem to fit in the neighborhood; (2) a person matches a description of a person known to be sought by law enforcement agencies; (3) a person is loitering, hanging around a set location with no clear purpose, or is acting strangely; and, (4) a person is running away from or is present in a crime-scene area.
There were still problems for police officers because many of the actions they believed were suspicious were activities engaged in by law-abiding citizens. Since Fourth Amendment rights apply only when there has been a seizure of a person, the courts began to focus on when a “seizure” had occurred in an effort to reduce the difficulties in analyzing the justification for a stop in the first place. The result was that the test became not why did the officer stop someone for questioning, but rather did the person who was stopped believe that leaving was possible.
The Court addressed the freedom to leave issue in United States v. Mendenhall, 446 U.S. 544 (1980). In that case, Sylvia Mendenhall was going from one plane to another in a Detroit airport when she was observed by Drug Enforcement Administration (DEA) agents, who believed she was acting suspiciously. The agents stopped her to request identification. When she produced a driver’s license in one name and an airplane ticket in another name, the officers asked her to accompany them to an office on another floor in the airport. She agreed. Once in the office, Mendenhall was asked if she would consent to a strip search. Again, she agreed. A female officer escorted Mendenhall to a restroom and conducted the search. Heroin was found. Mendenhall later argued her stop in the airport and the later search vio-lated her Fourth Amendment rights.
The Supreme Court found the stop did not amount to a “seizure” and stated,We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safe-guards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals” (United States v. Martinez-Fuerte, 428 U.S. 543 (1976)). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
When the initial contact between police and suspect is not on a street but in a bus or on a train, the freedom to leave question makes less sense. Thus, in Florida v. Bostick, 501 U.S. 429 (1991), the Supreme Court defined the appropriate question as “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”
Once a suspect has been stopped, there is no automatic right to frisk. Officers must have an articulable reason to justify the invasion of a person’s privacy. Con-cern about an officer’s safety or the safety of others must be established, but it is fairly easy for officers to legitimately make that claim. For example, when persons refuse to answer questions or attempt to leave and avoid the officer, those acts in themselves can justify a Terry search.
The Terry decision was limited to a search for weapons with the intent of protecting the safety of investigating officers. In 1993, however, the Supreme Court expanded the permissible scope of an officer’s seizure “if in the course of a weap-ons frisk, ‘plain touch’ reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object” Minnesota v. Dickerson, 508 U.S. 366 (1993). Ironically, in Dickerson, the Court rejected an officer’s seizure of a small plastic container, ruling the officer should not have con-tinued his search by manipulating the container with his fingers while it was still in the defendant’s pocket since the officer had determined the suspect did not have a weapon.
The concept of a Terry search has also been extended by the courts to include items a person may be carrying if there is a “reasonable, articulable suspicion, premised on objective facts” that the items being carried contain contraband or evidence of a crime.