Stop and Frisk

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Most courts recognize that a police officer has the authority to detain a person briefly for questioning even without probable cause to believe that the person is guilty of a crime. The Supreme Court first addressed the "stop and frisk" issue in terry v. ohio (1968). In Terry, an experienced police officer observed three unknown men conducting themselves in a manner that suggested the planning of an imminent robbery. With his suspicion aroused—but clearly without probable cause to make an arrest—the officer stopped and patted the men down, finding weapons on two of them. The holders of the two guns were arrested and convicted of possession of a concealed weapon. The Supreme Court ruled that the officer's actions in stopping the suspects were constitutional.

Terry, therefore, authorized law enforcement officials, on the grounds of reasonable suspicion, to stop briefly a suspicious person in order to determine his identity or to maintain the status quo while obtaining more information. Such a "stop" is proper when: the police observe unusual conduct; the conduct raises reasonable suspicion that criminal activity may be afoot; and the police can point to specific and articulable facts that warrant that suspicion. A "frisk" is proper when the following prerequisites are met: a "frisk" cannot be justified on "inchoate and unparticularized suspicion or 'hunch'," but must be grounded on facts which, in light of the officer's experience, support "specific reasonable inferences" that justify the intrusion; a "frisk" is proper only after "reasonable inquiries" have been made, although such inquiries need not be extensive; and a "frisk" is authorized where an officer reaches a reasonable conclusion that the person stopped for questioning may be armed and presently dangerous.

Further clarifying the test permitting a valid "stop and frisk," the Supreme Court has stated that the totality of the circumstances must be taken into account. Looking at the whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The Court has emphasized that the process of assessing all the circumstances often will not involve hard certainties but rather probabilities; the evidence to justify the stop must be weighed in accordance with the understanding and experience of law enforcement personnel.

Applying that standard in United States v. Cortez (1981), the Court upheld the propriety of stopping a defendant whose camper van was observed late at night near a suspected pick-up point for illegal aliens. The size of the vehicle, the lateness of the hour, and the remoteness of the spot all combined to make the stop reasonable.

Moreover, in Adams v. Williams (1972) the Supreme Court extended the Terrydoctrine in the following ways: (1) a "stop and frisk" is authorized for such offenses as possession of illegal drugs or a concealed weapon; (2) an informant's tip may provide reasonable cause for a "stop and frisk" even where no unusual conduct has been observed by an officer; and (3) the "identification" and "reasonable inquiries" requirements of the Terry decision are no longer absolute prerequisites. The Terry doctrine was again extended in Michigan v. Long (1983) where a "frisk" for weapons was not restricted to the person but was extended to any area that might contain a weapon posing danger to the police. A search of the passenger compartment of a car was held reasonable due to the observance of a hunting knife, the intoxicated state of the defendant, and the fact that the encounter took place at night in an isolated rural area.

In Pennsylvania v. Mimms (1977) the Court held that, whenever a vehicle is lawfully detained for a traffic violation, the police officer may order the driver out of the vehicle for questioning without violating the proscriptions of the fourth amendment.

In sibron v. new york (1968) a patrolman observed Sibron with a group of known drug addicts. The officer approached Sibron in a restaurant and ordered him outside. During a brief conversation with the officer, Sibron reached into his pocket. The patrolman promptly thrust his hand into the same pocket and found several glassine envelopes containing heroin.

The Supreme Court found the search to be unlawful on several grounds, including the fact that the "mere act of talking with a number of known addicts" was not enough to produce a reasonable inference that a person was armed and dangerous. The officer's motive, which was clearly to search for drugs, not for a weapon, invalidated the search as well. The Sibron decision is important because it made clear that Terry established only a narrow power to search on less than probable cause to arrest, and that the right to frisk is not an automatic concomitant to a lawful stop. Sibron also established proper motive as a prerequisite to a proper frisk.

In Peters v. New York (1968), Sibron 's companion case, an off-duty policeman saw through the peephole of his apartment door two strangers tiptoeing down the hallway. After calling the police station, dressing, and arming himself, the officer pursued the men and questioned Peters. Peters said he was visiting a married girlfriend but would not identify her. The officer then patted down Peters and felt in his pocket a hard, knife-like object. He removed the object, which turned out to be a plastic envelope containing burglar's tools. Peters was charged with unlawful possession of burglar's tools. The search was held proper as incident to a lawful arrest because the circumstantial evidence available to the officer reached the level of probable cause to arrest Peters for attempted burglary.

After Sibron and Peters, the issue arises as to the legal consequences when a police officer pats down a suspect, reaches into the suspect's pocket, and pulls out evidence of a crime but not a weapon. The questions are whether the officer could reasonably have believed the item was a weapon, and whether the item was visible even without removing it. Using Sibron and Peters as models, a box of burglar's tools would satisfy the test (Peters), while a soft bag of heroin would not be admissible (Sibron).

The lower courts have expanded the scope of a constitutionally permissible frisk beyond a limited pat-down of a suspect's outer clothing. Courts have included within the scope of a permissible frisk the area under a suspect's car seat, after the suspect appeared to hide something there, and a glove compartment within the reach of a suspect. In addition, the lower courts have relaxed their supervision over police judgments concerning objects that seem to be weapons when suspects are frisked, allowing officers to search after they have touched objects such as razor blades, cigarette lighters, and even lipstick containers.

The Supreme Court has declined to impose a rigid time limit for stop and frisk situations. In United States v. Sharpe (1985), where a pickup truck involved in drug trafficking was detained for twenty minutes, the Court determined that the length of the stop was reasonable by considering the purpose of the stop, the reasonableness of the time in effectuating the purpose, and the reasonableness of the means of investigation. In United States v. Hensley (1985) the Court widened the application of permissible investigative stops to include investigations of completed crimes. The Court also articulated that a police officer's reliance on a "wanted flyer" issued by another police department provided reasonable basis to conduct a stop if the flyer was based on "specific and articulable facts."

Finally, courts have handled the special case of airport "stop and frisk" situations in three ways. The first treats the problem through a straightforward application of the Terry test. The second method involves courts lowering the Terry level of "reasonable suspicion" to a less stringent standard. The third approach overtly abandons the Terry formula, opting for an administrative search consent rationale which does not even require reasonable suspicion. Today, the use of electronic scanning devices at most airports has diminished this area of "stop and frisk" concern.

Charles H. Whitebread

(see also: Body Search.)


Whitebread, Charles H. 1980 Criminal Procedure. Mineola, N.Y.: Foundation Press.