Keith Mack
The legality of police frisking has been a highly controversial topic in the United States, sparking debates around civil rights, privacy, and racial profiling. The Fourth Amendment protects citizens from unreasonable searches and seizures, and police frisks are generally allowed only when there is a reasonable suspicion of criminal activity or a belief that the individual is armed and dangerous. The Supreme Court case of Terry v. Ohio in 1968 set a precedent for stop-and-frisk laws, ruling that frisks must comply with the Fourth Amendment and be based on reasonable suspicion. However, the legality of stop-and-frisk continues to be challenged, and individuals who believe their rights have been violated are encouraged to seek legal advice to understand their options and protect their rights.
| Characteristics | Values |
|---|---|
| Lawful | Police must have a reasonable suspicion that a crime has been, is being, or is about to be committed by the suspect. |
| Police must reasonably believe that the suspect is armed and dangerous. | |
| The frisk must be brief and external, with officers patting down the outer clothing without searching pockets or concealed areas unless a weapon is felt. | |
| The frisk must be based on articulable suspicion, good cause to believe, and reasonable suspicion. | |
| The frisk must not be a full-scale seizure of a person and must last only a short while. | |
| Evidence found during an unreasonable search is subject to the exclusionary rule and will be excluded from trial. | |
| If a frisk reveals a weapon, the officer may arrest and search the suspect. | |
| Unlawful | Frisking is unlawful if it is based on the location, the people the suspect is with, or their actions without suspicion of criminal activity or belief that the suspect is armed and dangerous. |
| Frisking is unlawful if it is based on the mere presence of a weapon without evidence of criminal activity or consent from the suspect. |
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What You'll Learn
The Fourth Amendment and 'unreasonable' searches
The Fourth Amendment of the United States Constitution protects the people from "unreasonable searches and seizures" by the government. This means that police cannot search a person without a warrant or probable cause. The Fourth Amendment is often viewed as consisting of two clauses. The first clause protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The second clause stipulates that no warrants shall be issued without probable cause, supported by an oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.
The Fourth Amendment does not protect against all searches and seizures, but only those deemed unreasonable under the law. The determination of reasonableness involves balancing the intrusion on an individual's Fourth Amendment rights against legitimate government interests, such as public safety. Searches and seizures inside a home without a warrant are typically considered unreasonable.
The Supreme Court has interpreted the Fourth Amendment's protections against unreasonable searches and seizures in several landmark cases. In Terry v. Ohio, the Court ruled that "stop and frisk" procedures fall under the Fourth Amendment and must be based on reasonable suspicion, good cause, and articulable suspicion. This means that before stopping a suspect, police must have a reasonable suspicion that a crime has been, is being, or is about to be committed. If they reasonably believe the individual is armed and dangerous, they may conduct a quick pat-down of the suspect's outer clothing.
In Utah v. Strieff, the Supreme Court held that when a police officer finds a valid, pre-existing, and untainted arrest warrant for an individual, any evidence obtained from a stop of that individual will be admissible in court, even if the stop would otherwise violate the Fourth Amendment. However, in Brown v. Illinois, the Court ruled that evidence obtained by exploiting an illegal arrest is not admissible.
Other notable cases that have shaped the interpretation of the Fourth Amendment include Minnesota v. Carter, Payton v. New York, United States v. Montoya de Hernandez, Michigan Dept. of State Police v. Sitz, Illinois v. Lidster, and City of Indianapolis v. Edmond. These cases have addressed various aspects of searches and seizures, including routine stops and searches at international borders, highway sobriety checkpoints, and highway checkpoint programs for crime investigation.
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Terry v. Ohio
On October 31, 1963, Cleveland Police detective Martin McFadden noticed three men acting suspiciously and pacing in front of a jewellery store in downtown Cleveland. Concerned that the men were "casing a job, a stick-up" and were carrying weapons, McFadden approached the men, patted them down, and found guns on their persons. This incident led to the landmark Supreme Court case Terry v. Ohio, which set a precedent for when frisking is appropriate under the Fourth Amendment of the U.S. Constitution.
The Fourth Amendment protects citizens from unreasonable searches and seizures, requiring that police have probable cause before conducting a search. In Terry v. Ohio, the Court recognised that a stop and frisk is less intrusive than a full search and seizure, and that police officers should have the investigative right to conduct a stop and frisk as part of their preventive function. The Court ruled that a stop and frisk is reasonable under the Fourth Amendment if two conditions are met. First, the police officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Second, the officer must have a reasonable belief that the person "may be armed and presently dangerous".
The Court emphasised that a stop and frisk must be based on more than just an inarticulate hunch or whim; there must be articulable facts that would warrant a reasonably prudent officer to believe that a suspect is armed and dangerous. The Court also set scope limitations for stop and frisk, ruling that it cannot be a full-scale seizure, must be limited in duration, and must be limited to a pat-down of the suspect's outer clothing. If a weapon is found during the frisk, the officer may then arrest and search the suspect.
The ruling in Terry v. Ohio allows police officers to interrogate and frisk suspicious individuals without probable cause for an arrest, as long as the officer can articulate a reasonable basis for the stop and frisk. This decision was based on the government's interest in effective crime prevention and detection, balancing the protection of individuals from intrusive police conduct with the duty of officers to investigate suspicious behaviour and prevent crime.
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Discrimination and the dangers of broad stop and frisk laws
The Fourth Amendment of the United States Constitution protects Americans from unreasonable searches and seizures. However, there are exceptions to this rule, and 'stop and frisk' is one of them. In the Supreme Court case of Terry v. Ohio, the Court ruled that 'stop and frisk' fell under the Fourth Amendment, meaning that citizens have the right to walk freely without being stopped by the police. However, the Court also recognised that stops and frisks are significantly less intrusive than full-blown searches and seizures, and that standards must be developed for stops and frisks.
The Court in Terry v. Ohio held that a stop-and-frisk must comply with the Fourth Amendment, meaning that the stop-and-frisk cannot be unreasonable. According to the Court, a reasonable stop-and-frisk is one "in which a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous.".
The dangers of a broad stop and frisk law were recognised by the Court, especially regarding minorities and the poor. Some community members believe that this tactic has the potential to cause peaceful, law-abiding citizens to be afraid of the police. There is also an incentive for officers to make false statements regarding reasonable suspicion in order to find more items during this type of search. Opponents of stop and frisk argue that it is conducted much more often in certain areas and involving more people of minority backgrounds than Caucasian individuals, thereby using it as a discriminatory way to make random stops.
In conclusion, while 'stop and frisk' is an important tool for law enforcement officers to protect themselves, it must be used judiciously and within the boundaries set by the Fourth Amendment. The dangers of broad stop and frisk laws include discrimination against minorities, infringement on the rights of innocent citizens, and the potential for misuse by law enforcement officers.
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Evidence and its admissibility
The Court in Terry v. Ohio set out that a stop-and-frisk is reasonable when an officer has a reasonable suspicion that a crime has been, is being, or is about to be committed, and the officer reasonably believes the individual is armed and dangerous. The Court in Sivron v. New York further clarified that police officers must articulate their fear that the suspect is armed for the stop and frisk to be valid. The Court also set scope limitations, including that the stop must be brief and within reach, and officers can only frisk for what is necessary, such as a weapon.
The admissibility of evidence obtained through stop-and-frisk has been addressed in several cases. In Brown v. Illinois (1975), the Court held that evidence obtained by the exploitation of an illegal arrest is not admissible. The Court used a three-factor balancing test for admissibility, considering the temporal proximity between the unlawful stop and the search, the purpose and flagrancy of official misconduct, and the existence of a valid warrant unconnected to the stop.
In Utah v. Strieff (2016), the Supreme Court held that evidence obtained from a stop of an individual with a valid, pre-existing, and untainted arrest warrant is admissible, even if the stop violates the Fourth Amendment. This ruling referenced Brown v. Illinois, favouring the admissibility of evidence when the officer's conduct was lawful and not part of systemic or recurrent police misconduct.
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What constitutes 'reasonable suspicion'
Reasonable suspicion is a legal standard of proof in United States law. It is defined by the United States Supreme Court as "the sort of common-sense conclusion about human behavior upon which practical people...are entitled to rely". It is a standard used in criminal procedure, and it is used to determine the legality of a police officer's decision to perform a search.
Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which a person in the same circumstances could reasonably suspect that a crime has been, is being, or is about to be committed. It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. In other words, it must be based on "'specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with a specific individual.
In the context of stop and frisk laws, the Supreme Court in Terry v. Ohio ruled that a police officer may stop and briefly detain an individual based on a reasonable suspicion of involvement in a punishable crime. If the officer has a reasonable suspicion that the individual is armed and dangerous, the officer may perform a "pat-down" of the person's outer garments for weapons. This type of stop and frisk must comply with the Fourth Amendment, which prohibits unreasonable searches and seizures.
It is important to note that reasonable suspicion does not provide grounds for arrest or a search warrant. However, if an officer develops probable cause during a weapons frisk, they may then conduct a full search.
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Frequently asked questions
A stop and frisk, often referred to as a 'pat-down', is a type of external search conducted by law enforcement officers to check for weapons or other items that might pose a danger. Officers pat down the outer clothing but cannot search pockets or concealed areas without proper justification.
A stop and frisk is appropriate when an officer has a reasonable suspicion that a crime has been, is being, or is about to be committed by the suspect, and the officer reasonably believes that the suspect is armed and dangerous.
If you believe you have been unlawfully frisked, you should consult an experienced criminal defense lawyer as soon as possible to review your case and protect your Fourth Amendment rights.
