When Can the Police “Stop and Frisk?”

 

From Staten Island to Ferguson, Missouri,  Stop and Frisk is front and center every time you turn on the news. As the incidents become more controversial, people have been left asking when can the police legally detain and search individuals on the street. The answer might be surprising.

In Terry v. Ohio, the Supreme Court addressed whether Terry’s right to be free from unreasonable search and seizures had been violated when a plain clothes officer approached and searched him on the mere suspicion of illegal activity, “specifically of casing a job.” Terry v. Ohio, 392 US 1 (1968). The officer could not necessarily point to any specific facts that led him to believe the men were engaged in illegal activity. Instead, the officer relied on his 30 years of patrolling the vicinity looking for pickpocketers and shoplifters. During  the search, the officer discovered a concealed weapon on Terry.

 

The Fourth Amendment protects individuals from unreasonable searches and seizures wherever a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351 (1968). In Terry, the Court held that a person unquestionably has an expectation of privacy as he walks down the street, thus the question becomes, whether all the circumstances surrounding the street encounter taken together violated this right to privacy. In determining whether the search and seizure was reasonable, the officer’s action must have been justified from the beginning of the encounter and the action must be reasonably related in scope to the circumstances that justified the encounter in the first place. Terry at 6.

 

The reasonableness of the officer’s conduct must be determined by balancing the need to search against the invasion of privacy the search necessitates. Camara v. Municipal Court , 387 U.S. 523, 534-53, 536-537 (1967).  The inquiry must focus on whether all the facts available to the officer at the moment of the search and seizure would arouse the suspicions of a reasonable man. Carroll v. United States, 267 U.S. 132 (1925), Beck v. Ohio, 379 U.S. 89, 96-97 (1964). Here, the Court found the men’s behavior was sufficiently questionable for an officer of 30 years to suspect they may have been planning a robbery. Once the police officer approaches the suspect, the police officer must take steps to protect himself which may include checking the individuals in question for weapons. The officer does not need to be absolutely certain that an individual is armed but rather ask himself whether a reasonably prudent person would believe the individual may be armed under the circumstances presented. Beck v.Ohio, 379 U.S. 89, 91 (1964).

 

The question becomes what is reasonable? In a landmark case filed in the Southern District of New York, Justice Shira A. Scheidlin attempted to address the issue of reasonableness in Floyd v. City of New York. The plaintiffs in Floyd were a group of  mostly Black and Hispanic residents of New York who asserted the NYPD’s use of stop and frisk violated their Fourth Amendment right. Using police data obtained from the form police officers are required to fill out after each Terry stop, it was determined that between 2009-2014 there were over 4.4 million Terry stops. Floyd v. City of New York, 252 F. Supp. 2d 540 (2013).

 

Based on the data provided, Judge Sheidlin found a conservative estimate of 200,000 stops were apparently unjustified.  Examining the 19 cases at issue, Judge Schiedlin found stops unreasonable where the stop was based solely on a highly generalized pattern of crime in the area involving a black male. Instead, there must be an individualized suspicion to justify the Terry stop. Similarly, an officer’s hunch after glimpsing an object from the window of a passing car was found to be an unreasonable basis for a Terry stop especially when approaching the individual subject to the stop could have easily confirmed the object in question was not contraband. Judge Shciedlin echoed the Supreme Court in Florida v. J.L. ruling a stop was unreasonable when it was based only on a suspect’s description provided by an anonymous caller. Forida v. J.L, 529 U.S. 266 (2000). While Judge Schiedlin recognized the necessity of preventative police practices in combating crime, she reiterated the constitutional mandate that the goals of public safety must coexist with the goal of liberty enshrined in the Fourth Amendment. Floyd at 541-542.

 

The answer from the courts seem to be clear. Police may stop an individual in instances where there is a reasonable suspicion of illegal activity based on more than generalized facts about an area or individuals involved. Although the line of what is reasonable is not always clear, it is abundantly clear that any time the police deprive an individual of their liberty they must do so in compliance with the mandates of the Fourth Amendment. As the practice of Stop and Frisk becomes more controversial, we are sure to see the definition of reasonable changed by the court and the police practices surrounding Terry stops must keep up.

 

 

If you need a lawyer for a criminal or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

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