Summer B Bailey

Directed Study Paper 1

Stop-and Frisk Searches

In an effort to maximize an individual’s rights during search and seizures along with stop-and-frisks, the United States government has developed numerous laws and amendments. The most popular of these is included in the Bill of Rights. The Fourth Amendment states,

[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched , and the persons or things to be seized (U.S. Constitution).

This amendment has been used by the courts in cases such as Terry v. Ohio (1968) to shape the stop-and-frisk laws that are found in society today.

In 1942 legislators started to authorize stops-and-frisks on less than probable cause under the Uniform Arrest Act. This act

…empowered an officer to stop a person in public based upon ‘reasonable ground to suspect’ that the person ‘is committing has committed, or is about to commit a crime,’ and then search him ‘for a dangerous weapon’ if the officer has ‘reasonable ground to believe that he is in danger’ (Whitebread, 2000).

By the time Terry v. Ohio (1968) came to court the concept that a stop-and-frisk may be constitutional on less than probable cause “had been endorsed by both the American Law Institute, the President’s Commission on Law Enforcement and Administration of Justice, and several lower courts” (Whitebread, 2000). The court ruled in Terry “…that a frisk, or patdown of outer clothing is authorized when the police have ‘reasonable suspicion,’ a lesser level of certainty than probable cause. It also strongly suggested that the predicate ‘stop,’ or temporary detention is also permissible on reasonable suspicion” (Whitebread, 2000). The court used the Reasonableness Clause derived from the Fourth Amendment as the rationale for changing the requirement of probable cause to reasonable suspicion. This clause “…requires an analysis of whether a given police action ‘was justified at its inception’ and ‘was reasonably related in scope to the circumstances which justified the interference in the first place’” (Whitebread, 2000).

The case of Terry v. Ohio (1968) raised a few issues that the Supreme Court and lower courts were left to clarify. Before the Terry ruling the court held that the only legitimate seizure of a person was an arrest under the Fourth Amendment. However, the Terry ruling stated that seizing a person short of an arrest was legitimate under the Reasonableness Clause. Therefore, the court needed to distinguish the line between an arrest and a seizure as well as determine when a police-citizen confrontation became a seizure (Whitebread, 2000).

There are numerous factors that distinguish between an arrest and a stop. For example the reason for the detention, the location of the detention, and the length of which the detention last can be used to show whether an arrest has been made or a person is simply being stopped for questioning. In addressing the next issue of when a police-citizen confrontation becomes a seizure the Supreme Court never distinguished a time period. However, the court “…has indicated that a twenty-minute detention is a Terry stop, not an arrest…” (Whitebread, 2000). The court went even further stating that police must exercise “…‘diligence’ in expediting the detention, and are not unreasonable in failing to recognize or to pursue less intrusive alternatives” such as in the case of United States v. Sharpe (1985) (Whitebread, 2000).

The court ruled in Terry that “…‘whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person’” (Whitebread, 2000). The court went on to explain that not all police-citizen confrontations involve a seizure of the person; “[o]nly when the officer, by means of force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred” (Whitebread, 2000). However, in the case of California v. Hodari D (1991) the court narrowed the definition of a seizure holding “…that while restraint is a necessary condition for a seizure, it is not necessarily sufficient” (Whitebread, 2000).

In the case of United States v. Mendenhall (1980) two members of the Supreme Court “… stated that the test for determining when someone was ‘seized’ under the Fourth Amendment should be when ‘a reasonable person would have believed that he was not free to leave’”(Whitebread, 2000). They also felt that certain factors would lead to a reasonable person’s belief that they were being seized such as “[t]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officers’ request might be compelled’” (Whitebread, 2000). Unlike the Mendenhall case the Court was more explicit in the case of Florida v. Royer (1983) when it came to determining when a Fourth Amendment seizure had taken place.

In Immigration & Naturalization Service v. Delgado (1984) the Court held that merely asking individuals questions especially while at the individual’s place of work was not constituted as a seizure. However, in the case of Brown v. Texas (1979) the Court stated that a seizure did occur after the defendant refused to answer the officers’ questions. Therefore, the Court held that questioning is not a seizure while conducted at the individual’s place of work until the individual refuses to answer questions and the police are forced to take additional action in order to obtain the information they need. A seizure does not apply when a person gives consent to the officers to answer questions as in the case of Florida v. Rodriguez (1984). (Whitebread, 2000)

Another issue the court faced was establishing the constitutional grounds justifying a frisk. A seizure of a person does not automatically give police the right to a frisk. The Terry ruling “…permitted a frisk only when the officer has, in addition to the suspicion necessary to justify a stop, a reasonable suspicion that the person stopped is ‘armed and dangerous’” (Whitebread, 2000). The Terry case also stated that police officers have to make themselves known to the suspect and ask the subject if they are armed. However, under some circumstances the officer does not have the time to ask questions first as in the case of Adams v. Williams (1972).

In the Pennsylvania v. Mimms (1977) case “…the court approved a frisk when the officer observed a large bulge under the sports jacket of a driver who had just been asked to get out of his car” (Whitebread, 2000). In the Ybarra v. Illinois (1979) case the court held that the frisk conducted was not constitutional because “‘… the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be in premises where an authorized narcotics search is taking place’” (Whitebread, 2000). The Ybarra case “…also emphasized that the frisk must be directed at discovering weapons, not evidence” (Whitebread, 2000). However, the court seemed to forget that frisks are not meant to assist police in finding evidence in the Minnesota v. Dickerson (1993) case. In this particular case a frisk was conducted in the “…absence of an articulable suspicion of danger” (Whitebread, 2000).

After the officer has justified a frisk the Terry ruling “…allows the officer to undertake “‘a carefully limited search of the outer clothing … in an attempt to discover weapons which might be used to assault him’” (Whitebread, 2000). In the Sibron v. New York (1968) case the court stated “that reaching into a person’s pocket is impermissible when the officer makes ‘no attempt at an initial limited exploration for arms’” (Whitebread, 2000). However, if the officer knows that there is a weapon involved and the defendant is being uncooperative the officer may go into the defendants pocket to obtain the weapon in order to protect himself and others.

Minnesota v. Dickerson (1993) gave officers the right to remove contraband from a suspect’s pocket during the course of a frisk “… so long as, at the time he initially feels it, he has probable cause to believe it is contraband” (Whitebread, 2000). The Michigan v. Long (1983) case gave officers to right to “…search any area from which the person stopped might be able to obtain a weapon” (Whitebread, 2000). In Terry the frisk was not restricted to just the person “…but rather permitted a protective search of any area which might contain a weapon posing danger to the police” (Whitebread, 2000).

The effort by the courts to maximize individual’s rights in the area of stop-and-frisk has continued to expand as society changes. The stop-and frisk laws are in place today not only for police safety but also for the safety of the general public. These laws will continue to be reviewed as changing views will help mend courts into a more structured and consistent body.

Works Cited

Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921 (1972).

Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637 (1979).

California v. Hodari D, 499 U.S. 621, 111 S.Ct. 1547 (1991).

Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308 (1984).

Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 (1983).

Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758 (1984).

Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983).

Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130 (1993).

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977).

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889 (1968).

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

"The Constitution of the United States," Amendment Four.

United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870 (1980).

United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568 (1958).

Whitebread, C.H., & Slobogin, C. (2000). Criminal Procedure An Analysis Of Cases And Concepts. New York: Foundation Press.

Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338 (1979).