“Stop and Frisk”, what does it mean for you?

The phrase “Stop and Frisk” has become a common feature of today’s political debate. The practice is often brought up in discussions of police tactics, court cases, and criminal justice. However, the average person has little awareness of the jurisprudence surrounding the practice. Unfortunately, people must be aware of what the practice actually is to properly safe guard their constitutional rights against abusive and unconstitutional police action.

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What is “Stop and Frisk”?
The phrase “Stop and Frisk” is a shortened way of describing two distinct government actions of a Terry stop, and a Terry frisk both of which arose out of the 1968 case of Terry v Ohio[1]. Terry v Ohio has proven to be one of the most important Supreme Court decisions in terms of the practical impact on the fourth amendment[2].  Terry outlined a new way of interpreting the meaning of the fourth amendment’s reasonableness and probable cause requirements in the context of a search and seizure.

The facts of Terry are almost something from a Law and Order episode. On October 31st 1963, in downtown Cleveland Ohio in the early afternoon, Cleveland Police Department Detective Martin McFadden was patrolling his beat. The detective was plainclothes, and nearing the end of his shift. The officer came to the end of a block, and while turning to follow the street observed two men on the opposing street corner huddled together. The men would later be identified as John W. Terry and Richard Chilton.

He then observed some very suspicious behavior, the two men would take turns walking down the street and pausing to look into the window of a jewelry store. After pausing the man would walk back to his companion, and his companion would do the identical thing. This occurred roughly six times before the men were joined by another man. This man was later identified as Katz. Once the third man joined, he repeated the same behavior of his companions.

Detective McFadden then proceeded to approach the men, he stated that he believed they were casing the jewelry store for a daylight robbery. In McFadden’s thirty-nine years as a policeman, and thirty-five years as a detective, he had never actually observed a stakeout for a robbery but he attested that he just had a bad feeling about these men and their actions. He further testified that he feared they would have a gun or guns, as guns are often used in daylight robberies.  The Court, in their majority opinion made a point to observe that both Terry and Clinton where African American.

Detective McFadden approached the three men and identified himself as a police officer and asked the men for their names. The men only mumbled a response that was never understood. At that point, the Detective grabbed Terry and spun him around so they were face to face and proceeded to pat down Terry’s overcoat. In the pocket of the coat the detective felt a pistol, he then removed the .38 caliber revolver and ordered the men against the wall. A subsequent search of the men produced another pistol form the overcoat of Chilton, but nothing from Katz. The three were arrested for attempted robbery and formally charged with carrying concealed weapons.
In the subsequent trial for John W. Terry he moved to suppress the evidence of the pistol obtained from the arrest arguing that the police officer did not have probable cause when he was arrested, thus when the officer seized Terry by stopping him, and searched Terry by patting him down, the officer had conducted an unreasonable search without probable cause to believe that he had committed the crime of carrying a concealed weapon. This, he argued meant that the search violated the fourth amendment and as such the evidence should be excluded from evidence[3] as “fruit of a poisons tree”. Terry’s objection was overruled and he was convicted and sentenced to three years.

After numerous appeals, each of which affirmed his conviction Terry’s case arrived to the Supreme Court. In a 8 – 1 decision delivered by then Chief Justice Warren, the Court announced a “quite narrow” judgment. The issue was whether it was unreasonable for a Police officer to stop someone on the street without probable cause to arrest that person, and pat the person down if there is a reasonable belief that the person may be presently armed and dangerous. The Court announced that officers do not need to have probable cause to stop someone, but that they must have reasonable suspicion. Reasonable suspicion was defined as objectively verifiable articulable facts that produce this belief and these facts would reasonably produce that belief. The Court further held that an officer may conduct a brief investigatory search of the outer clothing of the person being stopped if they had reasonable suspicion that the person was armed and dangerous.

This Court gave us two points of law, which now govern the majority of the public’s interaction with police officers. An officer may perform a search for weapons without a warrant, even without probable cause, when the officer reasonably believes that the person may be armed and dangerous. An officer may perform a brief investigatory seizure without a warrant, even without probable cause when the officer reasonably believes that the person has committed, is committing, or will commit a crime. This is the essence of what “Stop and Frisk” is.

“Stop and Frisk” in Modern Terms, Contentious Conflation.
The decision in Terry empowered police officers to put their safety first, however the consequence of sanctioning such searches were mountains of evidence to be used against those who had been searched in the name of “officer safety”. However, for the most part wholesale abuse has not occurred nationwide. However, where such abuse has occurred demonstrate how the current understanding of Terry has changed, and changed in ways that many feel is unconstitutional and inconsistent with current Supreme Court rulings.

In the modern context, “Stop and Frisk” is often used when referring to a specific police policy or practice which was infamously pioneered and championed by New York City. In this Context “Stop and Frisk” refers to the practice of stopping and frisking everyone in an area without probable cause and with very general “reasonable suspicion”. This practice differs materially from the Supreme Courts express holding in Terry v Ohio due to the nature of the justification New York City used. In New York there is an offense called Disorderly Conduct[4]. This law, in its definition labels “obstructs vehicular or pedestrian traffic” as a violation. This has been interpreted to mean anything from standing on a sidewalk, to walking on a sidewalk. It is impossible to set foot on public streets or roads in New York without violating this law.

Because every person is in violation of this law, police always have reasonable suspicion to stop someone for the offence of “obstructing pedestrian traffic”. New York, then goes one step further by saying that because the officer has reasonable suspicion to believe the person is violating the disorderly conduct law, they have reasonable suspicion to believe that the person is armed and dangerous and thus can conduct a frisk.

New York eventually faced a constitutional challenge to the practice, and had it declared unconstitutional[5]. However, due to political action beyond the scope of this article, the judge who made the ruling was forced to recuse herself, and the city entered into a settlement agreement to modify the practice.

While the practice was held unconstitutional the ruling was actually narrow. It did not address the subject of the conflation of a stop and a frisk, instead it focused on the racial undertones of the practice, which was overwhelmingly used against Latino and African American men. The question of the actual constitutionality of merging two distinct legal issues each with their own justification requirements into the same stop and a frisk has yet to be addressed.

The Broadening Scope
Terry stood for two distinct legal propositions, in a scenario where clear indicators of each of these propositions occurred. However, over the years of refinement and jurisprudence, courts have slowly expanded the scope of how police can interact with the public, slowly eroding the foundational liberty “to be secure in our persons and effects against unreasonable search and seizure” enshrined by our founding fathers in the fourth amendment.

When people speak today of “Stop and Frisk” they speak of something far removed from what was ever held to be constitutional. These days “Stop and Frisk” has become a euphemism for monstrous state overreach from its narrow justification. It is not the policy of “Stop and Frisk” we need to fear or change, it is how we interpret what the words mean that must change.

Written by Hunter White

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com

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

[2] “The right of the 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.” USCS Const. Amend. 4

[3] Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341 (1914)

[4] N.Y. Penal Law § 240.20 (Consol., Lexis Advance through 2016 released chapters 1-328)

[5] http://www.politico.com/blogs/2016-presidential-debate-fact-check/2016/09/trump-is-wrong-stop-and-frisk-was-ruled-unconstitutional-228729