The Expanding Scope of “Stop and Frisk”

Terry v. Ohio[1]’s “narrow” ruling on the constitutionality of police stop and pat downs absent probable cause has opened up a whole new world of Supreme Court jurisprudence. The Court has sketched out the scope of these searches, seizures, and what remedies apply to constitutional violations resulting from them.


Simple Scope Expansions for Vehicles
The Supreme Court quickly extended the principles of Terry from beat cops seeing suspicious behavior on the street, to police officers who see suspicious behavior on the road and in vehicles. Beginning with Pennsylvania v. Mimms[2], the Court allowed for officers to ask people to exit their vehicle and conduct a “Terry Frisk” when the officer has reasonable suspicion that the person is armed and dangerous.

Later in Michigan v. Long[3], the Court extended the “Terry Frisk” doctrine to the vehicles interior. Thus police are permitted to conduct a warrantless search of someone’s car during a traffic stop if that police officer has reasonable suspicion that the person is armed and dangerous.

The Court further extended the scope of a “Terry Stop” and “Terry Frisk” with Brendlin v. California[4] extending who was seized, and who then could be searched during the “Terry Stop” of a vehicle. A unanimous Court held that all passengers in a lawfully stopped vehicle are seized for purposes of a “Terry Frisk” not just the Driver. Thus the passengers in the vehicle may be searched under a “Terry Frisk” if the officer has reasonable suspicion that they are armed and dangerous.

The Court has recently further expanded the justification for a “Terry Frisk” of a passenger in a vehicle with Arizona v. Johnson[5]. The Court unanimously held that an officer may conduct a “Terry Frisk” of the passenger of a lawfully stopped vehicle, when the only reason for the traffic stop was a minor traffic violation. The Court reinforced however, that the officer must have reasonable suspicion to believe the passenger is armed independent of the minor traffic violation.

Remedies for Constitutional Violations as a Result of a “Terry Stop” and “Terry Frisk”
With the scope of a “Terry Stop” and “Terry Frisk” expanded to included vehicles and passengers the frequency of these stops increased. However; like all things, sometimes a “Terry Stop” and “Terry Frisk” go wrong.
The scope of evidence seized from a “Terry Frisk” was cemented in Minnesota v. Dickerson[6]. A unanimous Court held that when an officer conducts a “Terry Frisk” and feels something that is plainly contraband, that officer may seize the contraband without a warrant, and that contraband may be used against the person involved incorporating the “Plain Touch Doctrine” into the “Plain View Doctrine”. However, the Court in a 6 – 3 vote held the officer had not known the object in question was contraband immediately from touching it. Thus the exclusionary rule is applicable to evidence obtained form an illegal “Terry Frisk” absent other circumstances.

One of these other circumstances that the Court has squarely addressed in the context of a “Terry Stop” is a reasonable mistake of law made by the officer conducting the “Terry Stop”. The Supreme Court held in Heien v. North Carolina[7] by 8 – 1 that when an officer makes a reasonable mistake of law which is used to justify a “Terry Stop” and the result of that mistake of law is the production of evidence, the exclusionary rule does not apply to that evidence even though the stop was illegal. In this specific case, an officer used a broken taillight as justification to conduct a “Terry Stop” however, under state law that wasn’t actually an offense.

In Florida v. J.L.[8] the Court unanimously limited the justification for a “Terry Stop” holding that an anonymous tip that only describes the clothing, or other general facts about a person is not enough to generate reasonable suspicion. Thus anonymous tips lacking intimate or predictive knowledge about the person; even if warning of a violent crime, are not enough to justify a “Terry Stop” nor a “Terry Frisk”.

Finally, and most recently in Utah v. Strieff, the Court in a 4 – 4 fragmented decision held that when an officer makes an unconstitutional “Terry Stop” as a result of reliance upon a police clerical error, the exclusionary rule will not apply to any evidence that results from it. In this case, an officer was observing a known drug house and identified a man walking out of the house as Edward Joseph Strieff. After calling in the sighting of the man and receiving information that he had an open arrest warrant in a neighboring county, the officer conducted a “Terry Stop” to identify the man conclusively as Strieff. During the arrest the officer discovered drug paraphernalia on Strieff. However, it turned out the arrest warrant was actually a clerical error.

Terry’s Future
The Supreme Court has shown no willingness to disturb the ruling in Terry. Further the Court, for almost fifty years has waged a prolonged war against the exclusionary rule in the criminal context. Thus with Terry’s scope expanded and the Court rolling back fourth amendment exclusionary remedies from otherwise illegal searches and seizures resulting from “Terry Stops” and “Terry Frisk”, Terry stands secure in its dominance of the public interactions with the police.

Written By Hunter White

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

[2] Pa. v. Mimms, 434 U.S. 106, 98 S. Ct. 330 (1977)

[3] Mich. v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983)

[4] Brendlin v. California, 549 U.S. 1177, 127 S. Ct. 1145 (2007)

[5] Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781 (2009)

[6] Minn. v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993)

[7] Heien v. North Carolina, 134 S. Ct. 1872 (2014)

[8] Fla. v. J.L., 529 U.S. 266, 120 S. Ct. 1375 (2000)