A Brief Introduction to Stop and Frisk and Related Police Investigative Stops

The police investigate potential criminal activity as part of their difficult mission to "protect and serve." This comment provides a brief and incomplete educational overview of a few significant U.S. Supreme Court decisions that address police investigative stops and related searches without a search warrant. Lower federal court and state court decisions are not discussed. Always consult an experienced attorney in all police and criminal law situations.

Some Background

The Fourth Amendment protects both persons and property from unreasonable searches and seizures:

"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."

To enforce this requirement, the U.S. Supreme Court in 1914 created the "exclusionary rule" stating that evidence resulting from a Fourth Amendment violation is generally inadmissible in a criminal trial (Weeks v. United States). However, the Fourth Amendment originally only restricted the federal government, not state governments.

In 1961 the U.S. Supreme Court held that the Fourth Amendment applies to state criminal prosecutions (Mapp v. Ohio). The Supreme Court's "selective incorporation" doctrine states that clauses in the Fourteenth Amendment, notably "nor shall any State deprive any person of life, liberty, or property without due process of law," implicitly apply portions of the Bill of Rights to the states. A few scattered clauses in the Bill of Rights have not yet been expressly stated to apply to the states.

Stop and Frisk

The U.S. Supreme Court's classic Terry v. Ohio (1968) decision created the terminology of "stop and frisk" or "Terry stop." The Terry case involved experienced police officers observing behaviors that appeared to indicate the imminent robbery of a store (a "reasonable suspicion"). A detention and pat down of three suspects found two revolvers and produced a charge of carrying concealed weapons. The upshot of the Terry decision, worth reading in its entirety, was this specific search was "reasonable" to discover weapons that might be used against the police and the public. The majority opinion declined to apply the stricter "probable cause" language in the Fourth Amendment.

Justice Douglas, the lone dissenter in the Terry decision, wrote:

"To give the police greater power than a magistrate [has to issue a search warrant, requiring probable cause,] is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment...."

The Supreme Court has indicated that reasonable suspicion justifying a police stop is "based on commonsense judgments and inferences about human behavior," but may not be solely because of a refusal to cooperate with the police or the location being a high crime area (Illinois v. Wardlow). Racial profiling complaints related to police stops are based upon the equal protection clause of the Fourteenth Amendment, "nor deny to any person within its jurisdiction the equal protection of the laws." Racial profiling lacks any reasonable suspicion beyond race and impermissibly categorizes citizens, while Terry focused on behaviors.

Terry-type police actions require individualized reasonable suspicion, based upon specific and articulable facts that go beyond a hunch, and the investigative methods used must be the least intrusive means reasonably available to quickly verify or dispel the police officer's suspicion (Florida v. Royer). The suspicion must exist at the inception of the stop and cannot be based upon information acquired after the detention. Nor may the police point to only one small action as being suspicious but must consider the totality of the circumstances as a whole.

Subsequent decisions, in incomplete overview, have applied Terry to a search of vehicle areas that an individual could grab a weapon from during traffic stops, to requiring identification (in some states), and to "reasonable" mistakes of law by the police to justify an initial stop. Evidence of another crime, such as possessing unlawful drugs, found during such a search is usually admissible in a criminal case.

A recent search indicated over 50,000 cases and legal articles citing the Terry decision.

Consensual Encounters

Note that the police may merely approach any individual and engage in conversation without any reasonable suspicion as long as the individual is free to leave. Additionally, granting consent to search of a vehicle or other property removes the necessity of the police obtaining a search warrant. Standard defense attorney advice in general is to be polite, provide identification, remain silent, do not consent to a search, and immediately request legal counsel if arrested. Of course, assisting the police in solving crime is encouraged. The context of the encounter is important.

In all police encounters it is important to take note of a badge number or other identifiers. However, police departments are typically given broad discretion in concealing the identity of officers in the interest of safety. For example, since 1980 California Penal Code Sec. 830.10 has stated: "Any uniformed peace officer shall wear a badge, nameplate, or other device which bears clearly on its face the identification number or name of the officer." There are no clear penalties or reported decisions penalizing disobedience. The Department of Justice might become involved if concealing identity were part of a pattern of police abuses. In contrast, police have broad discretion in checking vehicle tag numbers and requesting citizens to identify themselves.

In 2006 the Court held that a consent to search by only one individual living in a shared residence violated the rights of another resident who was present and objected to the search (Georgia v. Randolph). In 2014 a majority opinion stated that the Randolph decision was limited to situations where the objecting resident was present and "an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason" (Fernandez v. California). Three dissenting Justices believed that the police could have obtained a search warrant and "today's decision tells the police that they may dodge it."

As an aside, requiring consent to searches as a condition of probation is also upheld in that probation is a form of criminal sanction and the offender does not possess the absolute liberty of an ordinary citizen (U.S. v. Knights).

Traffic Stops

As criminals may impersonate police, if you are signaled to stop continue driving to a well-lit public area while calling 911 if you have reason to believe impersonation is occurring. Police may shine a light into a car (Texas v. Brown) but shining the light into your eyes would seemly fall into a gray area (unlikely to be reviewed or condemned) between reasonable identification and excessive force.

One must appreciate the potential danger police face when making a traffic stop. Thus, one should keep one's hands visible and, if a license, registration, or proof of insurance are requested, announce in advance to the police officer what you are doing. Stay in the vehicle unless requested to step out. Politeness and slow calm actions may deescalate a situation. Rude "contempt of cop" behavior invites a show of authority, delay, citations, and potential arrest. Exercise discretion in picking your battles.

Traffic violations allow police to stop, detain, and possibly arrest the driver. However, a reasonable belief that a violation occurred is enough to justify a stop, even if an actual violation did not occur. Furthermore, a police officer may develop reasonable suspicion that another crime has occurred after the stop, such as the driver exhibiting evidence of intoxication.

A 2001 U.S. Supreme Court decision involved a vehicle stopped for speeding and an improperly tinted windshield. When the police officer saw the driver's license, he recognized the name as related to "intelligence" concerning narcotics. The officer also observed a rusted roofing hatchet on the floorboard. The driver was arrested for speeding, improper window tinting, driving without his registration and insurance papers, and carrying a weapon (the hatchet). An inventory search of the impounded vehicle found drugs. The Arkansas Supreme Court found that the arrest was a pretext to search the car and suppressed the drug evidence. However, the U.S. Supreme Court reversed this decision, stating that it was unwilling "to entertain Fourth Amendment challenges based on the actual motivations of individual officers" and that "subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis" (Arkansas v. Sullivan).

Inventory searches without a search warrant are allowed if the vehicle has been lawfully impounded and the search is conducted according to a standardized inventory policy. Inventory searches are justified by the U.S. Supreme Court based upon the protection of the owner's property, preventing disputes over lost or stolen property, and protecting the police and others from the contents of the vehicle (South Dakota v. Oppermann).

In 1976 the U.S. Supreme Court allowed the U.S. Border Patrol to set up permanent checkpoints on highways leading away from the Mexican border (U.S. v. Martinez-Fuerte). The majority opinion stated that the intrusion was minimal, there is less legitimate expectation of privacy in a vehicle, and the government interest in preventing illegal immigration outweighed constitutional considerations even if referrals to a secondary inspection area were based upon apparent Mexican ancestry.

Random unannounced traffic sobriety checkpoints were upheld in 1990 in a majority decision since there was a substantial governmental interest in stopping drunk driving, the methods were reasonably related to this goal, and the impact upon drivers was negligible (Michigan Department of State Police v. Sitz). Two dissenting Justices believed other methods were viable and nighttime surprise intrusions were "the hallmark of regimes far different from ours."

Drug Sniffing Dogs

A 2000 decision (6:3) limited the ability of police to create roadblocks and conduct dog sniffs on every stopped car since there was no individualized suspicion of wrongdoing and no goal other than general law enforcement (City of Indianapolis v. Edmond).

In 2005 the Court upheld the use of a drug sniffing dog during a routine speeding traffic stop if it did not unreasonably prolong the stop (Illinois v. Caballes). Marijuana found in the trunk after the dog alerted was admissible in evidence. Two dissenting Justices focused on the potential for false positive alerts and the manner in which any stop could be transformed into a search for drugs.

A 2013 unanimous decision upheld the use of a drug sniffing dog during a traffic stop when the officer noted that the driver was nervous and an empty beer can was visible. The drugs seized after a search subsequent to the dog's alert were admissible. Completing a training program established the dog's reliability (Florida v. Harris).

However, also in 2013, the Court (5:4) held that a search warrant was required to take a drug sniffing dog on the front porch of a private home based upon an anonymous tip that the residence was a marijuana grow house (Florida v. Jerdines). The majority distinguished this situation from a 1983 decision that upheld dog sniffs of airport luggage (U.S. v. Place) and traffic stop dog sniffs. Privacy in one's home is a core Fourth Amendment value. The dissenting Justices perceived no trespass and no search.

In 2015 the Court's majority held that police could not extend the traffic stop in order to conduct a dog sniff if the sniff were unrelated to the purpose of the original traffic stop. The case was remanded to a lower court to determine if the police officer had independent reasonable suspicion to extend the stop (Rodriguez v. U.S.).

Volumes are written concerning these topics. This comment provides only a brief and incomplete educational overview and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.