Police Activity Stop and Frisk: Your Search and Seizure Rights

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  1. A “stop” occurs when a police officer investigates a matter by approaching a person who does not feel the freedom to walk away. When a police officer has a reasonable suspicion that someone has or is engaged in criminal activity, such as being armed, an officer may frisk that person for guns, knives or other concealed weapons.

    The Fourth Amendment: Stop and Frisk Law

    The Fourth Amendment is the basic source of search and seizure laws and from which the stop and frisk law is derived. The basic principles of law are:
    • A person is protected against any unreasonable search and seizure – a stop may only occur for reasonable suspicion or as part of organized stops conducted at random;
    • A person is entitled to protection of searches of their body, which includes one's home and other related items;
    • The government requires that probable cause for an arrest exist before a warrant can be issued;
    • For the issuance of a warrant, details regarding the person, place or things to be searched are required.
    There is no Fourth Amendment requirement that all search and seizure activities by law enforcement must be accompanied by a search warrant. Stop and frisk is one such exception to warrant requirements. While probable cause is needed for a search warrant, stop and frisk presents another exception where probable cause is not required, only reasonable suspicion. Stop and frisk programs and security points, such as in New York City, have created great scrutiny and debate about what is actually permissible under the U.S. Constitution. The justification for many stop and frisk programs is to protect officers and bystanders from hidden weapons.

    Terry vs. Ohio – Legal Precedent

    The legal precedent that established the “stop and frisk” law was the U.S Supreme Court case of Terry vs. Ohio. The “Terry Stop” is a stop and seizure term that originated from this famous case. The Supreme Court found that a stop and frisk is to be considered a type of search and seizure for which the Fourth Amendment would apply. A “stop” was considered to have occurred when a police officer does not allow a person suspected of a crime with the freedom to simply walk away.

    This case established criteria for this kind of search and seizure. Stop and frisk requires only the reasonable suspicion of the commission of a crime by a police officers. This is in contrast to the higher standard of probable cause, where the facts and circumstances would indicate to a reasonably intelligent person that a crime has been committed and that there is sufficient cause to investigate. Reasonable suspicion can be interpreted as more than a feeling that a crime is being committed but less than the probable cause.

    A “frisk” has been defined by the Supreme Court as a search of someone’s outer clothing for the presence of weapons. An officer must have a reasonable suspicion that the person being stopped may be armed which would justify a frisk.

    What Constitutes Reasonable Suspicion for a Stop?

    Police and law enforcement may stop someone for investigation if they have a reasonable suspicion that the person stopped was involved in criminal activity. Whether “reasonable suspicion” exists is based upon the specific facts and circumstances of each case. Reasonable suspicion most frequently revolves around:
    • Facts observed by police and their interpretation of the facts, based upon years of experience investigating crime;
    • Facts and information shared by law enforcement and other police departments, including personal criminal profiles such as those involved in the sale or distribution of illegal drugs;
    • Crime tips that are obtained from informants to police and law enforcement;
    • A person’s presence in a neighborhood with a high crime rate;
    • Facts and information generated from a random or voluntary encounter;
    • Flight after seeing police officers without any prior cause or provocation.

    What Constitutes Reasonable Cause for a Frisk?

    In addition to the stop requirement, police officers must also reasonably suspect that the person they stop is armed and poses a threat to the officers or the general public. There are two types of reasonable suspicion which must be present before a lawful frisk can take place:
    • Reasonable suspicion that criminal activity might be taking place before the person is stopped; and
    • Reasonable suspicion that the person is armed and dangerous.
    If a police officer wants to frisk a suspect but lacks reasonable suspicion, the officer can request that the person consent to the search. This is sufficient and the requirement becomes unnecessary.

    What are the Limits of a Frisk?

    Assuming there is reasonable cause to frisk, the scope of the frisk is determined by what is reasonably necessary to find a concealed weapon. A switchblade or sheathed knife be easier to conceal than a handgun.

    Do I Need a Criminal Lawyer or Civil Rights Attorney?

    In the event that you have been arrested or criminally charged as a result of a stop and frisk, it is important to speak to an experienced criminal defense lawyer. Criminal lawyers specialize in criminal court matters and can provide an expert defense by challenging the legality of a stop and frisk. Prosecuting an unwarranted stop and frisk violation is a civil court matter. A civil rights attorney specializes in matters concerning the U.S Constitution and the protection of basic human rights. Each of these legal counsel will have a very good understanding of whether a stop and frisk violation may have occurred in your particular case.
    Criminal Law & Procedure:
    Police Stops, Frisks

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

Comments

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  1. AmandaGrace123
    Josh & Chuck from Stuff You Should Know did an excellent podcast on these subjects! Incredibly worthwhile listen.
  2. Highwayman
    A frisk and search are two different things. A frisk is a simple pat down of the outermost garments to look for weapons. At least that's what taught in the NYC Police Academy.