Criminal Law

Your Search and Seizure Rights: Stop and Frisk

A stop is when police approach someone while investigating and he doesn't reasonably feel free to walk away. Police can frisk someone for weapons if they reasonably suspect he's armed.

The Fourth Amendment

Stop and frisk law comes from the Fourth Amendment. It gives us the basic rules of search and seizure law:

  1. You're protected from unreasonable searches and seizures
  2. Your person, house and other items are protected
  3. The government needs probable cause for a warrant
  4. Details of the place, person or things to be searched and seized are needed

The Fourth Amendment doesn't say warrants are required for all searches and seizures. Stop and frisk is one of many exceptions to the warrant requirement.

Stop and frisk is also an exception to the probable cause requirement. Probable cause is needed for a warrant, but not for all seizures. Other exceptions don't require probable cause, either.

Terry v. Ohio

In the Terry v. Ohio case, the US Supreme Court set out the "stop and frisk" law. First the Court found that a stop and frisk is a type of seizure and so the Fourth Amendment applies. This case defines a stop as an encounter in which police restrict a suspect's freedom to walk away.

This case also set anew standard for searches and seizures. It's called reasonable suspicion, which is less than probable cause but more than a hunch. "Terry stops," a seizure type, came from this famous case.

To justify a Terry stop, police must point to specific facts, combined with rational inferences from those facts, leading to reasonable suspicion criminal activity may be afoot.

The Supreme Court defined a frisk as a carefully limited search for weapons, limited to someone's outer clothing. To justify a frisk, an officer needs reasonable belief that the stopped person may be armed and dangerous.

Reasonable Suspicion to Stop

Once police officers have reasonable suspicion to suspect criminal activity, they may stop a person to investigate. Reasonable suspicion varies by case. Reasonable suspicion can be based on:

  • Facts seen and interpreted by police, light of training and experience
  • Informants' tips
  • A profile, such as a drug courier or gang member profiles
  • Information shared by police departments
  • Presence in a high crime neighborhood
  • Unprovoked flight after seeing police
  • Information gathered during a voluntary encounter

Reasonable Suspicion to Frisk

For a frisk, reasonable suspicion must justify the stop,and that the suspect is armed and dangerous. The government must show two reasonable suspicion types for a frisk:

  • A reasonable suspicion criminal activity may be afoot before the stop
  • A reasonable suspicion someone may be armed and dangerous, before the frisk

What if the police officer lacks reasonable suspicion required to frisk? He can ask someone for consent to search. Consent does away with the need for the additional reasonable suspicion.

The scope of the frisk is limited to what's reasonable and needed to reveal guns, knives or other things that could be used to harm police.

Questions for Your Attorney

  • Can police conduct a frisk if they have reasonable suspicion that criminal activities are going on?
  • What is the difference between reasonable suspicion and probable cause?
  • When is a stop by police considered an arrest?

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