Stop and Frisk
Terry v. Ohio [392 U.S. 1, 88 S.Ct. 1968, 20 L.Ed.2d 889 (1968)]
A police officer witnessed three men pacing in front of a jewelry store and suspected that a robbery was being planned. He approached the men and identified himself, then performed frisks of defendants Chilton and Terry and discovered illegal concealed weapons. Defendants were convicted and appealed, claiming that the frisk violated their Fourth Amendment right against unlawful searches and seizures.
The Supreme Court upheld the conviction, finding that when a law enforcement officer has "reasonable grounds" for suspecting that a criminal suspect may be armed, he may pat down the outer layer of the suspect's clothing for weapons. The ruling held that the Fourth Amendment protection against unreasonable searches and seizures is not violated when a pat down is performed based on reasonable suspicion for the purpose of ensuring officer safety.
What you should know about stop-and-frisk law:
The Court's ruling in Terry v. Ohio has been understood to validate the practice of frisking (or patting down) suspects for weapons under diverse circumstances. Generally, law enforcement officers will perform frisks at their discretion, regardless of the "reasonable suspicion" standard established by the ruling in Terry. Thus, it is not uncommon for frisks to be conducted for investigatory purposes where no actual evidence of a threat to officer safety exists.
Due to the prevalence of police frisks, it is important for citizens to understand the rationale behind police authority to pat down suspects and the limitations the Court has placed on that authority:
- After initiating contact, police officers may pat down criminal suspects for weapons in order to provide for their safety and that of the public. This police practice is rarely, if ever, a violation of your constitutional rights.
- If you are frisked, any hard objects the officer detects can be removed from your pockets and inspected.
- You can be charged for possession of illegal weapons discovered through a lawful pat down.
- Indicate that you do not consent to a full search of your person. Your proximity to the officer creates a limited window of opportunity in which to assert your rights. If you do not wish to be searched following the pat down, verbally indicate your refusal to be searched as soon as possible in order to avoid any misunderstandings.
- Police CANNOT conduct frisks for the purpose of discovering evidence other than weapons. The Supreme Court has ruled that suspicious items other than weapons retain their Fourth Amendment protection during a frisk. This means that if a police officer claims that objects in your pocket feel like drugs, the objects cannot be further investigated without your consent.
Investigatory Stops and Detentions
Florida v. Bostick [501 U.S. 429, 111 S. Ct. 2382, 115 L.Ed.2d 389 (1991)]
Defendant Bostick boarded a bus from Miami to Atlanta. At a stopover in Ft. Lauderdale, the bus was boarded by two uniformed narcotics officers who were performing a routine inspection of the bus. Without reasonable suspicion, the officers approached Bostick in his seat and requested to see his ticket and identification. Finding nothing out of the ordinary, the officers proceeded to request consent to search his luggage. Bostick reportedly consented, at which point the officers performed a search and discovered cocaine. Bostick was subsequently convicted, and appealed claiming that due to his apparent inability to leave the bus, the encounter constituted an unlawful seizure, the evidence obtained must be suppressed. The Supreme Court upheld Bostick's conviction, finding that the practice of contacting citizens on buses in this fashion did not constitute an unlawful seizure under the Fourth Amendment. The Court's ruling rejected Bostick's claim that because the officers were armed and positioned such that he could not leave his seat or the bus, the encounter was a seizure. Since it was never directly communicated to the defendant that he was not free to leave, the Court concluded that the police officers' actions did not violate the Fourth Amendment. So long as nature of the officers' contact with the defendant is held constitutionally valid, his consent to be searched and the evidence that resulted are held valid as well.
What you should know about investigatory stops and detentions:
Florida v. Bostick is a clear example of law enforcement officers' systematic reliance on the tendency of citizens to overestimate police authority. Moreover, the Supreme Court's ruling in this case indicates a willingness to accommodate manipulative law enforcement practices in order to prevent the Constitution's provisions from interfering with the arrest of drug suspects. So long as the police and the courts cooperate in using the ignorance of suspects as a tool through which to obtain convictions, it is extremely important for all citizens to know their rights.
In the context of investigatory stops and detentions, here are a few important principles that should be remembered:
- Police may stop you for any reason, but are not entitled to any information other than your identification.
- Police may not detain you without reasonable suspicion.
- Police may not search you without either probable cause or your consent. Don't consent to warrantless searches!
- Police will often try to trick you into thinking you can't leave. Ask if you are free to go.
An investigatory stop is a particularly difficult encounter for the citizen because police officers are experienced at controlling the situation. It is important to note, however, that it is actually the citizen who controls all police encounters unless and until there exists such evidence to justify police intrusion into the citizen's privacy or freedom of movement.
Remember that your refusal to be searched cannot be legally interpreted as evidence that you may be involved in a crime. Police cannot detain you merely because you refused consent to a search.
Schneckloth v. Bustamonte [412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)]
Officer James Rand stopped a car with six occupants and received consent from the driver to search the vehicle. It was determined that the officer did not pressure the driver into consenting. In the back seat he found three checks which had been stolen from a car wash. Defendant Robert Bustamonte challenged his arrest, arguing that while he had consented voluntarily, he had not been informed of his right not to consent to the search.
In Schneckloth v. Bustamonte, the Supreme Court ruled that consent is valid as long as it is voluntarily given. The ruling held that police may not use threats or coercion to obtain consent, but that they need not inform suspects of their right not to consent to a search. In reaching this decision, the Court overturned the more strict "waiver test", which required that suspects be fully informed of their Fourth Amendment right against unreasonable searches and seizures before they can give valid consent.
What you should know about consent searches:
As demonstrated by the Court in the Schneckloth ruling, the police are under no obligation to inform citizens of their Fourth Amendment rights when requesting to perform a search. This means that it is up to the individual to understand and exercise their right not to be searched. Some states require that police obtain the citizen's signature on a waiver form before conducting the search, however, in most places, police merely need to obtain the citizen's permission verbally. This can be a tricky situation because police will sometimes interpret a broad range of statements or actions as implied consent. Here's what you should remember about police search requests:
- According to the Fourth Amendment, you cannot be searched without a warrant or probable cause, unless you consent. Don't consent to warrantless searches!
- The officer cannot "make things easier" for you if you consent. Consenting only makes it easier for the officer to arrest you.
- If you consent to a search, any evidence found can be used against you in court.
- If you don't consent to a search and the officer searches you anyway, your lawyer may be able to get the evidence thrown out in court.
- You cannot get in trouble or become a criminal suspect for refusing to be searched.
- The officer cannot detain you unless he has reasonable suspicion to believe you are involved in something illegal.
Mapp v. Ohio [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)]
Police officers forcibly entered Mapp's home in search of a bombing suspect. In the course of the search, officers failed to produce a valid search warrant and denied Mapp contact with her attorney, who was present at the scene. While the suspect was not found, officers did discover illegal pornography in Mapp's home, for which she was charged and convicted. Mapp appealed her conviction claiming that the evidence against her should not be admissible in court because it was illegally obtained.
In Mapp v. Ohio, the Supreme Court ruled that illegally obtained evidence is not admissible in State courts. The Court found that the Fourteenth Amendment right to due process of law and the Fourth Amendment right against unreasonable searches and seizures could not be properly enforced as long as illegally obtained evidence continued to be presented in court. The ruling argued that there was no other effective means of deterring widespread Fourth Amendment violations by police. The ruling acknowledged that sometimes a criminal could go free due to improper police conduct, but argued that the interest in promoting professionalism among police outweighed this concern.
What you should know about illegally seized evidence:
The policy established in Mapp v. Ohio is known as the "exclusionary rule". This rule holds that if police violate your constitutional rights in order to obtain evidence, they cannot use that evidence against you. If you have been charged with a crime and you feel that the evidence was illegally obtained, your lawyer can make a "motion to suppress" that evidence. The judge will then consider the manner in which the evidence was obtained and make a decision as to whether or not it can be presented during the trial. In many instances, the evidence is central to the prosecution's case, and if the judge grants a motion to suppress, it is not uncommon for all charges to be dropped.
The exclusionary rule is a critical remedy against improper searches, and can be used as an effective protection by citizens who know their rights. The reality is that police officers on the street consider it their primary duty to identify and arrest criminals, and often consider the procedural guidelines which restrict their authority as a secondary concern or even a hindrance. In this context, it is understandable that police sometimes perform searches when they shouldn't. Here's what you should know about illegally seized evidence:
- Consenting to a search automatically makes the evidence admissible in court. Don't consent to warrantless searches!
- A search is legal if the officer has probable cause to believe you may be engaged in criminal activity.
- Police officers are quick to conclude that probable cause has been established. Don't try to be clever . . . Just keep your mouth shut.
- If you feel that police have seized evidence from you illegally, do not discuss it with the arresting officer! . . . Get a lawyer!