Stop and frisk is a controversial procedure the police use. If you’ve ever been walking on a street and approached by a police officer asking questions and checking your jacket pockets, you’ve been stopped and frisked. The policy has been around since 1968. It was established to ensure the safety of police officers. Although officer safety is important, it must be balanced with the privacy rights of the people.
The right to be free from governmental intrusion is guaranteed to everyone in this country thanks to the Fourth Amendment to the U.S. Constitution. Massachusetts also has the Declaration of Rights which often gives even greater protections to individuals. Searches of a person are considered a governmental intrusion. Those searches are allowable only if the police have reasonable suspicion that a crime is being committed based on specific and articulable facts that the person is armed and dangerous.
Both the Fourth Amendment to the US Constitution and Article 14 of the Massachusetts Declaration of Rights protects against unreasonable searches and seizures. According to Terry v. Ohio, a frisk, or “patfrisk,” is a “carefully limited search of the outer clothing of a person to discover weapons” for safety purposes. It is a “serious intrusion on the sanctity of the person [that] is not to be undertaken lightly.”
What is stop and frisk?
“Stop and frisk” is when police temporarily detain and question a person (stop) and pat down the outside of their clothing to see whether they are carrying weapons (frisk). The Fourth Amendment requires that before stopping the suspect, the police must have a reasonable suspicion that a crime has been, is being, or is about to be committed by the person. A frisk is legal when the officer has reasonable suspicion that the person whom they have stopped is armed and dangerous.
When did stop and frisk start?
The concept of stop and frisk started in 1968 with a case called Terry v. Ohio. In Terry, a veteran police officer observed men walking back and forth in front of a store’s window many times. Suspecting they intended to rob the store, the officer questioned them and based on their responses and behavior, suspected they had weapons and proceeded to pat down the outside of their clothing. The officer discovered weapons and they were charged with weapons possession.
What does stop and frisk mean?
First, we must define “stop”. A stop occurs when during an interaction with a police officer, a reasonable person would not feel “free to leave”. Police typically make someone feel as though they are not free to leave if there is a show of authority. Once that happens, a seizure has occurred. That’s important because at that time, your Fourth Amendment rights kick in.
Police can show their authority in many ways:
- Threatening presence of several officers,
- Display of weapon,
- Physical touching of the person,
- Authoritarian language or tone of voice,
- Keeping a person’s documents,
- Blocking the path of the person,
- Activating blue lights, and,
- Pursuit of the suspect.
When did the stop occur?
Whether a stop occurred is highly fact specific. The facts of the case are very important, but equally important is the time-line of those facts. That’s because the police must have reasonable suspicion at the time of the stop. Anything they find after the stop can’t be used to justify the stop. This is fertile grounds for motions to suppress.
Examples of when has a seizure not occurred
A police officer was responding to a call about a gun. He approached the defendant who was standing on the street. The defendant put his hands in his pockets and wouldn’t remove them when ordered to do so. The officer frisked him. The Court ruled that no seizure occurred until the pat frisk. The police are always free to ask questions of people in public. But remember, that you do not have to answer a police officer’s questions.
In another case, the police approached a suspect on the street and asked him his name, address and whether he had any money on him. This last question was to see if he had marked money from a previous undercover drug buy. This was not a seizure because the officer didn’t do anything to make the suspect feel like he was not free to leave. The suspect was under no obligation to answer the officer’s questions and he could have walked away.
There was a case where the police were following two suspects after a shooting. The officers were in an unmarked cruiser, they didn’t use their overhead blue lights or siren, and did not identify themselves as police officers. One of the officer’s asked the suspects, “can I talk to you for a second.” In that case, there was no seizure. The Court ruled that a reasonable person in the suspect’s position would feel free to leave.
Examples of when a seizure has occurred
In one case, police are driving in a high-crime area. They saw two men on bicycles. A bystander yelled to the police that the man with the hoody had a gun. The police pursued the suspects and said, “[P]olice, hold up a minute.” The man with the hoody stopped and was frisked. No weapons were found. The other man took off on his bike. He was seen throwing a bag of cocaine away before being captured. The Court ruled that a seizure had occurred both when the police ordered them to stop as well as when they chased the second man. The stop was upheld, however, as the Court decided the police had reasonable suspicion based on specific and articulable facts.
There is case where police were arresting one individual and a second person, named Brown, walked up to the officers to say he had the suspect’s necklace. An officer asked Brown to sit down while they dispersed a crowd. Another officer arrived and was asked to speak to Brown. That officer performed a pat frisk on him twice. During the second frisk he noticed a baggie sticking out of Brown’s pocket. The baggie contained cocaine. The Court decided that the frisks amounted to a stop and was not based on a reasonable suspicion of danger.
There is a case where it was determined that police seized a person when they asked him to step out of a store and take off his shoes.
What is a frisk?
A frisk usually refers to a patting down of the outer clothing of a person. It’s a physical touching where a police officer runs his or her hands along the outer garments of a suspect to detect any concealed weapons. A frisk also includes the lifting up of your shirt to see if there are any weapons in your waistband. A frisk is less intrusive than a search. A search is a more thorough physical examination of a suspect’s person or property.
What is the rationale for the Frisk?
Not every situation that justifies a stop also justifies a frisk. Even the pat down of your outer clothing is a serious intrusion into your privacy. As such, your constitutional protections come into play. A frisk is only justified if the officer has reasonable suspicion to fear for his or her safety. If there is no danger, there should be no frisk. A frisk may not be justified even if a stop was allowable.
A stop and frisk is a procedure to ensure the safety of police officers and the general public. It is a significant intrusion into your privacy. As such, it may only happen under certain circumstances. In order for the police to stop you, they need reasonable suspicion of a crime. For them to frisk you, there has to be reasonable suspicion that you are armed and dangerous. Whether a stop and frisk was justified is decided on a case-by-case basis. If the prosecution can’t prove that the police had reasonable suspicion based on specific and articulable facts, any evidence seized or statements made may be suppressed.