Criminal Procedure for the Criminal Justice Professional 11th Edition

1
Criminal Procedure for the Criminal Justice
Professional 11th Edition

• John N. Ferdico
• Henry F. Fradella
• Christopher Totten

Stop and Frisks Chapter 8
Prepared by Tony Wolusky
2
History

• An officers power to detain and question
  suspicious persons dates back to English common
  law.
• The U.S. Supreme Court adopted formal guidelines
  governing street encounters amounting to less
  than arrests or full searches in three 1968
  cases.
• Terry v. Ohio
• Sibron v. New York
• Peters v. New York

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The Three Foundational Cases

• In Terry v. Ohio, Sibron v. New York, and Peters
  v. New York (1968), the court applied a balancing
  test under the reasonableness requirement of the
  Fourth Amendment.
• In Terry v. Ohio, the Court recognized the
  officers need to protect themselves when
  suspicious circumstances indicate possible
  criminal activity by potentially dangerous
  persons, even if probable cause is lacking.
• Stops and frisks are more limited than a full
  search and are judged by a less rigid standard
  than probable cause. Reasonable suspicion is all
  that is needed.

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The Reasonableness Standard

• The determination of the reasonableness of stops
  and frisks involves balancing a persons right to
  privacy and right to be free from unreasonable
  searches and seizures against the governmental
  interests of effective crime prevention and
  detection and the safety of law enforcement
  officers and others from armed and dangerous
  persons.

5
Differentiating Stops as Seizures from
Non-Seizures

• Not all stops are seizures.
• The Supreme Court in United States v. Mendenhall
  (1980) established the free to leave testa
  totality-of-circumstances approach that
  assesses whether or not a reasonable person would
  have believed that he was not free to leave.
• Only when an officer intentionally, by means of
  physical force or show of authority, has
  restrained a persons liberty has a seizure
  occurred. Also, for a seizure to occur, the
  person being confronted by the officer must have
  submitted to the officers authority or force.

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Authority to Stop

• A law enforcement officer may stop and briefly
  detain a person for investigative purposes if the
  officer has a reasonable suspicion supported by
  articulable facts of ongoing, impending, or past
  criminal activity.
• Reasonable suspicion is less than probable cause.
• Reasonable suspicion may develop based on logical
  deductions from human activity based on an
  officers observations, knowledge, experience,
  and training (not a mere hunch).

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Bases for Forming Reasonable Suspicion

• Reasonable suspicion may also be derived from
• Information from known informants
• Information from Anonymous informants
• Information from police flyers, bulletins, or
  radio dispatches

8
Information from Known Informants

• A law enforcement officer may stop a person based
  on an informants tip if, under the totality of
  the circumstances, the tip, plus any
  corroboration of the tip by independent police
  investigation, carries enough indicia of
  reliability to provide reasonable suspicion of
  criminal activity.

9
Information from Anonymous Informants

• An anonymous tip that a particular person at a
  particular location is carrying a gun is not,
  without more information, sufficient to justify
  law enforcement officers in stopping and frisking
  that person.

10
Information from Police Flyers, Bulletins, or
Radio Dispatches

• A law enforcement officer may stop a person on
  the basis of a flyer, bulletin, or radio dispatch
  issued by another law enforcement agency as long
  as the issuing law enforcement agency has a
  reasonable suspicion that the person named in the
  flyer, bulletin, or dispatch is or was involved
  in criminal activity.

11
Permissible Scope of a Stop

• An investigative stop must last no longer than is
  reasonably necessary and must use the least
  intrusive methods reasonably available to confirm
  or dispel an officers suspicions of criminal
  activity.

12
Ordering Driver and Passengers Out of a Vehicle

• An officer who has lawfully stopped a motor
  vehicle may order both the driver and passengers
  out of the vehicle pending completion of the
  stop.

13
Reasonable Investigative Methods During a Stop

• If an officer has reasonable suspicion to justify
  a stop of a person, and that person subsequently
  refuses in violation of state law to identify
  herself, the officer may be permitted to expand
  the scope of the detention by arresting the
  person.

14
Time Issues

• The time taken for a stop must be reasonable.
• Courts consider the law enforcement purposes to
  be served and the time reasonably needed to
  effectuate those purposes.
• Stops should be initiated immediately. However,
  a short delay in making the stop may be justified
  in certain situations.

15
Use of Force

• An officer making a stop must use an objectively
  reasonable degree of force or threat of force.

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Stop Arrest
Purpose Brief investigatory detention. To bring a suspect into custody as the prelude to criminal prosecution.
Justification Reasonable suspicion. Probable cause.
Warrant Not needed Preferred for arrests in public places. Required to enter a suspect's home. Search warrant needed to enter a third-party's home.
Notice None required. Requires notice that the person is under arrest and that the officer has the authority to arrest.
Force Reasonable degree of force. Deadly force may only be used if, during the stop, it becomes necessary to act in self-defense or defense of others. Reasonable degree of force. Deadly force may be used if it becomes necessary to act in self-defense or defense of others or if needed to stop a fleeing felon from escaping if the officer has probable cause to believe that the suspect poses a threat of serious bodily harm either to the officer or to others.
Time limit Temporary. No longer than necessary. Whatever is reasonably necessary to arrest and bring the suspect into custody for further processing
Judicial Review No automatic right to prompt judicial review of the legality of the stop. Prompt judicial review of the legality of the arrest by a neutral judicial officer is required.
Search Allowed Protective pat-down frisk of outer clothing for weapons may be conducted if, and only if, the officer has reason to believe that the person stopped is armed and dangerous. A full body search of the arrestee for weapons and evidence may be conducted as a search incident to any valid, custodial arrest. Officers may also search the areas of arrestees immediate control.
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Defining Frisk

• A frisk is a limited search of a persons body
  consisting of a careful exploration or pat-down
  of the outer surfaces of the persons clothing in
  an attempt to discover weapons.
• A frisk protects the officer and others from
  possible violence by persons being investigated
  for crime.

18
Limited Authority to Frisk

• Frisks are based on reasonable suspicion.
• The officer must have reason to believe that the
  individual is armed and dangerous.
• Justification to frisk usually requires a
  combination of one or more factors, evaluated in
  the light of an officers experience and
  knowledge.

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Scope of a Frisk

• A frisk must initially be limited to a pat-down
  of a persons outer clothing.
• If a weapon or weapon-like object is detected or
  if a non-threatening objects identity as
  contraband is immediately apparent to an
  officers sense of touch, the officer may reach
  inside clothing or a pocket and seize the object.
  
• Non-threatening contraband (i.e., drugs) must be
  immediately apparent to an officers sense of
  touch, and the officer must have probable cause,
  upon feeling the object, that the object is this
  kind of contraband.

20
Scope of a Frisk of Motor Vehicle Occupant

• If a law enforcement officer has a reasonable
  suspicion that a motor vehicles occupant is
  armed and dangerous, the officer may frisk the
  occupant and search the passenger compartment of
  the vehicle for weapons.
• The officer may look in any location in the
  passenger compartment that a weapon could be
  found or hidden.
• The officer may also seize items of evidence
  other than weapons, if discovered in plain view
  during the course of such a search.

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Factors Justifying a Frisk

• Behavioral and evidentiary factors include
• The suspected crime involves weapons.
• The suspect is nervous, edgy, or belligerent.
• There is a bulge in the suspects clothing.
• The suspects hand is concealed in his or her
  clothing.
• The suspect does not present satisfactory
  identification or an adequate explanation for
  suspicious behavior.
• The suspect behaves in a secretive, or furtive,
  fashion.
• The officer is in an area known to have armed
  persons.
• The officer believes that the suspect may have
  been armed on a previous occasion.

22
Detentions of Containers and Other Property

• A law enforcement officer may detain property for
  a brief time if the officer has a reasonable,
  articulable suspicion that the property contains
  items subject to seizure.
• The officer may not search the property without a
  search warrant or probable cause during an
  emergency.
• The property may be subjected to a properly
  conducted canine sniff.
• An officers physical manipulation of a persons
  belongings without reasonable suspicion that
  there is criminal evidence within it is
  unreasonable.

23
Traffic Stops and Roadblocks

• A law enforcement officer may not stop a motor
  vehicle and detain the driver to check license
  and registration unless the officer has
  reasonable, articulable suspicion of criminal
  activity or unless the stop is conducted in
  accordance with a properly conducted highway
  checkpoint program.
• Involves balancing the gravity of the public
  concerns served by the seizure, the degree to
  which the seizure advances the public interest,
  and the severity of the interference with
  individual liberty.

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Racial Profiling

• Many states and the federal government have rules
  prohibiting racial profiling by law enforcement
  officers.
• Many states require law enforcement agencies to
  collect statistical data on racial profiling.
• Courts are increasingly receptive to arguments by
  plaintiffs that they have been targets of racial
  profiling, and may exclude evidence or subject
  offending officers to civil rights lawsuits.

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Detentions, the USA PATRIOT Act, and the War on
Terror

• The USA PATRIOT Act permits the indefinite
  detention of enemy combatants who are non-U.S.
  citizens, including permanent resident aliens, if
  the United States Attorney General certifies that
  he has reasonable grounds to believe that the
  non-citizen has engaged in terrorist activity.

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Detentions, the USA PATRIOT Act, and the War on
Terror

• The USA PATRIOT Act permits the indefinite
  detention of enemy combatants who are non-U.S.
  citizens, including permanent resident aliens, if
  the United States Attorney General certifies that
  he has reasonable grounds to believe that the
  non-citizen has engaged in terrorist activity.