LAW 203 Lecture Unit 6 Stop & Frisk PDF

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Summary

Stop and Frisk
Terry v. Ohio
Minnesota v. Dickerson
Stop and Frisk – Reasonable suspicion
Florida v. J.L / Alabama v. White
Navarette v. California
Stop and frisk – Stop and Identify Statute
Brown v. Texas / Hiibel v. Six Judicial District Court of Nevada...

Description

Stop and Frisk Terry v. Ohio The legal issue in the case is the legality of stop and frisk. Before Terry v. Ohio, there were no Supreme Court decisions addressing the issue. Some people argued that the police should have the power to stop a person if the person’s conduct is suspicious; whereas others argued that the police had no power to restrain a person’s freedom unless they had probable cause to make an arrest. The Supreme Court in Terry ruled that the police have the power to stop a person if they have reasonable suspicion to believe the person is involved in or about to get involved in criminal activity. Once a person is stopped, if the police have reasonable suspicion to believe the person may be armed they may frisk the person to remove possible weapons. Stop and frisk, the Court held, constitutes a 4th amendment seizure. This means that stop and frisk must be in compliance with the commands of the 4th amendment. The Court, however, sets a lower standard for police to conduct stop and frisk. According to the Court, police may conduct stop when they have reasonable suspicion to believe that the person has committed or about to commit a crime. Once the person is stopped, if the police have reasonable suspicion to believe the person may be armed, they may frisk the person to remove possible weapons. Reasonable suspicion is a standard lower than probable cause. Under the probable cause standard, the police need to have a little more than 50 percent of certainty that a person is involved in a crime. Under the standard of reasonable suspicion the police need to have about 25 percent of certainty that a person may be involved in a crime. Stop and frisk therefore is a form of seizure that the police may conduct without probable cause. It is important to distinguish stop from arrest and frisk from search. Arrest: The police need probable cause to make arrest. After a person is arrested, the person will be taken into police custody. Stop: The police need reasonable suspicion to make stop. When the police stop someone, they cannot detain a person for long. The police may conduct a brief field interrogation to clarify their suspicion. If the person offers a satisfactory explanation, the police must let him go. Stop should not last for more than 15 to 20 minutes. A prolonged detention would turn a stop into an arrest. It would be illegal, however, for police to do so, for police cannot make arrest based on reasonable suspicion. Of course, it is possible that the police may develop probable cause while conducting stop and frisk. This is what happened in Terry v. Ohio. Search: The police need probable cause to conduct a search. There is also a general warrant requirement. In a search, the police may reach inside the person’s clothing. Frisk: The police need reasonable suspicion to conduct a frisk. Frisk is a pat-down of a person’s outer clothing. The police cannot reach inside a person’s clothing directly. The police must start from patting down the person’s outer clothing. They may reach inside the person’s clothing only when they feel a weapon or a weapon like object.

Weapon is defined broadly. Weapon is anything that may be used as a weapon. It can be a gun, a knife, a hammer, a screw drivers, or any object that may be used to harm the officers. It is important to note that the sole purpose of conducting a frisk is to remove weapons. However, if the police follow the proper procedure and find other contraband they may seize it. •

The police officer has reasonable suspicion to stop and frisk Brett. The officer pats down his outer clothing and feels a gun. He reaches inside Brett’s clothing to retrieve it. While taking out the gun, a plastic bag containing cocaine drops onto the ground. The officer may seize the gun and the bag of crack cocaine and both can be used as evidence against Brett. This is so because the officer has followed the proper procedure.

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The police officer has reasonable suspicion to stop Nathan and reasonable suspicion to believe he could be armed. The officer reaches inside Nathan’s pocket without first patting him down. In the pocket he finds a gun and a bag containing crack cocaine. Neither the gun nor the bag of cocaine can be used as evidence against Nathan. This is so because the officer has not followed the proper procedure in conducting the frisk. Frisk is a pat-down of a person’s outer clothing.

Minnesota v. Dickerson The case involves stop and frisk and the application of the plain view doctrine. A police officer had reasonable suspicion to believe the defendant could be involved in drug transactions. He stopped and frisked him. While conducting the pat-down, the officer did not feel any weapon but took interest in a lump he felt in the defendant’s front pocket. He examined the lump with his fingers. The officer stated in his testimony at trial that the lump slid and felt to be a lump of crack cocaine in cellophane. The officer then reached inside the defendant’s pocket and retrieved a small plastic bag containing crack cocaine. The issue in the case is whether the seizure of the crack cocaine can be justified under the plain view doctrine. The plain view doctrine in this case more appropriately should be called the plain feel doctrine, for the officer did not observe anything but felt the lump. The plain view doctrine can also be the plain feel doctrine or the plain smell doctrine, depending on the circumstances. The police may observe, feel, or smell criminal evidence. Regardless of whether it is plain view, plain feel or plain smell, the basic requirement for invoking the doctrine is the same, that is, the police are lawfully in a position to observe, feel, or smell the item, and the incriminating nature of the item is immediately apparent to the police. •

In Dickerson, the police officer satisfied the first requirement, that is, he was lawfully in a position to feel the lump. The officer had reasonable suspicion to stop and frisk the defendant. The officer therefore lawfully felt the lump in the defendant’s pocket. The

issue is whether the officer satisfied the second requirement, namely the incriminating nature of the item is immediately apparent. The Supreme Court held that the officer did not satisfy this requirement. •

When the officer first felt the lump he did not know immediately that it contained crack cocaine. The officer further examined the lump with his fingers and then determined it was a lump of crack cocaine in cellophane. This further examination, the Court reasoned, was in violation of the 4th amendment. The purpose of conducting frisk is to determine whether the suspect carries any weapons. While conducting frisk, if an officer feels something other than a weapon but can immediately determine it is the contraband the officer may seize it under the plain view doctrine.

But the officer cannot conduct further examination to make that determination. The Court in the case referred to what happened in Arizona v. Hicks. In Hicks, when the officer saw the stereo system in the apartment he could not determine immediately it was a stolen item and he conducted further investigation by moving the system to record the serial number. The Court held that the moving of the system constituted an illegal search. In Horton, the Court likened the officer’s further investigation of the lump to the moving of the stereo system in Hicks. In Horton, the Court held that the further examination of the lump was illegal. Due to the fact that the officer could not determine immediately what he felt was criminal evidence the Court held that the seizure of the crack cocaine could not be justified under the plain view doctrine.

Stop and Frisk – Reasonable suspicion Florida v. J.L / Alabama v. White In Terry v. Ohio, the Court held that the police have the power to stop and frisk when they have reasonable suspicion to believe that a suspect may have committed or about to commit a crime. An issue that arises is how to determine whether there is reasonable suspicion. When police officers observe suspicious conduct, the issue is relatively simple. When someone reports suspicious activity to the police, the police may also establish reasonable suspicion based on that report. When a person comes to the police to report a crime, he is a known informant. A known informant is more reliable than an unknown informant. An unknown informant refers to an anonymous informant. In the case of known informant, it is unlikely that the person would deliberately make a false report, for the police know who he is and may make him bear legal liability. The essential point the Court made is that to establish reasonable suspicion based on information from an anonymous source the information must contain sufficient indicia of reliability. •

In Florida v. J.L, an anonymous caller informed the police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The police went to the bus stop and saw such a youth there. The police stopped and frisked him. As a result, they found a gun. The Court concluded that the information received by the police

contained no sufficient indicia of reliability. The police therefore had no reasonable suspicion to stop the defendant.

Consider the following case scenario: Nathan does not like his classmate Bradley and decides to play a trick on him. One day Nathan sees Bradley standing at a street corner wearing a red jacket. Nathan makes an anonymous phone call to the police, telling them that a white male in a red jacket standing at a particular street corner is carrying a gun. If this information is sufficient to establish reasonable suspicion the police may legally stop and frisk Bradley. The police of course would not find anything on Bradley. Nathan meanwhile would be watching from afar, content that he has made police stop and frisk Bradley. The Court therefore requires that to establish reasonable suspicion based on an anonymous tip there must be sufficient indicia of reliability. The Court in Alabama v. White held that the information received by the police contained sufficient indicia of reliability. Pay attention to the Court’s description as to what was contained in the information. The information received by the police in White was much more detailed, which allowed the police to verify the accuracy of the information through their own observation. The police went to the apartment complex and corroborated what was stated in the tip. This corroboration provided the needed indicia of reliability. The ruling of the Court in White was that the police had reasonable suspicion to stop the defendant. By comparison, the information received by the police in J.L. was only that a young black male in a plaid shirt was standing at a particular bus stop. The police could not corroborate anything or verify the accuracy of the information. The police showed up at the bus stop they saw such a person there. The information contained no predictive details that would allow any corroboration. Navarette v. California The case is also about whether the information received by the police contained sufficient indicia of reliability to allow the establishment of reasonable suspicion. •

Based on the information provided by the woman the police located the truck. After following it for a few minutes, the police stopped the truck. The police then smelled marijuana, which provided the police with probable cause to search the car. It is interesting to note that what happened in the case demonstrates the use of the plain smell doctrine.

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When the police smelled marijuana, they acquired probable cause to search the car. But the police needed to justify their initial stop of the truck. If they had reasonable suspicion to stop the truck, they would be lawfully in a position to smell the marijuana. But if they had no reasonable suspicion to stop the truck, their action of stopping the truck would be illegal and they would not be able to justify the search of the truck under the plain smell doctrine.

The specific issue is still whether the information received by the police contained sufficient indicia of reliability. The Court in the case referred to Florida v. J.L. and Alabama v. White. The Court concluded that what happened in the case was more like what happened in Alabama v. White. It held that the information received by the police contained predictive details that allowed the police to verify its accuracy through their own observation. The woman provided the description of the truck, including its license plate number, and the location of the truck on the highway. Based on the information, the police quickly located the truck on the highway. The Court also mentioned the fact that the woman called 911. It observed that people usually would not call 911 unless there were serious issues. There are dissenting Justices. They were of the view that what happened in Navarette was more like what happened in Florida v. J.L. and they did not believe there was sufficient indicia of reliability to establish reasonable suspicion. They pointed out that the information the police received indicated that a particular truck with a particular license plate was driving on a particular highway. This information was just like the information in J.L. that a black youth in plait shirt was at a particular bus stop

There is another issue in the case, namely the underlying crime. To make a stop, the police need reasonable suspicion that the suspect is involved in a crime. So there must be an underlying crime. In Terry v. Ohio, the police had reasonable suspicion to believe that the suspects were about to rob the store. In Florida v. J.L. it was reported that the youth was carrying a gun. In Alabama v. White, it was reported that the defendant was dealing with drugs. Then what was the underlying crime in Naravette? In Navarette, the police claimed that they had reasonable suspicion to believe that the suspect was engaged in drunken driving. The reason for this suspicion was that the defendant drove recklessly and ran a motorist off the road. Dissenting justices again would not agree. They argued that there could be many reasons for not driving carefully. It was possible that the driver was distracted by an unruly child, was making a phone call, or distracted by something else. There was no reason to conclude that when a person was not driving carefully he for sure was engaged in drunk driving. But the ruling of the Court is that the information received by the police contained sufficient indicia of reliability and the police had reasonable suspicion to stop the truck.

Illinois v. Wardlow The case similarly addresses the issue of reasonable suspicion. The key issue is whether the police could establish reasonable suspicion based on defendant’s flight from the police. The Court held that a person’s presence in a high crime area alone would not be sufficient for the police to establish reasonable suspicion; but a person’s unprovoked flight would allow the police to establish reasonable suspicion.

A person presence in a high crime or high drug area is not sufficient to allow the police to establish reasonable suspicion. A person could live in a high crime or high drug area. The law certainly cannot allow the police to stop and frisk the person simply because he is present in that area. A person’s unprovoked flight from the police, however, is different. The Court held that the police may establish reasonable suspicion based on one’s unprovoked flight. The Court stated that any nervous or evasive behavior is a pertinent factor in determining whether there is reasonable suspicion to make a stop. Unprovoked flight is a nervous and evasive behavior. In the case, the defendant, upon seeing the police, turned around and started to run. The Court held that the unprovoked flight was sufficient to allow the police to establish reasonable suspicion. The defendant argued that under the 4th amendment he should have the right to go about his own business. He contended that if he wanted to run away from the police that was his own business and the police should not be allowed to establish reasonable suspicion based on that. The Court agreed that under the 4th amendment a person should have the right to go about his own business. But the Court observed that the defendant’s conduct, namely flight from the police indicated that he was not going about his own business. That was why his behavior became suspicious. If the defendant indeed wanted to go about his own business, he should continue to do whatever he intended to do. Running away from the police was not a sign of his going about his own business.

Example •

Huck is on his way to the supermarket. Upon seeing two police officers walking in his direction, he turns around and runs away. Huck under the 4th amendment has the right to go about his own business. But flight from the police is not a sign of his going about his own business. If he wants to go about his own business he should continue to go to the supermarket. Turning around and running away is not a sign of his doing what he intended to do. It shows the opposite. Upon seeing the police, a person suddenly stops doing what he is doing or intended to do and runs away. That behavior certainly is suspicious and that is why the Court states that the police may establish reasonable suspicion based on one’s unprovoked flight.

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It should be admitted that one may have innocent reasons for attempting to avoid the police. The Court recognized this point. It is possible that the police may stop an innocent person based on his flight from the police. But the Court reasoned that the 4th amendment’s reasonableness standard is not about absolute certainty. The police are permitted to make mistakes. Even with probable cause, the requirement is only that the police have a little more than 50 percent of certainty that the suspect has committed a crime. That means that the police may arrest an innocent person. Reasonable suspicion is a much less demanding standard, which requires only 25 percent of certainly that the suspect may have involved in a crime.

Stop and frisk – Stop and Identify Statute

Brown v. Texas / Hiibel v. Six Judicial District Court of Nevada The two cases address the same issue, that is, the constitutionality of stop and identify statute. When the police have reasonable suspicion they may stop a person. After the police stop a person, they may ask the person to explain his conduct. If a satisfactory explanation is provided, the police should let the person go. An issue that arises is whether the person stopped is obligated to cooperate with the police. The immediate issue is when the police stop a person and ask him to identify himself whether the person may refuse to do so. Further, whether the law may make refusal to identify oneself a crime. The Court in Brown and Hiibel addressed this issue. Brown v. Texas In Brown, the police saw the defendant and another person on the street. Though the two were walking in different directions the police believed that they were either just being together or about to meet. Upon seeing the police they pretended not to know each other. The police stopped the defendant and asked him to identify himself. The defendant refused to do so, claiming that he did not do anything wrong. The police arrested him for refusal to identify himself. Under a Texas statute, it was a criminal offense to refuse to identify oneself when asked by the police. The defendant was convicted of the offense. He challenged the constitutionality of the statute. The Supreme Court found the statute unconstitutional and struck it down. •

The Court reasoned that the police though have the power to conduct stop and frisk there must be a balance between the public interest in crime control and individual’s right to personal security and to be free from arbitrary interference by law officers. The Texas stop and identify statute failed to satisfy the 4th amendment’s reasonableness requirement. This was because the statute made r...