The police cannot stop and pat down anyone on the street without a reason. This is based in the constitutional guarantee that every person has the right to be free from “unreasonable search and seizure” as detailed in the Fourth Amendment.
In order to stop someone on the street, the police must have reasonable suspicion that a crime has been or is about to be committed. This has to be based in factual circumstances. For example, if officers are on patrol in a neighborhood known as a high drug crime area and they see someone leaving an alley putting what appears to be a plastic bag in his pocket, there is a probability that person could be carrying drugs.
In addition to the factual circumstances, the officer must justify stopping a person by other circumstances as well. Those include: concern for the safety of the officer or for others based on the person’s behavior, whether the person is acting angry or aggressive, or if the person appears to be running away.
Prior to a Supreme Court case called Terry v. Ohio, police officers needed probable cause to stop potential suspects. Probable cause is the same standard needed to obtain a search warrant. The Terry case held that a police officer would not violate the Fourth Amendment bar on unreasonable searches and seizures when stopping and frisking someone on the street. All that is needed is reasonable suspicion. This case lowered the standard for police intervention from probable cause to reasonable suspicion.
The case was not a white card for police officers. In order to keep any charges resulting from such a stop from being thrown out of court, the facts leading to the stop and search would have to be based in the possibility of an identifiable crime being committed. Additionally, officers need to justify these stops and pat downs based on public safety or officer safety reasons. For the officer safety justification to apply, the officer must have been alone or outnumbered. The time of day when the stop occurred will also be considred.
The scope of the frisk portion of stop and frisk is further clarified in what is known as the plain feel doctrine. When frisking or patting down a suspect, the officer may search the outer garments of a person or even pockets. The scope of the pat is limited by what the officer believes is the risk. For example, if an officer believes a suspect has a gun it is reasonable for him to search outer garments and pockets large enough to hold a gun. It does not give the officer the right to go through the person’s wallet. Additionally, searching for one illegal item does not give the police the right to seize another. For example, if an officer is searching for a gun and finds drugs in the suspect’s pocket, seizure of the drugs is not a lawful seizure. This concept was outlined in another case called Minnesota v. Dickerson.
Later cases on the issue and guidance on the plain feel doctrine from the Federal Bureau of Investigations does say that in some circumstances officers may seize contraband found during a search for weapons if they can articulate an independent reason for seizing the contraband. When the contraband is drugs and enough drugs are found to justify the possibility of them being sold, this is often enough of an independent reason for the courts.
There are limits to the stop and frisk doctrine. First, officers are limited to how deep of a search they can conduct on anyone. For example, under no circumstance is removing clothing or touching body parts acceptable during a pat down on the street.
Furthermore, if an officer goes beyond the permissible scope of the search, any evidence obtained could be excluded in court. This restriction is called the fruit of the poisonous tree doctrine. Any evidence obtained during an illegal search is tainted and cannot be considered in court. For example, if an officer looking for a large gun searches beyond a suspect’s outer garments into pockets and underclothes, any contraband found can be excluded from evidence in court.
While stop and frisks are a powerful tool for law enforcement officers, it is balanced by restrictions on how and when it can be used. Citizens’ rights are further protected by rules regarding admissibility of evidence and the ability to complain about any abusive action by police officers. If you feel you have been unlawfully stopped and frisked or stopped and patted down, contact an attorney for help today.