ANALYSIS OF THE PRESENT AND FUTURE CONSTITUTIONAL
PROBLEMS REGARDING STOP AND FRISK
BY LAW ENFORCEMENT OFFICERS
KARL PROHL
a v**
N
CONTENTS
Stop and Frisk Declared Constitutional
1
Landmark Cases
4
Terry v. Ohio
4
Sibron v. New York
7
Peters v. New York
9
Stop and Frisk Meets Fourth Amendment Test
11
Reasonableness Requirement
14
Stop v. Arrest
20
Length of Detention
21
F r i s k — A Limited Search for Weapons
23
Evidence Required for a Frisk
24
Scope and Constitutional Boundaries of the Frisk
30
Sequence of Events Leading to the Frisk
36
Suspect Identity Problem
38
Frisk and the Exclusionary Rule
40
Terry and the Miranda
44
Conclusions
49
ii
tc
ANALYSIS OF THE PRESENT AND FUTURE
CONSTITUTIONAL
PROBLEMS REGARDING STOP AND FRISK
BY LAW ENFORCEMENT OFFICERS
Stop And Frisk Declared
Constitutional
The legal authority of police to detain and search
persons suspected of criminal activity dates from early
English common law when constables were allowed to hold
suspicious persons overnight and police were permitted
to
search vessels, carriages, and persons suspected of possessing stolen goods.
Such detention and search, now commonly
called "stop-and-frisk" is a time honored police procedure
which has characteristics quite different
from other police
practices such as arrest or search incident to arrest.
In the United States, efforts to thwart abuses of the
stop-and-frisk practice have been based on the fourth
amend-
ment which provides that persons shall be free from unreasonable searches and seizures and that no warrant shall issue
except upon probable cause.
Until the Supreme Court imposed a fourth amendment exclusionary rule on the states with its 1961 Mapp v. Ohio^"
decision followed by a fifth amendment exclusionary
rule
barring admissions obtained without certain warnings in the
2
landmark Miranda v. Arizona
decision in 1966,
frisk had been depicted as a "low-visibility"
1
stop-andprocedure
2
without definitional limitations.
But with these decisions,
it was apparent that the law's muteness on these street encounters between police and citizens was soon to end.
The
Supreme Court was on the verge of determining whether the
stop-and-frisk practice was within the protection
by the
guaranteed
constitution.
During the evolution of search and seizure, the necessity of a warrant has been dispensed within certain
such as hot pursuit and given way to a nebulous
labeled
"probable
instances
criteria
cause."
Probable cause according to the Supreme Court exists
when the facts and circumstances within the arresting
cer's knowledge are sufficient to cause a man of
offi-
reasonable
caution to believe that an offense has been or is being com3
mitted.
This undefined term has been relied on as a com-
promise between an ascertainable need for the stop and frisk
procedure and the right to privacy and security of the
citizen.
Though the Court has held that unreasonable search and
seizure is unlawful, it has never established
a definitive
formula under which the police can determine just what constitutes a reasonable search or seizure or whether probable
cause is an absolute prerequisite of reasonable search. 4
By the 1960's, federal courts in cases such as United
States v. Vita
5
were suggesting that officers, could, with
iW v
less than probable cause, temporarily detain suspects to
perform routine interrogations, while several state courts
had held that probable cause was not essential to every
detention.
State courts and legislatures have turned to
balancing the need for an admittedly valuable police tool
against the degree to which the individual privacy is invaded, and have determined that the social necessity of the
limited detention and frisk is essential in effective law
enforcement.
The relevance of the power to stop-and-frisk was illustrated in People v. Rivera^ a New York Court of Appeals case.
In Rivera, a detective observed two men who appeared to be
"casing" a bar and grill located in a high crime rate area.
The officer approached the men and upon conducting a frisk,
he discovered a weapon.
The New York court sustained the
summary power of the police to stop-and-frisk a suspicious
person and inquire about their activity.
The court noted
that the common law authorized that for his own protection
the policeman could frisk the suspect for weapons.
Although
the court refused to give the subsequently enacted New York
7
Stop and Frisk Law
retroactive application to the Rivera
case, it left no doubt that stop-and-frisk would be tolerated
in that state.
Other states seeking to find constitutional
authority
for their own stop-and-frisk statutes turned to8 the U.S.
Supreme Court's decision in Ker v. California.
The States are not . . . precluded from developing
workable rules governing arrests, searches and seizures to
meet the practical demands of effective criminal
tion and law enforcement in the states,
provided
investigathat those
ruled do not violate the constitutional prescription of unreasonable searches and seizures and the concomitant command
that evidence so seized is inadmissible against one who has
standing to complain.
Landmark Cases
The Ker and Rivera decisions were crutches on which
the states could learn for justification of their own
statutes.
However, these decisions did not provide a defin-
itive criteria for avoiding unconstitutional detention and
searches.
,
.
Thus, the stage was set for the Supreme Court
9
decisions of Terry v. Ohio,
and the companion cases of
Sibron v. New York"1"^ and Peters v. New York.
The constitutionality of the common-law power to detain
and carry out an incidental frisk was considered for the
first time by the Supreme Court in Terry.
Terry v. Ohio
A plainclothesman was patrolling an area in downtown
Cleveland in the early afternoon when his attention was
attracted by Terry and another man.
He observed them walk
back and forth before a store window perhaps a dozen times..
5
At one point he observed them confer briefly with a third
party who thereafter left.
Finally, the two men walked
away together and again met the third party at another
tion.
loca-
The officer suspecting the men were planning a rob-
bery, approached them, identified himself, and asked for
their names.
When the man
"mumbled something" the officer
grabbed Terry, placed him between himself and the other two
suspects, and "patted down" the outside of his
During this process, he discovered
side overcoat pocket.
clothing.
a pistol in Terry's out-
Being unable to retrieve the weapon,
he removed Terry's overcoat and gained possession of a .38
caliber revolver.
Terry was subsequently convicted of
carrying a concealed weapon.
The conviction was
affirmed
12
by the Court of Appeals of Ohio.
Ohio dismissed an ensuing appeal.
States Supreme Court granted
The Supreme Court of
Thereafter, the United
certiorari.
In confirming the conviction in an eight-to-one
deci-
sion, the Supreme Court firmly asserted that detentions on
the street are not distinguishable
from invasions of the
home, that "this inestimable right of personal security belongs as much to the citizen on the streets of our cities
as to the homeowner closeted in his study to dispose of his
13
secret affairs."
The reason for this is that the fourth
amendment protects people, not places."
14
The question, then, was not whether temporary detentions raise a constitutional issue, but whether such detentions can satisfy the reasonableness standard of the fourth
amendment.
In a very narrow holding, Chief Justice Warren wrote
in the majority opinion that: "Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may
be armed and presently dangerous; where in the course of
investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries; and where nothing
in the initial stages of the encounter serves to dispel his
reasonable fear for his or others' safety, he is entitled
for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might
be used to assault him.
Such a search is a reasonable
search under the fourth amendment and any weapons seized may
properly be introduced in evidence against the person
from
15
whom they were taken."
Warren recognized that some field-interrogation
conduct
violates the fourth amendment, but a stern refusal by this
court to condone such activity does not necessarily
it responsive to the exclusionary rule.
render
Regardless of how
effective the rule may be where obtaining convictions
is an
important objective of the police, it is powerless to deter
invasion of constitutionally
guaranteed rights where the
police either have no interest in prosecuting or are willing
to forego successful prosecution in the interest of serving
some other goal."^
In short, Warren is saying that a
refusal of the Court to condone such activity would not prevent abusive
practices.
In both of Terry's companion cases, Sibron v. New York
and Peters v. New York, the Court declined to decide the
"facial constitutionality" of the New York
Law.
Stop-and-Frisk
Instead, the Court looked to the specific facts of
each case to determine the reasonableness of the police
action in light of the fourth
amendment.
Sibron v. New York
In Sibron, a Brooklyn officer, while patrolling his
beat in uniform, observed Sibron in an area from four p.m.
until midnight.
Sibron conversed with six or eight known
narcotics addicts during this time, and later entered a
restaurant and talked with three more known addicts.
officer then approached Sibron, told him to come
and said,
"You know what I am after."
The
outside,
Sibron mumbled
some-
thing and reached into his pocket; the officer
simultaneously
reached into the pocket and pulled out several
glassine
8
envelopes of heroin.
The officer's sworn complaint alleged
that Sibron had thrown the envelopes away, but his
testimony
on the defendant's motion to suppress the evidence was to
the contrary.
The trial court ruled that the officer had
probable cause for arrest, but according to the Supreme
Court's review of the case, the lower court clearly erred in
basing this determination upon Sibron's in-court
that he had been talking to the addicts about
admission
narcotics.
17
Sibron was convicted on his plea of guilty for the unlawful
possession of heroin, the appellate division affirmed without opinion
18
and the New York Court of Appeals affirmed on
the basis of the New York Stop-and-Frisk Law, but wrote no
. .
19
opinion.
Chief Justice Warren declined the confession of error
and refused to find that the case was now moot because
Sibron had completed his six-month sentence.
He also de-
clined to pass upon whether the New York statute was or was
not constitutional on its face, as argued by the parties
on both sides.
The search in this case was found to be un-
lawful because the officer was seeking narcotics rather than
acting from fear for his own safety, and because, in any
event, the officer had not followed the necessary
procedures
for a frisk of weapons.
The court recognized that, had the officer been in fear
of his life, a search and seizure may have been
justified
9
under Terry, but the Court ruled that the suspect's contact
with narcotics addicts did not give rise to reasonable fear
of life or limb.
Even had such fear existed, the Court
went on, the scope of the search was excessive as there was
no general "pat-down"; rather, the officer reached directly
into Sibron's pocket without reasonable suspicion that a
weapon was concealed
therein.
Peters v. New York
In Peters, a New York City officer, home one afternoon
in his sixth-floor apartment, heard a noise outside his door
and went to the peep hole to see what was happening.
The
officer testified that he had lived in the apartment for 12
years and did not recognize the two men tiptoeing out of
the alcove toward the stairway.
He then called the police,
put on civilian clothes, grabbed his service revolver, and
looked out again.
Believing that the suspects were in the
building to commit a burglary, the officer entered the hallway and slammed the door behind him, at which point the two
men quickly started down the stairs.
The officer gave chase
and collared Peters, who claimed to be in the building visiting his girl friend, but refused to identify her because she
was a married woman.
The officer patted him down and felt
what might have been a knife in his pocket.
He then removed
the object, which was an opaque plastic envelope containing
10
burglar's tools.
After Peters was charged with possession
of burglary tools with intent to employ them in commission
of a crime, the trial court upheld the officer's actions on
20
the basis of the New York Stop-and-Frisk statute.
Peters
was convicted, and the appellate division and Court of
Appeals
affirmed.
Chief Justice Warren found this case more in line with
the fourth amendment because the search was properly
inci-
dent to a lawful arrest since the officer prior to the
search had probable cause to believe the defendant was attempting to commit a burglary.
Moreover, unlike
Sibron,
the officer conducted a limited frisk and did not reach into
the defendant's pocket until he had reason to believe a
weapon might be concealed
therein.
The opinions of Justice Fortas and Black agreed as to
21
this defendant.
Justice Douglas concurred because this
fact situation presented what to him is the only
constitu-
tionally permissible kind of stop-and-frisk--that
in which
there is probable cause
for belief that the suspect is about
22
to commit a crime.
Justices White and Harlan
objected
that the officer's actions should instead be upheld on the
ground that lawful stop-and-frisk
23
search) had
(rather than an arrest-and
occurred.
These three decisions are recognized as the landmark
cases on which the constitutionality of the
stop-and-frisk
11
procedure is based.
The full impact of these decisions has
not yet been realized.
In fact, the narrowness of these
decisions based on extremely definitive fact situations
leave unanswered questions such as:
Is a stop or detention
with less than probable cause permitted?
a stop be allowed?
and arrest?
When should such
What is the distinction between stop
What is a reasonable stop or frisk?
Is contra-
band or evidence found during the frisk for a weapon admissible?
What is the impact of the Miranda warnings of the
stop-and-frisk?
Stop and Frisk Meets Fourth Amendment Test
To fully understand where the stop-and-frisk
practice
is headed, it is imperative that one consider to what extent existing fourth amendment theory supports the proposition that this police procedure is
constitutionally
permissible in circumstances where it would be a violation
of the amendment to make an arrest and search,
i,
Chief Justice Warren in the Terry
noted that referring
to an encounter between police and individual as a "stopping
or a "detention" instead of an arrest does not alter the
nature of the constitutional issue.
In his reference to
distinctions between a stopping on the street and a to-thestation arrest, and also between a frisk for weapons and
the more extensive search that usually accompanies an arrest
12
the Chief Justice renounced the labels and concluded that
they do not mark the boundaries of the fourth amendment.
Restraining a person on the street is certainly a "seizure"
and an exploration of the outer surfaces of his clothing is
beyond question a "search."
The court therefore rejects
"the notions that the fourth amendment does not come into
play at all as a limitation upon police conduct if the
officers stop short of something called a 'technical arrest'
24
or a 'full-blown search.'"
Because the police-citizen encounter which produces
the stop-and-frisk is governed by the fourth amendment, it
is appropriate to consider the language of that amendment
which the Court referred to in determining the constitutional
requirements that must be met;
The right of the,people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched,
25
and the persons or things to be seized.
Therefore, because of the consideration of Terry in the
traditional fourth amendment concept, the ultimate question
remains whether there is probable cause, not for an a r r e s t —
26
but for a detention.
13
The Court's test for the initial stop-and-frisk
is:
"Would the facts available to the officer at the moment of
the seizure or the search warrant a man of reasonable
cau27
tion in the belief that the action taken was
appropriate."
It must be understood that none of the three major
cases expressly authorize a stop with less than probable
cause.
In Terry the Court held that where an officer is
investigating suspicious conduct and believes the suspect
to be dangerously armed, the officer may frisk him.
In
Sibron, the Court found that there was not sufficient
rea-
sonable inference that criminal activity was afoot to justify the stop; and in Peters, the court ruled that the
officer had probable cause to arrest the suspect prior to
the search, despite the fact that the New York Court of
Appeals based its conviction on a stop justified by reasonable
suspicion.
It may be projected that in the near future the court
will be faced with determining unequivocally whether a
police officer can stop and detain a suspect on less than
probable cause.
There are several indications that, when
confronted with the issue, the Court will allow such
detention.
In Terry, Justice Harlan's concurring opinion
expressly
pointed out that the majority opinion did in fact sanction a
stop or detention founded upon reasonable suspicion. 28 The
14
detention however was predicated upon the same requisites
as was the frisk—reasonable suspicion that criminal activi
ity was afoot and a reasonable belief that the suspect was
armed or dangerous.
It is possible that when the Court is eventually confronted with a stop situation in which no frisk is involved,
it. may dispense with the requirement that the officer reasonably believe that the suspect is armed.
A policeman's pri-
mary function is to prevent and investigate criminal
activity;
his right to frisk for weapons in order to protect himself
is only incidental to the proper performance of this function.
It would seem that the officer's right to stop a
suspicious individual in order to investigate his conduct
would be at least as essential as the frisk even though he
has no reason to suspect that the individual is armed at the
29
initial stages of the encounter.
Reasonableness
Requirement
The police officer is not entitled to seize and search
every person whom he sees on the street or of whom he makes
inquiries.
Before he places a hand on the person of a citi-
zen in search of anything, he must have
constitutionally
30
adequate, reasonable grounds for doing so.
If one assumes that the Court will ultimately
approve
a stop with less than probable cause and such detention is
15
determined to be something less than an arrest, it must be
determined whether the particular detention is reasonable
under the fourth amendment.
The reasonableness
requirement
involves a process of balancing the individual's right to
privacy and security with society's interest in protecting
31
itself from criminals.
The Court's failure to establish
precise guidelines for reasonableness in Terry, has led
various jurisdictions to establish their own criteria within
the bounds of Terry.
In Terry, the court emphasized that a combination of
facts may lead to reasonable suspicion of criminal
activity
32
whereas one particular fact alone would not.
The various jurisdictions rely on Terry in upholding
the validity of brief detentions which might have caused
considerable
"constitutional worry" under prior
decisions.
33
For example, m
Ballou v. Massachusetts
officers re-
ceived a tip from an anonymous informant that the petitioner
and others were in a certain cafe and that they were armed.
The officers knew that the petitioners previously had been
convicted of illegal possession of a gun and that one of
his companions was the leader of a faction currently involved in a gang war.
The officers found petitioner and his
companion in front of the cafe, frisked them, and found a
revolver in the petitioner's belt, for the possession of
which he was convicted.
While acknowledging that this case
16
did not involve the "unusual conduct" found in Terry, the
First Circuit believed that the detention and frisk were
nevertheless
justified.
A similar lack of outwardly suspicious
circumstances
34
was present in People v. Cruppi.
Officers observed the
defendant cross the street at a traffic light in front of
their patrol car at 5:15 in the morning.
Except for the
hour, there would appear to be nothing particularly
cious in the defendant's behavior.
suspi-
The officers pulled
alongside the defendant, attracted his attention, and asked
for identification.
service card.
The defendant showed them his selective
The address on the card indicated he lived
three blocks from the point of encounter.
The defendant
told the officers that he had been at an all night restaurant and said that he wanted to look at the nearby school
grounds before returning home.
never made clear.
His reason for doing so was
One of the officers then radioed for a
"name check" and learned that there were two warrants outstanding for the defendant's arrest.
under arrest.
He was then placed
An inventory of his possessions revealed a
quantity of marijuana which in turn led to his prosecution.
The court held that the circumstances were suspicious enough
to justify detaining and questioning the defendant.
The fact that an individual is carrying an object in an
unnatural manner has also been recognized as a significant
17
factor in determining the Reasonableness of a temporary de35
tention.
In Commonwealth v. Howell,
an office observed
the defendant wearing one top coat and carrying another
over his arm, apparently in an attempt to conceal something.
When stopped, the defendant told the officer he was carrying
a tape recorder.
The officer then asked for some identifi-
cation, whereupon the defendant handed him a driver's
describing a white male, forty-seven years of age.
fendant was a 35-year-old Negro.
license
The de-
The court held that the
circumstances were suspicious enough to justify the stopping,
and that the patently false identification warranted
taking
the defendant into custody.
In another illustration of direct observation where the
court looked at the reasonableness element of the detention,
two officers arrested the defendant without a warrant for
robbery by assault.
A search of defendant incident to
arrest were lawful where police officers observed defendant
hiding or standing behind a telephone pole after dark, and
a light shining on the defendant showed he was holding a
rifle butt.
The court readily acknowledged that there was
sufficient reasonableness in the officers detention of the
defendant.
In each of the above examples, the question of reasonableness has been decided by the court looking to the facts
of the situation in which the detention or stop was made.
Considerable criticism has been made about the vagueness of
the reasonableness standard.
The concern is that temporary
seizures for investigation will be undertaken upon the subjective judgment of police officers and that the courts
37
will be reluctant to second-guess them.
Why these arguments are made regarding subjectivity of
the officer's decision to stop a suspect is not fully understood.
Perhaps the confusion as to why reasonableness has
been continually attacked is that some writer's refuse to
accept the simple point that the "reasonable belief" required for an arrest or stop is not to be determined by what
the arresting officer did or did not believe, but rather by
whether the available facts would
"warrant a man of reason-
able caution in the belief" that the person detained
had
38
committed or was about to commit an offense.
With this
criteria, it is rather fruitless to argue that the police
have a carte blanche to detain "on purely
subjective
reaction."
The notion that subjective judgments will prevail is
sometimes rested on the ground that police, in determining
whether to stop an individual for investigation, will
reach
39
judgments based on their experience and expertise.
It is
certainly true that they will do so, but they have long done
precisely this in deciding whether an arrest or search is
called for, and courts have long accepted the fact that the
19
training and experience of police may equip them to reach
conclusions different from those of a layman..
In Terry the Court emphasized that "the police officer
must be able to point to specific and articulable facts
which, taken together with rational inferences from those
facts, reasonably warrant that intrustion into the individ40
ual's private domain.
The Court has made clear its belief
that there is no clash between the precept that the right of
privacy is "too precious to entrust to the discretion of
those whose job is the detection of crime and the notion that
the police are expected to rely upon their training and experience in reasonable detention decisions.
It is for the
courts to determine whether the officer's conduct squares
with the fourth amendment, giving weight
. . . "to the spe-
cific reasonable inferences which he is entitled to draw
41
from the facts in light of his experience.
And it is for the police to articulate the facts and
what their experience reveals as to those facts.
Such gen-
eralities as "he didn't look right" will not suffice.
Like
Officer McFadden in Terry, the officer must relate what he
has observed, and, when appropriate, indicate why his knowledge of the crime problem and the habits of the residents
on his beat or of the practices of those planning or engaging in certain forms of criminal conduct gives special significance to what he has observed.
A reasonably
specific
20
statement by an officer of the circumstances underlying his
action when considered together with how he in fact reacted
to the situation which confronted him should afford an adequate basis for judicial review.
The reactions of Officer Lasky in the Peters case,
when he called police before venturing into the hallway
might be entitled to weight in evaluating the reasonableness
of his conduct.
Likewise in Terry, the fact that Officer
McFadden interposed the body of one of the suspects between
himself and the other two suspects are indicative of his
evaluation of the situation based on his training and
experience.
Stop v. Arrest
The distinction between arrest and a "mere stop" is
i
extremely important in determining whether the constitutional rights of the party detained have been abridged.
On
the one hand, the accused may wish to prove that a sequence
of events did constitute an arrest; for if he is able to do
so, and if there was no probable cause for an arrest at
that moment, then his being taken into custody was
illegal.
Conversely, the prosecution, by proving that no arrest
occurred, but a mere "stopping" based on reasonableness of
the situation, avoids the burden of demonstrating
probable
cause.
o
The American Law Institute and a majority of the
states have defined arrest as the apprehension of a person
in order that he may be forthcoming to answer for an alleged
crime.
Other states have held that an arrest is a mere de-
tention or any interference with one's freedom of movement.
4
The distinction between stop and arrest was emphasized
43
in the Rivera
case where in upholding the police power to
stop-and-frisk on suspicion stated:
The evidence needed to make the inquiry is not
of the same degree or conclusiveness as that required for an arrest.
The stopping of the individual to inquire is not an arrest and the ground upon
which the police make the inquiry may be less incriminating than the ground for an arrest for a
crime known to have been committed.
The distinction thus, places the emphasis back on the "reasonableness" of the conduct of the officer in detaining the
individual.
Length of Detention:
While both the common-law and the stop-and-frisk
stat-
ute of New York permit only a brief detention at the point
of encounter, the Uniform Arrest Act allows a two-hour detention in the event the detained party fails to identify
himself or explain his actions to the satisfaction of the
detaining officer.
It is only at the end of this period
that the individual must be released unless there is probable cause for his arrest.
Granting the likelihood of the
constitutionality of statutory authorization for reasonable
22
field interrogation in light of the Terry and Sibron decisions, it would seem probable that a two-hour detention,
quite likely at the police station, would be such a restriction on the liberty of movement of the individual as to be
unreasonable under the fourth amendment.
A question must be raised as to what is the actual
time limit for detention?
If two hours on mere suspicion
is not "unreasonable," then the New Hampshire variation of
four hours might also be reasonable.
Even six hours might
be argued by some, but it would appear that whenever the
detention is prolonged and the police engage in interrogation of the suspect, the Miranda warnings are essential.
The alloted time for detention actually breaks down to
whether the individual is being stopped on a mere stop-andfrisk or whether he has actually been arrested and is taken
to the station-house for questioning.
. 44
The Supreme Court in Davis v. Mississippi
suggests
that a statute authorizing a two-hour detention absent
probable cause may well be unconstitutional.
In Davis, peti-
tioner and twenty-four other Negro youths were held for
questioning and fingerprinting in connection with a rape.
The only leads available to the police were a set of fingerprints and a general description of the assailant..
Suspects
has been "chosen" in random fashion by means of a dragnet
procedure.
The Court held that petitioner's
fingerprints
should have been excluded in his trial as fruits of an
illegal seizure in violation of his fourth amendment rights.
Consequently, if the Davis principles are applicable to
justifications for detention besides fingerprinting, a twohour detention for questioning and investigation ordered at
a police officer's discretion seems highly unlikely to be
within the range of circumscribed procedures permitted by
the court.
45
46
In Morales v. New York,
which followed the Davis de-
cision, the Court refused to discuss the issue.
The state
court had sanctioned the police in detaining an individual
"for custodial questioning on less than probable cause."
The Supreme Court merely observed that the holding below
went beyond Terry and Sibron.
It would appear from these two decisions that two-hours
is the maximum a person can be held without formal charges
being brought.
F r i s k — A Limited Search for Weapons
Assuming that grounds for a temporary seizure for investigation are present, the next question is whether the
officer may conduct a limited search of the individual.
This superficial inspection, commonly referred to as the
"frisk," may be undertaken for the sole purpose of protecting
the officer.
As a consequence, it is more limited and thus
24
distinguishable from other forms of search, such as search
incident to an arrest.
According to the Terry court, it is imperative that
the "frisk" be reasonable
"both at its inception and as con-
47
ducted."
This poses two questions which must be considered
in appraising the status of the present day risk law:
(1)
How much evidence of what is needed to justify a protective
search?
(2) What are the constitutional boundaries of a
frisk made on sufficient
evidence?
Evidence Required for a Frisk
Ascertaining just when an officer is authorized
to
frisk a person without probable cause for an arrest has continually posed concern for the courts.
If one looks to the
pre—Terry and Sibron decision of the court in answer to when
a policeman may frisk a detainee said, "The answer to the
question propounded by a policeman may be a bullet; in any
case the exposure to danger could be very great."
This
statement could be interpreted that the court sanctions a
49
frisk whenever a suspect is detained.
Terry strives for a more stringent basis for the invasion of the individual's person via frisk than Rivera.
The
issue as presented in Terry is based on the presumption that
a policeman may conduct a limited frisk for weapons when he
has reason to believe he is dealing with an armed and
< <c
dangerous individual.^ 0
The criteria thrust to the fore-
ground is again the reasonableness element of the officer's
conduct.
The court as in the Stop procedure has said that
reasonableness is "whether a reasonably prudent man in the
circumstances would be warranted in the belief that his
51
safety or that of others was in danger."
The conduct of
Officer McFadden was proper, the Court concludes, because
"a reasonably prudent man would have been warranted in believing petitioner was armed
52 and thus presented a threat
to the officer's
safety."
The authority to frisk does not automatically
follow
upon the offider's stopping the suspect because of his suspicious conduct.
Considered within the fourth amendment
limitations, it can be presumed that the reasonableness of
the Frisk stands on its own separate from the Stop.
In the
Stop phase of the detainment, the reasonable issue goes to
the suspicious conduct of the individual.
Completely sep-
arate from this is the reasonable man standard applied to
whether there was probable danger to the safety of the
officer conducting the stop.
Cases involving a violent crime such as burglary, or
murder lend themselves to a more clearcut determination
that the officer would have reason to believe the suspect
might be armed and dangerous.
However, there are numerous
situations where argument can be posed that a frisk would
be violative of the suspect's constitutional rights because
the nature of the crime would not give rise to fear of
bodily harm.
It is questionable, for example, whether one
stopped for suspicion of possessing narcotics, book making,
or prostitution would likely be carrying a weapon.
The carefully circumscribed power to frisk as set forth
in Terry is not a general license for personal
searches.
Its limitations were clearly established in Sibron decided
the same day as Terry.
When the detaining officer in Sibron,
after addressing the suspect with "You know what I am
53
after"
saw the suspect reach into his pocket, thrust his
hand simultaneously into the same pocket and came out with
several envelopes of heroin.
Lacking probable cause to make
an arrest, the Court held the action of the officer
tuted an illegal search rather than a frisk.
consti-
The officer
did not contend that when Sibron put his hand in his pocket
he feared that he was going for a weapon, the response was
viewed as a search for narcotics, which was not reasonable
under the circumstances.
Sibron Court emphatically spelled out that
"The
police officer is not entitled to seize and search every
person whom he sees on the street or of whom he makes inquiries.
Before he places a hand on the person of a citizen
in search of anything, he must have constitutionally
reasonable grounds for doing so.
In the case of the
adequate,
self-protective search for weapons, he must be able to
point to particular facts from which he reasonably
inferred
. .
54
that the individual was armed and dangerous.
After considerable dictim in Terry indicated that a
protective search is permissible only when the officer reasonably believes that the suspect is armed and dangerous,
it finally comes out that this is not true at all:
"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may
be armed and presently dangerous; where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for
the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be
55
used to assault him.
In short, the officer would not have to establish that
it is more probable than not that the suspect was armed, but
only that there was a substantial possibility that the suspect possessed items which 5could
be used for an attack and
6
that he would so use them.
%
28
Terry's impact is still being felt, however, it has for
f
the present recognized the constitutionality of frisking
under appropriate
circumstances.
As in the area of stopping a suspicious
individual,
direct observation may give the officer indication of a possible weapon sufficient to be reasonable for a protective
57
search.
In Hayes v. Commonwealth
where officers, while
searching a hall for illicit intoxicants saw the imprint of
a pistol in defendant's trouser pocket, there was probable
cause for a protective search.
The frisking of a defendant on information received
58
from an informant was upheld in State v. Williams.
A
police sergeant while patrolling in an area of high crime,
was told by an informant known to him and considered by him
to be trustworthy and reliable who pointed to an automobile
parked on the other side of the street and told him that a
person seated in the vehicle was armed with a pistol at his
waist and had narcotics in his possession.
The sergeant
walked to the car, tapped the window and told the defendant
to open the door.
The defendant rolled down the window of
the door, and the sergeant immediately reached directly to
the defendant's waistband and removed a fully loaded,
.38-
caliber revolver from the waistband of the defendant's
trousers.
The court held that the situation called for quick
decision and prompt action.
Relying on Terry, the court said
29
that "as a matter of law," "when an officer is justified in
believing that the individual whose suspicious behavior he
is investigating at close range is armed and presently
dan-
gerous to the officer or to others, it would appear to be
clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the person is in
fact carrying a weapon and to neutralize the threat of
59
physical harm."
An officer's frisking of a suspect, who, when the officer asked to speak with him declared
"It's registered, it's
registered," was held to be reasonable in United States v.
60
Burrell.
The officer had observed the defendant
acting
somewhat suspiciously while standing among a group of people
at a corner bus stop.
The officer walked passed the suspect
and continued for one block, noticing periodically that the
suspect kept watching him.
the defendant.
The officer started back toward
When the officer was at a point
approxi-
mately 2 5 feet from the bus stop, the suspect walked
the street.
across
After following him for a block, the officer
approached the suspect from the rear, placed his hand on
appellee's elbow and said, "Hold it, sir, could I speak with
you a second?"
After the suspect made the above declarations,
the officer asked what was registered.
The suspect said his
pistol was registered, the officer conducted a search for the
pistol which he recovered.
The court, citing Terry,
concluded
>tt
30
that the action of the officer in the initial confrontation
with suspect did not amount to an arrest nor did it amount
to an unconstitutional intrusion upon defendant's rights
against arrest without probable cause.
Scope and Constitutional Boundaries of the Frisk
Although a search may be reasonable at its inception, it
may violate the fourth amendment by virtue of its intensity
61
and scope, according to the Terry decision.
In discussing
the scope of the search by Officer McFadden, the Terry court
emphasized that the officer's patting down the outer clothing of Terry and his companions presented no serious problem.
He did not place his hands in their pockets or under the
outer surface of their garments until he had felt weapons,
and then he merely reached for and removed the guns.
He
never did invade the suspect's person beyond the outer surfaces of his clothes, since he discovered nothing in his pat
62
down which might have been a weapon.
There appears to be a two-step process in the frisk
which will keep it within the bounds of Terry.
First, the
patting down of the outer clothing, followed by an intrusion
beneath the surface only if something is felt that could be
a weapon.
The necessity for the initial patting for weapons
is projected in Sibron where the Court said that even assuming the officer had grounds for a search, he exceeded the
31
permissible scope of such a search in that he made "no
attempt at an initial limited exploration for arms," but
63
instead "thrust his hand into Sibron's pocket."
Emphasis is placed on the requirement that the frisk
must be used only where its sole justification, protection
of the officer and others nearby, applies.
Thus, it must
be limited in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments
64
for the assault of the police officer.
This seems to be
a more severe limitation to areas to which the suspect had
immediate access, a limitation which had not been imposed
upon the power to search an arrested person and his "immediate presence."
However, it must be noted that in some instances, necessity may dictate that the frisk go beyond the person's body.
Perhaps the most common situation would be where the policeman has stopped an automobile to question the driver.
In Palmore v. U . S . , 6 5 a police officer stopped an out
of state vehicle to "spot check" the driver's license and
rental agreement.
During a conversation with the driver
concerning an oral modification to an expired rental agreement on the auto, the interrogation officer's partner,
shining a flashlight into the vehicle saw the trigger mechanism of a pistol protruding out from beneath the armrest
on the front of appellant's car.
He removed the pistol from
appellant's car and, after learning that it was unregistered,
placed appellant under arrest.
The court agreed that this
was standard procedure to protect the safety of the officer.
Although the search of an automobile on a mere traffic
violation appears to exceed the authority granted by Terry,
the California District Court of Appeals held in Taylor v.
Superior Court^ 6 that where the officer directed the offender to empty his pockets revealing a cigarette lighter
containing a usuable quantity of hashish.
The court found
this further examination reasonable because the officer was
properly concerned with the possibility that the lighter
was a container for razor blades.
A similar result was
fi 7
reached in State v. Campbell
where a bulge turned out to
be a large envelope, within which the officer discovered
illegal lottery slips.
In sustaining the examination of the
contents, the court conceded the possibility of presence of
68
weapons.
Not all courts readily accept such an extension of the
frisk procedure.
An Ohio court noted that there is some
doubt that razor blades hidden in a cigarette lighter would
pose a threat to the detaining officer.
The court said,
"The arresting officer stated that his reason for searching
the hat was because he had previous experiences with prisoners secreting razor blades in their hats.
We do not doubt
that possibility, but cannot agree that possession of a usual
33
type of razor blade would constitute possession of a weapon;
whether carried in one's hat or other apparel.
If such were
the case, on frequent occasions those of us who do not subscribe to the fashion of wearing long hair and beards, might
find ourselves under arrest for carrying a package of "concealed weapons' on the way from our neighborhood drugstore
or s u p e r m a r k e t . " ^
The extent to which the patting down process may be
carried and on which the court seemed to base its point
that a frisk is more than a "petty indignity," is described
in Terry.
The Court describes in some detail the procedures
for a frisk, which include "a thorough search
. . .of
the
prisoner's arms, and armpits, waistline and back, the groin
and area about the testicles, and entire surface of the
70
legs down to the feet."
It must be noted that this is the procedure used prior
to taking a suspect to the stationhouse for further interrogation.
The frisk on the street as limited by Terry is for
the purpose of finding weapons that might be used for an
"assault on the police officer."
With this limited objec-
tive in the frisk, the completeness of the search described
above would not be necessary.
The need is to find only
those instruments which might be easily obtained in a faceto-face confrontation between officer and suspect and not
to find those items that might be so cleverly concealed that
they would be difficult to reach and use as a weapon.
34
This process of patting down a suspect will frequently
reveal some object secreted in the clothing of the suspect.
Whether that object is sufficient to raise a reasonable
suspicion of the presence of a weapon depends on such factors as its shape, size, and location.
Detection of an object that resembles a wallet in the
breast pocket or hip pocket, will probably be just that and
there is little reason for apprehension on the part of the
frisking officer.
Just because the officer has a "feeling"
about the object from touching it through the clothing is
not reason for apprehension.
71
In People v. Buene,
the court ruled that the removal
of some keys and a gold ring from the pocket of a suspect
was unwarranted.
However, as noted previously, the seizure
of a cigarette lighter was found reasonable in Taylor v.
72
Superior Court
.
because it "could be used in a doubled up
fist or thrown at the officer or used to burn the officer
or police unit."
The courts appear to look at the individual situation
in determining the reasonableness of the officer's action.
73
.
In People v. Watson,
a long-stemmed smoking pipe was held
to be reasonably suspect of use as a weapon when felt within
a jacket made of heavy material.
Although, arguendo, a bulge in the clothing of a suspect might give rise to apprehension by the officer, it has
< io*.
35
been held to not be adequate justification for an arrest and
74
incident search.
The suspicion that the officer has when
he feels an object in the clothing of an individual does not
always give rise to fear of a weapon, in deed, it frequently
will reveal contraband from the commission of an offense
other than possession of a dangerous weapon.
Due to the
nature of the frisk in covering all areas of the body as
described in Terry, the officer might detect a bulge that
in his experience feels like pouches of narcotics.
In such
a case, there might be cause for arrest, however, in People
75
v. Gonzales
where the officer detected a bulge which was
comparable to cellophane bags of narcotics found on arrestees
earlier the same night, the court held that since the prior
arrests had been illegal, the officer could not rely upon
that experience in evaluating the identity of the bulge
sensed on the present suspect.
The California Supreme Court had, prior to Gonzales,
emphatically ruled that "feeling a soft object in a suspect's
pocket during a pat-down, absent unusual circumstances, does
not warrant an officer's intrusion into a suspect's pocket
to retrieve the object.^ 6
In elucidating its point, the California court stated:
To permit officers to exceed the scope of a lawful pat-down
whenever they feel a soft object relying upon mere speculation that the object might be a razor blade concealed in a
36
handkerchief, a "sap" or any other atypical weapon would be
to hold that possession of any object, including a mere
77
wallet, invite a plenary search of an individual's person.
In Collins, the court held that a package of loosely
packed marijuana could not reasonably be suspected to be a
weapon.
A Wisconsin
court took just the opposite view in
78
Ervin v. State
where a packet of marijuana was found in
suspect's waistband, not an unusual hiding place for a gun
or knife.
Thus, it is again clear that the states will look
to their own interpretations of Terry, Sibron and Peters to
decide just what is reasonable in the conducting of a frisk.
Sequence of Events Leading to a Frisk
A close reading of Terry and Sibron would lead to a
conclusion that there must be a step-by-step escalation of
reasonable belief on the part of the investigating
culminating in a seizure of evidence.
However,
officer
illustrating
the diversity given the Court's rulings in these cases are
two 19 70 cases.
79
In United States v. Cunningham,
the prosecution
con-
tended that while an arrest and a search occurred, the court
need not concern itself with the question of probable
cause.
The prosecution reasoned that had the officer at the outset
merely detained the suspect, the circumstances were such
that a frisk would have been justified.
A frisk would have
>0'j
37
disclosed a concealed weapon, at which point an arrest and
search would have been reasonable under Terry. It was argued
that the fact that the officer had by passed the preliminary
steps was immaterial.
The court found such an after-the-
fact rationalization unacceptable, relying upon the traditional principle that a search cannot be legitimized by its
results.
At approximately the same time as the Cunningham case
was being heard, an inconsistent result was being reached in
81
a California case.
In People v. Baker
the manager of a
bowling alley informed an officer that an attendant had observed a patron place packets of white power and a pistol in
a handbag which had been deposited in a locker at the bowling
alley.
He further advised him that he had personally
examined
the contents of the locker and could confirm the attendant's
report.
Additional officers were sent to the bowling
alley,
the contents of the locker examined by them, the pistol removed and the remaining items returned to the locker.
About
a half hour later, the defendant opened the locker, removed
the handbag, and was arrested as he attempted to leave.
was immediately searched, and a pistol was recovered
his waistband.
He
from
The court conceded that the prior search of
the locker by the officers was unreasonable under the fourth
amendment. 8 2
The defendant has a reasonable expectation of
83
privacy in the locker.
which was improperly invaded by the
38
search.
Therefore, the search was prima facie illegal, and
probable cause for the arrest was a fruit of the illegal
search and likewise would appear to be constitutionally
intolerable.
The observations of the manager did not raise constitutional problems.
If he had given the information to the
officers, it would have given the officers sufficient cause
to detain the defendant after he removed the contents of
the locker and subject him to a Terry frisk.
At that point
the second pistol would have been discovered and probable
cause for the arrest and further search of the handbag would
have been justified.
However, to uphold the officer's
activ-
ity, the court would have to extend the scope of the frisk
to include the handbag, or give credence to the alternative
that a reliable report of a pistol in the locker created a
sufficient danger to justify a warrantless search.
In either
instance, the judicially tolerated intrusion would appear to
go beyond prevailing constitutional standards of Terry.
Suspect Identity Problem
A problem of reasonableness also arises where the officer has adequate grounds for the frisk of an individual, but
he is not able to specifically identify which individual is
84
the suspect.
In Gaskins v. United States
a cab driver
reported to officers that he had just observed "a guy up the
street tuck a gun inside his belt."
The officers proceeded
39
in the direction indicated and found three men walking together, anyone of whom could have been the suspect.
else was on the street.
No one
The officers patted down all three
of the persons, and one had a knife, the second a pistol
and the third narcotics paraphernalia.
In upholding the
officers action, the court reasoned that there were but two
options open to them:
"(a) let the three pass in the night
because they were not told which one of the three had a gun
and therefore may have lacked legal authority to search any
of them, or
(b) stop the three and determine which, if any,
85
was carrying a weapon."
Given these alternatives, the
court concluded that the action taken was not unreasonable.
Consideration might be given to what would have happened
in the above case if the pat-down had not been simultaneous
to all three suspects.
If the gun had been found on the
first person, would there be ample reason
to frisk the other
86
two?
In United States v. Berryhill
the court stated:
"We think that Terry recognizes and common sense dictates that the legality of such a limited intrusion into a
citizen's personal privacy extends to a criminal's companions at the time of arrest.
It is inconceivable that a
peace officer effecting a lawful arrest of an occupant of
a vehicle must expose himself to a shot in the back from
defendant's associate because he cannot, on the spot, make
the nice distinction between whether the other is a companion
t I*.'1'""
oo t
40
in crime or a social acquaintance.
All companions of the
arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to a cursory
'pat-down' reasonably
gn
necessary to give assurance that they are unarmed."
Thus, the reasonableness of the frisk of the three individuals in Gaskins would not appear to hinge on the availability of officers, but on the necessity of the officer to
protect himself.
Even if the officer's frisk had not re-
vealed a weapon or incriminating evidence, it would not have
been unreasonable.
The reasonableness standard is not based
on the results of the frisk, but upon the officer's having
probable cause at the time of the frisk and subsequent
arrest, if made, to suspect that he may be in danger.
Frisk and the Exclusionary
Rule
Under Terry, if an officer is searching for a weapon,
it is clear that assuming the frisk itself is reasonable,
any weapons uncovered are admissible in evidence against the
suspect.
The issue left unresolved by the courts is the ad-
missibility of other evidence discovered while frisking for
weapons.
The facts in Peters presented the Court with an
opportunity to rule on this question, but it declined to do
so by finding that the officer had probable cause to arrest
prior to the search.
It is logical that if the stop and
41
frisk were reasonable by Terry, standards, any evidence discovered while the officer in good faith searches for what
might reasonably appear to be a weapon should be admissible.
There are, however, strong competing policy arguments..
One view is that the exclusionary rule should have wide
application in order to preclude possible abuse of the
authority to frisk.
Judge Van Voorhis of the New York Court
of Appeals, in his dissent to the Sibron case, proposed that
only an unlawfully possessed or concealed w e a p o n — t h e
instru-
ment of danger which lends justification to the f r i s k — b e
admissible, but no other evidence which may be found in the
course of a f r i s k : ®
If a frisk reveals a weapon, which is the only
purpose for which it is authorized, then it should
be confiscated and be evidence against the accused
on a charge of unlawfully possessing or concealing
a weapon or in any other criminal context in which
the possession of a weapon is a factor. If we go
beyond that, then frisking a suspect, which can be
done in practice (though not in theory) at the
officer's whim, will become a pretext for the general search of the person, without probable cause
0 e •
Justice Schaefer of Illinois would go even further.
He has proposed making the weapon itself inadmissible:
"one
effective mechanism of control would be the exclusion from
evidence of anything found during the search. . . . Such a
rule would have its costs, for it would deprive the courts
of evidence. But these costs, high though they would some89
times be, seem to me justified."
42
Schaefer's position was clearly rejected by the Court
in Terry, where the seized weapon was allowed to serve as
evidence for the conviction.
Regarding evidence other than
weapons, only Justice Harlan among the Court members expressed an opinion:
"Although the frisk is constitutionally
permitted only in order to protect the officer, if it is
lawful, the State is of course entitled to the use of any
90
other contraband that appears.
Until the court rules on the specific question of admissibility of evidence other than a weapon found in the
frisk, it appears that each state will decide the admissibility of such evidence.
The rule in California seems to be that if contraband
is discovered anytime during the general purview of the
frisk, the officer could not ignore it, and the evidence is
91
•
admissible.
However, California does not permit a police
officer to empty the pockets of a suspect merely because he
92
feels an object which he reasonably believes to be a weapon.
The Supreme Court of Wisconsin has ruled that the contraband found during a frisk for weapons is admissible.
In
93
.
Ervin v. State
the defendant was arrested for violation of
curfew during a riot in Milwaukee.
In view of the turbulent
community situation which had caused imposition of the curfew,
the arresting officer had a right to make a quick but thorough
examination of the defendant to remove the possibility of
persons being armed, and the two-minute search could be
found reasonable though the officer found no weapons, but
found a quantity of marijuana in the waistband of the defendant's trousers.
The contraband was admitted and the de-
fendant convicted for possession of marijuana.
The court
noting that the arresting officer was within his authority
to conduct the search for weapons that might endanger him
and that the fruits of that search were admissible since
the search was not unconstitutional.
The Texas Court of Appeals has held that police officers who had received previous reliable information from
an informer and who received detailed descriptions of an
automobile driven by the defendant and his companion including the vehicle's license number, and that marijuana
could be found somewhere in vehicle which would be located
in the vicinity of a certain intersection had probable cause
for warrantless arrest of the defendant.
The court held
that the search incident to the arrest was legal and the
fruits of the search were admissible, notwithstanding officer did not ask unidentified informer how he knew marijuana
was where he said it was and was not told by informer that
informer had personally observed contraband or had received
information from someone else.
94
95
The New Jersey Supreme Court m
State v. Gray
held
that where police officers observed an auto stopped at the
same bar three times within five hours and remain there for
only a few minutes on each occasion, and officers
stopped
the auto after it left the bar the third time and asked the
driver to produce his license and registration
certificate,
and driver engaged in furtive movement in placing his mismatched gloves on the floor before getting out of the auto,
officers had probable cause to examine the gloves and seize
the heroin packet found in one of the gloves.
The court
said that the search was reasonable due to possibility of
a weapon being within reach of defendant and admitted the
heroin into evidence.
Whether this is carrying the frisk to an abusive extent
has not been answered by the courts.
To what degree the
state courts will go in allowing the admissibility of such
contraband is still an open question.
In looking at the
Peters case, which involved the admissibility of burglar's.,
tools, it is hard to presume that the Supreme Court would
at this time enforce a stringent application of the exclusionary
rule.
Terry and Miranda
Whether the four warnings required under Miranda as
pre-requisite to police station interrogation are required
in all detentions regardless of the duration has not been
answered by the Court.
In Terry, the Court instructs that
a seizure occurs when the police accost an individual and
47
restrain his freedom to walk away.
Miranda on the other
hand addresses its conclusions to questioning a person after
he has been taken into custody or otherwise deprived of his
97
freedom of action in any significant way.
All four issues decided in Miranda were directed toward
interrogation under the "police atmosphere" of the stationhouse.
This psychological disadvantage is not present in the
usual on-the-street interrogation, thus courts have been liberal in not requiring the warnings in such detentions.
The
"grilling" used in the stationhouse will not usually be reenacted in the street
encounter.
Wayne R. LaFave in an indepth article discussing Street
98
Encounters and the Constitution,
notes the following dis-
tinctions that should be considered in discussing the relevance of Miranda warnings to the non-stationhouse
interrogation.
(1) When a suspect is questioned at
99 the station he has
been "swept from familiar surroundings"
and "thrust into
an unfamiliar atmosphere" where the interrogator has the
psychological advantage of selecting the locale of the questioning; when questioned on the street he is neither
"swept"
nor "thrust" but is merely stopped at a place where he has
chosen to be and which was not selected by the officer.
(2) One questioned at the stationhouse has been
from the outside w o r l d " 1 0 0
and is alone with his
"shut off
interrogator
46
a person stopped for field interrogation remains in the
outside world often but not always in view of passersby,
and is frequently in the company of his companions
during
the questioning.
"sur-
(3) A suspect at the station
rounded by antagonistic
atmosphere"101
forces" in a "police
102
minutes.
only one and seldom more
(4) At the station the police may
steadily and without relent
hours,"
dominated
and the suspect detained on the street is
confronted by few p o l i c e — o f t e n
than two.
is
interrogate
. . . for a spell of several
field interrogations
seldom extend beyond a few
(5) Questioning at the stationhouse may result in
10 3
"physical brutality"?
this is most unlikely in a street
setting.
Though LaFave lists a number of other distinctions
tween the on-the-street
and the stationhouse
be-
interrogations,
these illustrate the reasons many suggest that the Miranda
warnings should not be required for the. momentary
4.1.
104
on the street.i
Even with the above distinctions, it must be
that the Miranda rulings were established
detention
emphasized
to give the sus-
pect the protection of the fifth amendment.
Thus, it would
not be acceptable for the police to conduct their
activity
in such a manner to skirt the stationhouse theory of interrogation, by moving the suspect outside of the police
quarters
and tricking him into incriminating statements without the
proper warnings.
Consistent with the privilege against
self-incrimination,
said the Miranda Court, any admission made by the suspect
during custodial interrogation cannot be used as evidence at
the trial unless he has first been "warned
. . . that he has
the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any ques105
tioning if he desires."
If one looks at the Miranda ruling, it is possible to
find confusing references to various situations without determining any specific standard.
At one point the Court
said that the warnings must be given to an individual who
is "in custody at the police station or otherwise deprived
106
of his freedom in any way.
street situations.
This seems to include on-the-
In another reference, the Court defined
custodial interrogation as "questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom in any signifi107
cant way."
This could be interpreted to exempt most on the
street questioning from the Miranda warnings.
To confuse the
situation further, the Court added that "general
questioning
on-the-scene
as to facts surrounding a crime or other general
48
questioning of citizens in the fact-finding process is not
10 8
affected by our holding."
Although this is mostly dicta,
the Court indicated throughout its holding that on the
street questioning would not be considered
"custodial."
Even if investigative interrogation is not automaticaly governed by the Miranda requirements, it does not follow that the warnings are never necessary.
The circumstances
illustrated by LaFave indicate that a particular
interroga-
tion may be so coercive that failure to give the warnings
would preclude use of information gained.
However, if the
Court gave a blanket exemption of the Miranda rule for onthe-street interrogation, it might allow the police to circumvent the rule by questioning a suspect in the street
before arresting him, even when probable cause for an arrest
has already been established.
This situation as LaFave
noted, could not and would not be tolerated if the suspect
was to receive adequate protection under the Fifth
Amendment.
The refusal of a suspect to answer queries by a police
officer in his on-the-street interrogation has been ruled
as "no basis for arrest" by Justice White, in his concurring
opinion in Terry.
However, this does not rule out the possi-
bility that a suspect's refusal cannot be considered as one
. .
109
element in determining whether a person may be arrested.
49
Prior to the Miranda holding, the majority of the
courts held that a refusal to answer could not be taken
into
account in determining and whether to arrest a s u s p e c t . 1 1 0
However, in United States v. B o n a n n o , 1 1 1
the court said:
It
must be borne in mind that the defendants in this case had
a constitutional right to remain silent when questioned by
police or other investigatory agents or bodies, but they
chose not to.
Had they chosen to do so, they would have
suffered no penalty.
As noted previously, there has been no definitive
guide-
lines as to the application of the Miranda warnings to the
on-the-street encounter, but if it is ultimately
that Miranda warnings must be given in all street
decided
detentions,
it would seem logical that the refusal to answer will have
no effect on whether he may be
arrested.
CONCLUSIONS
It is clear that the right of police to
is essential to effective law enforcement.
stop-and-frisk
In Terry, the
Supreme Court has laid forth a general principle with
ficient guidelines to precisely apply the standard.
insufThe
Court has provided a basis on which each lower court may
establish its own guidelines within the spirit of the fourth
amendment.
The bulk of the decisions that have been
rendered
since Terry - Sibron and Peters seem to fall within and
around the Courts holding in those cases.
The diversity
that
50
has been prevalent in these lower court decisions
seems
likely to continue in the future, with the Supreme Court
looking to the lower Courts to develop a manageable
regarding constitutional employment of
criteria
stop-and-frisk.
The incredible diversity of "street encounters" as
noted by the Chief Justice in Terry are reflected in the
numerous federal and state court decisions.
Such
intangible
criteria as the undisclosed intentions of the officer, of
intentions of the suspect, or whether the officer could have
required the suspect to submit to more than a street
encoun-
ter, have been used to limit the police's authority to take
stop-and-frisk
action.
Regardless of the diversity, all stop-and-frisk
situ-
ations have in common the fact that they are less of an
intrusion on the suspect that what has traditionally
referred to as an " a r r e s t " — a n
been
actual taking the suspect to
the stationhouse for interrogation.
The Terry Court has em-
phasized that the brief detention is a lesser invasion of
personal security under the fourth amendment than an arrest.
Certainly there have been abuses of the
stop-and-frisk
procedure, but Terry has placed on the courts the burden to
hold that the evidence is inadmissible where the search and
seizure is unreasonable.
To preclude the use of this effec-
tive deterrent based on limited abuse would be an injustice
not only to the police, but to the citizens who are
I
51
protected by such procedures.
However, the Court has pro-
vided a basis of review through the reasonableness test,
that may be invoked whenever necessary to protect against
abuse of a suspect's fourth amendment rights.
The full impact of Terry and its companion cases has
not been determined, however, these decisions have brought
into the forefront, a procedure long practiced by police.
If the court's adopt a positive attitude toward
stop-and-
frisk, as they seem to be doing, an indepth assessment of
the procedure will probably result at both the state and
federal judicial levels.
Terry paves the way for re-evaluation of what is sufficient cause for an arrest.
The judicial recognition of a
constitutional stop-and-frisk gives the courts and police
an opportunity to investigate under the
"reasonableness"
requirement many incidents that previously have been given
classifications sufficient for arrest.
Because of its less
intrusive nature, the stop-and-frisk could be used to replace arrest in such cases as vagrancy, and insignificant
traffic violations in order to investigate or search.
The courts today seem to be giving police stop-andfrisk activities as much leeway as possible, looking to the
facts in each case to determine whether the
requirement has been met.
"reasonableness"
The burden for a successful stop-
and-frisk action has been placed directly upon the shoulders
52
of the police.
The cases indicate that when the police are
overzealous in their frisking or harrass citizens by indiscriminate stopping, the courts will force them into a
strict interpretation of Terry, virtually curtailing any
results they might obtain from their stop-and-frisk
activity.
Perhaps, the future impact of Terry, Sibron and Peters
will be determined by wh&t the police agencies do to establish departmental guidelines to curtail abuses of the stopand-frisk.
The Court rendered its decision in broad
so that, should the necessity arise, a narrow
could be administered in subsequent cases.
terms
interpretation
Thus, the consti-
tutionality of stop-and-frisk has been established, but its
future could be severely restricted should the lower courts
allow its application in a manner that would violate the
fourth amendment.
v
FOOTNOTES
^Mapp v. Ohio, 367 U.S. 643
(1961).
^Miranda v. Arizona, 384 U.S. 436
(1966).
3
Brinegar v. United States, 338 U.S. 160
4
K e r v. California, 374 U.S. 23
5
(1949).
(1963).
United States v. Vita.
^People v. Rivera 14 N.Y.2f 441, 201 N.E.2d 32, 252
N.Y. S.2d 458 (1964) cert, denied, 379 U.S. 978 (1965).
7
N . Y. Code Crim. Proc. Section 180 a
(McKinney
Supp.
1967).
8
Ker v. California,
9
10
supra.
Terry v. Ohio, 392 U.S. 1
(1968).
S i b r o n v. New York, 392 U.S. 40
(1968).
^ P e t e r s v. New York, 392 U.S. 40 (1968).
S t a t e v. Terry, 5 Ohio App.2d 122, 214 N.E.2d
(1966).
12
13
114
T e r r y v. Ohio, 392 U.S. at 8.
14
Id. at 9.
15
I d . at 15.
16
I d . at 14.
17
Sibron v. New York, Supra.
18
I d . at 47.
P e o p l e v. Sibron, 18 N.Y.2d 603, 219 N.E.2d 196, 272
N.Y.2d 374 (1966).
90
People v. Peters, 44 Misc.2d 470, 254 N.Y.S.2d 10
(1964).
|
19
53
54
21
S i b r o n v. New York, 392 U.S. at 70.
22
23
Id. at 68.
I d . at 69.
24
Terry v. Ohio, 392 U.S. at 19.
25
U.S. Constitution, Amendment IV.
26
T e r r y v. Ohio, 392 U.S. at 16.
27
I d . at 21.
28
29I d . at 34.
. .
.
Piatt, The Limits of Stop and Frisk--Questions
answered by Terry, 10 Ariz. L. Rev. 419 (1970).
30
Un-
People v. Sibron, 392 U.S. at 64.
31
T e r r y v. Ohio, 392 U.S. at 1.
32
I d . at 22.
33
B a l l o u v. Massachusetts, 403 F.2d 982 (157 Cir. 1968)
34
People v. Cruppi, 265 Cal. App.2d 9, 71 Cal. Rptr.
42 (1968).
35
Commonwealth v. Howell, 213 Pa. Super. 33, 245 A.2d
680 (1968).
36
C a r t e r v. State, 445 S.W.2d 747
(1969).
37
.
Oberman & Finkel, Constitutional Arguments Against
"Stop and Frisk," 3 Crim. L. Bull. 441 (1967).
3 fl
Carroll v. United States, 267 U.S. 132
(1925).
39
Schwartz, Stop and Frisk (A Case Study m
Judicial
Control of the Police, 58 J. Crim. L.C. & P.S. 433, 445
(1967) .
40
Terry v. Ohio, 392 U.S. at 21.
41
42
Id. at 27.
S t a t e v. Sullivan, 65 Wash.2d 47, 395 P.2d 345
(1964)
55
43
P e o p l e v. Rivera, 14 N.Y.2d 445, 201 N.E.2d 34
44
D a v i s v. Mississippi, 394 U.S. 721
(1964).
(1969).
45
Cook, Detention and the Fourth Amendment, 2 3 Ala. L.
Rev. 307 ( 1 9 7 T T
"
Morales v. New York, 396 U.S. 102 (1969).
4
^Terry v. Ohio, 392 U.S. at 27.
4 8_
People v. Rivera, supra.
49
Sibron v. New York, 392 U.S. at 40.
50
Terry v. Ohio, 392 U.S. at 24.
51
Id. at 27.
52
I d . at 28.
53
S i b r o n v. New York, 392 U.S. at 45.
54 Id. at 64.
55
T e r r y v. New York, 392 U.S. at 30.
56
LaFave, "Street Encounters" and The Constitution:
Terry, Sibron, Peters, and Beyond," 67 Mich. Li Kev. 87
(1968).
57
Hayes v. Commonwealth, 458 S.W.2d 243 (Ct. App. Ky,
1970).
co
State v. Williams, 157 Conn. 114, 249 A.2d 245 (1968)
cert, denied, 392 U.S. 927 (1969).
59
I d . at 246.
60
United
61
T e r r y v. Ohio, 392 U.S. at 18.
62
I d . at 29.
63
S i b r o n v. New York, 392 U.S. at 65.
64
States v. Burrell, 286 A.2d 845
Terry v. Ohio, 392 U.S. at 29.
(1972).
56
65
Palmore v. United States, 290 A.2d 573 (D.C. Ct.
App. 1972) .
66
Taylor v. Superior Court, 275 Cal. App.2d 146, 79
Cal. Rptr. 677 (Dist.Ct.App. 1969).
67
State v. Campbell, 53 N. J. 230, 250 A.2d 1 (1969).
68
Cook, Art of Frisking, 40 Fordham L. Rev. 798
(1972).
69
State v. Woodford, 26 Ohio Misc. 51, 269 N.E.2d
143, 55 Ohio Op.2d 174 (Shaker Hts . , Mn. Ct .1,971) .
70
.
Terry v. Ohio, 292 U.S. at 17.
71
People v. Bueno, 475 P.2d 702 (Colo. 1970).
72
Taylor v. Superior Ct. supra.
73
People v. Watson, 12 Cal. App.3d 130, 90 Cal. Rptr.
(Dist.Ct.App. 1970).
74
State v. Anonymous, 6 Conn. Cir. 583, 280 A.2d 816
(1971).
483
75
291
People v. Gonzales, 17 Cal. App.3d 848, 95 Cal. Rptr.
(Dist.Ct.App.1971).
76
People v. Collins, 1 Cal.3d 658, 463 P.2d 403, 83
Cal. Rptr. 179 (1970).
77
I d . at 663.
78
Ervin v. State, 41 Wis.2d 194, 163 N.W.2d 207
(1968).
79
United States v. Cunningham, 424 F.2d 942 (D.C. Cir),
cert, denied, 399 U.S. 914 (1970).
80
Id. at 943.
81
508
People v. Baker, 12 Cal. App.3d 826, 90 Cal. Rptr.
(Dist.Ct.App.1970).
82
Id. at 833.
O -J
Katz v. United States, 389 U.S. 347
(1967).
84
G a s k m s v. United States, 262 A. 2d 810 (D.C. Ct.App.
1970).
i-ii'1
57
85
I d . at 811.
86
United States v. Berryhill, 445 F.2d 1189
,
1971) .
(th Cir.
Id. at 1193.
88
P e o p l e v. Sibron, 18 N.Y.2d 603, 607, 219 N.E.2d
196, 272 N.Y.S.2d 374 (N.Y. 1966)(dissenting opinion).
89
Schaefer, The Suspect and Society;
Criminal Procedures and Converging Constitutional Doctrines 25 (19 67)
as, quoted in 45 Conn. Bar Jour. 154 (1971).
90
S i b r o n v. New York, 392 U.S. at 79.
91
P e o p l e v. Martin, 46 Cal.2d 106, 293 P.2d 52
(1956).
92
659
P e o p l e v. Martines, 228 Cal. App.2d 373, 9 Cal. Rptr,
(1960).
93
Q
y A
95
Almendarez v. State, 460 S.W.2d 920
(1971).
S t a t e v. Gray, 59 N. J. 563, 285 A.2d 1
96
97
Ervin v. State, Supra.
Terry v. Ohio, 392 U.S. at 16.
M i r a n d a v. Arizona, 384 U.S. 444
98
LaFave, Street Encounters,
QQ
supra.
Miranda v. Arizona, 384 U.S. 461
100
I d . at 445.
101
Id.
102
I d . at 451.
103
Id.
(1966).
(1966).
at 446.
104 LaFave, Street Encounters, supra.
10 5
Miranda v. Arizona, 384 U.S. at 479.
(1971).
58
106
Id.
at 477.
107
Id.
at 479.
100
Id.
at 477.
109
Model Code of Pre Arraignment Procedure Section 202
(6)(Tent Draft No. 1, 19 66) as reported in LaFave, Street
Encounters, supra.
110
D i c k e r s o n v. United States, 120 A.2d 588
(D.C. Mun.Ct.
1965) .
li:L
United States v. Bonanno, 180 F.Supp. 71, 86 n.21
(S.D.N.Y. 1960).
tut