Criminal Procedure for the
Criminal Justice Professional
11th Edition
John N. Ferdico
Henry F. Fradella
Christopher Totten
Stop and Frisks
Chapter 8
Prepared by Tony Wolusky
History
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An officer’s power to detain and question
suspicious persons dates back to English
common law.
The U.S. Supreme Court adopted formal
guidelines governing street encounters
amounting to less than arrests or full
searches in three 1968 cases.
1.
2.
3.
Terry v. Ohio
Sibron v. New York
Peters v. New York
The Three Foundational Cases

In Terry v. Ohio, Sibron v. New York, and
Peters v. New York (1968), the court applied
a balancing test under the reasonableness
requirement of the Fourth Amendment.
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In Terry v. Ohio, the Court recognized the officer’s need
to protect themselves when suspicious circumstances
indicate possible criminal activity by potentially
dangerous persons, even if probable cause is lacking.
Stops and frisks are more limited than a full search and
are judged by a less rigid standard than probable cause.
Reasonable suspicion is all that is needed.
The Reasonableness Standard
 The determination of the reasonableness of
stops and frisks involves balancing a
person’s right to privacy and right to be free
from unreasonable searches and seizures
against the governmental interests of
effective crime prevention and detection and
the safety of law enforcement officers and
others from armed and dangerous persons.
Differentiating Stops as Seizures from
Non-Seizures

Not all stops are seizures.
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The Supreme Court in United States v. Mendenhall
(1980) established the free to leave test—a “totality-ofcircumstances” approach that assesses whether or not a
reasonable person would have believed that he was not
free to leave.
Only when an officer intentionally, by means of physical
force or show of authority, has restrained a person’s
liberty has a “seizure” occurred. Also, for a seizure to
occur, the person being confronted by the officer must
have submitted to the officer’s authority or force.
Authority to Stop

A law enforcement officer may stop and
briefly detain a person for investigative
purposes if the officer has a reasonable
suspicion supported by articulable facts of
ongoing, impending, or past criminal
activity.


Reasonable suspicion is less than probable cause.
Reasonable suspicion may develop based on logical
deductions from human activity based on an officer’s
observations, knowledge, experience, and training (not
a mere hunch).
Bases for Forming Reasonable
Suspicion
 Reasonable suspicion may also be derived
from:
 Information from known informants
 Information from Anonymous informants
 Information from police flyers, bulletins, or radio
dispatches
Information from Known Informants
 A law enforcement officer may stop a
person based on an informant’s tip if, under
the totality of the circumstances, the tip,
plus any corroboration of the tip by
independent police investigation, carries
enough indicia of reliability to provide
reasonable suspicion of criminal activity.
Information from Anonymous
Informants
 An anonymous tip that a particular person at
a particular location is carrying a gun is not,
without more information, sufficient to justify
law enforcement officers in stopping and
frisking that person.
Information from Police Flyers,
Bulletins, or Radio Dispatches
 A law enforcement officer may stop a
person on the basis of a flyer, bulletin, or
radio dispatch issued by another law
enforcement agency as long as the issuing
law enforcement agency has a reasonable
suspicion that the person named in the flyer,
bulletin, or dispatch is or was involved in
criminal activity.
Permissible Scope of a Stop
 An investigative stop must last no longer
than is reasonably necessary and must use
the least intrusive methods reasonably
available to confirm or dispel an officer’s
suspicions of criminal activity.
Ordering Driver and Passengers Out
of a Vehicle
 An officer who has lawfully stopped a motor
vehicle may order both the driver and
passengers out of the vehicle pending
completion of the stop.
Reasonable Investigative Methods
During a Stop
 If an officer has reasonable suspicion to
justify a stop of a person, and that person
subsequently refuses in violation of state
law to identify herself, the officer may be
permitted to expand the scope of the
detention by arresting the person.
Time Issues

The time taken for a stop must be
reasonable.
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Courts consider the law enforcement purposes to be
served and the time reasonably needed to effectuate
those purposes.
Stops should be initiated immediately. However, a short
delay in making the stop may be justified in certain
situations.
Use of Force
 An officer making a stop must use an
objectively reasonable degree of force or
threat of force.
Stop
Arrest
Purpose
Brief investigatory detention.
To bring a suspect into custody as the prelude to
criminal prosecution.
Justification
Reasonable suspicion.
Probable cause.
Warrant
Not needed
Preferred for arrests in public places. Required to
enter a suspect's home. Search warrant needed
to enter a third-party's home.
Notice
None required.
Requires notice that the person is under arrest
and that the officer has the authority to arrest.
Force
Reasonable degree of force. Deadly
force may only be used if, during the
stop, it becomes necessary to act in
self-defense or defense of others.
Reasonable degree of force.
Deadly force may be used if it becomes
necessary to act in self-defense or defense of
others or if needed to stop a fleeing felon from
escaping if the officer has probable cause to
believe that the suspect poses a threat of serious
bodily harm either to the officer or to others.
Time limit
Temporary. No longer than necessary.
Whatever is reasonably necessary to arrest and
bring the suspect into custody for further
processing
Judicial
Review
No automatic right to prompt judicial
review of the legality of the stop.
Prompt judicial review of the legality of the arrest
by a neutral judicial officer is required.
Search
Allowed
Protective pat-down frisk of outer
clothing for weapons may be conducted
if, and only if, the officer has reason to
believe that the person stopped is
armed and dangerous.
A full body search of the arrestee for weapons
and evidence may be conducted as a search
incident to any valid, custodial arrest. Officers
may also search the areas of arrestee’s
immediate control.
Defining “Frisk”


A frisk is a limited search of a person’s body
consisting of a careful exploration or patdown of the outer surfaces of the person’s
clothing in an attempt to discover weapons.
A frisk protects the officer and others from
possible violence by persons being
investigated for crime.
Limited Authority to Frisk

Frisks are based on reasonable suspicion.


The officer must have reason to believe that the
individual is armed and dangerous.
Justification to frisk usually requires a
combination of one or more factors,
evaluated in the light of an officer’s
experience and knowledge.
Scope of a Frisk
 A frisk must initially be limited to a pat-down
of a person’s outer clothing.
 If a weapon or weapon-like object is detected or if a
non-threatening object’s identity as contraband is
immediately apparent to an officer’s sense of touch, the
officer may reach inside clothing or a pocket and seize
the object.
 Non-threatening contraband (i.e., drugs) must be
immediately apparent to an officer’s sense of touch, and
the officer must have probable cause, upon feeling the
object, that the object is this kind of contraband.
Scope of a Frisk of Motor Vehicle
Occupant
 If a law enforcement officer has a
reasonable suspicion that a motor vehicle’s
occupant is armed and dangerous, the
officer may frisk the occupant and search
the passenger compartment of the vehicle
for weapons.
 The officer may look in any location in the passenger
compartment that a weapon could be found or hidden.
 The officer may also seize items of evidence other than
weapons, if discovered in plain view during the course of
such a search.
Factors Justifying a Frisk

Behavioral and evidentiary factors include:
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The suspected crime involves weapons.
The suspect is nervous, edgy, or belligerent.
There is a bulge in the suspect’s clothing.
The suspect’s hand is concealed in his or her clothing.
The suspect does not present satisfactory identification
or an adequate explanation for suspicious behavior.
The suspect behaves in a secretive, or furtive, fashion.
The officer is in an area known to have armed persons.
The officer believes that the suspect may have been
armed on a previous occasion.
Detentions of Containers and Other
Property

A law enforcement officer may detain
property for a brief time if the officer has a
reasonable, articulable suspicion that the
property contains items subject to seizure.

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The officer may not search the property without a
search warrant or probable cause during an emergency.
The property may be subjected to a properly conducted
“canine sniff.”
An officer’s physical manipulation of a person’s
belongings without reasonable suspicion that there is
criminal evidence within it is unreasonable.
Traffic Stops and Roadblocks

A law enforcement officer may not stop a motor
vehicle and detain the driver to check license
and registration unless the officer has
reasonable, articulable suspicion of criminal
activity or unless the stop is conducted in
accordance with a properly conducted highway
checkpoint program.

Involves balancing the gravity of the public concerns
served by the seizure, the degree to which the seizure
advances the public interest, and the severity of the
interference with individual liberty.
Racial Profiling
 Many states and the federal government
have rules prohibiting racial profiling by law
enforcement officers.
 Many states require law enforcement agencies to
collect statistical data on racial profiling.
 Courts are increasingly receptive to arguments by
plaintiffs that they have been targets of racial
profiling, and may exclude evidence or subject
offending officers to civil rights lawsuits.
Detentions, the USA PATRIOT Act,
and the War on Terror
 The USA PATRIOT Act permits the
indefinite detention of enemy combatants
who are non-U.S. citizens, including
permanent resident aliens, if the United
States Attorney General certifies that he has
“reasonable grounds to believe” that the
non-citizen has engaged in terrorist activity.
Detentions, the USA PATRIOT Act,
and the War on Terror
 The USA PATRIOT Act permits the
indefinite detention of enemy combatants
who are non-U.S. citizens, including
permanent resident aliens, if the United
States Attorney General certifies that he has
“reasonable grounds to believe” that the
non-citizen has engaged in terrorist activity.