What is Stop and Frisk?
Both presidential candidates discussed it. President-elect Trump was for it. Mrs. Clinton was against it. Neither explained it.
In this piece, I explain it so a person without law school training can understand it. In the next, I'll deal with the controversy surrounding it.
The starting point for the inquiry is the Fourth Amendment which provides that before a search or seizure can be constitutional there must be "probable cause" for that search or seizure.
"The right of the people to be secure in their persons ... and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath ... and particularly describing the place to be searched, and the persons or things to be seized."
The courts have held that probable cause means "reasonable cause" or "reasonable grounds." If all the facts known to the officer make it "reasonable" for him to search or arrest, he may constitutionally do so. To be constitutional, the search must be REASONABLE.
In Terry v. Ohio in 1968, the U.S. Supreme Court held that the Fourth Amendment prohibition against unreasonable searches and seizures is not violated when a police officer "briefly stops" a suspect on the street and inquires as to his identity, and what he is doing, even though the officer might lack "probable cause" to arrest and haul a person off to jail, or conduct a full search -- if the police officer has a "reasonable suspicion" that the person has committed, is committing, or is about to commit a crime. The officer could take the further step of "frisking" the defendant if he had a "reasonable suspicion" that the person stopped might be armed or dangerous to the officer.
This reasonable suspicion -- like probable cause -- must be based on "specific and articulable facts" and not merely upon an officer's "hunch." The bottom line is that the officer's conduct still must be REASONABLE as required by the 4th Amendment, which prohibits only unreasonable searches or seizures.
But fewer "specific and articulable facts" are generally thought to be necessary to make a brief stop and/or frisk REASONABLE than would be required to justify a full "custodial arrest," and/or a complete search of the person.
The governing idea behind allowing Stop and Frisk is that it was to be a rather brief, minimal intrusion, done on the street, and an innocent person stopped would be free to go in a few seconds.
Stop and Frisk was perceived to involve a brief inquiry as to the person's identity, and what he was about. But even for such a brief stop "specific and articulable facts" were required. And if additional "specific and articulable facts" existed to justify a "pat down search" -- such as a bulge in the person's pocket indicative of a gun -- the officer could pat down the person's outer clothing.
An additional justification was that unlike traditional Fourth Amendment search for evidence in a criminal case after the commission of the crime, Stop and Frisk was envisioned as a law enforcement street-tool - designed rather to prevent commission of a crime and to insure officer safety during the brief stop.
Stop and Frisk was in the first instance designed to be a public safety measure -- akin to the often times far more pervasive airport security check, designed to keep terrorists and bombs off air liners. The inconvenience to law abiding passengers is deemed reasonable given the danger of planes being blown from the sky, with the death of all passengers.
Stop and Frisk has understandably provoked adverse reaction in minority communities. If you are a law-abiding citizen it is damn unpleasant, if not humiliating, to be stopped on a public street, required to answer questions and patted down even if the "stop" lasts no more than 30 seconds and you're allowed to go on your way. But the same can be said of security checks of law-abiding citizens boarding civilian airliners.
(Editor's note: This is the first of two columns looking at the constitutionality of the law enforcement tool known as Stop and Frisk.)
Posted: QCOline.com December 9, 2016
Copyright 2016, John Donald O'Shea
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