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Terry stop

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Police investigative stops in the United States
Related concepts
Case law
Controversial aspects

A Terry stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity.[1][2] Reasonable suspicion is a lower standard than probable cause which is needed for arrest. When police stop and search a pedestrian, this is commonly known as a stop and frisk. When police stop an automobile, this is known as a traffic stop. If the police stop a motor vehicle on minor infringements in order to investigate other suspected criminal activity, this is known as a pretextual stop. Additional rules apply to stops that occur on a bus.[3]

Although the Supreme Court has published many cases that define the intersection between policing and the Fourth Amendment in the U.S., Congress has not defined a baseline for police behavior. There has been some state action at both the legislative and judicial levels, and also some cities have passed laws on these issues.[4][5] Except where noted, this article will primarily deal with these issues on a national level. Local and state laws may vary, but that is the exception and not the rule.

Current protocols regarding the legality of Terry stops do not account for possible implicit bias of officers, especially since it is difficult to prove. The system therefore provides legitimacy to racially skewed decisions.[6]

Origins

Terry v. Ohio used only the "reasonableness clause" from the Fourth Amendment[7]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,... Reasonableness
...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Warrant

The concept of a Terry stop originated in the 1968 Supreme Court case Terry v. Ohio, in which a police officer detained three Cleveland men on the street behaving suspiciously, as if they were preparing for armed robbery. The police conducted a pat down search and discovered a revolver, and subsequently, two of the men were convicted of carrying a concealed weapon.[8] The men appealed their case to the Supreme Court, arguing that the revolver was found during an illegal search under the Fourth Amendment. This brief detention and search were deemed admissible by the court, judging that the officer had reasonable suspicion which could be articulated (not just a hunch) that the person detained may be armed and dangerous. It is key to note that not just "mere" suspicion was used, but "reasonable" suspicion which could be articulated at a later date.[9]

This decision was made during a period of great social unrest in America in the 1960s, with rising crime, opposition to U.S. involvement in the Vietnam War and the civil rights movement, and race riots. It was thought that law enforcement needed to be provided with tools to deal with the unrest and new issues of urban crime. Some criticized the decision for watering down the prohibition against unreasonable searches and seizures, others praised it for balancing safety and individual rights.[9]: 94 

Expansion through case law

Reasonable suspicion

Further information: Reasonable suspicion

To have reasonable suspicion that would justify a stop, police must have "specific and articulable facts" that indicate the person to be stopped is or is about to be engaged in criminal activity. Because officers usually do not have supervision when they encounter civilians, whether or not they stop them is up to the officer’s discretion.[10] Reasonable suspicion depends on the "totality of the circumstances".[11] Reasonable suspicion is a vague term and the Supreme Court concluded it should be decided on a case-by-case basis. Often it is built out of a combination of facts, each of which would, in itself, not be enough justification for the stop.

Template:Police-civilian encounters

The suspicion must be individualized. Police officers primarily use situational factors based on criminal behavior to determine if a stop is needed.[12] In essence, when they witness a person behaving suspiciously or violating the law, they will stop them. Other factors influencing decision making include personal attitudes and the administration decision making model where the officer works. It is possible for racial profiling to occur on a systematic level.[13] The three modes of primary sources that the Court accepts in order to determine suspiciousness are information obtained from other sources, information based on the suspect’s appearance and behavior, and the time and place of the suspect. Officers can define what they believe is normal, and if and how the suspect deviates from this normalcy.[14] Reasonable suspicion has been used for actions like standing in the wrong place, nervousness, exceptional calmness, or walking quickly in another direction.[15] Past experiences of officers may evolve to suspect behaviors that are usually as innocuous as crime.[16] For instance, social interactions such as hugging or handshakes can be perceived as a drug deal.[17] Suspecting people because they fit into a broad category, such as being in a particular location, being of a particular race or ethnicity, or fitting a profile, are insufficient for reasonable suspicion. However, stop-and-frisk has been validated on the basis of furtive movements; inappropriate attire; carrying suspicious objects such as a television or a pillowcase; vague, nonspecific answers to routine questions; refusal to identify oneself; and appearing to be out of place.[18]

Before 1968, law required that there needed to be substantial evidence in order to impede liberty. While seizures required substantial evidence, the Fourth Amendment did not protect consensual encounters. During the Terry case, the Supreme Court found that to protect the police officer from weapons, the police should have the power to search, even without probable cause.[19] The Terry stop operates under the assumption that though stop and frisk is an intrusion, it pales in comparison to the possibility of harm.[20]

The cases following Terry expanded the power of the police. While the original case was concerned with armed violence and firsthand observation by officers, Adams v. Williams (1972) extended the doctrine to drug possession backed up by the secondhand hearsay of an informant.[21][22] The Adams v. Williams case set a precedent in that police did not need a first person observation but could get information from a confidential informant instead.[23] With regards to this case, Justice Marshall states, “Today’s decision invokes the specter of a society in which innocent citizens may be stopped, searched, and arrested at the whim of police officers who have only the slightest suspicion of improper conduct.”[24]United States v. Hensley (1985) ruled that police officers may stop and question suspects when they believe they recognize them from "wanted" flyers issued by another police department.[25][26] In Illinois v. Wardlow (2000), a person's unprovoked flight from Chicago police officers in "an area known for heavy narcotics trafficking" constituted reasonable suspicion to stop him.[27]

Usually during a Terry stop, the police ask those they detain to identify themselves. Several states require people to provide their names to the police. In Hiibel v. Sixth Judicial District Court of Nevada (2004), these stop and identify statutes were deemed constitutional.[28] While the specifics of "stop and identify" statutes and ordinances vary, a significant number of states and local jurisdictions have "stop and identify" statutes.[29]

Lacking reasonable suspicion, police may stop an individual based on a hunch, constituting a "consensual" stop. United States v. Mendenhall found that police are not generally required to advise an individual that he has been stopped on a consensual basis and that he may leave at any time.[30] An individual can typically determine if a stop is consensual by asking, "Am I free to go?" If the officer responds in the negative or does not respond, the individual is being detained under a Terry stop; otherwise the individual may leave. Mendenhall also found that a consensual stop can be converted into an unconstitutional Terry stop by circumstances such as "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Police who conduct an unconstitutional Terry stop can face administrative discipline and a civil suit.[31]

In Pennsylvania v. Mimms, two police officers gave Mimms a ticket for driving a car with expired car tags. When they asked him to step out, they realized that he had a gun, causing them to promptly arrest him. The Court ruled in favor of the arrest, citing the idea of officer safety as their reasoning. Dissenting justices found that this furthers the expansion of Terry. Since the officers were allowed to ask Mimms to step out of the car, this set a precedent in that officers could now ask citizens to perform actions through warrantless intrusion without justification.[32]

A frisk, also known as a pat-down, of the surface of a suspect's garments is permitted during a Terry stop, but must be limited to what is necessary to discover weapons, and must be based on a reasonable suspicion the individual may be armed.[33] However, pursuant to the plain feel doctrine (similar to the plain view doctrine), police may seize contraband discovered in the course of a frisk, but only if the contraband's identity is immediately apparent.[34][9]

The Supreme Court has placed very liberal requirements on what is "immediately apparent" in regards to contraband. For example, in conducting a pat-down search, an officer feels a hard pack of cigarettes, the officer removes the pack and examines the inside, discovering drugs. He can be allowed to do this because he has prior knowledge, based on experience, that a small switchblade or tiny gun could be hidden in such a box.[35]

Subsequent court cases have expanded the definition of what constitutes a frisk, and what is considered as admissible evidence. In Michigan v. Long, Terry stops were extended to searching the inside of a car passenger compartment if police have reasonable suspicion an occupant may have access to a weapon there. In Minnesota v. Dickerson, the court ruled that "immediately recognized" contraband discovered during a Terry stop is also a lawful seizure.[36]

Just as important to understanding Fourth Amendment rights surrounding Terry stops are cases which fall outside of Fourth Amendment protection. Based on the Supreme Court decision in Schneckloth v. Bustamonte (1972), a person waives Fourth Amendment protections when giving voluntary consent to a search. Police are not required to inform a person of their right to decline the search. Justice Marshall, in his dissent in the case, said it is a "curious result that one can choose to relinquish a constitutional right—the right to be free from unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request".[37][38] Currently, several cities and states require police to inform citizens of their right to deny a search.

Traffic stops

Further information: Traffic stop
New Jersey State Police temporarily detain a driver during a traffic stop on the New Jersey Turnpike.

For practical purposes, a traffic stop is essentially the same as a Terry stop; for the duration of a stop, driver and passengers are "seized" within the meaning of the Fourth Amendment. The Supreme Court has held that drivers and passengers may be ordered out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures. Drivers and passengers may be frisked for weapons upon reasonable suspicion they are armed and dangerous. If police reasonably suspect the driver or any of the occupants may be dangerous and that the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment. Otherwise, lacking a warrant or the driver's consent, police may not search the vehicle, but under the plain view doctrine may seize and use as evidence weapons or contraband that are visible from outside the vehicle.[9]

As decided in Ohio v. Robinette (1996), once an officer returns the drivers identification, there is no requirement that the officer inform the driver they are free to go; therefore, although the encounter has been turned into a consensual encounter, questioning can continue, including a request to search the vehicle.[39]

Pretextual stops

Pretextual stops are a subset of traffic stops deemed constitutional by the Supreme Court in Whren v. United States (1996). They occur when a police officer wishes to investigate a motorist on other suspicions, generally related to drug possession, and uses a minor traffic infringement as a pretext to stop the driver. In the case of Whren, the defense used a "would have" rule: would a reasonable police officer have made the stop without the suspicion of other criminal behavior? On the surface, this is a sensible ruling, but there is much controversy about whether it leaves the door open to racial profiling. This is due to the fact that there are numerous petty violations a driver may violate and the officer can be selective about whom to pull over to investigate.[40] Currently the following 16 states ban pretextual stops based solely upon racial profiling or other immutable factors:[41]

  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Kansas
  • Maryland
  • Mississippi
  • Montana
  • Nebraska
  • New Jersey
  • New Mexico
  • Oklahoma
  • Rhode Island
  • Utah
  • West Virginia

Data collection

The following states require stop-and-frisk data collection:[41]

  • Alabama[a]
  • California[a]
  • Connecticut[a]
  • Florida[a]
  • Illinois[a]
  • Louisiana[a]
  • Maryland[a]
  • Massachusetts[a]
  • Minnesota
  • Missouri
  • Montana[a]
  • North Carolina
  • Nebraska[a]
  • Nevada[a]
  • Rhode Island[a]
  • Texas[a]
  • Washington
  • West Virginia[a]

Using public record requests, the Stanford Open Policing project amassed 60 million state traffic stops in 20 states over the period 2011 through 2015.[42][43]

North Carolina was the first state in the country to require the release of all traffic stop data starting in 2000.[44] Researchers have analysed 20 million traffic stops from this data finding that African Americans as a share of the population were twice as likely to be pulled over than whites and four times as likely to be searched. Hispanics were not more likely to be pulled over, but had a higher likelihood of being searched.[45]

There is a push to release more open police data nationwide. In 2015, the White House launched the Police Data Initiative which, as of 2018, has 130 participating police departments, some of which provide data sets on stop-and-frisk.[46][47] But, this is a very small percentage of the 17,000 police departments nationwide, only accounting for around 15% of the country's population.[48]

See also

Notes

  1. ^ a b c d e f g h i j k l m n Require this data to be published (including Kansas)

References

  1. ^ "Terry v. Ohio, 392 US 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)". Google Scholar. Retrieved 11 September 2019.
  2. ^ "United States v. Sokolow, 490 US 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)". Google Scholar. Retrieved 11 September 2019. ("In Terry v. Ohio, 392 U. S. 1, 30 (1968), we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause.")
  3. ^ "Motions to Suppress in Removal Proceedings" (PDF). American Immigration Council. 1 August 2017. Retrieved 13 November 2018., page 8 (Bus and Train Sweeps)
  4. ^ Barry Friedman, Tracey Meares, and Charles H. Ramsey, moderated by Jeffrey Rosen. A Discussion on Privacy and Policing at the National Constitution Center (Video). Philadelphia, PA: National Constitution Center.
  5. ^ Gorman, Michael J. (2007). "Survey: State Search and Seizure Analogs" (PDF). Mississippi Law Journal. 77.
  6. ^ Hutchins, Renee (2013). "Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops". Digital Commons.{{cite web}}: CS1 maint: url-status (link)
  7. ^ Stelzner, Luis G. (1980). "The Fourth Amendment: The Reasonableness and Warrant Clauses". New Mexico Law Review. 10 (1).
  8. ^ "Terry v. Ohio". Oyez. Retrieved 13 November 2018.
  9. ^ a b c d Samaha, Joel (2011). Criminal Procedure (8 ed.). ISBN 978-1133171171.
  10. ^ Alpert, Geoffrey P.; Macdonald, John M.; Dunham, Roger G. (2005-05-XX). "POLICE SUSPICION AND DISCRETIONARY DECISION MAKING DURING CITIZEN STOPS*". Criminology. 43 (2): 407–434. doi:10.1111/j.0011-1348.2005.00012.x. ISSN 0011-1384. {{cite journal}}: Check date values in: |date= (help)
  11. ^ Susskind, R.S. (1993). "Race, Reasonable Articulable Suspicion, and Seizure". American Criminal Law Review. 31: 327. Retrieved 13 November 2018.
  12. ^ Alpert, Geoffrey P.; Macdonald, John M.; Dunham, Roger G. (2005-05-XX). "POLICE SUSPICION AND DISCRETIONARY DECISION MAKING DURING CITIZEN STOPS*". Criminology. 43 (2): 407–434. doi:10.1111/j.0011-1348.2005.00012.x. ISSN 0011-1384. {{cite journal}}: Check date values in: |date= (help)
  13. ^ Alpert, Geoffrey P.; Macdonald, John M.; Dunham, Roger G. (2005-05-XX). "POLICE SUSPICION AND DISCRETIONARY DECISION MAKING DURING CITIZEN STOPS*". Criminology. 43 (2): 407–434. doi:10.1111/j.0011-1348.2005.00012.x. ISSN 0011-1384. {{cite journal}}: Check date values in: |date= (help)
  14. ^ Alpert, Geoffrey P.; Macdonald, John M.; Dunham, Roger G. (2005-05-XX). "POLICE SUSPICION AND DISCRETIONARY DECISION MAKING DURING CITIZEN STOPS*". Criminology. 43 (2): 407–434. doi:10.1111/j.0011-1348.2005.00012.x. ISSN 0011-1384. {{cite journal}}: Check date values in: |date= (help)
  15. ^ Hutchins, Renee (2013). "Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops". Digital Commons.{{cite web}}: CS1 maint: url-status (link)
  16. ^ Cooper, Hannah; Moore, Lisa; Gruskin, Sofia; Krieger, Nancy (2004-7). "Characterizing Perceived Police Violence: Implications for Public Health". American Journal of Public Health. 94 (7): 1109–1118. doi:10.2105/ajph.94.7.1109. ISSN 0090-0036. PMC 1448406. PMID 15226128. {{cite journal}}: Check date values in: |date= (help)
  17. ^ Cooper, Hannah; Moore, Lisa; Gruskin, Sofia; Krieger, Nancy (2004-7). "Characterizing Perceived Police Violence: Implications for Public Health". American Journal of Public Health. 94 (7): 1109–1118. doi:10.2105/ajph.94.7.1109. ISSN 0090-0036. PMC 1448406. PMID 15226128. {{cite journal}}: Check date values in: |date= (help)
  18. ^ Kären M. Hess; Christine Hess Orthmann (2010), Criminal Investigation (9th ed.), p. 100
  19. ^ Hutchins, Renee (2013). "Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops". Digital Commons.{{cite web}}: CS1 maint: url-status (link)
  20. ^ Bandes, Susan A.; Pryor, Marie; Kerrison, Erin M.; Goff, Phillip Atiba (2019-03). "The mismeasure of Terry stops: Assessing the psychological and emotional harms of stop and frisk to individuals and communities". Behavioral Sciences & the Law. 37 (2): 176–194. doi:10.1002/bsl.2401. ISSN 0735-3936. {{cite journal}}: Check date values in: |date= (help)
  21. ^ Adams v. Williams, 407 U.S. 143 (2d Cir. 1972) ("Here, the information from the informant had enough indicia of reliability to justify the officer's forcible stop of petitioner and the protective seizure of the weapon, which afforded reasonable ground for the search incident to the arrest that ensued").
  22. ^ Harris, David A. (1994). "Frisking Every Suspect: The Withering of Terry" (PDF). UC Davis Law Review. 28 (1).
  23. ^ Hutchins, Renee (2013). "Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops". Digital Commons.{{cite web}}: CS1 maint: url-status (link)
  24. ^ Hutchins, Renee (2013). "Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops". Digital Commons.{{cite web}}: CS1 maint: url-status (link)
  25. ^ United States v. Hensley, 469 U.S. 221 (6th Cir. 1985) ("If a "wanted flyer" has been issued on the basis of articulable facts supporting a reasonable suspicion that the person wanted has committed an offense, then reliance on that flyer justifies a stop to check identification, to pose questions, or to detain the person briefly while attempting to obtain further information").
  26. ^ Weiss, Rachel S. (2009). "Defining the Contours of United States v. Hensley: Limiting the Use of Terry Stops for Completed Misdemeanors". Cornell Law Review. 94 (5).
  27. ^ Bernache, Damien (2008). "The "High-Crime Area" Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis". American University Law Review. 57 (6).
  28. ^ Nederhood, Robert (2005). "All or Nothing: The Supreme Court Answers the Question What's in a Name". Journal of Criminal Law & Criminology. 95 (3).
  29. ^ "Stop and Identify Statutes in the United States" (PDF). Immigrant Legal Resource Center. 1 February 2018. Retrieved 21 April 2021.
  30. ^ Writing for the Court in United States v. Mendenhall, 446 U.S. 544 (1980) Justice Stewart stated,
    Our conclusion that no seizure occurred is not affected by the fact that the respondent was not expressly told by the agents that she was free to decline to cooperate with their inquiry, for the voluntariness of her responses does not depend upon her having been so informed. — 446 U.S. at 555
  31. ^ "Consensual Encounters". www.policemag.com. Retrieved 16 December 2018.
  32. ^ Hutchins, Renee (2013). "Stop Terry: Reasonable Suspicion, Race, and a Proposal to Limit Terry Stops". Digital Commons.{{cite web}}: CS1 maint: url-status (link)
  33. ^ Argiriou, Steven. "Terry Frisk Update" (PDF). Federal Law Enforcement Training Center. Retrieved 13 November 2018.
  34. ^ Larson, Aaron (2 February 2017). "What Are Your Fourth Amendment Rights". ExpertLaw. Retrieved 5 September 2017.
  35. ^ Terry Frisk Update (PDF) (Report). Federal Law Enforcement Training Centers.
  36. ^ Gandy, Imani (7 October 2016). "Boom! Lawyered: Stop-and-Frisk Edition". Rewire.News. Retrieved 13 November 2018.
  37. ^ Loewy, Arnold H. (2010). "Knowing 'Consent' Means 'Knowing Consent' - The Underappreciated Wisdom of Justice Marshall's Schneckloth v. Bustamonte Dissent" (PDF). Mississippi Law Journal. 79 (1).
  38. ^ Burke, Alafair S. (2016). "Consent Searches and Fourth Amendment Reasonableness". Florida Law Review. 67 (2).
  39. ^ Dery, George M. III (1998). ""When Will This Traffic Stop End?": The United States Supreme Court's Dodge of Every Detained Motorist's Central Concern—Ohio v. Robinette". Florida State University Law Review. 25 (3).
  40. ^ Harris, David A. (1997). "Driving While Black and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops". Journal of Criminal Law and Criminology. 87 (2): 544–582. doi:10.2307/1143954. JSTOR 1143954.
  41. ^ a b "Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America" (PDF). NAACP. 2014.
  42. ^ "Stanford Open Policing project". Stanford Computational Journalism Lab.
  43. ^ Pierson, Emma (2017). "A large-scale analysis of racial disparities in police stops across the United States". arXiv:1706.05678 [stat.AP]. {{cite arXiv}}: Unknown parameter |url= ignored (help)
  44. ^ "North Carolina Traffic Stop Statistics: Frequently Asked Questions". North Carolina Attorney General.
  45. ^ Baumgartner, Frank R.; Epp, Derek A.; Shoub, Kelsey (2018). Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race. Cambridge University Press. ISBN 978-1108454049.
  46. ^ Smith, Megan; Austin Jr, Roy L. (May 18, 2015). "Launching the Police Data Initiative". The White House, President Barack Obama.
  47. ^ "National Police Foundation Publishes Best Practices Guide for Police Open Data". Police Foundation.
  48. ^ Jackman, Tom (April 26, 2016). "Only 53 police agencies participating in national push for use of force statistics". Washington Post.

Further reading

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