What type of test has the supreme court relied upon in order to distinguish stops from nonstops?

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Distinguish between a stop and a nonstop. � Explain when a stop-and-frisk is permissible. � Summarize stop-and-frisk procedure. � Explain the relevance of drug courier profiling in the stop-and-frisk context. � Compare and contrast investigative detentions with stop-and-frisk.

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CHAPTER OUTLINE

Actions Based on Reasonable Suspicion

C H

A P

T E

R

OUTLINE

Introduction: Loosening the Fourth Amendment’s Restraints

Stop and Frisk: Two Separate Acts Between Reasonable Suspicion and

Stop-and-Frisk The Stop

Definition of a Stop Alternative Definitions of a Stop Duration of a Stop The Meaning of “Free to Leave” Can Effects Be Seized?

The Frisk Permissible Grounds for a Frisk Scope of a Frisk

The Evolving Nature of Stop-and-Frisk Law Vehicle Stops and Weapons Searches of

Automobiles Protective Sweeps of Residences Plain Touch and Feel Stops for Loitering

Drug Courier Profiling Landmark Cases Race and Drug Courier Profiling

Investigative Detentions Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Loosening the Fourth Amendment’s Restraints

Chapter 3 introduced reasonable suspicion as the appropriate standard of justification required for a police officer to conduct a stop-and-frisk. Reasonable suspicion was defined as a lesser degree of certainty than probable cause but a greater degree of certainty than a hunch or unsupported belief.

The term reasonable suspicion is found nowhere in the Constitution. Rather, reasonable suspicion is a standard created by the Supreme Court. The reason that the Court declared that certain confrontations between police and citizens can be based on reasonable suspicion is that crime control could not be accomplished without a lower standard than probable cause. If probable cause was always required, police officers would not even be able to question people about suspected involvement in criminal activity without a high degree of justification.

Reasonable suspicion can be understood in terms of the due process/crime control distinction raised in Chapter 1. The law governing stop-and-frisk attempts to achieve a balance between due process and crime control. On the one hand, most people find it

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184 Part 2 • Search and Seizure

desirable for the police to control crime. If crime ran rampant, people would curtail their activities by, for example, not going out at night. On the other hand, the Constitution is a highly prized guarantor of personal freedoms. Many people, despite their desire to see crime decline, would object to aggressive search-and-seizure tactics by the police. Reasonable suspicion is something of a compromise, then, between the conflicting goals of crime control and due process. It can be seen as achieving a balance between having unrestricted law enforcement and being able to apprehend lawbreakers.

Recall two critical points from Chapter 3. First, when police activity does not constitute a search, the Fourth Amendment does not apply. By extension, then, when the Fourth Amendment does not apply, probable cause is not required. Much the same logic applies to a stop and a frisk. If police conduct falls short of a stop or a frisk, the Fourth Amendment does not apply. Thus, when the Fourth Amendment does not apply, reasonable suspicion is not required. And if the police confront a person but such activity does not constitute a stop or a frisk, no justification is required. At the opposite extreme, though, if police conduct amounts to a more significant intrusion than a stop or a frisk, then a different standard of justification will be required—most likely, probable cause.

STOP AND FRISK: TWO SEPARATE ACTS

A stop is separate from a frisk. A stop always precedes a frisk, but a stop does not give a police officer permission to conduct a frisk. Rather, the officer must have separate justi- fication for each act. Reasonable suspicion is required to stop a person, and it is also required to frisk a person.

In Terry v. Ohio (392 U.S. 1 [1968]), the Supreme Court ruled that in addition to the suspicion required to justify a stop, the officer must have reasonable suspicion that the person stopped is armed and dangerous in order to conduct a frisk. In support of this position, the Court used a balancing test: Each intrusion by the government must be justified by a legitimate objective. In other words, no legitimate law enforcement objec- tive is served when a police officer frisks a person whom the officer does not perceive as threatening.

For example, assume a police officer observes two men in an area with much drug traffic activity, whispering to each other and passing items back and forth. Arguably, the officer would have reasonable suspicion that criminal activity is afoot, thus permitting him or her to question the men. However, if the officer does not perceive that either suspect is armed and dangerous, then a frisk would be inappropriate.

Between Reasonable Suspicion and Stop-and-Frisk

In Terry, the Supreme Court also held that before a frisk can take place, the officer must identify himself or herself as a police officer. However, if exigent circumstances exist, the identification may not be necessary. In Adams v. Williams (407 U.S. 143 [1972]), an officer, acting on a tip that a man in a nearby car had a gun at his waist, approached the car and asked the man to open the door. When the suspect rolled down his car window instead of opening the door, the officer reached into the car and removed a gun from the man’s waistband. The officer did not identify himself, but the Supreme Court ruled that the seizure of the weapon was reasonable in light of the circumstances (see also Decision-Making Exercise 3.9).

In addition to requiring that an officer identify himself or herself, the Court in Terry also required an officer to make a “reasonable inquiry.” Few cases have addressed the definition of reasonable inquiry, but as will be considered in the later discussion of

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confession and interrogation law, if the officer’s questions become too accusatory, then they may fall outside the type permitted during the course of a Terry stop.

THE STOP

In many situations, it is clear when a police officer has stopped someone. For instance, when a patrol officer legally pulls a motorist over, it is safe to say that such activity constitutes a stop. Similarly, if a police officer handcuffs a suspect, that person has clearly been stopped (and arrested). But what about a simple confrontation between a foot patrol officer and a pedestrian? If the officer directs general questions—such as “What is your name?”—at the pedestrian, can this be considered a stop? Given that there are many situations such as this, the definition of a stop must be given special attention.

Definition of a Stop

Generally speaking, a stop is the detention of a person by a law enforcement officer for the purpose of investigation. Why does the definition of a stop matter? Remember, if the police officer’s activities do not amount to a stop, then the Fourth Amendment does not apply. This is because a stop is the same thing as a seizure of a person. As the Court observed in Terry v. Ohio, “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person” (p. 16).

In Terry, the Supreme Court stated that “obviously not all personal intercourse between policemen and citizens involves seizures of persons” (p. 20, n. 16). Instead, the Fourth Amendment applies only “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of [a] citizen” (p. 20, n. 16). Thus, there is an important distinction to be drawn between (1) a forcible seizure or a stop and (2) a less intrusive type of confrontation in which, for example, the officer merely ques- tions a person who is free to ignore the officer and leave. The seizure or stop requires reasonable suspicion (provided it is considered a Terry stop and not an arrest), but the simple questioning requires no justification.

There is no easy way to distinguish a stop from a nonstop, but the Supreme Court has attempted to clarify the differences with an objective test. In United States v. Mendenhall (446 U.S. 544 [1980]), the Court observed:

[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circum- stances that might indicate a seizure, even where the person did not actually attempt to leave, would be 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. (p. 554, emphasis added)

The Court’s decision in Mendenhall stemmed from a confrontation between plain- clothes Drug Enforcement Agency (DEA) agents and a 22-year-old African American woman in the Detroit airport. The agents had asked the woman for her ticket and iden- tification, and she complied. When they realized the name on the ticket did not match her name, the agents asked the woman to accompany them into a nearby private room. The Court did not actually decide whether the woman had been stopped, but it did cre- ate the objective test described in the previous quote. Figure 6.1 lists several criteria used to distinguish between a stop and a consensual encounter.

Chapter 6 • Actions Based on Reasonable Suspicion 185

United States v. Mendenhall (446 U.S. 544 [1980])

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186 Part 2 • Search and Seizure

Florida v. Royer (460 U.S. 491 [1983]) was the first case to apply the test set forth in Mendenhall in order to determine the conditions under which a seizure or stop may take place. The facts in Royer were virtually identical to the facts in Mendenhall, except that the officers did not return the detained individual’s plane ticket or driver’s license. The Supreme Court held, in a 5 to 4 decision, that given the circumstances, when the officers did not indicate that the individual was free to leave, a seizure had taken place. The Court wrote:

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal secu- rity of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. (p. 500, emphasis added)

The detained individual was subjected to the functional equivalent of an arrest, and as a result, the agents needed probable cause to detain him for as long as they did (which, incidentally, was only about 15 minutes). Moving the subject from a public loca- tion to a private location was one of the key factors that helped turn the encounter from a stop into an arrest.

Contrast Royer with the Supreme Court’s decision in Florida v. Rodriguez (469 U.S. 1 [1984]). In that case, the Court ruled that a seizure had not taken place when a plain- clothes officer approached a man in an airport, displayed his badge, asked permission to talk with the man, and requested that he move approximately 15 feet to where the man’s companions were standing with other police officers. The Court described this type of confrontation as “clearly the sort of consensual encounter that implicates no Fourth Amendment interest” (p. 5). It seems, therefore, at least in the airport context, that certain confrontations that take place in common areas do not amount to stops within the meaning of the Fourth Amendment.

In another case, Michigan v. Chestnut (486 U.S. 567 [1988]), police officers in their car followed a man who fled on foot when he spotted their patrol car. The officers did

FIGURE 6.1 Factors Used to Distinguish between a Stop and a Consensual Encounter

1. Threatening behavior on the part of officers 2. The presence of several officers 3. Display of a weapon by an officer 4. Physical touching of the person by the officer 5. The issuing of orders as opposed to requests 6. The use of intimidating language or tone of voice 7. A lengthy time period 8. Intrusive actions, such as a full-body search 9. Use of lights or sirens

10. The officer blocking the person’s path 11. Coercive police behavior 12. Taking place out of public view

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Chapter 6 • Actions Based on Reasonable Suspicion 187

not activate their siren or lights, display weapons, ask the man to stop, or attempt to block the suspect’s path. The Court acknowledged that this type of conduct can be “somewhat intimidating,” but it ruled, nevertheless, that the act of police officers fol- lowing the man did not amount to a stop. The situation would have been different, however, if the police officers had visibly chased the defendant. In the Court’s words, “[W]hat constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs” (p. 573).

Yet another case has applied the objective test set forth in Mendenhall. The case of California v. Hodari D. (449 U.S. 621 [1991]) involved the apprehension of an individual who was chased by the police on foot. The Court ruled that the individual had not been seized at the time he threw away a rock of cocaine because the police had not yet caught up with him. The individual argued that he was “stopped” when he was being pursued by the police officers because the chase was sufficient to cause a reasonable person to believe he was not free to leave. In other words, he argued that he was subjected to a “show of authority” stop. Accordingly, the individual argued in court that the cocaine should not be admissible as evidence. Rejecting his argument, the Court ruled that the seizure of a person during a pursuit occurs only when there is an application of force by the police or the suspect submits to police authority (i.e., gives up).

Another case seeks to give meaning to the definition of a stop. In Florida v. Bostick (501 U.S. 429 [1991]), police officers approached a passenger on a bus and asked to inspect his ticket and identification and also his luggage. Both actions were conducted pursuant to a policy that permitted police officers to conduct suspicionless Terry stops for the purpose of detecting drug activity. The Supreme Court refused to adopt the Florida Supreme Court’s analysis, which held that such drug sweeps were seizures, implicating the Fourth Amendment. Instead, the Court ruled that “in order to deter- mine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter” (p. 439). The Supreme Court remanded the case back to the Florida Supreme Court, instead of reversing it. Nevertheless, a portion of Justice O’Connor’s opinion suggests that the majority was not satisfied with the Florida court’s decision: The bus passenger’s per- ception of not being free to leave was, according to O’Connor, “the natural result of his decision to take the bus.”

In United States v. Drayton (536 U.S. 194 [2002]), the U.S. Supreme Court held that Bostick-like bus detentions are permissible and that passengers need not be advised of their right to deny consent to search. And another recent decision requires suspects to provide identification if an officer so requests it (Hiibel v. Sixth Judicial District of Nevada, 5YZ U.S. 177 [2004]).

Alternative Definitions of a Stop

It is instructive to look toward the lower courts for further elaboration of the definition of a stop. Of course, the Supreme Court has the last word on that definition, but other courts have created interesting standards and/or looked to different factors than the reasonable person in their Terry-based analyses.

Instead of adopting the reasonable person test, some lower courts have, for exam- ple, focused on the degree of police coercion in determining what constitutes a stop. In State v. Tsukiyama (56 Haw. 8 [1974]), one of the leading state-level cases in this area, the Hawaii Supreme Court found that no search had occurred when police questioned a man after he had asked them for a flashlight so he could repair his car. The man was

California v. Hodari D. (449 U.S. 621 [1991])

Florida v. Bostick (501 U.S. 429 [1991])

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arrested and charged for weapons and drug offenses because when one of the officers on the scene asked him for his identification, he attempted to reach into the glove box of the car for a weapon. At issue in the case before the Hawaii Supreme Court, though, was whether the initial confrontation between the man and the police was a stop.

The Hawaii Supreme Court pointed to the lack of “command, authority, force, threat, coercion, physical stopping or restraint” (p. 17) at the point when the man asked for a flashlight. It further stated, “Since there was no ‘stop’ or ‘seizure’ of the defendant prior to his overtly unlawful act, we do not have to decide whether the circumstances could have given rise to a belief that ‘criminal activity may have been afoot’ and thus justify a ‘stop’ or ‘seizure’ ” (pp. 17–18). Had the court declared the initial confrontation a stop, the “fruit of the poisonous tree” doctrine (see Chapter 2) could have potentially applied.

In another case, Login v. State (394 So.2d 183 [1981]), the Florida District Court of Appeals had occasion to define when a stop took place. In that case, a man walking in the Miami airport was confronted by a police officer, who displayed his badge and asked the man for identification. The officer asked the man if he could talk for a minute, at which point the officer observed cocaine residue around the man’s nostrils. This raised a question similar to that in the Tsukiyama case: Did a stop occur when the officer asked the man if they could talk?

The court declared that a stop had not occurred and went on to note that it would be risky to rule that a stop automatically occurs the moment a person is confronted. In the court’s words, a rule that a stop occurs the moment a person is confronted by a police officer

would cover a multitude of police-citizen encounters which in no way approach a police seizure of the person, such as police questioning of a prob- able witness to a crime or police inquiries directed to a stranded motorist in need of assistance. To label all police encounters with the public as seizures when accompanied by questioning, no matter how cordial, would tremen- dously impede the police in the effective performance of both their criminal investigation and community assistance functions. (p. 14)

However, the court did note that a seizure does occur when the language used by the police “in tone and content bespeak[s] an order to stop, particularly when employed during a fast moving criminal investigation on the street” (p. 13). This observation is similar to the analysis offered by the Hawaii Supreme Court in Tsukiyama. Perhaps the most significant factor, then, in determining when a stop occurs is the tone and content of the police officer’s questioning.

Other cases, though, would seem to suggest that even the act of asking a person to halt, such as the rider of a bicycle, does not constitute a stop within the meaning of the Fourth Amendment (see People v. King, 72 Cal. App.3d 346 [1977]; State v. Davis, 543 So.2d 375 [Fla. 3d D.C.A. 1989]).

DECISION-MAKING EXERCISE 6.1

Looking for Illegal Aliens

Immigration and Customs Enforcement (ICE—formerly the INS) routinely conducts so-called factory surveys to deter- mine whether illegal aliens are employed at certain work- sites. In these surveys, uniformed and armed agents disperse themselves through the building and approach each

employee in order to inquire about his or her citizenship. While this is going on, employees are free to continue with their work and move about the building. Does such activity amount to a stop, thereby implicating the Fourth Amendment?

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Chapter 6 • Actions Based on Reasonable Suspicion 189

Duration of a Stop

What is the proper duration of a stop? Better yet, when does a stop evolve into an arrest because it takes too long? There are no easy answers. In Florida v. Royer, discussed above, the Supreme Court held that a 15-minute detention exceeded the bounds of a proper stop—and became a de facto arrest. Yet, in certain exceptional circumstances, the Supreme Court has permitted detentions lasting much longer. For example, in United States v. Sharpe (470 U.S. 675 [1985]), officers followed two vehicles suspected of involvement in drug trafficking. One vehicle was stopped and the driver was detained for 40 minutes while the officers sought and stopped the second car and its driver. The Court did not establish a bright-line rule for what time period is considered permissible, but it did state that “in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria” (p. 685). Thus, the 40-minute detention of the driver of the first car was permissible.

In another case, United States v. Montoya De Hernandez (473 U.S. 531 [1985]), a woman who was traveling from Colombia was detained for 16 hours in an airport because she was suspected of being a “balloon swallower” (i.e., a person who smug- gles narcotics by hiding them in his or her alimentary canal). This was actually a very controversial case. The woman was given two options: (1) to return on the next avail- able flight to Colombia or (2) to remain in detention until she was able to produce a monitored bowel movement. She chose the first option, but officials were unable to place her on the next flight, and she refused to use toilet facilities. Officials then obtained a court order to conduct a pregnancy test (she claimed to be pregnant), an X-ray exam, and a rectal exam. The exams revealed 88 cocaine-filled balloons in her alimentary canal. She was convicted of numerous federal drug offenses, but the court of appeals reversed that decision, holding that her detention violated the Fourth Amendment. The Supreme Court, in turn, reversed the court of appeals decision and ruled that the 16-hour detention was permissible. According to the Court, “The deten- tion of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts sur- rounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal” (p. 541).

In another case, Courson v. McMillian (939 F.2d 1479 [11th Cir. 1991]), the Eleventh Circuit Court ruled that an officer’s act of stopping a car and holding the occupants at gunpoint for 30 minutes was not illegal because most of the time was spent waiting for backup to arrive. Citing Adams v. Williams, the court observed:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or criminal to escape. On the con- trary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (pp. 145–146)

DECISION-MAKING EXERCISE 6.2

Creating a “Constitutionally Cognizable” Policy

The city mayor, frustrated with a wave of serious and violent crime in the area, instructs the police to stop and demand identification from each citizen they encounter. As the

mayor’s legal counsel, what would you advise regarding the constitutionality of these instructions to the police?

United States v. Montoya De Hernandez (473 U.S. 531 [1985])

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190 Part 2 • Search and Seizure

Contrast the decision reached in Courson v. McMillian with that reached in United States v. Luckett (484 F.2d 89 [9th Cir. 1973]). In Luckett, the Second Circuit Court declared a jaywalker’s detention invalid because it was based on a hunch that there was a war- rant for the jaywalker’s arrest. The court ruled that the stop effectively turned into an arrest, not just because of the duration of the stop but because there was no basis for an arrest at the time of the stop.

Are there any clear answers, then, as to what the appropriate duration of a stop is? Unfortunately, no, but the Supreme Court has stated that the reasonableness of a stop turns on the facts and circumstances of each case. In particular, the Court has emphasized “(1) the public interest served by the seizure, (2) the nature and scope of the intrusion, and (3) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise” (United States v. Mendenhall, p. 561). Moreover, the Court has ruled that “the use of a particular method to restrain a person’s freedom of movement does not necessarily make police action tantamount to an arrest” and that “police may take reasonable action, based upon the circumstances, to protect themselves . . . or to maintain the status quo” (United States v. Kapperman, 764 F.2d 786 [11th Cir. 1985], p. 790, n. 4).

The Meaning of “Free to Leave”

If a person is confronted but not stopped, is he or she really free to leave? This question invariably arises in criminal procedure class. Many people tend to feel intimidated by police officers, even when asked nonincriminating, innocuous questions. Would it not appear strange to an officer for someone to simply walk away during a conversation with him or her? Would the officer just let the person walk away and go about his or her business? There are no easy answers to questions such as these, but they highlight the differences between theory and reality, as considered in Chapter 1.

Even though the Supreme Court has stated that a stop does not take place when a reasonable person would believe he or she is free to leave, actually leaving during the course of a conversation with a police officer could prove to be something of a risky endeavor. Much the same controversy applies to situations in which a motorist is legally permitted to decline to give a police officer permission to search his or her sur- roundings, even though doing so may create suspicion.

In a similar vein, does a person who is stopped have the right to refuse to answer questions? The answer is yes, for an obvious reason: A person cannot be forced to talk. However, refusing to answer questions could create enough fear on the part of the offi- cer to justify a stop and could also factor into a probable cause determination that could justify an arrest. Despite all Supreme Court rulings to the contrary, then, it is risky to simply walk away from an inquisitive police officer and/or to refuse to provide answers to his or her inquiries.

Can Effects Be Seized?

Terry v. Ohio and subsequent similar cases have mostly focused on stops of persons, but a handful of cases have addressed the stop (i.e., seizure) of property based on less than probable cause. As indicated in Chapter 3, probable cause is required for the seizure of a person if that seizure amounts to an arrest. The same applies to effects, which are usu- ally a person’s personal items. If the detention or seizure of a person’s effects amounts to an arrest, then probable cause is required.

The question, then, is, when does the seizure of a person’s effects rise to the level of an arrest? The Supreme Court attempted to answer this question in United States v. Place (462 U.S. 696 [1983]). In that case, the Court ruled that a 90-minute detention of a person’s luggage in an airport to arrange for a drug dog “sniff” to detect drugs was

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Chapter 6 • Actions Based on Reasonable Suspicion 191

unconstitutional because the detention was too long. Also, the Court stated that “the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion” (p. 710) contributed to the unconstitutional nature of the detention. The Court went on to note that “some brief detentions of personal effects may be so mini- mally intrusive of Fourth Amendment interests that strong countervailing governmen- tal interests will justify seizure based only on specific articulable facts that the property contains contraband or evidence of a crime” (p. 706).

In another case, United States v. Leeuwen (397 U.S. 249 [1970]), the Supreme Court confirmed that there are some situations in which restraints on people’s effects do not amount to a Fourth Amendment seizure. In that case, the police, who were contacted by a suspicious postal clerk, asked post office officials to hold two packages for 29 hours while they investigated the situation and obtained a search warrant. A unanimous Court ruled that the circumstances “certainly justified detention, without a warrant, while an investigation was made” (p. 252). Also, the Court ruled that “[n]o interest protected by the Fourth Amendment was invaded by forwarding the packages the fol- lowing day rather than the day when they were deposited” (p. 253). In short, because the detention of the package did not invade any privacy interest in the package, a Fourth Amendment seizure did not take place.

Summary. A Terry stop/seizure is characterized by two specific events: (1) The police question a person or communicate with him or her and (2) a reasonable person would believe that he or she is not free to leave. Reasonable suspicion is required in order to make a Terry stop conform to Fourth Amendment requirements. Conversely, if an officer detains a person in such a manner that a reasonable person would believe he or she is free to leave, the protections of the Fourth Amendment do not apply and reasonable suspicion is not required. If the officer wishes to conduct a frisk—a separate act from a stop—he or she must have reasonable suspicion that the suspect is armed and dangerous, not just reasonable suspicion, as required for a Terry stop.

There are no clear answers as to what is the appropriate duration for a stop. However, as the Supreme Court suggested in United States v. Mendenhall, a lengthy stop is constitutionally permissible when (1) the public interest is served by the seizure; (2) the nature and scope of the intrusion are not excessive; and (3) the officer possesses enough in the way of objective facts to justify the stop (p. 561). Thus, if a per- son is stopped and detained for a long time based on an officer’s hunch but poses no

DECISION-MAKING EXERCISE 6.3

Stretching the Time Limits of a Stop

Law enforcement officers had a plane under surveillance because they had reasonable suspicion to believe that it was being used to transport narcotics. They approached the aircraft, which was ready for takeoff. Standing near the left wing of the plane, one of the officers raised his badge, identified himself, and, shouting over the noise of the speeding engine, ordered the pilot to shut off the en- gine and get down. The pilot looked from side to side and appeared hesitant about what to do. At that moment, the officer moved in front of the aircraft, drew his gun, pointed it at the pilot, and again yelled to him to shut off

the engine and get out of the plane. The officer identified himself and said he wanted to speak to the pilot because he was suspected of narcotics smuggling. He then patted down the pilot in search of weapons; finding none, he placed his gun back in the holster. The officers then ques- tioned the pilot about the plane’s ownership. The pilot was evasive and ended up supplying inaccurate and contradic- tory information about who owned the plane. The officers then detained him for over an hour while they attempted to determine who owned the plane. Was this action justified?

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192 Part 2 • Search and Seizure

threat to public safety, then the stop will probably be declared illegal. In such a situa- tion, the stop would need to be justified by probable cause because it would amount to a de facto arrest.

THE FRISK

As indicated, the additional step of frisking a suspect is a Fourth Amendment intru- sion that requires justification apart from that required to stop the person. Specifically, in order to conduct a frisk (a superficial examination by the officer of the person’s body surface or clothing to discover weapons or items that could be used to cause harm), the officer needs reasonable suspicion that the suspect is armed and danger- ous. This is in addition to the reasonable suspicion required to stop the person for questioning.

Permissible Grounds for a Frisk

While Terry held that a frisk is permissible only when an officer reasonably fears for his or her safety, there is still considerable dispute over the situations in which a frisk is appropriate. What does it mean, in other words, to fear for one’s safety? A number of court decisions have wrestled with this question.

For example, in Pennsylvania v. Mimms (434 U.S. 106 [1977]), police officers observed a man driving a vehicle with expired plates. The officers stopped the vehicle in order to issue the man a traffic summons. When the officers asked the man to step out of the car, the officers observed a large bulge in the pocket of his jacket. Fearing that the bulge might be a weapon, one of the officers frisked the man. It turned out that the bulge was a .38 caliber revolver. The man claimed at his trial that the gun was seized illegally, but the Supreme Court upheld the frisk. Even though a bulge in one’s pocket does not necessarily indicate he or she has a weapon, the Court granted some latitude in its decision to law enforcement personnel.

However, in Ybarra v. Illinois (444 U.S. 85 [1979]), the Court ruled that officers did not have grounds to frisk 12 bar patrons during a search of the bar itself. Justice Stewart stated in Ybarra that “[t]he ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized nar- cotics search is taking place” (p. 94). Thus, just because someone happens to be in an area in which criminal activity is supposedly taking place does not make him or her eligible for a frisk.

DECISION-MAKING EXERCISE 6.4

What Constitutes a Proper Stop?

On a Wednesday afternoon at 3:00 p.m., Officer Weber was on patrol in a neighborhood that had experienced sev- eral daytime burglaries. Her attention was drawn to a car in the driveway of one residence, which had its trunk open. In the trunk were several plastic trash bags of the type report- edly used by the burglar to carry away the loot. Weber pulled her cruiser into the driveway behind the vehicle, blocking its path. At that point, the driver of the car was closing the trunk and preparing to leave. The driver ap- proached Weber, appearing quite nervous, and asked her

to move the cruiser. Instead of doing so, Weber asked the driver for identification, which he produced. The identifica- tion indicated an address on the other side of town. Weber then frisked the driver, found a gun in his left coat pocket, and arrested him. No evidence connected the driver to the burglaries, but he was prosecuted for unlawfully carrying a concealed weapon. He moved to exclude the gun on the grounds that the initial stop was illegal and that the gun was the fruit of that illegal stop. What should the court decide?

Ybarra v. Illinois (444 U.S. 85 [1979])

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Chapter 6 • Actions Based on Reasonable Suspicion 193

Despite the limitations on frisks imposed by the Ybarra decision, the Court has since gone back somewhat on its decision in that case. In Minnesota v. Dickerson (508 U.S. 366 [1993]), police officers observed a man leaving a “crack” house. As he approached and saw the officers, he turned and began walking in the opposite direc- tion. The officers stopped and frisked him and found drugs on him. The frisk was con- ducted without reasonable suspicion or any other level of justification. The Court ruled that the police exceeded the bounds of a valid frisk when they found drugs on the man’s person, but the Court did not rule that the frisk was unconstitutional. It would seem, then, that under certain circumstances, a frisk is permissible on less than reasonable suspicion. Apparently, the act of leaving a “crack” house and acting eva- sively was sufficient justification to conduct a frisk, even though the police went too far in doing so.

In Arizona v. Johnson (No. 07-1122 [2009]), the Court further expanded the frisk doctrine. In that case, gang task force officers were patrolling and stopped a vehicle for a traffic violation. The officers had no reason to suspect the vehicle’s occupants of crim- inal activity, but they nevertheless ordered them out of the car. One of them was frisked and a weapon was found. The Court sanctioned this activity, noting that “a passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver.”

So, are there any clear rules that establish when an officer can reasonably fear for his or her safety? The answer is no. Ultimately, the determination of a potential threat is a subjective one. Almost without exception, the courts will defer to the judgment of the officer, assuming that he or she is able to articulate some specific facts that contributed to reasonable suspicion that the suspect was armed and dangerous. Figure 6.2 summa- rizes the circumstances as to when a frisk is permissible.

Scope of a Frisk

A number of cases have focused specifically on the permissible scope of a frisk. Two issues have been raised: (1) the definition of a frisk—that is, what the officer can physi- cally do to a person that does not rise to the level of a search; and (2) the items that can be felt for during the course of a frisk.

With regard to the first issue, the Supreme Court in Terry described a frisk as “a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault [a police officer]” (p. 30). In Sibron v. New York (392 U.S. 40 [1968]), the Court offered additional clarification by declaring that the act of reaching into a suspect’s pockets is impermissible when the officer makes “no attempt at an initial limited exploration for arms” (p. 65). Generally, then, a frisk is little more than an open-handed patdown of someone’s outer clothing. Only if the officer feels something that resembles a weapon can he or she then reach into the suspect’s pocket (or other area used to conceal it) to determine what the item is. And as the Supreme Court

FIGURE 6.2 When a Frisk Is Permissible

1. When the person has a reputation for dangerousness 2. When the person is suspected of having committed a dangerous felony 3. When visual cues suggest the presence of a weapon or similar dangerous instrument 4. When the suspect makes suggestive or furtive gestures

Minnesota v. Dickerson (508 U.S. 366 [1993])

Sibron v. New York (392 U.S. 40 [1968])

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observed in United States v. Richardson (949 F.2d 851 [6th Cir. 1991]), “When actions by the police exceed the bounds permitted by reasonable suspicion, the seizure becomes an arrest and must be supported by probable cause” (p. 856).

With regard to the second issue, or the items that can be felt for during the course of a frisk, the Supreme Court in Ybarra v. Illinois emphasized that frisks must be directed at discovering weapons, not criminal evidence. In Ybarra, one of the police officers had removed what he described as a “cigarette pack with objects in it” from the suspect. The Court basically decided that the officer’s actions were too intrusive; the package could not have been considered a threat to the safety of the officers conducting the search. Significantly, the Court did not declare the seizure illegal because the officer was not looking for weapons but because the officer did not have reasonable suspicion to frisk every patron in the bar. Nevertheless, a frisk should not be used as a “fishing expedi- tion” to see if some kind of usable evidence can be found on the person.

Two additional points concerning the scope of a frisk need to be underscored at this juncture. First, just because the Supreme Court has declared that a frisk should be conducted based on the motive to preserve officer safety, this does not mean the officer cannot seize contraband found during the course of a lawful frisk. This issue is discussed in the section on plain touch and feel later in this chapter. What is important now, though, is that a frisk is supposed to be motivated by the desire to remove weapons and other instruments of potential harm from a criminal suspect.

Second, remember that a valid frisk can always evolve into a Fourth Amendment search, provided that probable cause develops along the way. For example, assume that a Chicago police officer frisks a suspect because she fears he may be carrying a gun. If it turns out that the suspect is carrying a pistol, which is illegal in the city of Chicago, she could arrest the suspect and conduct a full search incident to arrest. In this example, though, the object seized during the frisk (i.e., the gun) must be immediately apparent to the officer for the seizure to be legal. As the Supreme Court stated in Minnesota v. Dickerson:

Although the officer was lawfully in a position to feel the lump in respon- dent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. (p. 379)

In the example, then, had the seizure followed careful manipulation of the object by the officer, then a seizure based on the frisk would not conform to Fourth Amendment requirements. Figure 6.3 provides additional examples of proper and im- proper frisks.

Summary. A frisk is permissible when an officer reasonably fears for his or her safety. However, there is no easy way to discern the facts that would cause an officer to reasonably fear for his or her safety. If an officer can offer no facts or testimony to support the frisk, it will probably be declared unconstitutional. On the other hand, if the officer possesses some objective information that served as the basis for a frisk (e.g., observing a bulge in a suspect’s pocket), the frisk will probably be legal.

A number of cases have focused on the permissible scope of a frisk, and three important restrictions have been imposed. First, a frisk can be nothing more than a pat- down of someone’s outer clothing. Groping or squeezing is not permissible. Second, a frisk must be motivated by the desire to promote officer safety, not by the desire to seek out any form of contraband. That is, the sole purpose of a Terry patdown is to protect

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Chapter 6 • Actions Based on Reasonable Suspicion 195

FIGURE 6.3 Examples of Proper and Improper Frisks

Proper: An officer notices a vehicle being driven erratically and stops it. The driver gives false identification, admits having done time for robbery, and is wearing a bulky jacket that he is having a hard time keeping his hands out of. The officer orders him out of the car, pats him down, and finds syringes in the suspect’s jacked pockets (People v. Autry, 232 Cal. App. 3d 365 [1991]).

Proper: An officer is serving a search warrant and pats down a man who is sitting on the couch in the living room. The man is passive and nonthreatening—and the warrant did not authorize any searches of persons (People v. Thurman, 209 Cal. App. 3d 817 [1989]).

Proper: At 1:15 a.m., officers stop a vehicle for driving with its lights off. The driver gets out of the vehicle and heads toward the officers, leaving two other individuals in vehicle. When the officers asked for the driver’s license, he says it is in his socks. Fearing for his safety, the officer quickly frisks the driver and finds a knife in the driver’s sock (People v. Barnes, 141 Cal. App. 3d 854 [1983]).

Proper: An officer responds to a reported “prowler” call and frisks two individuals who could produce no identification and speak only Spanish (People v. Castaneda, 35 Cal. App. 4th 1222 [1995]).

Proper: Two officers observe a young man looking into two parked cars in a back alley where there have been several complaints of criminal activity. The suspect tries to stay out of view of the officers when he noticed them by hiding behind a dumpster. When the officers approach the suspect and ask questions, he becomes combative. They frisk him for weapons (People v. Michael S., 141 Cal. App. 3d 814 [1983]).

Proper: An officer encounters a suspect walking along a street, carrying a television set in an area known for excessive burglaries. He pats the suspect down, checking for weapons (People V. Myles, 50 Cal. App. 3d 1107 [1975]).

Proper: An officer responds to a report of several suspicious individuals in a restaurant parking lot. On arriving at the scene, one of the suspects turns and walks away, whereupon the officer notices a large bulge in his pocket. The officer stops the man, frisks him, and finds a weapon (People v. Miles, 196 Cal. App. 3d 612 [1987]).

Proper: An officer is having a consensual encounter with a man on the street. The man reaches into his pocket, at which point the officer notices a bulge therein. The officer grabs the man’s wrist to prevent him from reaching into the pocket (People v. Rosales, 211 Cal. App. 3d 325 [1989]).

Proper: In response to a “panhandler” complaint, an officer frisks a man after observing a large bulge in the front waistband of his pants (People v. Snyder, 11 Cal. App. 4th 389 [1992]).

Improper: An officer frisks a man who was sitting in a parked car, with the engine running, in the middle of a rural dirt road. The man had no identification or license and refused to the let the officer search the vehicle. He was also nervous (People v. Dickey, 21 Cal. App. 4th 952 [1994]).

the officer from weapons that might be used by the suspect during the encounter. Finally, for an officer to legally seize an item during the course of a frisk, that item must be immediately apparent to the officer as contraband.

For something of a summary of stop-and-frisk law, see Figure 6.4, which contains the San Bernardino, California, Police Department’s stop-and-frisk policy. It succinctly summarizes the discussion thus far.

Source: From California Peace Officers Legal Sourcebook, electronic edition, revision 113 (Sacramento, CA: California Department

of Justice, Office of the Attorney General), section 2.20.

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196 Part 2 • Search and Seizure

FIGURE 6.4 Stop-and-Frisk Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #29 PROCEDURE #3

CURSORY PATDOWN and CUSTODIAL SEARCHES 12-4-02

PURPOSE

To establish a policy governing cursory patdown and custody searches of detained and arrested subjects.

DEFINITIONS

A. Search – A reasonable infringement of an individual’s expectation of privacy. Every individual has the right to be protected from unreasonable searches as set forth by the Fourth Amendment of the United States Constitution and made applicable to the states by the Fourteenth Amendment.

B. Cursory Patdown Search – A search conducted of detained subject for the purpose of detecting weapons.

C. Custody Search – A search conducted of an arrested or detained subject where probable cause exists to arrest, to recover weapons, contraband, or other evidence. Normally custody searches are done during the booking procedure; however, this policy does not preclude in-field custody searches from occurring.

POLICY and PROCEDURES

Cursory Patdown Search

A. Detaining/Arresting 1. When an officer detains any subject suspected of committing a criminal offense

and the officer has reasonable suspicion that subject may have a weapon, the officer shall conduct, or arrange for a cursory patdown search for weapons as soon as practical.

2. When an officer arrests any subject, the officer shall conduct or arrange for a cursory patdown or custody search prior to placing the suspect in a vehicle for transportation.

3. The cursory patdown search for weapons or contraband shall consist of patting the suspect’s body and clothing. The squeezing of loosely fitting clothing, such as jacket seams and pockets or other unexplained masses is permitted. Detected potential weapons and contraband, or containers capable of concealing

DECISION-MAKING EXERCISE 6.5

The Permissible Scope of a Frisk

Two police officers were approached by a person (previously unknown to them) who stated that Jack Smith was in the Valley Grill on First Street and that he had several bags of co- caine for sale. The person provided detailed information con- cerning Smith and described the clothing he was wearing. The officers went to the Valley Grill and found no one of that description. After the officers left the bar, however, they

observed a person walking on the sidewalk who matched the description they had been given. The officers approached him, blocked his path, and asked for his identifi- cation. The man’s identification revealed that his name was Jack Smith. At that point, the officers ordered Smith to remove his shoes. He did so as the officers continued to ask him questions. Was this action appropriate?

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Chapter 6 • Actions Based on Reasonable Suspicion 197

weapons or contraband shall be removed for inspection. Officers shall be cautious of the potential presence of sharp or pointed objects.

B. In the absence of consent or plain sight, other detected objects may not be removed or inspected unless the subject is under arrest or probable cause exists to arrest the subject. Officers are cautioned that probable cause to arrest must exist before non-weapon objects can be removed for inspection.

C. Absent exigent circumstances, an officer of the same sex shall conduct the cursory search. Exigent circumstances are defined as:

• An immediate articulable threat to the officer, public safety, or the potential destruction/disposal of physical evidence.

• Response of a same sex officer will result in an unreasonable period of detention.

Whenever possible, cursory patdown searches by an officer of the opposite sex of the detainee should be in direct sight of a second witnessing officer. Every reasonable effort shall be made to protect the dignity of the arrestee or detainee during the cursory pat- down search.

Custody Search

A. Custody searches shall be conducted of every individual who is arrested and maintained in police custody. A custody search should be conducted as soon as practical. Custody searches may be conducted in the field prior to transport, but must be conducted before an arrestee is allowed to enter the prisoner holding areas of a custodial facility. Most custodial facilities include secure areas away from confined prisoners for the purpose of searching and processing prisoners. Officers will make every reasonable effort to prevent weapons or contraband from entering any jail facility.

B. Custody searches are conducted for the purpose of detecting any and all objects in the possession of the arrestee. Custody searches include the removal of footwear, headwear, or outer clothing such as jackets, coats, sweaters, overpants, coveralls, etc. Non-surgically attached artificial apparatus such as a hairpiece or prosthesis capable of concealing weapons or contraband shall be removed.

C. Absent justification and authorization for a “strip search or body cavity search” (SOP Chapter #29, Procedure #1), arrestees shall not be required to remove shirts, blouses, trousers, pants, skirts, and shorts so long as such clothing items are not so thick to prevent the detection of weapons or contraband, or said items are deter- mined to be of evidentiary value.

D. Absent exigent circumstances, officers of the same sex as the arrestee shall conduct custody searches. Exigent circumstances are defined as: • The immediate destruction of evidence. Opposite sex officers who become

aware of evidence or contraband during a cursory patdown search or other legal means and delaying the custody search would result in the immediate destruc- tion of the evidence or contraband, may conduct a limited custody search for the purpose of recovering the evidence or contraband. If reasonable control tech- niques such as handcuffing the prisoner would prevent the destruction of the evidence or contraband, the custody search shall be delayed until a same sex officer is available.

• The non-availability of a same sex officer or jail custodian. When a same sex of- ficer or jail custodian is not available, a supervisor or watch commander shall authorize an opposite sex custody search. A second opposite sex officer or jail