Evaluating The Terry Stop — Is Stop And Frisk Legal?

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You are standing on a corner or walking along a street minding your own business. Does a police officer have the right to stop you or search you without a warrant? The U.S. Constitution says no. But there is a catch. Law enforcement officers are permitted to make an investigative stop.

An investigative stop refers to a stop made by a police officer who has reasonable suspicion that a person committed a crime. This standard is lower than the probable cause needed to make an arrest. However, the officer must be able to provide explainable reasons for the suspicion, not just a hunch that something was wrong.

  • This type of stop and search is called a Terry stop because the standards were established in the 1968 U.S. Supreme Court decision Terry v. Ohio. In that case, the officer noticed suspicious behavior that indicated three men were casing the area for a stickup. The officer stopped the three men and conducted a patdown, at which point he felt a gun underneath Mr. Terry’s outer clothing. He held the three men to conduct a frisk and found another weapon on codefendant Mr. Chilton. The two men were charged with carrying concealed weapons.
  • Because the search occurred before the men were placed under arrest, the defense attorney argued that the warrantless search was not incident to the arrest and thus was a violation of the men’s Fourth Amendment rights. The judge agreed that the search did not fall under the arrest exemption to the warrant requirement. But the judge admitted the evidence based on the theories that the officer had cause to believe the defendants were acting suspiciously, the officer’s interrogation was warranted, and the officer had authority to pat down the men for his own protection.

The Terry stop has come under scrutiny because of the potential for abuse of power. In New York City, for example, the stop and frisk policies employed by the New York Police Department was found unconstitutional and deemed indirect racial profiling by the judge.

Topics:  Racial Profiling, Stop and Frisk

Published In: Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Law Offices of Gregory S. Robey | Attorney Advertising

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