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Stop and Frisk or Arrest and Search: The Use and Misuse of Euphemisms [Comments upon the Courts, the Police, and the Rest of Us, by Professor Herbert L. Packer]The Journal of Criminal Law, Criminology, and Police Science
Vol. 57, No. 3 [Sep., 1966]
, pp. 251-264 [14 pages]
Published By: Northwestern University Pritzker School of Law
//doi.org/10.2307/1140721
//www.jstor.org/stable/1140721
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Publisher Information
Founded in 1859, the school that would become known as the Northwestern Pritzker School of Law was the first law school established in the city of Chicago. Today, Northwestern Law advances the understanding of law and produces graduates prepared to excel in a rapidly changing world. Northwestern Law uniquely blends a rigorous intellectual environment with a collegial and supportive community. Our students have access to the most interdisciplinary research faculty in the nation. We also have one of the lowest student-faculty ratios, so our students enjoy an unusual amount of individual access to these scholars, even after graduation. Our lakefront location in the heart of downtown Chicago provides a spectacular setting in which to live and study. A major world financial center, Chicago is the third largest city in the United States and one of its largest legal markets. Northwestern Law’s proximity to courts, commerce, and public interest activities enables students to experience the practice of law, as well as its theory, in one of the most vibrant legal and business communities in the world.
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The Journal of Criminal Law, Criminology, and Police Science © 1966 Northwestern University
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Overview
A stop-and-frisk refers to a brief non-intrusive police stop of a suspect. The Fourth Amendment requires that before stopping the suspect, the police must have a reasonable suspicion that a crime has been, is being, or is about to be committed by the suspect. If the police reasonably suspect that the suspect is armed and dangerous, the police may frisk the suspect, meaning that the police will give a quick pat-down of the suspect's outer clothing. The frisk is also called a Terry Stop, derived from the Supreme Court case Terry v. Ohio, 392 U.S. 1 [1968]. Terry held that a stop-and-frisk must comply with the Fourth Amendment, meaning that the stop-and-frisk cannot be unreasonable. According to the Terry court, a reasonable stop-and-frisk is one "in which a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous." Stop-and-frisks fall under criminal law, as opposed to civil law.
Scope of A Reasonable Stop
In Rodriguez v. United States, 575 U.S. __ [2015], the Supreme Court held, "[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, 'become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation." Specifically in Rodriguez, a police officer completed his Terry Stop, and he then had his police dog perform a dog sniff search on the suspect. The Court held that that sniff search violated the Fourth Amendment as it was prolonged beyond the time reasonably required to complete the stop.
Criminal evidence found during an unreasonable search [i.e. evidence that the dog sniff would have detected in Rodriguez after the police officer had already completed his search] is subject to the exclusionary rule and will be excluded from being introduced at trial.
In Utah v. Strieff, 579 U.S. __ [2016], the Supreme Court held that when a police officer finds there is a "valid, pre-existing, and untainted arrest warrant" for an individual, then any evidence obtained from a stop of that individual will be admissible in court, even if the stop would otherwise violate the Fourth Amendment. The Strieff Court referenced its earlier ruling in Brown v. Illinois, 422 U.S. 590 [1975]. In Brown, the Court held that evidence "obtained by the exploitation of an illegal arrest" is not admissible. The Brown Court used a three-factor balancing test regarding the admissibility of the evidence:
- The “temporal proximity” between the initially unlawful stop and the search,
- The Court favored the admissibility of evidence when the evidence was found within a short time of the initial stop
- The presence of intervening circumstances"
- The Court favored the admissibility of evidence when there is a valid warrant that predates the stop and is unconnected with the stop
- The "purpose and flagrancy of the official misconduct"
- The Court favored the admissibility of evidence when the officer's "conduct was lawful," as well as when "there is no indication that the stop was part of any systemic or recurrent police misconduct"
Further Reading
For more on Stop and Frisk, see this University of Minnesota Law Review article, this University of Pennsylvania Law Review article, and this University of Florida Law Review article.