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Is “Stop & Frisk” a Thing of the Past?

December 29, 2016

“If the Justice Department orders local police to resume Stop and Frisk, we will not comply.” NY City Mayor Bill de Blasio in a speech on 11/21/2016.

So, police in New York City don’t stop and frisk people anymore? Not exactly. Mayor de Blasio was referring to the fact that in 2013, a federal judge ruled that the New York City Police Department’s stop-and-frisk practices were unconstitutional. The judge found that the NYPD was routinely detaining and searching New Yorkers without good reason and doing so in a racially discriminatory way. But don’t let anyone tell you that the police can’t stop and frisk. “Stop and frisk” has been the law of the land since the 1968 U.S. Supreme Court Terry v. Ohio decision (392 U.S. 1 (1968)).

When is it legal for police to conduct a stop and frisk? The Terry decision provides an example. In that case Cleveland Police detective Martin McFadden saw John Terry and another man walking past and peering inside a store about a dozen times. After passing the store each time, the two men spoke to each other and a third man. Based on his observations and 39 years of experience, Detective McFadden suspected the two men were planning to rob the store. McFadden grabbed Terry, patted down his clothing and felt a pistol in Terry’s coat pocket. Terry was convicted of carrying a concealed weapon. The Supreme Court ruled that McFadden did not violate Terry’s 4th Amendment right to be free from unreasonable search and seizure.

In a nutshell, what the Terry decision and later cases say is that even if a police officer does not have enough information to arrest someone for committing a crime, the officer may forcibly stop a person if the officer has a reasonable suspicion that the person is involved in criminal activity. The stop allows the officer to speak with the suspect and find out what’s going on. If that investigation does not give the officer probable cause to believe that the suspect committed a crime, the person must be let go.

It’s important to note that just because a “stop” may be legal, the subsequent “frisk” is not legal unless all of the circumstances give the officer a reasonable suspicion that the suspect is armed and dangerous. So, Detective McFadden could frisk Terry because a person who may be about to commit a robbery usually does so with a weapon. If the officer had suspected the men of, say, illegally throwing dice, it’s not likely a frisk would be justified.

There are hundreds of court opinions in Maryland alone exploring the constitutionality of individual stops and frisks. The results always turn on the specific facts of each case. If you’ve been charged with a crime, you need a lawyer well versed in the law of criminal procedure to help you navigate this legal minefield.