Stop & Frisk

Question 2

Absent probable cause, may a police officer detain a person on the street and conduct a limited search for weapons?

Answer 2

Yes. When an officer observes suspicious conduct that reasonably leads him to believe that a crime is occurring or about to occur, the officer may identify himself as a police officer and make an initial inquiry. If after this the officer still believes a threat to himself or others exists, the officer may conduct a limited search for weapons.

When a police officer stops someone on the street, that person is “seized” because he is not free to simply walk away, and Fourth Amendment protections apply.

Similarly, a pat-down of someone’s outer clothes constitutes a Fourth Amendment search.

The Fourth Amendment prohibits unreasonable searches and seizures. Therefore, the issue to be decided here is whether the police action was reasonable.

Question 3

Is a police officer making a reasonable investigatory stop who has reason to believe that a suspect is armed and dangerous permitted to search the suspect for concealed weapons for the purpose of safely conducting the stop?

Answer 3

Yes. A police officer making a reasonable investigatory stop who has reason to believe that a suspect is armed and dangerous is permitted to search the suspect for concealed weapons for the purpose of safely conducting the stop.

In Terry v. Ohio, 392 U.S. 1 (1968), the Court recognized that a police officer may be reasonable in briefly stopping a suspicious person to investigate possible criminal behavior even if the officer does not have probable cause.

The Court also recognized that an officer making a reasonable investigatory stop who is justified in believing that a suspect is armed and dangerous may conduct a limited protective search for concealed weapons. The purpose of this search must be to preserve the officer’s safety rather than to uncover evidence of a crime.

Question 4

In assessing the reasonableness of a search and seizure, must a court weigh the incremental intrusiveness of the search against the public policy justifying the search?

Answer 4

Whether a search and seizure is reasonable and therefore constitutionally permissible depends on the totality of the circumstances. The public interest must be balanced against an individual’s right to personal security and freedom from arbitrary interference by law officers.

Question 5

Is the detention of an occupant of premises being searched for contraband pursuant to a valid warrant constitutional?

Answer 5

Yes. Under Terry v. Ohio, 392 U.S. 1 (1969), “some seizures . . . constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interest that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.” The detention of an occupant of premises being searched for contraband pursuant to a valid warrant is one such intrusion.

Question 6

(1) Do officers violate the Fourth Amendment by detaining innocent occupants of a home in which a search warrant is being executed for the duration of the search?

Answer 6

(1) No. Under Michigan v. Summers, 452 U.S. 692 (1981), officers may detain innocent occupants of a home in which a search warrant is being executed for the duration of the search. The government interest in this type of detention greatly outweighs the minimal added infringement of privacy.

Question 7

(2) Does an officer’s questioning of a detainee about a matter unrelated to the alleged crimes covered in the search warrant constitute an unreasonable seizure under the Fourth Amendment?

Answer 7

(2) No. An officer’s questioning of a detainee about a matter unrelated to the alleged crimes covered in the search warrant is not an unreasonable seizure under the Fourth Amendment. This Court has previously held that mere police questioning is not a seizure. If officers are detaining someone during a lawful search, the officers may question the detainee about any issue so long as the questioning does not prolong the detention.

Question 8

May police conducting a valid search of a home detain a person for the sole purpose of preventing him from interfering in the search if he is outside the immediate vicinity of the home?

Answer 8

No. The justifications for the Summers exception do not apply to a person detained away from the site of a search. In that situation, the detainee poses no threat to the safety of police officers or to the efficiency or integrity of the search. However, the detainee in that situation would be subject to public stigma arising from a situation that looks and feels like an arrest.

Question 9

Does a search conducted reasonably pursuant to a validly issued search warrant violate the Fourth Amendment where the suspects moved out three months before and the new occupants are of a different race?

Answer 9

No. A search conducted reasonably and pursuant to a valid search warrant does not violate the Fourth Amendment. In executing a search warrant, law enforcement officials may take reasonable steps to ensure the search is completed safely and efficiently.

Officers are permitted to detain the residents of a home for the duration of a validly authorized search under Michigan v. Summers, 452 U.S. 692 (1981). Nevertheless, the residents may not be detained for an extended period of time or by excessive force. The test for validity under the Fourth Amendment is whether the officers’ actions were objectively reasonable.

Question 10

Does an officer’s stop of a car violate the Fourth Amendment if the totality of the circumstances gives rise to a reasonable suspicion of criminal activity, even if each fact considered individually would not give rise to reasonable suspicion?

Answer 10

No. Assessing reasonableness under the Fourth Amendment requires balancing an individual’s privacy interests against the achievement of legitimate government needs. In the case of a brief investigatory stop of a vehicle, this balance requires that a police officer have reasonable suspicion of criminal activity to stop a car.

Although there is no specific test for reasonable suspicion, officers must use their training and experience to assess the totality of the circumstances to determine whether there are objective grounds to suspect a particular person of crime. Each individual factor need not give rise to reasonable suspicion so long as all of the relevant facts, when taken together, do.

Question 11

To determine whether an informant’s tip provides reasonable suspicion, must the totality of the circumstances be analyzed?

Answer 11

Yes. In Illinois v. Gates, 462 U.S. 213 (1983), this Court held that when determining whether an informant’s tip amounts to probable cause, the totality of the circumstances must be analyzed. The same test applies when deciding whether an informant’s tip constitutes reasonable suspicion allowing the police to stop a car.

Question 12

reasonable suspicion

Answer 12

a lesser standard than probable cause, requiring only that the police be able to articulate specific facts supporting their suspicion. Therefore, the quantity and quality of the informant’s information can be less than that demanded for probable cause. Furthermore, the information can be less reliable than that needed to show probable cause.

Question 13

Can an anonymous tip of reckless driving support the reasonable suspicion necessary for a traffic stop if the tip is accompanied by adequate indicia of reliability?

Answer 13

Indicia of reliability include a detailed description of the vehicle in question and a detailed account of the reckless conduct. The anonymous tipster in such a case is effectively claiming personal, eyewitness knowledge of the conduct. If this detail is provided, it will often lead an objectively reasonable officer to have reasonable suspicion that the driver is engaging in criminal activity.

Question 14

If police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, may a Terry stop be made to investigate that suspicion?

Answer 14

If police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, a Terry stop may be made to investigate that suspicion. Although the circumstances surrounding the detention of a person wanted for a past crime are not as urgent or dangerous as those surrounding an ongoing crime, the interests of law enforcement in solving the completed crime nevertheless outweigh the suspect’s freedom from seizure. Forcing law enforcement to wait and obtain probable cause in these situations would undoubtedly harm their chances of solving the case, and would give the suspect the opportunity to get away.

Question 15

Does the fact that an individual fits the profile of a drug courier give rise to reasonable suspicion justifying a Terry stop?

Answer 15

Yes. Under Terry v. Ohio, 392 U.S. 1 (1968), a police officer may briefly detain a person to investigate if there is reasonable suspicion to believe that person was engaged in criminal activity.

The Fourth Amendment typically requires probable cause, meaning there must be “a fair probability that contraband or evidence of a crime will be found.” Reasonable suspicion is a less stringent standard than probable cause, but still requires particularized suspicion based upon articulable facts. There is no specific test for reasonable suspicion, but all of the relevant facts and circumstances must be considered. Further, the existence of a profile does not negate the officer’s reasonable conclusion.

Question 16

Does a subject’s unprovoked flight from a police officer, while in a high crime area, amount to reasonable suspicion to justify a stop and frisk?

Answer 16

Yes. In Florida v. Royer, 460 U.S. 491 (1983), the Court held that a person who is stopped by an officer without reasonable suspicion or probable cause may ignore the officer and continue on his way.

However, running from the police is not an exercise of this right but instead amounts to evasive and suspicious behavior that properly leads law enforcement officers to reasonably believe unlawful activity is occurring.

Furthermore, while being in a high crime area is not by itself sufficient, previous cases have considered it as a relevant factor when determining the reasonableness of police conduct.

Finally, it is important to remember that, even in Terry v. Ohio, 392 U.S.1 (1968), the conduct justifying the stop could have been justified with innocent explanations.

The Fourth Amendment does not require that the police exhaust all lawful explanations before they may develop reasonable suspicion, and the Terry opinion acknowledges that police may stop innocent people from time-to-time.

Question 17

Can a mistake of law give rise to the reasonable suspicion necessary to uphold a warrantless seizure under the Fourth Amendment?

Answer 17

Yes. A mistake of law can give rise to the reasonable suspicion necessary to uphold a warrantless seizure under the Fourth Amendment. A police officer makes a traffic stop based on the officer’s factual assumptions as to how the car is operating. To satisfy the Fourth Amendment, these assumptions need not be correct, so long as they are reasonable. The officer’s stop is also based on his understanding of the applicable traffic laws. There is no reason to apply one standard to mistakes of fact and another to mistakes of law. Two centuries of cases, although not always decided under the Fourth Amendment, hold that a law enforcement officer’s mistaken understanding of the law may still give the officer probable cause to make an arrest.

Question 18

May a police officer performing a patdown search for weapons seize other contraband detected during the search if the identity of that contraband is not immediately apparent?

Answer 18

No. Under Terry v. Ohio, 391 U.S. 1 (1968), a police officer with reasonable suspicion is permitted to “stop and frisk” a suspect believed to be dangerous, so long as that search is limited to actions necessary to discover whether the suspect has a weapon. The purpose of this is to protect the officers and the public from danger.

A police officer may also seize contraband inadvertently found during a lawful search if that contraband was in plain view. However, if an object’s identity is not immediately apparent, a police officer may not conduct an evidentiary search as part of the patdown after determining that the suspect does not have a weapon.

Question 19

(2) Is the search of an automobile’s passenger compartment permissible if a law-enforcement officer reasonably believes that the suspect is dangerous and may gain immediate control of weapons?

Answer 19

(2) Yes. Although Terry involved the protective patdown of a suspect in search of weapons, this Court’s subsequent precedent has recognized the significant dangers for law-enforcement officers during investigative detentions of suspects in vehicles. Accordingly, this Court has held that officers may order all of a vehicle’s occupants out of the vehicle during a stop and may frisk them all if there is a reasonable belief that they are armed and dangerous. Similarly, after an officer arrests a suspect, the officer may search for weapons both on the arrested person and the area in the person’s immediate control, including both the passenger compartment of a car and any open or closed containers found in the passenger compartment.

Question 20

Incident to a lawful arrest, may the police conduct a warrantless search of a premises when they have reasonable suspicion to believe that other people who may pose a threat could be hiding in the home?

Answer 20

Yes. Incident to a lawful arrest, a protective sweep of a premises is permitted provided it is supported by reasonable suspicion justified by articulable facts that others may be hiding in the building. The protective sweep is limited to areas where people could be hiding; and it lasts no longer than necessary to dispel the reasonable suspicion.

However, incident to a lawful arrest, and without probable cause or even reasonable suspicion, the police may search areas of the premises immediately adjoining the place of arrest where someone posing a risk to the police could be hiding.

While the unwarranted search of a home is generally unreasonable under the Fourth Amendment, the balancing test applied in Terry v. Ohio, 392 U.S. 1 (1968), is applicable here.

Question 21

Is the use of physical force with intent to restrain a seizure even if the force used does not successfully restrain the subject?

Answer 21

Yes. The use of physical force with intent to restrain is a seizure even if the force used does not successfully restrain the subject. The Fourth Amendment protects against unlawful and unreasonable seizure. A common-law arrest constitutes a seizure. An application of force to another person with the intent to restrain that person for an arrest is also a seizure, even if the person ultimately escapes. For a use of force to constitute a seizure, the person applying the force must have the intent to restrain the person against whom force is applied.

Question 22

May fingerprints obtained during an illegal detention be used as evidence?

Answer 22

The Fourth Amendment applies to investigatory seizures, including seizures done for the sole purpose of obtaining fingerprints. While it is possible that, in some situations, fingerprinting may be a less-serious intrusion than other types of police searches, there is nothing about fingerprint evidence that would exempt it from the restrictions of the Fourth and Fourteenth Amendments.

Question 23

(1) Are police offers permitted under the Fourth Amendment to move a suspect to another location during a Terry stop without a legitimate law enforcement purpose?

Answer 23

No. During a Terry stop, moving a suspect to another location is improper if the officer’s interests in doing so are not legitimate law enforcement purposes. Ensuring the safety and security of officers and bystanders might be a legitimate reason to move a suspect. Officers are not barred from approaching a person and asking questions, so long as the person is free to leave.

The Fourth Amendment is only implicated if there has been a detention.

Question 24

(2) Will a suspect’s consent to a warrantless search be valid under the Fourth Amendment if the consent was given while the suspect was illegally detained?

Answer 24

No. When police officers conduct a search without a warrant, probable cause, or exigent circumstances, the search will only be valid under the Fourth Amendment if the suspect consented.

The government bears the burden of proving that consent was voluntary. The suspect’s submission is not enough.

Voluntary statements made during an illegal detention are inadmissible in court.

Question 25

Does an arrest for failure to provide identification violate the Fourth Amendment?

Answer 25

No. An arrest for failure to provide identification does not violate the Fourth Amendment if the request was reasonably related in scope to the circumstances which justified’ the stop.

Under Terry v. Ohio, 392 U.S. 1 (1968), a police officer with reasonable suspicion that a suspect is or has been engaged in criminal behavior may briefly detain that person to investigate without violating the Fourth Amendment. Nevertheless, the stop must be valid at the outset, reasonably related to the facts giving rise to the stop, reasonable in length, and less than a full custodial arrest.

Case law indicates that requests for identification during Terry stops are constitutional and serve important governmental interests in effectively investigating crimes and protecting police and others from dangerous suspects.

Question 26

Under the Fourth Amendment, may a police officer prolong a routine traffic stop to have a drug-sniffing dog walk around the vehicle?

Answer 26

No. Once a routine traffic stop has concluded, an officer may not conduct a drug sniff without reasonable suspicion or a search warrant. A routine traffic stop is analogous to a Terry stop, the duration of which may only last as long as necessary to complete the mission of the stop and address any safety concerns. See Terry v. Ohio, 392 U.S. 1 (1968). The authority for the seizure ends when the tasks tied to the traffic violation are completed or should have been completed.

Question 27

Is an express indication from a detaining officer that the detainee is free to go a prerequisite to a voluntary consent to further interrogation?

Answer 27

No. The Court’s Fourth Amendment jurisprudence has consistently stayed away from bright line rules, opting instead for fact-specific inquiries. Continued detention after a detainee is free to leave should be no different. In addition, requiring such a warning after every stop is impractical. Finally, the Court also determines that the subjective intent of the officer does not make continued detention unconstitutional.

Question 28

Can the police seize a suspect and bring him to the police station based only on reasonable suspicion?

Answer 28

No. In order to lawfully bring a suspect into formal police custody and interrogate him at the police station, the police must have probable cause. The rule in Terry v. Ohio, 392 U.S. 1 (1969), that the police may stop and search a citizen on the street based on reasonable suspicion, does not extend to situations where the suspect is brought into the police station.

In Terry, because the intrusion into a citizen’s privacy is limited in terms of scope and timing, a balancing of the government’s interest and a citizen’s interests was appropriate.

However, bringing someone to a police station where they are not free to leave, and subjecting them to formal interrogation, is a far greater intrusion and demands probable cause to be reasonable under the Fourth Amendment.

Question 29

Is a detention justified as an investigative stop if police diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly?

Answer 29

Yes. A detention is not too long in duration to be justified as an investigative stop if police diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly, during which time it is necessary to detain the suspect.

In performing this analysis, courts should not engage in “unrealistic second-guessing. . . . The question is not simply whether some other alternative was available, but whether police acted unreasonably in failing to recognize or to pursue it.”

Question 30

Is probable cause necessary for an officer to invoke the plain view doctrine?

Answer 30

Yes. The plain view doctrine demands that probable cause exist before an officer may search or seize a piece of evidence. The Fourth Amendment protections against unreasonable searches and seizures are both due equal protections and must be treated the same under the plain view doctrine. As such, just as the plain view doctrine allows police to seize evidence without a warrant when they observe incriminating evidence in plain view, it permits officers to search items by moving them for closer inspection.

Question 31

Does the search of a probationer’s home for investigative rather than probationary purposes violate the Fourth Amendment?

Answer 31

No. Probation and other criminal sanctions reduce rights and freedoms. The purposes of probation are to rehabilitate the offender and protect the public; rehabilitation is not the only goal. Probationers are more likely to commit crimes and have greater motivation to hide the evidence. Thus, the search of a probationer’s property may be done for investigative as well as probationary purposes.

Question 32

Under the Fourth Amendment, may a parolee be searched without a warrant, probable cause, or suspicion?

Answer 32

yes. Reasonableness under the Fourth Amendment requires considering the totality of the circumstances and balancing an individual’s privacy interests against legitimate governmental goals. Parolees are legally in the custody of the state for the duration of parole. Because parole is analogous to prison, a parolee’s diminished privacy rights are more like those of a prisoner than a probationer. The state’s interest in protecting the public and rehabilitating the offender are substantial. Under California law, a parolee must consent to search or seizure with or without cause as a condition of release.