Terry Stop & Frisk

Question 1

Levels of Suspicion

Answer 1

• PROBABLE CAUSE - Substantial basis, fair probability, less than a preponderance of the evidence
• REASONABLE SUSPICION - Less than PC
• HUNCH
• NO SUSPICION
• INDIVIDUALIZED SUSPICION – sobriety checkmark example (seizure but no individualized suspicion)

Question 2

Terry v. Ohio (S. Ct, 1968)

Answer 2

RULE: If police have reasonable suspicion that a suspect has/will commit a crime, police may stop him, DETAIN HIM briefly for questioning and then FRISK THE SUSPECT if they reasonably believe he is carrying a dangerous weapon—without probable cause for arrest

Question 3

Terry Stop

Answer 3

A TERRY STOP is a seizure—whenever a cop accosts an individual and restrains his freedom to walk away, he has seized that person

Question 4

Terry Stop & Frisk Standard

Answer 4

REASONABLE SUSPICION – specific and articulable facts taken together with rational inferences from those facts reasonably warrant that intrusion

STOP & FRISK are separate – need reasonable suspicion for each action and must analyze separately

REASONABLE SUSPICION can be based on:
♣ Cops’ personal knowledge
♣ Hearsay, informants (basis of knowledge & veracity).
♣ Flight coupled with additional evidence (e.g. high crime area)
♣ Collective knowledge doctrine

Question 5

Reasonable suspicion to SEIZE

Answer 5

♣ Facts that result in conclusion that “crime is afoot”
• People that haven’t yet committed a crime (attempt!)
• Police can take away your liberty before you’ve done anything wrong based on police belief (R/S) that you will

Question 6

Reasonable suspicion to FRISK

Answer 6

Armed and dangerous
♣ Justification? Not to obtain evidence, only for officer safety/weapons
♣ Factors that courts have mentioned (none of which are sufficient alone but in totality of circumstances):
• Bulges in clothing
• High crime area
• Late at night
• Threatening furtive movements
• Nervous or agitated
• Uncooperative
• Reputation for dangerousness (but not criminal record alone)
• If necessary to face away from suspect (e.g., inventory search)

Question 7

Traffic stop

Answer 7

♣ In a Terry Stop, Officer may order driver and passengers out (not a 4th am issue); no additional justification needed

♣ Pat down of driver or passenger upon reasonable suspicion armed and dangerous

Question 8

ID’s

Answer 8

Not unreasonable for officers to require a suspect who is legally detained to ID himself

Question 9

Scope of search

Answer 9

A search can go too far… what’s reasonable at its inception may violate 4th am. by virtue of its intolerable intensity and scope… must be strictly tied to and justified by circumstances which rendered its initiation permissible.

Question 10

When does Terry stop become De Facto arrest?

Answer 10

Because if they want to question you further, then they have to Mirandize you…

Totality of Circumstances; Police can’t seize you for longer than necessary to do what they need to do

How long is too long for Terry stop? No bright line. Court has upheld 20 minutes.

Question 11

Difference Between Search Incident to Arrest and Terry Frisk

Answer 11

SIA: full search of person and grabbing area
o (1) protect officer (2) preserve evidence
o No suspicion required; search is automatic

Terry Frisk: careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons
o Protect officer
o Reasonable suspicion required

Question 12

Brendlin v. California (S. Ct., 2007)

Answer 12

All occupants of a car are “seized” for purposes of the 4th am. during a traffic stop, not just the driver—b/c all passengers would’ve reasonably believed themselves to be intentionally detained and subjected to the authority of the police.

Question 13

Reid v. Georgia (1980)
vs. 
Florida v. Royer (1983)
vs. 
US v. Sokolow (1989)

Answer 13

NO R/S of criminal activity based on the following facts:
o Arrived on flight from FL; in the early morning; companion and D attempted to conceal traveling together; no luggage other than shoulder bags

Terry seizure in Royer was justified—D looked nervous, paid cash for one-way flight, used false name on ID tag

Enough R/S—paid cash for flights with a roll of $20 bills, traveling under different name from that listed under his phone, traveled to Miami, short trip even though far away, appeared nervous and checked no luggage

Question 14

US v. Hensley

Answer 14

Terry stop with R/S of a crime in the past/completed is constitutional (as opposed to imminent/ongoing) –> For FELONY

Question 15

Role of Drug Profiles

Answer 15

Courts must make independent evaluations of reasonable suspicion showings and not defer to an officer’s reliance “on drug profile” —BUT can provide objective basis

Question 16

US v. Montoya de Hernandez (1985)

Answer 16

Time limit on Terry seizure? Outlier for the 20-minute rule

16-hour detention not unreasonably long based on facts—occurred in international border; nature of drug canal smuggling; refusal of D to submit to X-ray

Question 17

Hibbel v. Sixth (2004)

Answer 17

Not unreasonable for officers to require suspect that’s detained to identify himself – constitutional and an “accepted part of many Terry stops”

Question 18

Rodriguez v. US (2015)

Answer 18

Police can’t seize you for longer than reasonably necessary to do what they need to do (ticket, citation, etc.) tolerable duration is based on the “mission”
UNLESS – reasonable suspicion of another crime arises before mission completed

Question 19

Maryland v. Wilson (1997)

Answer 19

RULE: officers during traffic stop may order passengers to get out of car (no R/S needed)

REASONING: danger to police officers during a traffic stop is greater when additional passengers in car

Question 20

Arizona v. Johnson (2009)

Answer 20

But for pat down of either driver/passenger – there must be reasonable suspicion – that “armed and dangerous”