Stop and Frisk

Stop And Frisk: A Fourth Amendment Infringement? 1
Stop and Frisk: A Fourth Amendment Infringement?
Geneva M. Lewis
UNR/ CRJ 420

Abstract
The decision of Terry v. Ohio (year) formalized a framework for law enforcement,
affirming warrantless searches of individuals (and later their environs, including vehicles)
with the guiding presence of “reasonable, articulable suspicion.” This paper will examine
the foundations of Fourth Amendment search and seizure law, from English common law
to colonial constitutions, and how courts, legislature, and judicial decision-making have
led to a formalized practice of warrantless searches still under vigorous debate today.
While some state the practice contains a misuse of arbitrary police power, others claim
that it is an invaluable tool of law enforcement that needs to be preserved.

In my first Administration of Justice class, taught by a sheriff’s deputy who was
fond of in-class demonstrations, I received my first lesson in how a Supreme Court case
impacted law enforcement procedures and could fight crime. The scenario we were
given: an officer on his beat, which included a local middle school, notes a middle-aged
man hanging out near the school gymnasium entrance outdoors. He’s wearing a puffy
jacket, and it’s a warm day. The officer approaches, makes some small talk, asks what the
man is doing near the school. He says he’s “in training” and stretching before he uses the
outdoor running track. Informed that the track is private and reserved for the students, the
man becomes hostile. As the questions increase and the tension escalates, the officer
orders the man to face the wall and performs a pat-down search. Hidden in the interior
coat pockets is a roll of duct tape, a .45 caliber handgun, and child pornography. The
suspect is arrested and handcuffed. From a casual conversation instigated by an observant
officer, to an articulable suspicion (puffy jacket on a warm day and unusual behavior on
school grounds), leading to probable cause for an arrest, Terry v. Ohio came to life that
day.
As invaluable a tool as pat-down searches are in law enforcement, troubling
accusations have risen against it. It has been argued that it has been used as a tool of
oppression against certain races in urban neighborhoods, resulting in a state class-action
lawsuit in New York (Floyd v. New York), which as of 11/23/13, has effectively ended
the practice as performed by the NYPD. Yet, from the example at the beginning of the
paper, it is clear that the use and practice of stop and frisk searches is a necessary tool. It
is now undergoing a real-world shift as its value and cost are examined. The social

contract that put it in place asks, how much of our freedoms are we willing to give up in
exchange for security?
How would Caucasian, upper-middle class suburban residents feel if their
children, on their way to school, were stopped by law enforcement without provocation,
and were told to “face the wall,” hands behind their back, legs spread, and patted down
for weapons and contraband (drugs)? What seems like an outlandish, foreign concept to
our dearly held American ideals of freedom and justice, happens routinely in
neighborhoods that are urban, socioeconomically disadvantaged, and largely “black or
brown.” So common are these so-called “consensual encounters” that young African-
American and Latino men are taught in a community context how to survive police
encounters, and rap songs, videos and manuals exist to let people know their rights and
preferred mechanisms in such encounters (Jasiri X, 2012).
This differential treatment is used to promote an idea that there are, in a sense,
“Two Americas” with dramatically different expectations and practices of both residents
and law enforcement in their interactions and responses. A climate of “crime control” and
the “War on Drugs,” in the decades following the Terry v. Ohio decision, with expansion
of the “stop and frisk” extended to “plain touch” for contraband made warrantless
searches a standard operating procedure used to net arrests and halt suspicious and/or
illegal activity. According to advocates, these practices have led to lowered crime rates
and a safer environment for our citizens. But how did our concepts of search, seizure,
privacy, and the Fourth Amendment arise, and can claims of racial bias be proven?
To begin, during the transition stage from British Crown colonies to American
independence following the Revolutionary war, states began adopting their own

constitutions. John Adams; American statesman, lawyer, and President, drafted the
Massachusetts constitution in 1779. This document became the foundation in many
aspects for the United States of America’s constitution, with Adams’ words inspiring
James Madison’s crafting of the document written seven years later. Historically, the
Massachusetts Constitution as written by Adams set up the elements protecting against
unreasonable search and seizure that became the basis for the 4th amendment. “Article
XIV. Every subject has a right to be secure from all unreasonable searches and seizures
of his person, his houses, his papers, and all his possessions. All warrants, therefore, are
contrary to this right, if the cause or foundation of them not be supported by oath or
affirmation…be not accompanied with a special designation of the persons of objects of
search” (John Adams and the Massachusetts Constitution, 2013). Moreover, the U.S.
Constitutional amendments, crafted in 1791, states in the 4th amendment, “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated...and no Warrants shall issue, but on probable
cause…” As Michelle Alexander states in her book The New Jim Crow, “The routine
police harassment, arbitrary searches, and widespread intimidation of those subjects to
English rule helped inspire the American revolution…preventing arbitrary searches and
seizures by the police was deemed by the founding fathers an essential element of the
U.S. Constitution” (Alexander, 1999, p. 62).
As historian Leonard W. Levy writes, “Before the American Revolution, the right
to be secure against unreasonable searches and seizures had slight existence. British
policies assaulted the privacy of dwellings and places of business…That [4th] amendment
repudiates general warrants by recognizing a “right of the people to be secured in their

persons, houses, papers, and effects, against unreasonable searches and seizures” (Levy,
1999, p. 79). Levy goes on to say that the basis of the 4th amendment is rooted in British
legal theory- the Magna Carta “castle doctrine” where a man’s home is his castle (Levy,
p. 79). With the concept of searches within a home, it is important to consider the history
of searches of a person in public on the street. Historically, law enforcement search and
seizure practices have been far less restricted towards an individual in public.
“Stop and Frisk” or “Terry Stops” (as they are called in some quarters in reference
to the Supreme Court decision) were in effect, though not officially, for many years prior
to the Terry case. As law professor and legal historian John Q. Barrett recounts in
“Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court,” historical
research by Professor Wayne La Fave has revealed, “For a long time prior to the 1960’s
police officers had been stopping, questioning, and frisking people on the street who they
lacked probable cause or warrants to arrest, but the legal system was slow to focus on the
constitutionality of these police practices” (Barrett, 1999, p. 11-12). Barrett goes on to
surmise that because such stops and searches are “low visibility” practices, which
oftentimes do not result in arrests, convictions, or tangible evidence, that “innocent
victims of stops and frisks were probably glad that their bad encounters came to an end,
and understandably, chose not to make issues of why they were stopped and frisked at
all” (Barrett, 12). So while the process of stops and frisks was not formalized, it had been
an accepted practice. In 1965, The Columba Law Review presented an article detailing
the state of stop and frisk with a prescient prediction that “It appears to be only a matter
of time before the Supreme Court will be called upon to define the permissible limits of
informal police detention.” (Columbia Law Review, 1965, p. 848)

The essential question facing the justices as they began to review Terry v. Ohio in
the fall of 1967 was the 4th amendment as interpreted for search and seizure of an
individual and the items on their person, and the question of probable cause vs.
reasonable suspicion related to searches. Historically, warrants have been required by a
magistrate to proceed with a search of a home or structure. Warrants were a critical issue
for colonist: “For hundreds of years, English subjects (and, later, American colonists)
were subjected to the abuse of the general warrant- that is, a warrant authorizing searches
of unspecified persons and places” (Scheb, Scheb, 2010, p. 429). In response to this
background, as well as Writs of Assistance which gave English “customs officials
unlimited powers to search for smuggled goods” (Scheb et al, p. 430) in colonial
America, the specificity of the constitution’s “warrant clause” and as visited earlier in the
Massachusetts constitution makes it clear how critical the issue was to the fledgling
country and its founders.
Probable cause has traditionally been the threshold for arrest. Law enforcement
through knowledge, investigation, and/or informants, with substantive information, that a
criminal act/actions will occur at a specific time, place, time, and with specific persons
involved, petition for a search warrant. If a judge believes the evidence presented is
credible and believable, he/she will grant a search warrant to law enforcement, to be
executed within a proscribed amount of time and under specific written conditions. The
problem with search warrants “in the field” is that valuable time can elapse and evidence
can be lost if rapidly changing or potentially dangerous events are unfolding, which can
make the process of a requesting a search warrant irrelevant. Reasonable suspicion, a

lower threshold, is “based on articulable circumstances that criminal activity might be
afoot,” (Scheb et al, p. 456), thus an investigation can proceed.
When individuals are on foot and cannot be secured, who have not committed
overt acts justifying probable cause for arrest by specifically violating a statute in the
presence of an officer, the use of stop and frisk demonstrates its invaluable use as a
policing tool. However, detaining individuals is a balancing act where reasonable
suspicion became the new benchmark for detention and questioning, with a frisk justified
if the officer believes there is the potential for a weapon to be discovered and that
potential for imminent harm exists.
Such a case existed in Ohio v. Terry, where a veteran police officer encountered
two men in heavy coats walking repeatedly near the environs of a store in downtown
Cleveland, Ohio. As described in the Supreme Court’s opinion (Search and Seizure,
2012), Observed by 39-year veteran Cleveland police Officer McFadden, “he suspected
two men of “casing a job,” a stick-up”…and that he feared they “may have a gun.”
Officer McFadden approached the three men, identified himself as a police officer, and
proceeded to pat the coat pockets of Terry, Chilton, and Katz. In their inner coat pockets,
Terry had a concealed .38 caliber revolver and Chilton carried a revolver. The third man,
Katz, who had conversed with the others, had no weapon. Officer McFadden called for
police backup and the two men with concealed weapons were arrested and charged with
possession of concealed weapons. During discovery, their defense made a motion to
suppress the evidence seized. The motion was denied, Terry and Chilton waived a jury
trial with a not guilty plea. They were found guilty and the state appeals process affirmed
the lower court’s decision, hence the appeal for a writ of certiorari at the Supreme Court

of the United States. Terry and Chilton served time in the penitentiary for possession of
concealed weapons. Terry petitioned for the Court to hear his case raising the question of
probable cause and the search conducted by Officer McFadden prior to arrest (Search
and Seizure) and the writ was granted.
The complexity of the constitutional issues and fourth amendment search and
seizure interpretation related to the case underscore the important concepts therein.
When Chief Justice Earl Warren circulated his draft opinion, “it focused largely on the
frisk rather than the initial question of whether the officer had justification to stop the
suspect.” Justice William J. Brennan sent Warren a memo, concerned about the probable-
cause standard that he felt was required to justify the initial stop of an individual. As a
compromise the Court in a majority decision, “Brennan notably abandoned the use of
probable cause as the required threshold for police stop and frisk.” (Stern, Wermeil,
2010, p. 300). Thus, “reasonableness” (reasonable suspicion) became the new standard
for searches. As the Supreme Court’s holding stated in Terry v. Ohio: “Police may stop a
person if they have a reasonable suspicion that the person has committed or is about to
commit a crime, and may frisk the suspect for weapons if they have reasonable suspicion
that the suspect is armed and dangerous, without violating the Fourth Amendment
prohibition on unreasonable searches and seizures. Supreme Court of Ohio affirmed.”
In their book Justice Brennan: Liberal Champion, Brennan biographers state
regarding the decision: “It is one that remains controversial since it gives law
enforcement considerable leeway to justify stopping, questioning, and searching
individuals on the street. Indeed, Brennan foresaw the controversy, excerpted from his
personal correspondence to Earl Warren: “In this lies the terrible risk that police will

conjure up ‘suspicious circumstances’ and courts will credit their versions…It will not
take much of this to aggravate the already white hot resentment ghetto negroes have
against the police- and the Court will become the scapegoat” (Stern et al, 2010, p. 301).
From the liberal Warren Court to the more conservative Court of the last 30 years,
Brenna’s concerns proved to be prescient. In United States v. Sharpe (1985) the Court
further expanded police power in investigative stops. This case concerned the mandate of
the “briefness” of a 4th amendment seizure under the Terry doctrine. Involving a traffic
stop, a deputy, and a DEA agent that the deputy called in to assist, the resounding
message from the Supreme Court in the decision on this case was that Terry stops would
continue to be supported and often expanded. The majority opinion “rejected the
possibility of establishing a maximum time limit for investigative stops.” (Kuloweic
1985, p. 1013). A diligence test was instead proposed; “…a stop is reasonable as long as
law enforcement officials diligently employ methods of investigation that will confirm or
dispel their suspicion quickly.” (Kuloweic, p 1014). In the aftermath of Terry, subsequent
cases heard by the court, expanded on “stop and frisk” searches to extend the seizure of
contraband other than weapons during pat-down searches in Minnesota v. Dickerson
(1993) which led to the doctrine of “plain view” (Macintosh, 1194, p. 748). It appeared
as though Terry remained on firm ground approximately twenty years after the decision.
Yet, a backlash against expanded police powers of discretion and warrantless
searches began to occur during this time, especially as anecdotal community reports of
discrimination were quantified with statistical analysis. In Harcourt and Meare’s article,
they disseminate studies that reveal ethnic and racial disparities in warrantless searches.
“In August 2008, Ian Ayres published a study on police stops by the LAPD…Ayres

analyzed data obtained from over 810,00 “field data reports”…Ayres found that there
were more than 4,500 stops per 10,000 African-American residents, whereas there were
only 1,750 stops per 10,000 white residents…police were 127 percent more likely to frisk
or pat down stopped blacks than whites, and 43 percent more likely to do so for
Hispanics.” (Harcourt, Meares, 2011, p.855). The lens expanded further to America’s
largest municipal police department, NYPD, when statistics on stop and frisks were
examined. As New York City “got tough” on crime in the early 1990’s to the present,
lowering crime rates involved expanding strategies such as stop and frisk. ‘…[we]
conclude that members of minority groups were stopped more often than whites, both in
comparison to their overall population and to the estimated rates of crime that they have
committed. We do not necessarily conclude that the NYPD engaged in discriminatory
practices, however.” (Gelman, Fagan, Kiss, 2007, p 814).
The NYPD’s annual report on stop and frisks, reveals that 532,911 reasonable
suspicion stops occurred in NYPD precincts in 2012. Of those stops, 55% of individuals
stopped were Black, 32% were Latino, and 9.7% were White. Respectively, 23.4% of
residents are Black, 29.4% are Latino, and 34.3% are White. These statistics are troubling
in that approximately a quarter of the population (Blacks) are subject to over half of the
reported reasonable suspicion stops, while approximately 1/3 of the population (Whites)
only experience slightly less than 10% of the stops (Reasonable Suspicion Stops, 2012).
Harcourt and Meare’s study also summarizes NYPD’s 2009 quarterly report
listing four categories of reasonable suspicion stops with their numerical correlations in
the field contained in, “Reasons for Stop,” “Reasons for Frisk,” “Basis for Search,” and
“Additional Circumstances.” (Meares, et al, 2011, p. 820-821) Also interesting to note is

that within the category “Additional Circumstances,” “Area has a High Crime incidence”
is one of the rather broad categories for a stop and frisk. Within “Basis for Search,” and
“Reasons for Stop,” “other” is a cause listed with, respectively, the second-highest
number of stops (6,300) within the category, and the third-highest (34,708). While many
of the categories are valid and within the original scope of the Terry holding, in 2013 a
class-action lawsuit was decided in New York that brought forward claims that
constitutional violations occurred under the NYPD policy of stop and frisk.
In the decision from Judge Shira Scheindlin which ruled in favor of the plaintiffs,,
the pendulum swung in another direction from the edification and expansion of Terry, to
confirming constitutional violations in the NYPD’s stop and frisk policies. She noted
violations in the 4th and 14th amendment and ruled that minorities were
“disproportionately targeted” in the NYPD’s policies (Weiss, 2013). In Scheindlin’s 195-
page decision, the judge determined that 200,00 of the stops made in New York City
between 2004-2012 “were made without reasonable suspicion.” Of the total data
analyzed, 52 % of the 4.4 million total stops were followed by a weapons frisk, with a
weapon found 1.5 % of the time (Weiss, 2013). “As the 1960’s riots showed, and the
Rodney King riot reemphasized, police abuses may themselves create racial tensions that
erupt in riots and crime. Police practices, may, additionally discourage members of
minority communities from aiding in the solution of crimes and contribute to the
alienation that erupts in crime ( Schwartz, 1995, p. 59-61).
What is fair, and what is fundamentally unfair in policing and law enforcement?
These are questions that a vigorous democracy must continue to ask itself, and the basis
of policing, the social contract that we make with the police; power in exchange for

protection, must be evaluated and when abuses occur, policies need to be reevaluated.
Stop and frisks need to be clarified, codified, and monitored to ensure that the pendulum
in America’s justice system does not disproportionately favor those in power, i.e., law
enforcement vs. individuals with constitutional rights that are potentially being violated.
Clarifying and limiting the scope of “reasonable suspicion” while retaining this essential
tool of law enforcement is a clear and necessary way to uphold and expand upon the
Supreme Court’s 1968 decision in Terry v. Ohio.

References
Alexander, Michelle (1999). The New Jim Crow: Mass Incarceration In the Age of
Colorblindness. New York; The New Press.
Barrett, John Q. (1999). Deciding the Stop and Frisk Cases: A Look Inside the Supreme
Court’s Conference. St. John’s Law Review, Vol. 72, Issue 3, Summer/Fall 1999.
Gelman, Andrew, Fagan, Jeffrey, Kiss, Alex (2007). An Analysis of the New York City
Police Department’s “Stop and Frisk” In The Context of Claims of Racial Bias.
Journal of The American Statistical Association. Vol. 102, No. 479, pp 813-823.
Harcourt, Bernard E. and Tracey L. Meares (2011). Randomization and the Fourth
Amendment. The University of Chicago Law Review, Vol. 78, No. 3. pp.809-807.
Jasiri X, Ten Frisk Commandments. (2012). Retrieved from https://www.youtube.com
John Adams and the Massachusetts Constitution. 2013. Retrieved from Retrieved from
www.mass.gov/courts/sjc/john-adams-b.html .
Kulowiec, David. Fourth Amendment. (1985). Determining the Reasonable Length of a
“Terry Stop.” Journal of Criminal Law and Criminology. Vol 76, No. 4. pp. 103-
1066.
Levy, Leonard. Origins of the 4th Amendment (1999). Political Science Quarterly
(March 1, 1999) pp. 79-101.
Macintosh, Susanne (1994). M. Fourth Amendment: The Plain Touch Exception to The
Warrant Requirement. The Journal of Criminal Law and Criminology. Vol 84, no.
4 , pp. 743-768.

Police Power to Stop, Frisk, and Question Suspicious Persons. (1965). Columbia Law
Review, Vol. 65, No. 5 (May 1965). pp 848-866.
Search and Seizure Law: Historic Supreme Court Cases (2012). LandMark Case Law;
Kindle Version. Retrieved from Amazon.com.
Scheb, John M. and John M. Scheb II (2010). Criminal Law and Procedure. California;
Wadsworth Cengage.
Schwartz, Adina. (1995). ‘Just Take Away Their Guns’: The Hidden Racism of Terry v.
Ohio. Fordham Urban Law Journal. Vol. 23, Issue 2, Article 5, pp. 316-375.
Sklansky, David A. (2000) The Fourth Amendment and Common Law. Columbia Law
Review, Vol 100, No. 7, pp 1739-1814.
Stern, Seth and Wermeil, Stephen (2010). Justice Brennan: Liberal Champion. New
York; Houghton Mifflin Harcourt.
Weiss, Debra Cassens. (2013). Stop- and-frisk tactics by New York cops violated Fourth
and 14th amendments, judge rules. American Bar Association Journal. Retrieved
from http://www.abajournal.com/news/article/stop-and-f
frisk_tactics_by_new_york_cops_violated_fourth_and_14th_amendments/
2012 Reasonable Suspicion Stops: Precinct Based Comparison By Stop and Suspect
Description(2012). Retrieved From:
http://www.nyc.gov/html/nypd/html/analysis_and_planning/20
12_nypd_reasonable suspicion_stops_report.shtml

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