Terry stop

A Terry stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. Reasonable suspicion is a lower standard than probable cause which is needed for arrest. When police stop and pat-down a pedestrian, this is commonly known as a stop and frisk. When police stop an automobile, this is known as a traffic stop. If the police stop a motor vehicle on minor infringements in order to investigate other suspected criminal activity, this is known as a pretextual stop.

In the United States at the federal level, the Supreme Court has decided many cases that define the intersection between policing and the Fourth Amendment protection against unreasonable searches and seizures. However, Congress has not defined a baseline for police behavior. There has been some state action at both the legislative and judicial levels, and also some cities have passed laws on these issues.

Some law academics are concerned that jurisprudence permitting Terry stops does not account for possible implicit bias of officers, and that this possibly results in racially skewed decision-making. Communities that have high rates of incarceration may experience more intense and punitive policing and surveillance practices even during periods of time when general crime rates are decreasing.

Origins

{| class="wikitable" style="float:right; vertical-align: top; text-align: left; width: 400px; margin-left:2em"

|+ align="bottom" |Terry v. Ohio used only the "reasonableness clause" from the Fourth 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,...

! style="background: LightSalmon;"|Reasonableness

| ...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

! Warrant

The concept of a Terry stop originated in the 1968 Supreme Court case Terry v. Ohio, in which a police officer detained three Cleveland men on the street behaving suspiciously, as if they were preparing for armed robbery. The police conducted a pat down search and discovered a revolver, and subsequently, two of the men were convicted of carrying a concealed weapon. The men appealed their case to the Supreme Court, arguing that the search in which the revolver was found was illegal under the Fourth Amendment. This brief detention and search were deemed permissible by the court, judging that the officer had reasonable suspicion which could be articulated (not just a hunch) that the person detained may be armed and dangerous. This was not mere "suspicion" but "reasonable suspicion" which could be articulated at a later date.

This decision was made during a period of great social unrest in the United States in the 1960s, with rising crime, opposition to U.S. involvement in the Vietnam War and the civil rights movement, and race riots. It was thought that law enforcement needed to be provided with tools to deal with the unrest and new issues of urban crime. Some criticized the decision for watering down the prohibition against unreasonable searches and seizures; others praised it for balancing safety and individual rights.

Elements

The United States Supreme Court held that where: a police officer observes unusual conduct by a subject; the subject's conduct leads the officer reasonably to conclude that criminal activity may be afoot, and that the subject may be armed and presently dangerous; the officer identifies themselves as a police officer; the officer makes reasonable inquiries; and nothing in the initial stages of the encounter serves to dispel the officer's reasonable fear for safety, the officer may conduct a carefully limited search of the outer clothing of the subject in an attempt to discover weapons, and that such a search is a reasonable search under the Fourteenth Amendment, so that any weapons seized may properly be introduced in evidence.

Expansion through case law

Reasonable suspicion

To possess reasonable suspicion that would justify a stop, police must have "specific and articulable facts" that indicate that the person to be stopped is, or is about to be, engaged in criminal activity. Because officers usually do not have supervision when they encounter civilians, they have discretion regarding whom to stop. Reasonable suspicion depends on the "totality of the circumstances". Reasonable suspicion is a vague term, and the Supreme Court concluded that it is to be decided on a case-by-case basis. It often arises from a combination of facts, each of which would, in itself, not be enough justification for the stop.

{| class="wikitable" style="float:left; vertical-align: top; text-align: left; width: 350px; height: 200px; margin:1em 1em 1em 0em;"

! colspan="2" | Types of police-civilian encounters

! style="vertical-align: top; text-align: left;" | Consensual encounter

| Requires neither probable cause nor reasonable suspicion

! style="background: LightSalmon; vertical-align: top; text-align: left;"| Terry stop (investigative detention)

| style="vertical-align: top;" | Requires reasonable suspicion

! style="vertical-align: top; text-align: left;" | Arrest

| style="vertical-align: top;" | Requires probable cause

The suspicion must be that of an individual person. Police officers primarily use situational factors based on criminal behavior to determine whether a stop is needed. In essence, when they witness a person behaving suspiciously or violating the law, they are constitutionally permitted to stop them. Other factors informing the decision include personal attitudes and the decision-making model in effect where the officer works. These subjective influences naturally create the opportunity for bias on the part of police officers who possess animus toward a certain class of people. For instance, a social interaction such as a hug or a handshake might be perceived as a drug deal.

Before 1968, the law required substantial evidence to impede liberty or seize property. However, the Fourth Amendment does not protect consensual encounters. In its Terry decision, the Supreme Court found that the police should have the power to search, even without probable cause, to protect themselves from weapons.

The cases following Terry expanded the power of the police. While the original case was concerned with armed violence and firsthand observation by officers, Adams v. Williams (1972) extended the doctrine to drug possession substantiated by the secondhand hearsay of an informant. The Adams v. Williams case set a precedent that police are not required to directly observe suspicious behavior if their reasonable suspicion is based upon information provided by a confidential informant. In Illinois v. Wardlow (2000), a person's unprovoked flight from Chicago police officers in "an area known for heavy narcotics trafficking" constituted reasonable suspicion to stop him.

During Terry stops, police usually ask detainees to identify themselves. Several states require people to provide their names to the police upon request. In Hiibel v. Sixth Judicial District Court of Nevada (2004), these stop-and-identify statutes were deemed constitutional. While the specifics of stop-and-identify statutes and ordinances vary, a significant number of states and local jurisdictions have enacted such laws. In New York, courts have limited the effects of Terry by creating a four-level continuum of intrusion, each of which requires its own level of suspicion. This allows police officers to detain people if the officers possess an articulable and objectively credible reason. In People v. DeBour, New York's highest court permitted the police to stop a person who simply crosses the street upon observing the police.

Lacking reasonable suspicion, police may stop a person based on a hunch, constituting a consensual stop. United States v. Mendenhall found that police are not generally required to advise an individual that the stop is on a consensual basis nor that the person may leave at any time. A person can typically determine whether a stop is consensual by asking, "Am I free to go?". If the officer responds in the negative or does not respond, the person is being detained under a Terry stop; otherwise, the person may leave. Mendenhall also found that a consensual stop can be converted into an unconstitutional Terry stop by circumstances such as "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Police who conduct an unconstitutional Terry stop can face administrative discipline and civil suits.

In Pennsylvania v. Mimms, two police officers issued Mimms a ticket for driving a car with an expired license plate. When they asked him to step out, they realized that he had a gun, and promptly arrested him. The court ruled in favor of the police, citing officer safety as their reason. Dissenting justices found that this furthers the expansion of Terry. They feared that the ruling set a precedent that officers could ask citizens to perform actions through warrantless intrusion. However, pursuant to the plain-feel doctrine (similar to the plain-view doctrine), police may seize contraband discovered in the course of a frisk, but only if the type of contraband is immediately apparent.

Subsequent court cases have expanded the definition of what constitutes a frisk and what is considered as admissible evidence. In Michigan v. Long, Terry stops were extended to searching the inside of a car passenger compartment if police have reasonable suspicion that an occupant may have access to a weapon there. In Minnesota v. Dickerson, the court ruled that "immediately recognized" contraband discovered during a Terry stop is also a lawful seizure.

Consensual search

Based on the Supreme Court decision in Schneckloth v. Bustamonte (1972), a person waives Fourth Amendment protections when voluntarily consenting to a search. Police are not required to inform a person of their right to decline the search. Justice Marshall, in his dissent, wrote that it is a "curious result that one can choose to relinquish a constitutional right—the right to be free from unreasonable searches—without knowing that he has the alternative of refusing to accede to a police request." Several cities and states require police to inform citizens of their right to deny a search.

Traffic stops

thumb|[[New Jersey State Police officer conducting a traffic stop on the New Jersey Turnpike]]

For practical purposes, a traffic stop is essentially the same as a Terry stop; for the duration of a stop, driver and passengers are "seized" within the meaning of the Fourth Amendment. The Supreme Court has held that drivers and passengers may be ordered to exit the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures. Drivers and passengers may be frisked for weapons upon reasonable suspicion they are armed and dangerous. If police reasonably suspect the driver or any of the occupants may be dangerous and that the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment. Otherwise, lacking a warrant or the driver's consent, police may not search the vehicle, but under the plain-view doctrine may seize and use as evidence weapons or contraband that are visible from outside the vehicle.

Pretextual stops

Pretextual stops are a subset of traffic stops deemed constitutional by the Supreme Court in Whren v. United States (1996). They occur when a police officer wishes to investigate a motorist on other suspicions, generally related to drug possession, and uses a minor traffic infringement as a pretext to stop the driver. In the case of Whren, the defense used a "would-have" rule, asking whether a reasonable police officer would have made the stop without the suspicion of other criminal behavior. Some consider that pretextual stops can allow racial profiling to occur. There are numerous petty violations that a typical driver might commit, and the officer can be selective about whom to detain for questioning. Sixteen states ban pretextual stops that are based solely upon racial profiling or other factors:

Racial disparities

Police officers may develop schemas after continuously being exposed to certain environments, like high-crime minority neighborhoods, which can lead to their association of crime with race instead of focusing on suspicious behavior. Some argue that Black and Hispanic people are more likely to be targeted and are more likely to be stopped than population and relative crime rates might suggest.

Terry stop regulations vary by area. Areas with high crime, such as public housing, might require less evidence for someone to be stopped. The study also determined that even during consensual stops, blacks are 29% more likely to experience force than other racial groups. Because most police officers and detainees are men, officers are susceptible to the culture of honor stance and hypermasculinity, in which they are more prone to physical aggression in order to protect their social standing. The study also argued that immigrants typically possess less awareness of how to behave when stopped by the police. Acts of police force cause injury, death, civil litigation, public outrage, civil disorder, and a distrust towards the police.Although racial disparities in the frequency of Terry stops are well known, less is known about the nature, prevalence, and factors predictive of use of force during Terry stops. Stop and frisk creates an environment of fear that alters the behaviors of a community's inhabitants and limits their freedom of action. Courtesy policing is when the police build rapport with the community through respect and friendliness.

North Carolina was the first state in the country to require the release of all traffic stop data starting in 2000. Researchers have analysed 20 million traffic stops from this data finding that African Americans as a share of the population were twice as likely to be pulled over than whites and four times as likely to be searched. Hispanics were not more likely to be pulled over, but had a higher likelihood of being searched.

There is a push to release more open police data nationwide. In 2015, the White House launched the Police Data Initiative which, , has 130 participating police departments, some of which provide data sets on stop-and-frisk. The 130 departments cover 15% of the population.

Notes

References

External links

United States Supreme Court - Terry v. Ohio - Court Documents