Amendment 4 — Terry Stop And Frisks Doctrine And Practice

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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, 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.

While arrests are subject to Fourth Amendment requirements, courts have followed the common law in upholding the authority of police officers to take a person into custody without a warrant if they have probable cause to believe the person has committed a felony or a misdemeanor in their presence.[1](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn1amd4 " United States v. Watson, 423 U.S. 411 (1976). ") Probable cause must be satisfied by conditions existing prior to the arrest and cannot be established retroactively.[2](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn2amd4 " Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10, 16–17 (1948); Sibron v. New York, 392 U.S. 40, 62–63 (1968). ") There are, however, instances when a person’s conduct or manner arouse a police officer’s suspicions, but probable cause to arrest such a person is lacking.[3](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn3amd4 " “The police may not arrest upon mere suspicion but only on ‘probable cause.’” Mallory v. United States, 354 U.S. 449, 454 (1957). ") In its 1968 Terry v. Ohio decision,[4](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn4amd4 " 392 U.S. 1 (1968). ") the Court, with only Justice William O. Douglas dissenting, approved a police officer’s on-the-street investigation that involved “patting down” the subject of the investigation for weapons.

Terry arose when a police officer observed three individuals engaging in conduct that appeared to him, on the basis of training and experience, to be “casing” a store for a likely armed robbery. Upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men, patted the exterior of his clothes, and discovered a gun. For the Court, Chief Justice Earl Warren wrote that the Fourth Amendment applies “whenever a police officer accosts an individual and restrains his freedom to walk away.” [5](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn5amd4 " Id. at 16. See id. at 16–20. ") Because the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice considered whether the policeman’s actions were reasonable. The Chief Justice reasoned that the test of reasonableness in this sort of situation is whether the police officer can point to “specific and articulable facts which, taken together with rational inferences from those facts” would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a “frisk” was required.[6](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn6amd4 " Id. at 20, 21, 22. ") Because the police officer witnessed conduct that reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a “frisk.” Because the object of a “frisk” is to discover dangerous weapons, “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” [7](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn7amd4 " Id. at 23–27, 29. See also Sibron v. New York, 392 U.S. 40 (1968) (after policeman observed defendant speak with several known narcotics addicts, he approached him and placed his hand in defendant’s pocket, thus discovering narcotics; this was impermissible, because he lacked a reasonable basis for the frisk and in any event his search exceeded the permissible scope of a weapons frisk); Adams v. Williams, 407 U.S. 143 (1972) (stop and frisk based on informer’s in-person tip that defendant was sitting in an identified parked car, visible to informer and officer, in a high crime area at 2 a.m., with narcotics and a gun at his waist); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (after validly stopping car, officer required defendant to get out of car, observed bulge under his jacket, and frisked him and seized weapon; while officer did not suspect driver of crime or have an articulable basis for safety fears, safety considerations justified his requiring driver to leave car); Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after validly stopping car, officer may order passengers as well as driver out of car; “the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger” ); Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (after validly stopping car, officer may frisk (pat down for weapons) both the driver and any passengers whom he reasonably concludes “might be armed and presently dangerous” ). ")

In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, “plain touch” reveals the presence of the object, and the officer has probable cause to believe it is contraband.[8](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn8amd4 " Minnesota v. Dickerson, 508 U.S. 366 (1993). ") The Court viewed the situation as analogous to that covered by the “plain view” doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.[9](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn9amd4 " Id. at 375, 378–79. In Dickerson the Court held that seizure of a small plastic container that the officer felt in the suspect’s pocket was not justified; the officer should not have continued the search, manipulating the container with his fingers, after determining that no weapon was present. ") Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.[10](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn10amd4 " Bond v. United States, 529 U.S. 334 (2000) (bus passenger has reasonable expectation that, although other passengers might handle his bag in order to make room for their own, they will not “feel the bag in an exploratory manner” ). ")

Terry did not address the grounds that could permissibly lead an officer to stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. The Court provided a partial answer in its 2004 decision, Hiibel v. Sixth Judical District Court, when it upheld a state law that required a suspect to disclose his name in the course of a valid Terry stop.[11](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn11amd4 " Hiibel v. Sixth Jud. Dist. Ct., 542 U.S. 177 (2004). ") Questions about a suspect’s identity “are a routine and accepted part of many Terry stops,” the Court explained.[12](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn12amd4 " Id. at 186. ")

After Terry, the standard for stops for investigative purposes evolved into one of “reasonable suspicion of criminal activity.” That test permits some stops and questioning without probable cause in order to allow police officers to explore the foundations of their suspicions.[13](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn13amd4 " In United States v. Cortez, 449 U.S. 411 (1981), a unanimous Court attempted to capture the “elusive concept” of the basis for permitting a stop. Officers must have “articulable reasons” or “founded suspicions,” derived from the totality of the circumstances. The Court stated “Based upon that whole picture the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. at 417–18. The inquiry is thus quite fact-specific. In the anonymous tip context, the same basic approach requiring some corroboration applies regardless of whether the standard is probable cause or reasonable suspicion; the difference is that less information, or less reliable information, can satisfy the lower standard. Alabama v. White, 496 U.S. 325 (1990). ") Although it did not elaborate a set of rules to govern applying the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.[14](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn14amd4 " E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual’s presence in high crime area gave officer no articulable basis to suspect him of crime); Delaware v. Prouse, 440 U.S. 648 (1979) (reasonable suspicion of a license or registration violation is necessary to authorize automobile stop; random stops impermissible); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random automobile stop solely on basis of Mexican appearance of occupants); Reid v. Georgia, 448 U.S. 438 (1980) (no reasonable suspicion for airport stop based on appearance that suspect and another passenger were trying to conceal the fact that they were traveling together). But cf. United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles at fixed checkpoints to question occupants as to citizenship and immigration status permissible, even if officers should act on basis of appearance of occupants). ") The Court invalidated extensive intrusions on individual privacy, for example, transporting a person to the station house for interrogation and fingerprinting, absent probable cause,[15](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn15amd4 " Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S. 200 (1979). Illinois v. Wardlow, 528 U.S. 119 (2000) (unprovoked flight from high crime area upon sight of police produces “reasonable suspicion” ). ") and the Court has held that an uncorroborated, anonymous tip is an insufficient basis for a Terry stop and that there is no “firearms” exception to the reasonable suspicion requirement.[16](https://www.law.cornell.edu/constitution-conan/amendment-4/terry-stop-and-frisks-doctrine-and-practice#fn16amd4 " Florida v. J.L., 529 U.S. 266 (2000) (reasonable suspicion requires that a tip be