If a police officer observes a person behaving in a way which, based on the officer’s training and experience, creates a founded suspicion that the person has committed, is committing, or is about to commit a crime, the officer may temporarily detain the person to ascertain what the person is up to. If during the course of that detention, the officer has probable cause to believe the detainee is armed with a dangerous weapon and is a threat to the officer, the officer may pat down the person to ascertain if the person is armed. That is “Stop and Frisk”.
Notice it is NOT what opponents of ‘Stop and Frisk’ claim. It is NOT police randomly stopping citizens who are simply going about their legitimate business and searching them.
I’ve taught Stop & Frisk law to prosecutors, and law enforcement officers, for over a quarter of a century and written manuals on the subject. Contrary to what opponents would have you believe, it is not illegal. In fact, it was sanctioned by the United States Supreme Court in 1968.
In Terry v Ohio, the Court recognized the police practice of Stop and Frisk, and pronounced it constitutional. The case involved a Cleveland police detective who prevented three men from committing an armed robbery.
Detective Martin McFadden was “patrolling in plain clothes” in the downtown business district when he observed three men acting in a way the detective knew from his training, and 39 years of experience, suggested the men were “casing” a store to rob it. As the Supreme Court found, McFadden’s suspicions were reasonably aroused.
Officer McFadden approached the three men, one of whom was John Terry, to find out what they were doing. Because McFadden suspected a possible robbery, and that they might be armed, McFadden patted the outside of Terry’s jacket and felt the butt of a gun, then reached inside Terry’s jacket and retrieved a pistol. McFadden arrested Terry for carrying a concealed firearm.
Terry was convicted and his case went all the way to the United States Supreme Court which ruled that, under the circumstances, everything McFadden did was constitutional. The Court said McFadden’s initial suspicion justified detaining Terry to investigate his actions. That’s the “Stop”.
The Court also ruled that a police officer engaged in a lawful encounter with a person (which McFadden was with Terry) should not have to be exposed to the risk of the person being an armed threat. McFadden had a reasonable basis to be concerned that Terry was armed, so McFadden “patted him down” to determine if Terry had a weapon. That was the “Frisk”.
When the frisk revealed the butt of the gun, the Court said McFadden acted reasonably in seizing it, and arresting Terry for carrying a concealed firearm. That was the birth of what has become known to law enforcement as a “Terry stop” — which, if police do it correctly, is perfectly legal.
As long as police follow the proper steps, can articulate the basis for their initial suspicion for detaining a person and for believing the person is armed and thus a threat to the officer, if those bases are “reasonable” then the ‘Stop and Frisk’ is legal. If the person is subsequently charged with a crime based on evidence resulting from the detention or patdown, then a judge will decide if what the officer did was “reasonable.”
If a judge says the officer’s actions were reasonable then, like John Terry, a conviction can stand. However, if the judge decides it wasn’t reasonable, then any evidence resulting from the stop or frisk will be “suppressed” so that it can’t be used against the person. That’s the way our system works. The courts protect citizens from overzealous police who violate constitutional rights.
So when opponents of Stop and Frisk whine that it is an unconstitutional violation a of a person’s rights, they are misleading you. If done correctly by police, it is absolutely legal — and a legitimate, effective method of getting armed dangerous people off the streets.
If you doubt that, just look at the homicide rates in jurisdictions that prohibit their police from using Stop and Frisk. Also look at the increased number of officers being killed in the line of duty — which is what the Supreme Court said the frisk is intended to prevent.
The Colorado legislature has made Stop and Frisk part of statutory law. C.R.S.A. 13-3-103 authorizes police stopping suspects, and follows the Terry v Ohio ruling.
Stop & Frisk is legal. It saves live of both police and citizens.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.