Stop and Frisk

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The precise text of the Amendment can be misleading. In Katz v. United States (1967), the U.S. Supreme Court determined that the right protected people, not property. The practical implication of this ruling was that the Court would no longer consider whether the violation was against “houses, papers, and effects,” but rather whether an individual's reasonable expectation of privacy was violated. Thus, the Court shifted from a property analysis to a privacy analysis when considering the constitutionality of a search. The Katz Court handed down its decision during a period of rapid change in the law of police procedure under then-Chief Justice Earl Warren; legal scholars often refer to this period as the procedural revolution. During this revolution, the bright line between what was a search and what was not a search blurred.

In the landmark Terry v. Ohio (1968) case, the state argued that the police should be allowed to stop a person and detain him or her briefly for questioning upon suspicion that he or she may be connected with criminal activity. In addition, it argued that upon suspicion that the person may be armed, the police should have the power to frisk the person for weapons. The state also urged the Court to recognize a distinction between a stop and an arrest (which, for Fourth Amendment purposes, is a seizure of a person), and between a frisk and a search. At the time, this approach was novel. Generally, there were no degrees of intrusion into a citizen's privacy by the police—either it was a search under the Fourth Amendment, or it was not.

The other side of the argument was that the authority of the police must be strictly defined by the law of arrest and search as it had already developed in the traditional jurisprudence of the Fourth Amendment. The basic contention was that there was not—and should not be—a type of police activity that simultaneously did not depend solely upon the voluntary cooperation of the citizen and stopped short of an arrest based upon probable cause. The opponents of the proposed stop-and-frisk exception argued that the core of the Fourth Amendment is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls (the exclusionary rule and the fruit of the poisonous tree doctrine) to force law enforcement to abide by the Fourth Amendment. Agreement by the courts in the compulsion in the field interrogation practices at issue in Terry, it was argued, would constitute an [Page 443]abandonment of judicial control over, and even an encouragement of, substantial interference with liberty by police officers whose judgment is necessarily biased because of their duty of apprehending criminals.

The question before the Terry Court came down to whether the exclusionary rule applied to evidence obtained from a stop and frisk. The Court stated that the issue was not the “abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure.” If the exclusionary rule, which is designed to punish police for illegal searches, did apply, then it was tantamount to a prohibition against the practice. On the other hand, a ruling admitting evidence so obtained in a criminal trial would have the effect of legitimizing the stop-and-frisk practice by the police.

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