Detention Short of Arrest: Stop and Frisk
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.
Detention Short of Arrest: Stop and Frisk.—Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or a misdemeanor in their presence.205 Probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the police officer’s stop, what is discovered thereafter not sufficing to establish probable cause retroactively.206 There are, however, instances when a police officer’s suspicions will have been aroused by someone’s conduct or manner, but probable cause for placing such a person under arrest will be lacking.207 In Terry v. Ohio,208 the Court, with only Justice Douglas dissenting, approved an onthestreet investigation by a police officer that involved “patting down” the subject of the investigation for weapons.
Terry arose when a police officer observed three individuals engaging in conduct which appeared to him, on the basis of training and experience, to be the “casing” of 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. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable “whenever a police officer accosts an individual and restrains his freedom to walk away.”209 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 continued, the question was whether the policeman’s actions were reasonable. 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.210 Because the conduct witnessed by the police officer 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 the “frisk” is the discovery of 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.”211
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.212 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.213 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.214
Terry did not rule on a host of problems, including the grounds that could permissibly lead an officer to momentarily 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 2004, when it upheld a state law that required a suspect to disclose his name in the course of a valid Terry stop.215 Questions about a suspect’s identity “are a routine and accepted part of many Terry stops,” the Court explained.216
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.217 Although it did not elaborate a set of rules to govern the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.218 Extensive intrusions on individual privacy, e. g., transportation to the station house for interrogation and fingerprinting, were invalidated in the absence of probable cause,219 although the Court has held that an uncorroborated, anonymous tip is insufficient basis for a Terry stop, and that there is no “firearms” exception to the reasonable suspicion requirement.220 More recently, however, the Court has taken less restrictive approaches.221
It took the Court some time to settle on a test for when a “seizure” has occurred, and the Court has recently modified its approach. The issue is of some importance, since it is at this point that Fourth Amendment protections take hold. The Terry Court recognized in dictum that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons,” and suggested that “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”222 Years later Justice Stewart proposed a similar standard—that a person has been seized “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”223 A majority of the Justices subsequently endorsed this reasonable perception standard224 and applied it in several cases in which admissibility of evidence turned on whether a seizure of the person not justified by probable cause or reasonable suspicion had occurred prior to the uncovering of the evidence. No seizure occurred, for example, when INS agents seeking to identify illegal aliens conducted workforce surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.225 This brief questioning, even with blocked exits, amounted to “classic consensual encounters rather than Fourth Amendment seizures.”226 The Court also ruled that no seizure had occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, ﬂashing lights, display of a weapon, or blocking of the suspect’s path), the Court concluded, the police conduct “would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one’s] freedom of movement.”227
Soon after, however, the Court departed from the Mendenhall reasonable-perception standard and adopted a more formalistic approach, holding that an actual chase with evident intent to capture did not amount to a “seizure” because the suspect had not complied with the officer’s order to halt. The Court in California v. Hodari D. wrote that Mendenhall stated a “necessary” but not a “sufficient” condition for a seizure of the person through show of authority.228 A Fourth Amendment “seizure” of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands), or submission to the assertion of authority.229 Indications are, however, that Hodari D. did not signal the end of the reasonable perception standard, but merely carved an exception applicable to chases and perhaps other encounters between suspects and police.
Later in the same term the Court ruled that the Mendenhall “free-to-leave” inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed.230 In conducting a bus sweep, aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and sometimes luggage of selected passengers. The Court did not focus on whether an “arrest” had taken place, as adherence to the Hodari D. approach would have required, but instead suggested that the appropriate inquiry is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”231 “When the person is seated on a bus and has no desire to leave,” the Court explained, “the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.”232
A Terry search need not be limited to a stop and frisk of the person, but may extend as well to a protective search of the passenger compartment of a car if an officer possesses “a reasonable belief, based on specific and articulable facts . . . that the suspect is dangerous and . . . may gain immediate control of weapons.”233 How lengthy a Terry detention may be varies with the circumstances. In approving a 20-minute detention of a driver made necessary by the driver’s own evasion of drug agents and a state police decision to hold the driver until the agents could arrive on the scene, the Court indicated that it is “appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”234
Similar principles govern detention of luggage at airports in order to detect the presence of drugs; Terry “limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person’s luggage on less than probable cause.”235 The general rule is that “when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry . . . would permit the officer to detain the luggage brieﬂy to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.”236 Seizure of luggage for an expeditious “canine sniff” by a dog trained to detect narcotics can satisfy this test even though seizure of luggage is in effect detention of the traveler, since the procedure results in “limited disclosure,” impinges only slightly on a traveler’s privacy interest in the contents of personal luggage, and does not constitute a search within the meaning of the Fourth Amendment.237 By contrast, taking a suspect to an interrogation room on grounds short of probable cause, retaining his air ticket, and retrieving his luggage without his permission taints consent given under such circumstances to open the luggage, since by then the detention had exceeded the bounds of a permissible Terry investigative stop and amounted to an invalid arrest.238 But the same requirements for brevity of detention and limited scope of investigation are apparently inapplicable to border searches of international travelers, the Court having approved a 24-hour detention of a traveler suspected of smuggling drugs in her alimentary canal.239
205 United States v. Watson, 423 U.S. 411 (1976).
206 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).
207 “The police may not arrest upon mere suspicion but only on ‘probable cause.’” Mallory v. United States, 354 U.S. 449, 454 (1957).
208 392 U.S. 1 (1968).
209 392 U.S. at 16. See id. at 16–20.
210 392 U.S. at 20, 21, 22.
211 392 U.S. 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 (patdown for weapons) both the driver and any passengers whom he reasonably concludes “might be armed and presently dangerous”).
212 Minnesota v. Dickerson, 508 U.S. 366 (1993).
213 508 U.S. 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.
214 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”).
215 Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004).
216 542 U.S. at 186.
217 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. “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).
218 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).
219 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”).
220 Florida v. J.L., 529 U.S. 266 (2000) (reasonable suspicion requires that a tip be reliable in its assertion of illegality, not merely in its identification of someone).
221 See, e.g., Prado Navarette v. California, 572 U.S. ___, No. 12–9490, slip op. (2014) (anonymous 911 call reporting an erratic swerve by a particular truck traveling in a particular direction held to be sufficient to justify stop); United States v. Sokolow, 490 U.S. 1, 9 (1989) (airport stop based on drug courier profile may rely on a combination of factors that individually may be “quite consistent with innocent travel”); United States v. Hensley, 469 U.S. 221 (1985) (reasonable suspicion to stop a motorist may be based on a “wanted ﬂyer” as long as issuance of the ﬂyer has been based on reasonable suspicion).
222 392 U.S. at 19, n.16.
223 United States v. Mendenhall, 446 U.S. 544, 554 (1980).
224 See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which there was no opinion of the Court, but in which the test was used by the plurality of four, id. at 502, and also endorsed by dissenting Justice Blackmun, id. at 514.
225 INS v. Delgado, 466 U.S. 210 (1984).
226 466 U.S. at 221.
227 Michigan v. Chesternut, 486 U.S. 567, 575 (1988).
228 499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, supra, the suspect dropped incriminating evidence while being chased.
229 Adherence to this approach would effectively nullify the Court’s earlier position that Fourth Amendment protections extend to “seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), quoted in INS v. Delgado, 466 U.S. 210, 215 (1984).
230 Florida v. Bostick, 501 U.S. 429 (1991).
231 501 U.S. at 436.
232 501 U.S. at 436. The Court asserted that the case was “analytically indistinguishable from Delgado. Like the workers in that case [subjected to the INS ‘survey’ at their workplace], Bostick’s freedom of movement was restricted by a factor independent of police conduct—i.e., by his being a passenger on a bus.” Id. See also United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus search in which one officer stationed himself in the front of the bus and one in the rear, while a third officer worked his way from rear to front, questioning passengers individually. Under these circumstances, and following the arrest of his traveling companion, the defendant had consented to the search of his person.
233 Michigan v. Long, 463 U.S. 1032 (1983) (suspect appeared to be under the inﬂuence of drugs, officer spied hunting knife exposed on ﬂoor of front seat and searched remainder of passenger compartment). Similar reasoning has been applied to uphold a “protective sweep” of a home in which an arrest is made if arresting officers have a reasonable belief that the area swept may harbor another individual posing a danger to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990).
234 United States v. Sharpe, 470 U.S. 675, 686 (1985). A more relaxed standard has been applied to detention of travelers at the border, the Court testing the reasonableness in terms of “the period of time necessary to either verify or dispel the suspicion.” United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (approving warrantless detention for more than 24 hours of traveler suspected of alimentary canal drug smuggling).
235 United States v. Place, 462 U.S. 696, 709 (1983).
236 462 U.S. at 706.
237 462 U.S. at 707. However, the search in Place was not expeditious, and hence exceeded Fourth Amendment bounds, when agents took 90 minutes to transport luggage to another airport for administration of the canine sniff. The length of a detention short of an arrest has similarly been a factor in other cases. Compare Illinois v. Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car following a routine traffic stop does not offend the Fourth Amendment if the duration of the stop is justified by the traffic offense) with Rodriguez v. United States, 575 U.S. ___, No. 13–9972, slip op. at 3, 5–6 (2015) (finding that the stop in question had been prolonged for seven to eight minutes beyond the time needed to resolve the traffic offense in order to conduct a canine sniff).
238 Florida v. Royer, 460 U.S. 491 (1983). On this much the plurality opinion of Justice White (id. at 503), joined by three other Justices, and the concurring opinion of Justice Brennan (id. at 509) were in agreement.
239 United States v. Montoya de Hernandez, 473 U.S. 531 (1985).