CHAPTER FOUR
STOP AND FRISK
Learning Objectives
After studying this chapter, students should be able to:
1. Understand that Fourth Amendment stops are seizures of persons that allow officers to
briefly freeze suspicious people and situations to investigate possible criminal activity.
2. Understand and appreciate that warrantless searches and seizures, including Fourth
Amendment stops and frisks, must satisfy the two requirements of the reasonableness
4. Know that the Supreme Court views police work, especially during traffic stops, as very
5. Understand that empirical evidence stands in conflict with the decisions made by the
6. Know and appreciate that law enforcement officers do not need individualized suspicion
to stop individuals at roadblocks and checkpoints to serve special public interests.
7. Know and appreciate that routine detentions at international borders do not require
reasonable suspicion to back up lengthy detentions and frisks.
Lesson Plan
I. Introduction
Learning Objective 1: Understand that Fourth Amendment stops are seizures of persons that
allow officers to briefly freeze suspicious people and situations to investigate possible criminal
activity.
A. The power to stop and question suspicious persons is ancient.
B. This power was never questioned until the 1960s during the due process revolution. People
argued that “outsiders” needed protection from police and their right to stop and arrest.
C. Police argued that until they made an arrest, their good judgment, based on their
professional experience, was good enough.
D. Fourth Amendment stops are brief detentions that allow law enforcement officers to
freeze suspicious situations briefly, so they can investigate them.
E. Fourth Amendment frisks are once-over-lightly pat downs of outer clothing to protect
officers by taking away suspects’ weapons.
F. Facts surrounding stops and frisks:
1. Officers stop many people who haven’t done anything wrong, and they frisk many
unarmed people.
3. Both lawbreakers and law abiders in high-street-crime neighborhoods form lasting
opinions about the police from street encounters they’ve watched or experienced.
4. Stops and frisks aren’t distributed evenly; they fall most heavily on Black and Latino
young men in poor urban neighborhoods.
II. Stop-and-Frisk Law
Learning Objective 2: Understand and appreciate that warrantless searches and seizures,
including Fourth Amendment stops and frisks, must satisfy the two requirements of the
reasonableness test: (1) the need to search/seize must outweigh the invasion of individual liberty
and privacy, and (2) there must be enough facts and circumstances to back up the search/seizure.
Class Discussion/Activity
What would you do if a police officer asked you to get out of your car after you had been
stopped? The Supreme Court has said that it is constitutional and thus reasonable to do
so…do you agree?
Media Tool
“Stop and Frisk Practices”
http://www.nyclu.org/issues/racial-justice/stop-and-frisk-practices
o The New York Civil Liberties Union looks at the issue of stop-and-frisk practices by
the New York Police Department.
o Discussion: Discuss what issues the NYCLU has with the practices of the NYPD.
What have courts thus far had to say these practices?
See Assignments 1, 2, 4
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Learning Objective 5: Understand that empirical evidence stands in conflict with the decisions
made by the Supreme Court expanding police power to stop and frisk during traffic stops.
Appreciate the importance of evidence-based decision making when balancing officer safety
against individual Fourth Amendment rights.
A. Stop-and-frisk law follows the three-step analysis of a search/seizure:
1. Was the officer’s action a stop or a frisk?
2. If the government action was a stop or a frisk, was it reasonable?
3. If the stop or frisk was unreasonable, should evidence obtained during the stop and/or
frisk be excluded from legal proceedings against the defendants?
B. Two approaches to Fourth Amendment analysis
1. The Fourth Amendment consists of two clauses:
a. Reasonableness clause – This states that people have a right to be secure in their
2. Until the 1960s, the U.S. Supreme Court followed the conventional Fourth
3. In the 1960s, the Supreme Court shifted from the conventional approach to the
5. When the Supreme Court decided there were more reasonable searches and seizures
without warrants than with them, it created two problems:
(1) When does the Fourth Amendment require warrants?
(2) What does “unreasonable” mean?
7. The other type—which in practice includes the vast majority of searches—has to pass
the reasonableness test.
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(1) Balancing element – The need to search and/or seize outweighs the invasion
of liberty and privacy rights of the individuals.
9. Reasonable suspicion is required to back up stops and frisks.
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10. Courts must decide whether searches and seizures are reasonable on a case-by-case
basis. To do this, they look at the totality of circumstances surrounding the specific
searches and seizures in individual cases.
C. Terry v. Ohio and Stop and Frisk
1. Today’s stop-and-frisk law grew out of the practical problems police officers face in
2. The answer to the Fourth Amendment issues surrounding suspicious circumstances
considering an officer’s professional training depends on three possible
interpretations:
4. The Fourth Amendment also gives officers the power to protect themselves by
(1) The need to control crime outweighs the intrusions against the individual’s
rights.
(2) Officers cannot stop and frisk people on a hunch; they need facts to back them
up.
b. Courts can later review their stops and frisks to make sure they were reasonable.
III. Stop-and-Frisk after Terry v. Ohio
Learning Objective 2: Understand and appreciate that warrantless searches and seizures,
including Fourth Amendment stops and frisks, must satisfy the two requirements of the
reasonableness test: (1) the need to search/seize must outweigh the invasion of individual liberty
and privacy and (2) there must be enough facts and circumstances to back up the search/seizure.
Learning Objective 3: Know that reasonable suspicion is the objective basis required to back up
Fourth Amendment stops and frisks.
Class Discussion/Activity
What is required to justify a warrantless search and seizure? What do you think
would be important enough for an officer to search your car? Your home?
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A. Concern that Terry was watering down the protections against unreasonable search and
seizure.
i. Appeared to be necessary due to the nature of the times.
B. Cases following Terry explained the scope of the power beyond violent crimes against
persons to possessory crimes.
C. Expanded the time and location where the power could be exercised.
D. Expanded the objective basis for stops and frisks from firsthand observation by officers
IV. Fourth Amendment “Stops”
Learning Objective 1: Understand that Fourth Amendment stops are seizures of persons that
allow officers to briefly freeze suspicious people and situations to investigate possible criminal
activity.
Learning Objective 2: Understand and appreciate that warrantless searches and seizures,
including Fourth Amendment stops and frisks, must satisfy the two requirements of the
reasonableness test: (1) the need to search/seize must outweigh the invasion of individual liberty
and privacy and (2) there must be enough facts and circumstances to back up the search/seizure.
A. The Scope of Reasonable Stops
2. Short duration – The U.S. Supreme Court has declined to adopt a specific time limit
on stops, giving officers plenty of room for discretionary decision making.
3. “On the spot” investigation requirement:
4. Questioning stopped suspects.
a. The officer can ask for name and identification and arrest can occur if suspect
refuses to answer.
B. Reasonable Suspicion to Back Up Stops
1. The U.S. Supreme Court called the objective basis for a stop “articulable facts”—
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2. For our purposes, reasonable suspicion is the totality of articulable facts and
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4. Officers can rely on two other sources of information to back up reasonable
suspicion:
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(1) “High crime” or “known for drug trafficking” neighborhoods.
a. Characterizing a neighborhood in this way is often crucial to the finding of
reasonable suspicion.
b. Frequently used as a building block for establishing reasonable suspicion.
c. Courts often use officer’s testimony to prove “high crime area.”
d. Allowing officer testimony to qualify as proof of a “high crime area”
results in different “high crime areas” from case to case.
e. Three elements proposed for an “objective, quantifiable approach” to
determine a “high crime area”: Crime and criminal activity, Geography
and timing, Criminal activity/officer observation link
Class Discussion/Activity
Should the definition of “high crime area” be determined by a law enforcement officer?
What arguments can be made in favor of this method of defining a “high crime area?”
What arguments can be made against this method of defining a “high crime area?”
Media Tool
“St. Louis Police Chief Wants Drones to Patrol High Crime Areas”
http://www.infowars.com/st-louis-police-chief-wants-drones-to-patrol-high-crime-areas/
o Article about using drones to police high crime areas
o Discussion: Should drones be used to police high crimes areas? What Fourth
Amendment issues do you think there might be when using such aircraft, if any?
What are the potential positive outcomes? What are the potential negative outcomes?
(2) Race and ethnicity, and reasonable suspicion:
– The U.S. Supreme Court has made it clear that race and ethnicity by
(3) Racial Profiling – End Racial Profiling Act of 2011
– Defines racial profiling as “the practice of a law enforcement agent
or agency relying, to any degree, on race, ethnicity, national origin,
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or religion in selecting which individual to subject to routine or
spontaneous investigatory activities”
– Bans racial profiling and requires training on racial profiling
V. Frisks and the Fourth Amendment
Learning Objective 2: Understand and appreciate that warrantless searches and seizures,
including Fourth Amendment stops and frisks, must satisfy the two requirements of the
reasonableness test: (1) the need to search/seize must outweigh the invasion of individual liberty
and privacy and (2) there must be enough facts and circumstances to back up the search/seizure.
A. A lawful frisk has three elements:
2. Reasonable suspicion the suspect is armed and dangerous
3. The search is limited to a once-over-lightly pat down of outer clothing to detect
weapons
B. The Criminal Procedure Balancing Ideal in Frisks
1. The reasonableness of frisks depends on balancing the government’s interest in
protecting law enforcement officers against the individual’s privacy right not to be
touched by an officer.
Class Discussion/Activity
Should officers be able to search for contraband? Why do we provide protection for
people who have something to hide?
C. Reasonable suspicion to back up frisks
2. Some critics claim that the lower courts have weakened the reasonable
suspicion requirement so much that, in practice, the power to frisk is left almost
entirely to law enforcement officers’ discretion.
D. The scope of reasonable frisks
1. Some frisks need to go further than just a once-over-lightly pat down:
a. Feeling a hard object inside a coat pocket that could be a weapon authorizes
reaching inside the coat.
2. If contraband is discovered during a frisk, it can be seized as long as the frisk for
weapons isn’t a pretext for looking for contraband.
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3. An automatic frisk for evidence and contraband is unlawful.
4. Minnesota v. Dickerson
VI. Stops and Frisks at Roadside
Learning Objective 4: Know that the Supreme Court views police work, especially during
traffic stops, as very dangerous and has created bright-line rules expanding police powers during
traffic stops in order to balance the increased need of officer safety against individual Fourth
Amendment rights.
A. Although research does not support the dangerous of traffic stops, courts are extremely
1. In Pennsylvania v. Mimms the Supreme Court created the bright-line rule that when
an officer lawfully stops a vehicle the officer can always demand that the driver get
out of the car.
a. Removing the driver from the car is a “trivial invasion.”
C. Sorting Innocents, Evidence-Based Decision Making, and Officer Safety
1. Maryland v. Wilson
2. Researchers found that “no data exist to support the proposition that greater
D. Frisking occupants of lawfully stopped vehicles.
1. In Arizona v. Johnson the Court struck the balance in favor of officers’ safety.
Media Tool
“Sobriety Checkpoint Laws”
http://www.ghsa.org/html/stateinfo/laws/checkpoint_laws.html
o Governors Highway Safety Association Website provides information
about the laws regarding sobriety checkpoints in the states.
o Discussion: Discuss whether your state allows sobriety checkpoints. Are
they a good idea? Are they an “exception to the Constitution?” Should the
Supreme Court allow these kinds of exceptions for good reason?
E. Roadblocks and checkpoints
1. The court has adopted a three-pronged balancing test to determine whether
roadblocks and checkpoints are reasonable.
2. Drug interdiction checkpoints are not reasonable.
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3. Information seeking checkpoints are reasonable.
VII. Detentions at International Borders
Learning Objective 7: Know and appreciate that routine detentions at international borders do
not require reasonable suspicion to back up length detentions and frisks. The Supreme Court has
determined that the strong government interest in controlling who and what enters the country
outweighs the significant reductions of individual liberty and privacy.
Class Discussion/Activity
Do you agree that the liberty and privacy rights of individuals at border points
should be reduced? What recent events do you think have resulted in citizens
changing their minds regarding this issue? Should the rights of citizens be reduced
or increased based on the political climate?
A. The strong government interest in controlling who and what comes into the United
States substantially reduces the liberty and privacy rights of individuals at border points.
Lecture Notes
The Fourth Amendment consists of two parts: the reasonableness clause that applies to all
searches and arrests and the warrant clause that applies only to searches and arrests based on
warrants. Reasonableness is a broad standard and consists of two elements, a balancing element and
an objective basis requirement, both of which are determined on a case–by-case evaluation of the
totality-of-circumstances.
Fourth Amendment stops are brief encounters so law enforcement officials can freeze suspicious
people and situations to investigate them. In Fourth Amendment frisks, officers protect themselves
by conducting pat down searches of a person’s outer clothing, looking for weapons. Stops and frisks
generally take place in public places and are less invasive than arrests and searches. They also impact
many more people than arrests and searches and raise important policy issues because officers
inevitably stop people who have not violated the law and frisk people who are not armed.
Many commentators and some judges felt that the Terry decision was a watering down of the
search and seizure protection that was necessary for the time. There were fears that the decision
See Assignment 5
would result in problems such racial division, abuse by law enforcement, and possibly perjury by
officers. The decision was praised for providing a balance of law enforcement and individual rights.
Cases following the Terry decision providing the balancing element and objective basis of the
reasonableness approach. The trend since that time has been in favor of law enforcement.
Fourth Amendment stops are reasonable if the totality of circumstances (whole picture) leads
officers to suspect recent or present criminal activity in the case at hand. Officers must be able to
articulate the facts that shows criminal activity is happening or about to happen. The whole picture
can include direct and/or hearsay information; individualized and/or categorical suspicion arises
Fourth Amendment stops are reasonable in scope if they are brief, on-the-spot detentions, during
which time officers question the stopped individuals in order to decide quickly whether to arrest or
free the suspects. Fourth Amendment frisks are reasonable if the government interest in protecting
law enforcement officers outweighs the individual’s privacy right not to be touched by an officer.
The elements of a reasonable frisk: the officer lawfully stops an individual before she frisks him; the
officer reasonably suspects the person stopped is armed; and the officer limits her action to a once-
over–lightly pat down of the outer clothing to detect weapons only.
Special situation stops and frisks require reasonably balancing special interests. The hundreds of
millions of traffic stops every year have to balance officer safety against driver and passenger liberty
and privacy. Officers are permitted to demand the driver of a vehicle get out of a car when the officer
International border detentions balance the interest in controlling who and what enters and leaves
the country, against the privacy and liberty interests of U.S. citizens and non-citizens. The
expectation of privacy is diminished at the border. The Supreme Court held that the detention of a
traveler at the border, beyond a routine search, is justified if officers, considering all the facts,
reasonably suspects the person is smuggling contraband, even if the detention lasts 16 hours and
involves a person smuggling drugs in her alimentary canal.
Key Terms
arrest: Long detention in police stations, or elsewhere, that require probable cause to back them
up. (p. 102)
Fourth amendment stops: Brief detentions that allow law enforcement officers to freeze
suspicious situations so they can investigate further. (p. 102)
searches: Everything from once-over lightly protective patdowns for weapons to highly invasive
strip and body-cavity searches.
objective basis: Suspicious facts and circumstances that go beyond hunches, to support the
government interfering with a person’s rights. (p. 102 & 105)
conventional Fourth Amendment approach: The warrant and reasonableness clauses are
firmly connected. (p. 105)
reasonableness Fourth Amendment approach: Approach that argues that, since the Fourth
Amendment’s two clauses are separate, they therefore address different problems. (p. 105)
reasonableness test (Fourth Amendment): Wherein the reasonableness of searches and
seizures depends on balancing government and individual interests and the objective basis of the
searches and seizures. (p. 105)
balancing element (of reasonableness test): The element of reasonableness test that weighs
government interest in law enforcement against individual interests in privacy and liberty. (p. 105)
individualized suspicion: Facts that point to suspecting a particular individual of illegal
activity. (p. 106)
articulable facts: The specific, nameable facts that provide the objective basis for a stop. (p. 117)
reasonable suspicion: Facts that would lead a reasonable officer to suspect that a crime may
have been, may be about to be, or may be in the process of being committed. (p. 117)
totality-of-circumstances test: Based on the whole picture, detaining officers must have a
particularized and objective basis for suspecting the particular person stopped of criminal
activity. (p. 117)
categorical suspicion: Suspicion that falls on a suspect because he or she fits into a broad
category of people. (p. 121)
high-crime area: Also known as “known for drug trafficking” this is a term used to refer to a
neighborhood known for higher rates of criminal activity. (p. 121)
profiles: Lists of circumstances that might, or might not, be linked to particular kinds of
behavior. (p. 129)
violent crime-automatic-frisk exception: The exception to the rule established in Terry v. Ohio
that a stop does not automatically permit a frisk. The exception applies if the officer reasonably
suspects the person they stopped was about to or had committed a violent crime. (p. 134)
roadblock: Police barricade with no escape route. (p. 144)
Assignments
1. Ask student about their experiences (and the experiences of their friends and family
members) with being stopped and frisked by police officers. What were the circumstances
and the outcomes of the stops? How did they feel about the experience? In larger cities with
2. Type “stop and frisk” into an Internet search engine and read a few articles and reports about
stop and frisk practices in various cities and states in the U.S. There are quite a few sites
3. Have students discuss the use of anonymous tips to establish reasonable suspicion. What are
the dangers involved in using such tips? What are the dangers involved in not using them?
4. Have students find an article related to the empirical evidence either supporting or not
5. Have students locate a state court case related to searches and international borders. Have