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Wilson explains ‘stop and frisk’ law

By J.R. Wilson, 12/3/20 10:01 AM

HOPE – Stop and frisk; a legitimate law enforcement tool or an inappropriate use of police power?

This topic sparked national political debate in the 2020 primaries while the past policies of NYPD came under suspicion.  While citizens may question its use and misapplication of its legal requirements may form the basis of a constitutional violation, when properly applied, it’s a vital and necessary tool for public safety.

Governed by the 4th amendment of the US Constitution, stop and frisk requires two conditions to be met. First, the stop must be lawful.  Police may not forcibly stop anyone they desire. Legal detention requires particularized reasonable suspicion that a crime is, has or is about to be committed. This type of stop is often referred to as a Terry Stop based on the case Terry vs. Ohio from which the legal practice was formally accepted. Arkansas Rules of Criminal Procedure further require the crime suspected to be a felony or misdemeanor involving danger of forcible injury or appropriation or damage to property and the detention must be reasonably necessary to obtain or verify the suspect’s identity.   While reasonable suspicion is not well defined in American jurisprudence, it is not a hunch and something less than probable cause.  It requires articulable facts and circumstances suggestive of criminal activity. Such stops are lawful for the reasonable period of time it takes an officer to conduct legitimate investigation to confirm or dispel the officer’s reasonable suspicion.  The detained person is not free to leave and reasonable non-deadly force may be used to accomplish detention.

Secondly, in order to conduct a frisk of an individual, an officer must possess reasonable suspicion to believe the person is both armed and dangerous. The frisk of an individual is perhaps best described as a search that is limited in scope to the outer clothing conducted for the purpose of locating a weapon that can be used to harm the officer or others. This type of search is often called a Terry Search originating from the same case as described above. It is important to note that both the armed and dangerous components of this requirement must be articulated.  This is becoming even more important in the landscape of open and concealed carry laws where many people officers engage with may be armed.  Mere lawful detention alone does not bestow the authority to frisk an individual.  Additionally, lawful detention and one’s status as armed may not be sufficient to bestow this authority. Lawful detention, armed and dangerous are the legal building blocks to conduct a valid frisk.

Police administrators and supervisors must keep a watchful eye on a police organization to ensure officers understand and follow constitutional legal requirements.   We must impress upon our staff that our Mission and oath is first and foremost the protection and defense of the constitution. Inappropriate conduct, despite subjective intentions, must be readily recognized and addressed.  However, when officers find themselves in precarious positions where it is reasonable to suspect a person is armed with mal intent and there is insufficient cause to arrest, it is the legitimate interest of government to dispel reasonable suspicion by stopping the individual, conducting legitimate investigation to make a probable cause determination and feeling the persons outer clothing in an effort to locate weapons that may be used to harm the officer or society. Terry stops and frisks are perhaps some of the most important and powerful legal tools police possess to preempt or quickly abate criminal activity, helping ensure public peace and safety. Police must utilize this tool appropriately to ensure ongoing continued public support of this important police power.