3.8 Stop and Frisk

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

3.8 STOP AND FRISK

3.801 In General. Although the Fourth Amendment does not use terms such as "arrest" or "stop and frisk," the Supreme Court has made it clear that the amendment is flexible enough to meet the investigative needs of law enforcement officials while at the same time protecting the privacy and security of the citizenry. Thus, the Court has sanctioned brief, on-the-street encounters between police and citizens on something less than probable cause and has permitted a limited "pat-down" for weapons in these circumstances where officers reasonably suspect the subject is armed and dangerous. ¹³⁷ The colloquially known phrase "stop and frisk" actually encompasses two distinct law enforcement actions. "Stop" refers to a limited seizure that falls below a custodial arrest, while "frisk" refers to a limited pat-down for weapons. Sometimes an officer may have a sufficient basis for a "stop" but nonetheless lack a basis for a "frisk." The Supreme Court has acknowledged that these activities constitute "seizures" and "searches" of the person but has upheld these activities because they are "reasonable" where the appropriate standard is met given the limited nature of the intrusion sanctioned.

3.802 The Standard.

A. In General. In its original decision on the subject, the Supreme Court set down a very limited and stringent test to determine the legality of "stop and frisk" activities by the police:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous; where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. ¹³⁸

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Despite this restrictive language, it is clear that the law of "stop and frisk" does not depend today on strict compliance with the scenario described in the previous quote. Each police-citizen encounter is different, and the reasonableness of a stop and frisk (a seizure and search less intrusive than the traditional arrest and search incident to the arrest) depends on a weighing of the gravity of the public concerns, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. ¹³⁹

B. What Constitutes a Stop? The general outline of the stop and frisk doctrine is reasonably clear. The doctrine applies only to encounters that are something more than mere consensual police-citizen contact, as a seizure does not occur unless an individual is either physically restrained or submits to a show of authority. ¹⁴⁰ As long as there is no overwhelming show

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or application of force, no intimidating movement, no brandishing of weapons, no blocking of exits, no threats, commands, or even authoritative tone of voice, the encounter remains consensual. ¹⁴¹ The Fourth Amendment does not require police officers to advise citizens of their right not to cooperate and to refuse to consent to a search. ¹⁴²

In order to constitute a "stop," the contact must have taken place under circumstances in which the citizen's freedom to walk away was restricted by government action; that determination is made by viewing the encounter through the eyes of a reasonable person. ¹⁴³ The objective test to determine whether a person is "seized" is whether a reasonable person, considering all of the circumstances surrounding the encounter, would believe that he or she is not free to terminate the encounter. ¹⁴⁴

The Fourth Circuit Court of Appeals has enumerated specific factors to consider in determining whether a reasonable person would feel free to leave the scene of an encounter with the police. These factors include (i) the number of officers present at the scene; (ii) whether the officers were in uniform; (iii) whether the officers displayed their weapons; (iv) whether an officer touched the person or made any attempt to physically restrain or prevent the person's departure or movement; (v) the use of language or tone of voice indicating that compliance with the officer's request might be compelled; (vi) whether the officers informed the person that they suspected him or her of illegal activity rather than treating the encounter as routine in

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nature; and (vii) whether, if the officer requested from the person some form of official identification, the officer promptly returned it. ¹⁴⁵

A stop, being something less intrusive than an arrest, must be of limited temporal and spatial scope. ¹⁴⁶ Taking the suspect to the police station for questioning is an arrest, and the more stringent probable cause standard must be met. ¹⁴⁷ The involuntary removal of a suspect from his or her home, especially when handcuffed, and transportation to the police station for "investigative purposes" is an arrest within the meaning of the Fourth Amendment and must be supported by probable cause. ¹⁴⁸ On the other hand, due to concerns about officer safety, officers are permitted during a Terry stop to draw their weapons, handcuff the suspect, or even threaten to use force if the circumstances necessitate it. ¹⁴⁹ These additional intrusions do not necessarily transform an investigative Terry stop into a full-blown custodial arrest that would require probable cause.

C. Justification for Stop. A "stop and frisk" may only be justified based on specific, objective, and articulable facts indicating a basis for "reasonable suspicion" that the individual is involved in criminal activity. ¹⁵⁰ The authority extends to completed as well as imminent or ongoing crime. ¹⁵¹ Looking at the "whole picture"—the totality of the circumstances—the police must have a particularized and objective basis for suspecting the person of criminal activity. ¹⁵² Reasonable suspicion is not determined by considering

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and evaluating various factors in isolation from each other. ¹⁵³ Officers must be able to articulate more than an "inchoate" or "unparticularized suspicion or hunch." However, the articulable facts need not show that criminal activity actually is afoot, only that it may be afoot. ¹⁵⁴ The factors that may be considered in determining whether the required "reasonable suspicion" exists include information from police reports and the modes or patterns of operation of certain kinds of law-breakers (profiles) from which a trained officer may draw inferences and deductions that might well elude an untrained person. ¹⁵⁵

An anonymous tip that a person is engaged in illegal activity, without predictive information, is insufficient standing alone to give rise to reasonable suspicion. The tip must be reliable in its assertion of illegality, not just in its tendency to identify the proper individual. ¹⁵⁶ But an anonymous tip that is sufficiently corroborated may give rise to reasonable suspicion. ¹⁵⁷ A

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person is not an "anonymous" tipster if he or she gives the information to the police face-to-face, even though the officer may not know the person's name. ¹⁵⁸ A 911 call containing detailed information that would lead an officer to reasonably believe that a crime was committed can be the basis of a stop, without the need for the officer to observe corroborating conduct. ¹⁵⁹

In Ramey v. Commonwealth, ¹⁶⁰ the Virginia Court of Appeals refused to apply the "imminent danger" exception first mentioned in Florida v. J.L., ¹⁶¹ under which a deficient anonymous tip might nonetheless justify police action. The court stated that this exception applies only in imperative situations, such as where a person is reported to be carrying a bomb.

A person's "mere presence" in a "high crime" area is insufficient standing alone to give rise to reasonable suspicion of criminal activity, but flight from the scene upon the approach of the police, when combined with presence in the high crime area, is enough to give rise to reasonable suspicion. ¹⁶²

Observation of a "pink" rejection sticker furnishes reasonable suspicion to stop an automobile for further investigation even though, under certain conditions, a vehicle may be operated legally with the rejection sticker. ¹⁶³ Reasonable suspicion was found when the police approached the defendant at 11 p.m. in an area known for drug activity and saw him hand something to another person, and he refused to remove his hand from his pocket when asked. ¹⁶⁴ A five-by-three inch parking pass dangling from a rearview mirror

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gives rise to a reasonable suspicion that the parking pass could obstruct the driver's clear view of the highway. ¹⁶⁵

The subjective intent of the officer in making a stop is irrelevant. If the officer has reasonable suspicion to conduct the stop, any evidence of criminal activity arising from the detention is admissible. When a police officer signals a motorist by flashing his or her lights, a reasonable person would conclude that he or she must comply. However, an officer's approach to a parked vehicle on a public street does not constitute a stop without more. ¹⁶⁶ The validity of a seizure turns on an objective assessment of an officer's actions in light of the facts and circumstances and not on the officer's actual state of mind. ¹⁶⁷

The officer's suspicion may justify a stop, even if he is mistaken on either the relevant facts or the relevant law, as long as the mistake is objectively reasonable. ¹⁶⁸ The Fourth Circuit, relying on Devenpeck v. Alford, ¹⁶⁹ has held that even if the officer is mistaken as to the violation, the stop will be upheld if the defendant's action violated another statute. ¹⁷⁰

D. Length of Detention. The forcible detention...