What Is A Fourth Amendment "Stop and Frisk"?

• Jurisdiction: Maryland

XV. What is a Fourth Amendment "stop and frisk"?

In a Fourth Amendment "stop and frisk," the "frisk" component is (a) a pat-down of the defendant's outer clothing to determine whether there are bulges that could be a weapon; and/or (b) a search of the area in which the defendant can lunge, reach, or grasp for weapons. Terry v. Ohio, 392 U.S. 1, 29-30 (1968). If police have the right to frisk the person of the defendant that does not include the right to search the person of the defendant. Id. at 26.

In Hatcher v. State, 177 Md. App. 359, 392 (2007), the Court of Special Appeals held that, although police had the right to frisk or "pat-down" the defendant, police unlawfully searched him when they reached into his pockets and removed drug paraphernalia. See Martin v. State, 18 Md. App. 112, 114 (1973).

In Ransome v. State, 373 Md. 99, 104 (2003), the Court of Appeals stated: "The case law since Terry has refined, in a myriad of contexts, the circumstances under which a seizure actually occurs, when a search exceeds the proper bounds of a Terry frisk, and how the factual circumstances known and articulated by the officer are to be viewed in determining whether they suffice to engender a reasonable suspicion, but the fundamental contours of Terry remain in place." (citing United States v. Arvizu, 534 U.S. 266, 273-74 (2002); Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000); Ornelas v. United States, 517 U.S. 690, 695-96 (1996); Nathan v. State, 370 Md. 648, 659-60; Cartnail v. State, 359 Md. 272, 285-86 (2000)).

A. Constitutional requirement for a "stop and frisk"

1. Valid stop

A necessary predicate for a constitutional frisk is a constitutional stop, based on reasonable articulable suspicion that criminal activity is afoot and/or that the person is armed and dangerous. See Gibbs v. State, 18 Md. App. 230, 238 (1973). The officer's belief that criminal conduct is occurring must be objectively reasonable and, "the police officer must be able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21.

The essential question is whether "the facts available to the officer at the moment of the seizure or the search warrant [an officer] of reasonable caution in the belief that the action taken was appropriate." Ransome, 373 Md. at 103.

2. Reasonable suspicion standard

A constitutionally valid "stop and frisk" requires reasonable suspicion, based on articulable facts, that the defendant is armed and dangerous. Terry, 392 U.S. at 27. In In re David S., 367 Md. 523, 541 (2002), the Court of Appeals held that Terry does not require that an officer be certain that the suspect is armed as a predicate to conduct a frisk for weapons. In Quince v. State, 319 Md. 430, 436-37 (1990), the Court of Appeals held that police had reasonable suspicion that the defendant was armed when an officer was told by a dining hall manager that a man in the dining hall had a gun. See Anderson v. State, 282 Md. 701, 707 (1978) (police lacked reasonable suspicion that the suspect was armed and dangerous).

In Rosenberg v. State, 129 Md. App. 221, 243 (1999), the Court of Special Appeals held that police had reasonable suspicion to frisk the defendant because he was known to carry firearms. See Faulkner v. State, 54 Md. App. 113, 120-21 (1983) (officer had reasonable suspicion to frisk based on the officer's belief that suspect was armed and dangerous). In determining whether there is reasonable suspicion, an officer's judgment is entitled to great deference. Cross v. State, 165 Md. App. 164, 187 (2005).

In Arvizu, the Supreme Court noted that officers are trained "to make inferences from and deductions about the cumulative information that 'might well elude and untrained person.'" 534 U.S. at 273 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). In Stokeling v. State, 189 Md. App. 653 (2009), the Court of Special Appeals held that "considerable credit can be given to the expertise of law enforcement officers in conducting investigations into illegal drug activity." Id. at 667.

In Ransome, 373 Md. at 110-11, the Court of Appeals held that, although courts generally defer to inferences and conclusions drawn by experienced officers, that does not means courts should abandon their responsibility to make the ultimate determination of whether police acted in a lawful manner. Courts do not "rubber stamp" police action simply because police believed there was reasonable suspicion. It requires reasonable articulable suspicion under a totality of the circumstances on a case-by-case basis. Arvizu, 534 U.S. at 273; Wardlow, 528 U.S. at 126-27 (Stevens, J., concurring); Ornelas, 517 U.S. at 696; Sokolow, 490 U.S. at 7-8; Cortez, 449 U.S. at 417 (assess the whole picture); Chase v. State, 449 Md. 283 (2016).

In Crosby v. State, 408 Md. 490, 507 (2009), the Court of Appeals stated that there is no standard test for governing what constitutes reasonable suspicion. In Bost v. State, 406 Md. 341, 356 (2008), the Court of Appeals stated that the test is the totality of the circumstances, viewed through the eyes of a reasonable, prudent police officer.

In Ransome, the Court of Appeals stated: "A factor that, by itself, may be entirely neutral and innocent, can, when viewed in combination with other circumstances, raise a legitimate suspicion in the mind of an experienced officer." 373 Md. at 105. See Nathan, 370 Md. at 660; Stokes v. State, 362 Md. 407, 415 (2001) (particularized and objective basis for suspecting criminal activity). In Cartnail v. State, 359 Md. 272, 286 (2000), the Court of Appeals stated that there is "no standardized litmus test that governs the 'reasonable suspicion' standard, and any effort to compose one would be futile."

In Ferris v. State, 355 Md. 356 (1999), the Court of Appeals stated: "A police officer, by reason of training and experience, may be able to explain the special significance of [observed] facts. Thus, conduct that appears innocuous to the average layperson may in fact be suspicious when observed by a trained law enforcement official." Id. at 391. The Court stated: "The Fourth Amendment, however, does not allow the law enforcement official to simply assert that apparently innocent conduct was suspicious to him or her; rather the officer must offer the factual basis upon which he or she bases the conclusion." Id.

In Whitmire v. State, 61 Md. App. 548, 552 (1985), the defendant was suspected of robbing a residence and was detained by police. While the defendant was detained, police patted him down and felt a rosary and a small cylindrical container, which turned out to be a roll of dimes. The officer justified reaching into the defendant's pockets because he believed the rosary could have been a chain with razorblades on it and the roll of dimes could have been a container concealing a knife. The Court of Special Appeals held the search of the pockets was invalid because the officer's rationale was unreasonable.

In Weedon v. State, 82 Md. App. 692, 699-700 (1990), the Court of Special Appeals held that the officer's belief that a small-box shaped object under the defendant's clothing was a weapon was unreasonable.

3. Reasonable suspicion is more than a "mere hunch" and less than probable cause

A "stop and frisk" based a "mere hunch" that is less than articulated reasonable suspicion violates the Fourth Amendment. Terry, 392...