Search and Seizure

Criminal Defense

Stop and Frisk

Stop and frisk law comes from the Fourth Amendment. It gives us the basic rules of search and seizure law:
You are protected from unreasonable searches and seizures
Your person, house and other items are protected
The government needs probable cause for a warrant
A warrant must detail the place, person or things to be searched and seized

Stop and frisk is one of many exceptions to the warrant and probable cause requirements. Probable cause is needed for a warrant, but not for all seizures.

Terry v. Ohio

In Terry v. Ohio, the US Supreme Court set out the "stop and frisk" law. First the Court found that a stop and frisk is a type of seizure, therefore, the Fourth Amendment applies. This case defines a stop as an encounter in which police restrict a suspect's freedom to walk away. This case also sets a new standard for searches and seizures - reasonable suspicion. Reasonable suspicion is less than probable cause but more than a hunch. "Terry stops," a type of seizure, came from this famous case. To justify a Terry stop, police must point to specific facts, combined with rational inferences from those facts, leading to reasonable suspicion criminal activity may be afoot. The Supreme Court defined a frisk as a carefully limited search for weapons, limited to someone's outer clothing. To justify a frisk, an officer needs reasonable belief that the stopped person may be armed and dangerous.

Reasonable Suspicion to Stop

Once police officers have reasonable suspicion to suspect criminal activity, they may stop a person to investigate. Reasonable suspicion varies by case. Reasonable suspicion can be based on:

Facts seen and interpreted by police, in light of training and experience
Informant tips
A profile, such as a drug courier or gang member profiles
Information shared by police departments
Presence in a high crime neighborhood
Unprovoked flight after seeing police
Information gathered during a voluntary encounter

The Frisk

The government must show the following to justify the frisk:

A reasonable suspicion criminal activity may be afoot before the stop
A reasonable suspicion someone may be armed and dangerous, before the frisk

What if the police officer lacks reasonable suspicion required to frisk? The officer can ask someone for consent to search. Consent does away with the need for the additional reasonable suspicion. The scope of the frisk is limited to what's reasonable and needed to reveal guns, knives or other things that could be used to harm police.

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