McGuire Megna Attorneys, An Association of Professionals

Stop and Frisk?

Stop and Frisk?

To say “Stop and Frisk” is a controversial law enforcement tactic would be an understatement.  Police believe the strategy of stop and frisk is essential to preventing crime and catching criminals.  Civil rights advocates argue that it’s a violation of the 4th Amendment which guarantees freedom from unwanted searches and seizures.

In 1968, in the case of Terry v. Ohio, the U.S. Supreme Court ruled that an officer may detain and search a person if that officer has a reasonable suspicion of criminal conduct. This “reasonable suspicion” standard is a lower threshold than the “probable cause” required for an actual arrest.

Under Florida’s stop and frisk law, a police officer may temporarily detain a person and ask for identification if the officer believes that the surrounding circumstances reasonably indicate that the person has committed, is committing, or is about to commit a crime. Florida courts have interpreted the law to require that the officer must have a “founded suspicion” for stopping the person, meaning that the officer’s suspicion must be based on observed facts as interpreted in light of the officer’s experience.

As I noted earlier, this is a lower threshold than probable cause and thus the controversy over “Stop and Frisk”.  The 4th Amendment to the Constitution reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

A close reading of the amendment allows for various interpretations of certain key words and phrases such as “unreasonable”, “searched”, and particularly “seized”.

The Fourth Amendment protects individuals against unreasonable searches and seizures. The Supreme Court has said that a search occurs when a government official infringes a person’s legitimate expectation of privacy (Katz v. U.S.), or commits a trespass to private property in an effort to obtain information. (U.S. v. Jones)

Seizures are of two varieties—seizures of the person, and seizures of property. Seizures of the person include detentions (Florida v. Bostick), arrests (Beck v. Ohio), and taking a suspect’s life by use of deadly force. (Tennessee v. Garner) Seizures of property occur when the government interferes with a person’s possessory interests in retaining an item of property. (U.S. v. Jacobsen)

Under these definitions, a “stop” is a seizure of the person—a detention. A “frisk” is a search, because it invades the person’s legitimate expectation of privacy in his body and clothing. Therefore, a “stop and frisk” includes both a seizure and a search. Each must be independently justified.

In addition to the constitutional issues involved with “Stop and Frisk”, many advocates believe the practice is racist leading to profiling certain ethnic groups.

In Florida, “Stop and Frisk” is possible so you need to know the law and your legal rights.


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