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The Law of Citizen Contacts and Stop and Frisk

Jack Ryan

On a daily basis police officers have contacts with citizens that are consensual and thus do not implicate the Fourth Amendment. These contacts do not require the police to have any level of suspicion to justify the contact. Since police do not justify the stop based on some level of suspicion, the police have no authority to force a non-willing citizen to participate in the contact. As long as the citizen voluntarily remains and speaks with the officer, the contact remains consensual. If the officer, by words or conduct, implies that the citizen has no choice but to participate then the contact is no longer consensual and must be supported by at least reasonable suspicion to believe that “criminal activity is afoot.”

In Bostick, officers working drug interdiction entered a bus and identified themselves. The officers spoke to some of the passengers. In speaking with one passenger, the officers obtained consent to search his luggage, which led to the seizure of narcotics. In analyzing the case, the Court examined the officers’ actions with respect to what they said and where they stood with respect to this passenger. The Court remanded the case so that the trial court could determine if the officers, by words or conduct, conveyed a message that compliance with their requests was required. In cases where an officer has, through words or conduct, implied that compliance is required, and the individual has submitted, a show of authority seizure has occurred. Where a seizure has occurred, the officer must be able to articulate a level of proof, equal to reasonable suspicion in order to justify the seizure. If an officer cannot justify a seizure by meeting the appropriate level of proof; then any evidence obtained as a result of that seizure will be lost. Several facts may be considered in order to determine whether an encounter is consensual. How many officers are present; does the citizen have a clear path in order to leave; do the officers have weapons drawn or are they taking some action that indicates leaving is not an option?

Seizures of the person as defined by the U.S. Supreme Court

Physical Seizure:

A physical seizure occurs when an officer uses physical force by a means intentionally applied and that force is directed to the person the officer intended. Example: A group of officers responded to a kidnapping. Upon arrival they observe the kidnapper fleeing in a vehicle with the victim. The officers shot at the kidnapper but missed and accidentally hit the victim. The victim had not been seized since the force was not intentionally applied to him or her. A different result would occur if the officers intentionally fired at the victim believing the victim to be the kidnapper. In that case the force would be intentionally applied to the person shot and therefore a seizure has occurred.

Show of Authority Seizure:

A show of authority seizure occurs when two essential elements are in place. First, an officer must have shown some authority. For example, suppose an officer has ordered a subject to stop or has sounded his vehicle’s siren at a suspect’s auto. Second, the person being seized must have submitted to the officer’s authority. Until the suspect has submitted – no seizure has occurred. Likewise, suppose an officer without any suspicion at all attempts to stop someone. When the officer orders the subject to stop, he flees. While chasing this subject on foot the officer sees the subject discard a packet of drugs. The officer then tackles the subject and retrieves the discarded packet of drugs. This evidence is admissible because there was no seizure prior to the subject abandoning the drugs. It does not matter that the officer lacked any suspicion, because the drugs were not seized as the result of an unlawful seizure. A different result would occur if the subject had immediately submitted to the officer’s order to halt and then had discarded the drugs. Under these circumstances the drugs would be inadmissible as the fruit of an unlawful seizure.

Where a police officer can articulate facts which amount to reasonable suspicion to believe that criminal activity is taking place, yet does not have probable cause to make an arrest, the officer is justified in stopping the individual believed to be involved in the activity and in conducting further investigation. An officer making this type of stop may use the force necessary, short of deadly force, to accomplish the stop. If the officer can articulate facts that lead him or her to believe that the subject may be carrying a weapon, the officer may conduct a limited pat-down (frisk) of the subject’s outer clothing to determine if the person is carrying a weapon.

What constitutes reasonable suspicion is not always clear; however in a recent U.S. Supreme Court case, the Court held that “unprovoked flight” in a high crime area may constitute reasonable suspicion. In Wardlow, police officers were driving through a known narcotics area when they observed Wardlow. Upon seeing police, Wardlow began to run. The police chased and stopped Wardlow. Upon frisking him, the officers recovered a gun. The Court concluded that Wardlow’s “unprovoked flight” coupled with his presence in the high crime area provided police with the reasonable suspicion necessary to stop him. In a footnote, the Court noted that the validity of the frisk was not before the Court and therefore whether or not it was legal was not decided. The importance of this footnote cannot be understated. It demonstrates that while police officers may stop individuals when they have reasonable suspicion to believe that criminal activity “is afoot,” this reasonable suspicion does not always provide the foundation necessary to justify a frisk. Officers must be able to detail facts leading them to believe that a suspect may be armed before a frisk is justified.

The need to articulate reasonable suspicion to believe that a suspect was armed before conducting a frisk was reiterated in Florida v. J.L. In J.L., officers received a radio call that there was a black male in a plaid shirt standing at a bus stop who was in possession of a firearm. The officers responded and found J.L., a juvenile, as described, standing at the bus stop. The officers approached J.L. and seized a firearm from him. The United States Supreme Court, in a unanimous decision, held that the officers lacked reasonable suspicion to conduct a frisk of J.L. Since the call was anonymous the officers lacked sufficient credible information to justify the stop and frisk.

The Court distinguished the J.L. case from Alabama v. White, which was also based upon an anonymous tip. In White, police had received an anonymous tip that a woman, Vanessa White, would be leaving 235C Lynwood Terrace Apartments, at a specified time, in a brown Plymouth station wagon with a broken taillight. The caller further identified a motel to which White would be driving to deliver cocaine that she was carrying in a brief case. Officers went to the Lynwood Terrace Apartments and observed a female fitting White’s description leaving at the specified time. Although White was not carrying the briefcase, she did get into the brown Plymouth station wagon. The officers followed the station wagon and observed that it was following the route to the motel, which had been identified by the caller. The officers stopped the vehicle just before it reached the motel. Cocaine was seized from the briefcase after White consented to a search of the vehicle. In this case the Court held that an anonymous tip may add up to reasonable suspicion where it is sufficiently corroborated. In White, the caller showed intimate knowledge of the suspect’s actions by predicting her movements. Once the officers corroborated the predictions, they had sufficient facts to meet the reasonable suspicion requirement. In J.L., the anonymous caller merely described someone who was standing at a bus stop.

The distinction between the anonymous information in J.L. as opposed to White, was the ability of the informant in White, to predict the future conduct of Vanessa White. This established that the informant had intimate knowledge of White’s activities. Further, the police took no action until corroborating many of the activities predicted by the informant. In corroborating these activities, the police established that the informant was reliable, at least with respect to the activities they observed before stopping White. In J.L., on the other hand, the informant merely provided a description of a person standing at a bus stop. Anyone who had driven past the bus stop could have provided this information. Additionally, someone who did not like J.L. and wanted to see him hassled by the police, or even a police officer who wanted to shake J.L. down, could easily have called in the information.

It should be noted that the Supreme Court suggested that the holding of J.L. may not be applicable in the school or airport setting.

A case from the United States Court of Appeal for the 6th Circuit provides an excellent example of the application of these principles. In Feathers v. Aey, the Akron, Ohio Police Department received a call from a man who refused to give his name. The caller stated that he had been walking down a street in Akron at 1:25 a.m. when a man who was on a porch pointed something at him and told him to shut up. He further reported that the man appeared drunk and that police should check it out. The caller did not know the address but described the location as the second house from the corner on North Howard Street. He described the man as a white male with a beard.

The call prompted the dispatcher to put out a call for officers to respond to this location. “The dispatcher then instructed a patrol car near the area to approach 708 North Howard Street and ‘check for a signal 9, supposed to be carrying a weapon. . . . Signal 9 is on the porch near the corner, it’s a white male with a beard, no shirt, possible 4, he pointed something at a caller, so he possibly has a weapon.’” The dispatcher did not tell the officers that the caller had refused to identify himself and was therefore anonymous.

Two officers responded to the area and determined that the address provided by the dispatcher was incorrect. The officers spotted Mr. Feathers and his wife on a nearby porch. They told Mr. Feathers to move to one end of the porch and he complied, (A show of authority plus compliance equals seizure that must be justified by reasonable suspicion). The officers then told Feathers several times to remove his hands from his pocket. Initially he did not remove them, but after he did, he kept putting them back. Feathers then moved to the door of the residence, leaned in and yelled to his father to come quick and bring the video camera. At that point the two officers physically grabbed Feather. (A stopping of movement by a means intentionally applied equals a physical seizure). This led to a confrontation, during which one of the officers was bitten. Feathers was arrested and charged, but was subsequently acquitted.

Feathers then filed a lawsuit alleging, among other things, that the officers lacked any reasonable suspicion when they approached him on the porch at the outset, and thus, their seizure of his person violated his 4th Amendment rights. The United States Court of Appeal for the 6th Circuit agreed that the officers lacked reasonable suspicion when they stopped Feathers based upon the word of a caller, who had refused to leave his name. Further, the court held that the law on this issue was clearly established. Notwithstanding these findings, the court granted the two officers qualified immunity because the officers were unaware at the time of the stop that the information was from an anonymous source. The court noted cases that have held that officers may rely upon information received by a dispatcher that adds up to reasonable suspicion. The court went on to say that the agency may have liability in this case for not having a policy in place whereby the dispatcher is required to provide officers with the fact that information is from an anonymous source. The court concluded: “Feathers cannot prevail in a § 1983 suit because the individual defendants had a sufficient factual basis for thinking that they were acting consistently with Terry. “Although there might be a legitimate question about whether the City should be held liable for a policy that does not inform dispatched officers of the reliability of their tip, the dismissal of the claims against the City is not before us.”

The rules have equal application when dealing with a motor vehicle. A case from the Supreme Court of New York provides an example. In Heapps, dispatchers issued a broadcast concerning a man with a gun, in a vehicle, in a specific area. Officers in the area spotted the vehicle stopped in traffic. The officers turned on their overheads (show of authority) and the operator stopped (compliance). The combination of a show of police authority and compliance accomplishes a seizure, which must be justified by reasonable suspicion. At this point, the officers had only the anonymous tip. When the officers approached the car they observed a bulge in the man’s waistband. This observation, which was the fruit of the stop, led to the seizure of a gun.

In reviewing the case, the court noted that the observation of the bulge could not be used as part of the reasonable suspicion since the seizure was complete before the officers made that observation. Thus, the only thing the officers had was the anonymous tip; accordingly, they lacked reasonable suspicion to stop the vehicle. Consequently, the gun was inadmissible in a prosecution of Heapps.

A second aspect of all stop cases involves an officer’s decision to conduct a “frisk” for weapons. The authority to conduct frisks comes from the United States Supreme Court decision in Terry v. Ohio. Terry is often misunderstood as providing a broad authority to conduct a frisk anytime an officer stops someone. Officers will often articulate that they conducted a frisk for “officer safety” purposes. While officers have good reason to be concerned about safety, the constitutional rule from Terry requires that officers articulate specific facts that would support reasonable suspicion to believe a person has a weapon.

In Hill v. State, police responded to a call of a disturbance that the caller stated was over narcotics. The persons involved in the disturbance, a man and a woman, were said to have left in a blue truck. This information was relayed to Chief Cook, who stopped a truck fitting the description. “Chief Cook testified that as he approached the truck, he asked Hill for identification and registration. Cook testified that he asked Hill to step out of the truck and immediately conducted a pat-down search. Cook stated that he did the pat-down for officer safety and that he always does a pat-down ‘where there’s possible narcotics or a disturbance involved or where there’s a weapon present, reported or unreported’ for officer safety. He stated that such a frisk is part of his policy, and that he had not seen Hill do anything in his presence that would lead him to believe that Hill had a weapon.” As a result of the frisk, Chief Cook felt a small bulge in Hill’s pocket. After questioning Cook about the bulge, Hill removed a pill bottle from his pocket that contained suspected narcotics. Thus, the issue in the case is whether the Chief conducted a proper frisk. If it was not a valid frisk then the suspected narcotics was the fruit of the improper frisk.

In analyzing the facts in Hill, the court noted that a stop is less intrusive on a person than a frisk, thus a frisk requires more than the stop itself. A stop can be based upon reasonable suspicion to believe the person is involved in criminal activity while the frisk must be supported by reasonable suspicion to believe the person is armed with a weapon. “The officer in this case failed to articulate any objective, factual basis for a reasonable belief that Hill was dangerous or might gain immediate control of a weapon. Cases in which pat-downs are found to be constitutional searches regularly require some articulable, objective facts giving the officer a reason to fear for his safety. See, e.g., Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999) (holding frisk was reasonable based on appellant’s dress and nervousness, as well as fact that officer knew appellant had previous convictions for gun-related crimes). Here, Chief Cook provided no reasons for frisking Hill other than that it was ‘policy.’ He admitted he had not seen anything that led him to believe that Hill had a weapon. Although Hill was reportedly causing a disturbance at Holladay’s home, there was no report of weapons. Based on our review of the totality of the circumstances, Chief Cook lacked specific, objective, and articulable facts to support a reasonable suspicion that Hill was armed and presently dangerous when he conducted the pat-down search.”

When dealing with stop and frisk issues, officers should recognize that in cases where the officer has done nothing – either through words or conduct – that has implied that the citizen has no choice but to comply with the officers, the contact is consensual. Consensual contacts do not need to be supported by any level of suspicion whatsoever. In this age of mobile video recorders and body microphones, officers should approach situations in a consensual manner whenever possible. Even in cases where the officer has every intention of stopping the individual should the person refuse to cooperate, an approach that does not give away the officer’s intention, and indicates that the person must comply, would keep the contact consensual. Remember, it is how a reasonable (innocent) person would perceive the officer’s words or conduct that turns a consensual stop into a seizure. Where an officer uses a consensual approach, he or she may create a non- seizure. Anything that comes out of a consensual contact is admissible in court. Even a frisk can be consensual if the request to frisk is properly framed. Again, the officer’s subjective intention to conduct the frisk regardless if the person refuses consent is irrelevant. The only issue is whether the reasonable (innocent) person would feel as if they had no option but to comply with the officer’s request. The words or conduct of the officer in the approach makes all the difference.

In cases where the officer is dealing with an anonymous tip, officers should look for ways to corroborate the tip before taking action. Observation of a bulge or furtive motions upon the officer’s approach would support a frisk. Prior knowledge of the subject or the type of crime that an officer believes is taking place would also be helpful to establishing an appropriate frisk.


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