Stop and Frisk: fact or fiction

Published 10:43 am Wednesday, October 12, 2016

The first presidential debate brought a spotlight to an important constitutional doctrine — stop and frisk. In a discussion about bringing back “law and order,” Republican candidate Donald Trump proclaimed that “we need to bring back stop and frisk.” Democrat candidate Hillary Clinton, along with the moderator Lester Holt, retorted that stop and frisk was “found by the courts to be unconstitutional.” Unfortunately for all of us, neither the candidates, nor the moderator, gave a clear representation of the constitutionality of stop and frisk.

The Fourth Amendment to the U.S. Constitution protects us from unreasonable searches and seizures. The U.S. Supreme Court, in a case styled Terry v. Ohio, formed what is known as the stop-and-frisk doctrine. The Court held that the police can detain a citizen if the officer can give reasonable and articulable suspicion that criminal activity is afoot. A frisk would be appropriate if the officer, upon the detaining the suspect, had reason to believe that the suspect was armed or had immediately apparent contraband. Whether a stop and frisk is reasonable is based on the “totality of the circumstances.” The police officer must base the decision to stop and frisk on the objective facts observed, not on subjective beliefs or information obtained after the fact.

In the Terry case, suspects walked in front of a retail area approximately 20 times while meeting to talk in between the walks. The officer, viewing the suspects, believed that the subjects were casing the store. The officer stopped them and patted down the suspects and found firearms. The officer charged the men with carrying a concealed weapon. The suspects sought to prevent the court from considering the firearms by filing a motion to suppress under the IV Amendment. The Supreme Court ultimately upheld the police conduct, and that ruling remains the law of the land.

So why did Trump say “we need to bring back stop and frisk” and why did Clinton/Holt suggest that stop and frisk were found by the courts to be unconstitutional? While I have no idea why Holt stated what he did, Trump and Clinton have an excuse: they both lived in New York City.

In August 2013, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk policy was unconstitutionally applied. The trial court ruled that the policy was being implemented in a discriminatory manor. As a result, the policy failed because it unfairly targeted suspects on the basis of race, rather than on objectively reasonable and articulable suspicion. While the judge ordered monitoring of the police and the use of body cameras, the judge went on to say that she “was not putting an end to the practice of stop and frisk.” And she couldn’t anyway. As a trial judge, the ruling would have no precedential value and since the matter was not appealed it cannot trump (no pun intended) the U.S. Supreme Court’s ruling in Terry.

So, to be clear, the stop-and-frisk procedure is alive and well. So long as the police have reasonable and articulable suspicion of criminal activity, the police can detain you and may search you if they believe you are armed or can immediately see that you have contraband. It appears both candidates, as well as the moderator, could use a refresher of court interpretation. Especially since picking Supreme Court Justices is high on their priority list.

ANDREW PAGE is a resident of Franklin, and can be reached at