Last updated on November 2, 2021

When is a “Stop and Frisk” Illegal?

The Fourth Amendment of the U.S. Constitution prohibits unlawful search and seizure. There are many ways in which a search and seizure can be unlawful, from the illegal search of a person to the unlawful seizure of property from an alleged criminal suspect’s home or motor vehicle. One of the more contentious issues concerning the Fourth Amendment and its protection is the practice of “stop and frisk.” In 2013, The New York Times published an article about the prevalence of racial discrimination in “stop and frisk” procedures and programs. Despite the fact that a New York court found the NYPD’s stop and frisk program to be racially discriminatory, that same year the Detroit police chief asserted that stop and frisk procedures would not change in Michigan.

What is a stop and frisk, and when is it unlawful?

Fourth Amendment Protects Against Unlawful Search and Seizure

The first thing to know about “stop and frisk” is that the question of its legality falls under the Fourth Amendment to the U.S. Constitution. The Fourth Amendment guarantees every person’s right to be free from unreasonable searches and seizures. It also guarantees that those rights shall not be violated and that no warrants shall issue for searches or seizures without probable cause.

In other words, the Fourth Amendment prohibits illegal searches and seizures—a search of a person’s pockets or clothing more generally, purse or backpack, car, home, or other belongings without probable cause. Probable cause is a relatively high standard to meet, and it is higher than the standard of reasonable suspicion, which is needed to stop a person who is suspected of violating the law. Where, then, does “stop and frisk” come into play, and is “stop and frisk” a violation of the Fourth Amendment if a police officer does not have probable cause?

Defining Stop and Frisk

According to the Cornell Legal Information Institute (LII), a stop-and-frisk occurs when the police stop a suspect and search him or her quickly, in a non-intrusive manner. Under the Fourth Amendment, in order to stop a suspect, the police must have a reasonable suspicion that the person being stopped has committed or is committing a crime. If the police reasonably suspect that the suspect has a weapon or poses a threat, then they may frisk him or her with a quick pat-down.

The “stop and frisk” is also known as a “Terry Stop,” which is a term that comes from the U.S. Supreme Court case of Terry v. Ohio (1968). In Terry, the Court explained that a stop and frisk cannot be “unreasonable” or else it will violate the Fourth Amendment. The Court defined a reasonable stop and frisk as one in which a reasonably prudent police officer believes that his or her safety or that of others is at risk. In that case, the officer may make a reasonable search for any weapons that might be on the person of the suspect.

Learn More from a Michigan Criminal Defense Lawyer

As the article in The New York Times underscores, the “stop and frisk” has been used in discriminatory ways, and many people are subject to unlawful searches. If you were arrested after a stop and frisk, you should speak with a Michigan criminal defense lawyer about your options. Contact us for help with your case.

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