The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … – 4th Amendment
Since we started our discussion of the 4th Amendment with seizures, which are governed by Terry v Ohio and its progeny, it only makes sense to next move on to the topic of ‘Stop and Frisk’ which is also governed by the Terry line of cases.
But if they are based on the same material, why didn’t we just cover this material in the column on seizures? Understanding the answer to this question is critical if one wishes to truly grasp the intricacies of Terry. The short answer is that seizures (the “stop”) and searches (the “frisk”) are distinct activities from a 4th Amendment perspective and each requires independent justification. A given situation may provide the officer reasonable suspicion to stop you but may not give the officer reasonable suspicion to support a frisk.
To understand this, let’s start with a brief review. In yesterday’s column, we discussed the three types of ‘stops’ that a person may be subject to. They are consensual encounters, Terry Stops, and detentions that amount to arrest. Let’s look at what the requirements are to ‘frisk’ someone under each of the three types of ‘stops’.
A consensual stop is one in which law enforcement approaches a citizen and initiates a conversation but the citizen is free to leave at any time, ending the ‘stop’, and is also free to refuse requests to be patted down or searched, preventing the ‘frisk’.
Since a consensual stop is not a seizure of the person for 4th Amendment purposes, a consensual encounter is not a “Stop and Frisk” and none of the cases prescribing boundaries to “Stop and Frisk” apply to these encounters.
Remember that! If you give the officer permission to do a pat-down, then anything they find is admissible against you in court. More important for the law abiding gun owner, you cannot support a claim that the officer violated your rights if you yourself consented to the ‘frisk’.
The only possible exception to this rule is the case where an officer’s conduct or expression of authority rises to the level of coercion. Let’s look at what the case law tells us about coercion.
One of the first cases we turn to when discussing the boundaries between consent and coercion is Schneckloth v. Bustamonte. There are four important rules from Schneckloth that continue to govern ‘consent’ searches today:
- Once given freely, consent obviates the need for probable cause or even reasonable suspicion.
- In and of itself, the validity of consent cannot be challenged based upon whether or not you knew you had the right to deny consent.
- You may place conditions upon your consent and even withdraw it once given.
- Consent may be challenged as invalid if it is “coerced, by explicit or implicit means, [or] by implied threat or covert force.”
Another important case where consent is concerned is Bumper v. North Carolina. The rule to take away from Bumper is that, when consent is given based upon an officer claiming to have the authority to conduct the frisk in any case, consent is merely acquiescing to what the suspect thinks is lawful authority.
Since we want citizens to acquiesce to lawful authority, it would be against public policy to require them to resist every claim of lawful authority just to retain the right to challenge the validity of their consent. Therefore, if you agree to allow a frisk based upon an officer’s claim of authority, you can still challenge the validity of the frisk.
Detentions That Amount to Arrest
We will be discussing ‘searches’ in a future article. But here, we are discussing ‘stop’ and ‘frisk’ so I will only note that, in the case of a detention that amounts to an arrest, the right to search the body of the suspect is automatic.
Now we arrive at the heart of the matter. While suspects may consent to frisks in consensual encounters and arrestees may be searched incident to lawful arrest, Terry Stops are, in fact, the only encounter where the concept of “Stop and Frisk” is actually applicable.
A Terry Stop, named for the aforementioned case of Terry v. Ohio, is a ‘seizure’ of the person under the 4th Amendment and any accompanying ‘frisk’ is a search also protected by the 4th Amendment. According to the holding in Terry, Terry Stops are justified when “swift action based upon on-the-spot observations of the officer on the beat is required.”
No warrant is required for a Terry Stop, nor is there a requirement for probable cause such as would be a prerequisite for obtaining a warrant. Rather, a Terry Stop requires only “reasonable suspicion that criminal activity may be afoot.” If the officer wishes to search or “frisk” the person he is seizing, they must also have reasonable suspicion that they “may be armed and presently dangerous” but this is not required to simply seize the person.
So, as I mentioned earlier, a given situation may give the officer reasonable suspicion to stop you but there may not be sufficient reasonable suspicion that the person is “armed and presently dangerous” and therefore a frisk is not justified by the “Stop and Frisk” exception under Terry.
An example of this might be a woman on the beach, wearing a tiny bikini and eating a candy bar, who matches the description of a person who moments ago shoplifted a candy bar from a boardwalk store. While her match to the description coupled with her possession of a candy bar might give the officer reasonable suspicion that “criminal activity may be afoot” thereby supporting a “stop”, it would be hard to justify a claim that the officer had “reasonable and articulable suspicion” that she was “armed and presently dangerous” to justify a frisk. However, as discussed in the previous section, should she be actually placed under arrest, then the rules change.
So … since the determining factor in a Terry Stop seems to always be “reasonable suspicion,” let’s have a look at what that means in real life. According to the court in Alabama v. White, reasonable suspicion is “considerably less than proof of wrongdoing by a preponderance of the evidence.” But what does that mean? Unfortunately, it means that law enforcement has extremely broad discretion in initiating Terry Stops. In order to understand just how ridiculously low the bar is in many district courts, you need only look at the Stop and Frisk program instituted by Mayor Bloomberg in New York.
While this abhorrent practice has been recently modified, by their own admission, in 2011, NYPD officers conducted warrantless stop-and-frisk interrogations of over 685,724 New Yorkers, mostly minorities, 88% of which were freed without even a ticket being issued. To put that in perspective, the NYPD did stop-and-frisk interrogations on more New Yorkers than the entire population of Boston!
So you tell me … What does reasonable suspicion mean? I am pretty sure that in New York, it means just being a minority and walking down the street.
Open Carry as Reasonable Suspicion?
Returning to the issue from the perspective of a law-abiding gun owner, the question I am often asked is whether or not the simple act of openly carrying a properly holstered handgun gives rise to the reasonable suspicion necessary to initiate a Terry Stop. The answer to that question varies somewhat from state to state.
In those 29 states where open carry is legal without a permit or license, the answer is an unequivocal “No!” Since open carry is legal it cannot, absent other suspicious activity, give rise to the necessary “reasonable suspicion that crime is afoot.”
In those 14 states (soon to be 15) where open carry requires a permit or license, the answer is not as crystal clear but is still a resounding “No!” The United States Supreme Court addressed a similar question in Delaware v. Prouse (440 U.S. 648) (1979). In that case, the issue articulated by the court was:
[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.
Now … let’s change just a few words and we have the issue before us:
[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop a person open carrying in public, for the purpose of checking the carry permit of the open carrier, where there is neither probable cause to believe nor reasonable suspicion that the firearm is being carried contrary to the laws of the state or that either the firearm or the carrier is subject to seizure or detention in connection with the violation of any other applicable law.
So how did the court answer the question in Prouse? They held that it is unreasonable under the Fourth Amendment to seize someone to check the status of a license except where there is at least reasonable suspicion that the person is unlicensed or otherwise subject to seizure for the violation of some other law.
This is especially important today because Oklahoma will be joining the ranks of licensed open carry states on November 1, 2012 and some Oklahoma law enforcement officials have stated that they plan to seize open carriers and demand to see their permits. Midwest City Assistant Chief Sid Porter was reported to have said that:
If we see someone carrying a weapon in a holster, they have to have a permit on them and would be asked to show it. Anybody with a weapon on their side is considered a suspicious person.
Even law enforcement in states such as Massachusetts, which is definitely not considered a stronghold of pro-gun sentiment, has long since recognized that they cannot seize a person based solely upon the fact that the person is properly carrying a firearm.
In the December 2005 issue of The Police Chief magazine, John M. Collins, General Counsel to the Massachusetts Chiefs of Police Association published an article entitled “Chief’s Counsel: Responding to Gun Possession Reports.” In this article, he advised officers that:
Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest, it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop.
I couldn’t have said it better myself. I hope that Oklahoma law enforcement spends the next few months before open carry becomes available training their officers on how to properly interact with the citizens thus empowered. If not, the courts are open every day, and 42 U.S.C. § 1988 provides attorney’s fees for those that prevail in suits brought pursuant to 42 U.S.C. § 1983.
We last turn to those 7 (soon to be 6) states in which open carry is generally not legal. In those states, the sight of a person openly carrying a firearm outside of a hunting venue would probably give rise to the necessary “reasonable suspicion that crime is afoot.” Thankfully, that number is dropping every year and hopefully will soon be reduced to zero.
On a related note, gun rights advocate Kenn Blanchard recently asked an uncomfortable tangential question on his blog that all my readers should take the time to read. He asked “Is Open Carry Dangerous For A Black Man?“
Unfortunately, given the fact that the courts have largely looked the other way while New York trampled the rights of the minority community, there is more than a little truth to Kenn’s concerns. We need to keep working for a society where all men and women may exercise their rights freely without fear of persecution by overzealous law enforcement.
As a real world illustration of just about every 4th Amendment violation we have discussed, just this month, officers in Aurora Colorado rounded up motorists en masse, handcuffed them, and held them at gunpoint while searching for a bank robber based upon what they called a “reliable tip.”
But they had no information on which to base even the weakest suspicion of individual drivers. According to the officers themselves, ““We didn’t have a description, didn’t know race or gender or anything.” So how did they have reasonable suspicion to detain and search these people?
“Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car.” Oh yeah … that shotgun in your face is not coercive in the slightest.
The really ironic part of the story is that they found their bank robbery suspect. But based upon their tactics, I am guessing that any evidence found during the search will be excluded and the suspect will go free.
Just to recap … Stop and frisk is only available when the officers have “reasonable suspicion” that “crime is afoot” and that the suspect is “presently armed and presently dangerous.” Absent any one of these elements, a stop and frisk is not valid under the 4th Amendment.
However, officers do not need “reasonable suspicion” if you willingly throw away your rights. Officers may engage in consensual encounters with citizens and if you consent, may stop and frisk you without any 4th Amendment protections attaching.
What should you do if asked for consent? Know your rights, ask “Am I free to leave?”, if they say “Yes” then do so, and if detained do not speak to law enforcement without your attorney present.
If you feel that your rights are being violated, you should state your objections clearly so that there is no possibility that it could be asserted you were consenting to the encounter. Then you should comply with the officers (note that I didn’t say consent or talk) while documenting the encounter to present to your attorney.
We will discuss various voice and video recording technologies that are particularly suitable for encounters with law enforcement in a future article. Until then, stay safe and consent to nothing!
Stay tuned for the next exciting chapter in the Gun Owners’ guide to the 4th Amendment series …
DISCLAIMER: Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship. For legal advice, you should contact a member of your state’s Bar association.