Chapter 3- crim. procedure

In Terry, the Supreme Court stated that "obviously not all personal intercourse between policemen and citizens involves seizures of persons." Instead, the Fourth Amendment applies only

"when the officer, by means of physical force or show of authority, has in some way restrained the liberty of [a] citizen."

Unfortunately, there are few clear guidelines as to the appropriate duration of a stop. The Supreme Court has stated that the reasonableness of a stop turns on the facts and circumstances of each case. In particular, the Court has emphasized

"(1) the public interest served by the seizure, (2) the nature and scope of the intrusion, and (3) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise" (Mendenhall, 446 U.S. 544).

An investigative detention is

"a temporary involuntary detention ... which must be predicated on 'reasonable suspicion' " (United States v. Bueno, 21 F.3d [1978]). Both consent searches and investigative detentions are not considered searches, so they fall outside the Fourth Amendment's probable cause requirement.

Simply following a suspect, while such activity may be intimidating, is also insufficient to constitute a "stop." In Michigan v. Chestnut (486 U.S. 567 [1988]), police officers in their car followed a man who fled on foot when he spotted their patrol car. The officers did not activate their siren or lights, display weapons, ask the man to stop, or attempt to block the suspect's path. The Court acknowledged that this type of conduct can be

"somewhat intimidating," but it ruled, nevertheless, that the act of police officers following the man did not amount to a stop. The situation would have been different, however, if the police officers had visibly chased the defendant.

An especially controversial variety of Terry-like investigative stops is those based on so-called drug courier profiling. Almost without exception, drug courier profiling occurs during stop-and-frisk encounters—those in which a person is stopped and questioned because he or she appears suspicious in some way.

Drug courier profiling is most common in airports but also occurs on U.S. highways and elsewhere.

The Supreme Court in Minnesota v. Dickerson, 113 S. Ct. 2130 (1993), recognized a "plain feel" exception to the warrant requirement but held that the officer's search and seizure in the instant case did not come under this new exception and unconstitutionally invaded the defendant's Fourth Amendment rights. The Supreme Court increased the police authority created in Terry v. Ohio, 392 U. S. 1 (1968) to conduct limited, warrantless searches based on articulable suspicion and extended the plain view theory to include items found by touch. Under the rule of Minnesota v. Dickerson, if a police officer discovers drugs or other contraband during a lawful patdown, the officer may seize those items without a warrant.

On November 9, 1989, while on evening patrol, two Minneapolis police officers developed reasonable suspicion to stop Dickerson. The officers saw him leave a notorious "crack house," abruptly change direction, and enter a nearby alley after making eye contact with the police. The officers stopped Dickerson and frisked him for weapons. Although no weapons were found, one of the officers felt a lump in Dickerson's front pocket and discovered that it was crack cocaine. Dickerson was charged with possession, found guilty and sentenced to two years probation. The trial court, in denying Dickerson's motion to suppress, first concluded that the officers were justified in stopping and frisking him under Terry. Second, the court stated that under the plain view theory of warrantless seizures, it made no difference which sensory perception was employed by the officer to "view" the cocaine, so the evidence was deemed admissible. Dickerson was subsequently convicted on the theory that a seizure based on "plain feel" does not violate the Fourth Amendment. The Minnesota Court of Appeals reversed the conviction by refusing to accept the "plain feel" theory and finding that the officer violated Dickerson's Fourth Amendment rights. In rejecting the trial court's rationale that there is no difference between the senses, and affirming the decision of the intermediate appellate court, the Minnesota Supreme Court foundthattouch is more intrusive of protected Fourth Amendment rights than is sight. Thus, the court concluded that, as a rule, contraband may not be seized during a patdown. The United States Supreme Court granted certiorari "to resolve the conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence." Dickerson, 113 S. Ct. at 2134. Wh

Generally speaking, a stop is the

detention of a person by a law enforcement officer for the purpose of investigation. The definition of a stop is important because if the police officer's activities amount to a stop, then the Fourth Amendment will apply. This is because a stop is the same thing as a seizure of a person. As the Court observed in Terry, "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person."

A stop is a separate act from a frisk. A stop always precedes a

frisk, but a stop does not give a police officer permission to conduct a frisk. Rather, the officer must have separate justification for each act. Reasonable suspicion is required to stop a person, and it is also required to frisk a person.

Interestingly, if a police officer orders a driver (or a passenger, or both) out of the car, is reasonably suspicious that the driver is armed and dangerous, and

frisks the driver, the officer may also search the area of the interior of the car within the suspect's immediate control. Such a search is permissible even when the driver has already been ordered to step out of the vehicle.

The additional step of frisking a suspect is a Fourth Amendment intrusion that requires

justification apart from that required to stop the person. in order to conduct a frisk, the officer needs reasonable suspicion that the suspect is armed and dangerous. This is in addition to the reasonable suspicion required to stop the person for questioning.

Reasonable suspicion was defined as a

lesser degree of certainty than probable cause, but a greater degree of certainty than a hunch or unsupported belief.

A consensual encounter,

sometimes referred to as a "consent search," has been defined as an "encounter in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked some questions."

In Dickerson, when the police officer frisked the suspect, he exceeded the bounds of Terry because the officer "squeezed, slid, and otherwise manipulated the packet's content" before learning that it was cocaine. Dickerson is considered by many to be the case that officially recognized the doctrine known as plain touch (sometimes called plain feel). The Supreme Court has long recognized that the items in plain view fall outside Fourth Amendment protections. Dickerson is something of a hybrid between a Terry-based frisk and the "plain view" doctrine.

According to one commentator, "[I]f the officer, while staying within the narrow limits of a frisk for weapons, feels what he has probable cause to believe is a weapon, contraband or evidence, the officer may expand the search or seize the object.

***A number of cases have focused on the permissible scope of a frisk, and three important limits have been imposed.

First, a frisk can be nothing more than a patdown of someone's outer clothing. Groping or squeezing is not permissible. Second, a frisk must be motivated by the desire to promote officer safety, not by the desire to seek out any form of contraband. That is, the sole purpose of a Terry patdown is to protect the officer from weapons that might be used by the suspect during the encounter. Finally, for an officer to legally seize an item during the course of a frisk, that item must be immediately apparent to the officer as contraband.

In a similar case, police acted on a very specific anonymous tip that a woman would leave a particular unit in an apartment complex, get into a specific car, and drive toward a named hotel. The informant further reported that the woman would be carrying an ounce of cocaine inside a brown attaché case. Officers observed the woman leave the apartment, but without the case. They followed her, stopped her, obtained consent to search her vehicle, and found cocaine in a briefcase in the trunk.

In a 6 to 3 decision, the Supreme Court sanctioned the stop and subsequent search/seizure: "the totality of the circumstances demonstrates that significant aspects of the informant's story were sufficiently corroborated by the police to furnish reasonable suspicion"

Contrast Royer with the Supreme Court's decision in Florida v. Rodriguez (469 U.S. 1 [1984]). In that case, the Court ruled that a seizure had not taken place when a plainclothes officer approached a man in an airport, displayed his badge, asked permission to talk with the man, and requested that he move approximately 15 feet to where the man's companions were standing with other police officers. The Court described this type of confrontation as "clearly the sort of consensual encounter that implicates no Fourth Amendment interest."

It seems, therefore, at least in the airport context, that certain confrontations that take place in common areas do not amount to stops within the meaning of the Fourth Amendment.

In Prado Navarette v. California(572 U.S.[2014]), a person called 911 to report a reckless driver. A license plate was provided. The dispatch center broadcast the information to officers in the area.

Officers effected a stop, smelled marijuana(plain smell doctrine), and searched the vehicle. Drugs were found. The Supreme Court concluded that "[t]he traffic stop complied with the Fourth Amendment because, under the totality of circumstances, the officer had reasonable suspicion that the truck's driver was intoxicated."

In Terry v. Ohio, 392 U. S. 1 (1968), the Court held that where an officer had an articulable suspicion that criminal activities were occurring, he could lawfully stop a person to make inquiries. If the officer believed that the suspect was dangerous, he could conduct a limited search. This type of search is justified by the need to protect the officer and the public from harm.

The Court in Michigan v. Long, 463 U.S. 1032 (1983), extended this theory to allow an officer to conduct a limited protective search not only of the suspect, but also of the interior of a lawfully detained car. Additionally, the Court noted that while conducting a search of the passenger compartment of the vehicle where weapons may be hidden, the officer may seize contraband which is in plain view

With regard to the first issue, the Supreme Court in Terry described a frisk as "a carefully limited search of the outer clothing ... in an attempt to discover weapons which might be used to assault [a police officer]." In Sibron v. New York (392 U.S. 40 [1968]), the Court offered additional clarification by declaring that the act of reaching into a suspect's pockets is impermissible when the officer makes "no attempt at an initial limited exploration for arms." Generally, then,

a frisk is little more than an open-handed patdown of someone's outer clothing. Only if the officer feels something that resembles a weapon can he or she then reach into the suspect's pocket (or other area used to conceal it) to determine what the item is.When actions by the police exceed the bounds permitted by reasonable suspicion, the seizure becomes an arrest and must be supported by probable cause."

[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of

circumstances that might indicate a seizure, even where the person did not actually attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. (emphasis added)

Still other sources of information may give rise to reasonable suspicion to stop or frisk. For example,

drug courier profiling may be used, which is discussed more fully later in this chapter. Police may also rely on "wanted" flyers, radio bulletins, and other suspect descriptions, even from other jurisdictions (Prado Navarette v. California, 572 U.S. [2014]); United States v. Hensley, 469 U.S. 221 (1985); Whitley v. Warden, 401 U.S. 560 [1971]). The range of possible sources of reasonable suspicion is extensive

In Terry, the Supreme Court ruled that in addition to the suspicion required to justify a stop, the officer must have reasonable suspicion that the person stopped is armed and dangerous in order to conduct a frisk. In support of this position, the Court used a balancing test:

each intrusion by the government must be justified by a legitimate objective. In other words, no legitimate law enforcement objective is served when a police officer frisks a person whom the officer does not perceive as threatening.

Permissible sources of information vary. Firsthand observations are preferable, but officers are not always able to witness suspicious activity while it occurs. This sometimes forces them to rely on more questionable sources, such as informants. For example,

in Adams v. Williams (407 U.S. 143 [1972]), an officer, acting on a tip that a man in a nearby car had a gun at his waist, approached the car and asked the man to open the door. When the suspect rolled down his car window instead of opening the door, the officer reached into the car and removed a gun from the man's waistband. The officer did not identify himself, but the Supreme Court ruled that the seizure of the weapon was reasonable under the circumstances.

In United States v. Drayton(536 U.S. 194 [2002]), the U.S. Supreme Court held that Bostick-like bus detentions are permissible and that passengers

need not be advised of their right to deny consent to search. In that case, officers boarded a Greyhound bus as part of a drug interdiction effort. They spoke one-on-one with individual passengers and asked for consent to search. The officer asked one individual if he could search his person. The individual consented and drugs were found.

Just as there are many different sources of information that can give rise to probable cause to make an arrest, there are many different sources of information that can give rise to reasonable suspicion. The reasonable suspicion standard is

of course lower than probable cause, so the "proof" that must be in place is somewhat less.

The term reasonable suspicion is found nowhere in the Constitution, but was created by the Supreme Court. The Court

recognized that crime control could not be accomplished without a lower standard than probable cause. If probable cause was always required, police officers would not even be able to question people suspected of involvement in criminal activity without a high degree of justification.

A frisk is a

superficial examination by the officer of the person's body surface or clothing to discover weapons or items that could be used to cause harm.

"reasonable suspicion"

the justification required for a police officer to conduct a stop-and-frisk.

For example, assume a police officer observes two men in an area with much drug traffic activity, whispering to each other and passing items back and forth. Arguably, the officer would have reasonable suspicion that criminal activity is afoot, thus permitting him or her to question the men. However, if the officer does not perceive that either suspect is armed and dangerous,

then a frisk would be inappropriate.

In Terry, the Supreme Court created an exception to the Fourth Amendment's requirement of probable cause for searches by holding that police officers can stop-and-frisk people based on reasonable suspicion. In the wake of Terry, a number of significant and controversial Supreme Court decisions have modified the scope of the stop-and-frisk exception to the Fourth Amendment's probable cause requirement. The cases fall into five categories:

vehicle stops and weapons searches of automobiles, protective sweeps of residences, plain touch and feel, stops for loitering, and checks for identification.

In many situations, it is clear when a police officer has stopped someone. For instance, when a patrol officer legally pulls a motorist over, it is safe to say that such activity constitutes a stop. Similarly, if a police officer handcuffs a suspect, that person has clearly been stopped (and arrested). But

what about a simple confrontation between a foot patrol officer and a pedestrian? If the officer directs general questions—such as "What is your name?"—at the pedestrian, can this be considered a stop? Given that there are many situations such as this, the definition of a stop must be given special attention.

Note, however, that this case does not permit officers to search but only to sweep the area. A search would have to be supported by probable cause.

However, items in plain view can be seized.

. According to one commentator, "[I]f the officer, while staying within the narrow limits of a frisk for weapons, feels what he has probable cause to believe is a weapon, contraband or evidence, the officer may expand the search or seize the object."1 The reason the Supreme Court frowned on the frisk conducted in Dickerson was that it was not immediately apparent to the officers that the suspect had contraband in his pocket. Thus, for the plain feel doctrine to apply, two conditions must be met:

(1) Police must have reasonable suspicion to frisk and (2) contraband must be immediately apparent/VISIBLE for it to be lawfully seized. Stated more formally, "[T]he police may seize contraband detected solely through the officer's sense of touch, if, as with the plain-view doctrine, the officer had a right to touch the object in question (lawful vantage point and lawful access) and, upon tactile observation, the object's identity as contraband was immediately apparent."

Controlled substances are often carried into the United States by airline passengers. Searching every person who passes through an airport would be costly, time consuming, unacceptable to passengers, and almost certainly unconstitutional. Warrantless searches that are based on no articulable justification are always considered unreasonable under the Fourth Amendment, unless one of a few "specifically established and well-delineated exceptions" applies (Katz v. United States, 389 U.S. 347 [1967])

. In other words, such searches violate the Fourth Amendment because they are not based on probable cause. Given that suspicionless searches are illegal, then, the police are left with two options when confronting people suspected of being drug couriers: "consensual encounters" and "investigative detentions."

f police lawfully make an arrest in a person's residence, a protective sweep of the home (defined in Chapter 5 as "a cursory visual inspection of those places in which a person might be hiding") is permitted based on the Terry rationale. A sweep is when one or more officers disperse throughout the home with the intent of looking for other people that could pose a threat to the officers making the arrest. In the Court's words, a protective sweep is a "quick and limited search of the premises, incident to arrest, and conducted to protect the safety of police officers or others." This protective sweep, which requires reasonable suspicion, should be distinguished from the automatic but more limited sweep that is permitted incident to a lawful arrest.

According to the Supreme Court, a sweep is permitted if the officer possesses "a reasonable belief based on specific and articulable facts that an area to be swept harbors an individual posing a danger to those at the arrest scene." In addition, a sweep "may extend only to a cursory inspection of those spaces where a person may be found" and may last only as long as is necessary to eliminate the suspicion of danger.

The question, then, is, when does the seizure of a person's effects rise to the level of an arrest? The Supreme Court attempted to answer this question in United States v. Place(462 U.S. 696 [1983]). In that case, the Court ruled that a 90-minute detention of a person's luggage in an airport to arrange for a drug dog "sniff" to detect drugs was unconstitutional because the detention was too long.

Also, the Court stated that "the failure of the agents to accurately inform respondent of the place to which they were transporting his luggage, of the length of time he might be dispossessed, and of what arrangements would be made for return of the luggage if the investigation dispelled the suspicion" contributed to the unconstitutional nature of the detention.

. In Minnesota v. Dickerson (508 U.S. 366 [1993]), police officers observed a man leaving a "crack" house. As he approached and saw the officers, he turned and began walking in the opposite direction. The officers stopped and frisked him and found drugs on him. The frisk was conducted without reasonable suspicion or any other level of justification. The Court ruled that the police exceeded the bounds of a valid frisk when they found drugs on the man's person, but the Court did not rule that the frisk was unconstitutional. It would seem, then, that under certain circumstances, a frisk is permissible on less than reasonable suspicion.

Apparently, the act of leaving a "crack" house and acting evasively was sufficient justification to conduct a frisk, even though the police went too far in doing so.

First, when police activity does not constitute a search, the Fourth Amendment does not apply, and therefore probable cause is not required. Much the same logic applies to a stop and a frisk. If police conduct falls short of a stop or a frisk, the Fourth Amendment does not apply. Thus, when the Fourth Amendment does not apply, reasonable suspicion is not required. Second, if the police confront a person but such activity does not constitute a stop or a frisk, no justification is required.

At the opposite extreme, though, if police conduct amounts to a more significant intrusion than a stop or a frisk, then a different standard of justification will be required—most likely, probable cause.

Two additional points concerning the scope of a frisk need to be underscored at this juncture.

First, a frisk must be motivated by the desire to remove weapons and other instruments of potential harm from a criminal suspect. Note, however, that although the purpose of a frisk is to preserve officer safety, the officer may, in some circumstances, seize contraband found during the course of a lawful frisk. Second, a valid frisk can always evolve into a Fourth Amendment search, provided that probable cause develops along the way. For example, assume that a Chicago police officer frisks a suspect because she fears he may be carrying a gun. If it turns out that the suspect is carrying a pistol, which is illegal in the city of Chicago, she could arrest the suspect and conduct a full search incident to arrest. In this example, though, the object seized during the frisk (the gun) must be immediately apparent to the officer for the seizure to be legal.

While Terry held that a frisk is permissible only when an officer reasonably fears for his or her safety, there is still considerable dispute over the situations in which a frisk is appropriate. What does it mean to fear for one's safety? A number of court decisions have wrestled with this question.

For example, in Pennsylvania v. Mimms (434 U.S. 106 [1977]), police officers observed a man driving a vehicle with expired plates. The officers stopped the vehicle in order to issue the man a traffic summons. When the officers asked the man to step out of the car, the officers observed a large bulge in the pocket of his jacket. Fearing that the bulge might be a weapon, one of the officers frisked the man. It turned out that the bulge was a .38-caliber revolver. The man claimed at his trial that the gun was seized illegally, but the Supreme Court upheld the frisk. Even though a bulge in one's pocket does not necessarily indicate he or she has a weapon, the Court granted some latitude in its decision to law enforcement personnel.

In Royer, discussed above, the Supreme Court held that a 15-minute detention exceeded the bounds of a proper stop—and became a de facto arrest. Yet, in certain exceptional circumstances, the Supreme Court has permitted detentions lasting much longer.

For example, in United States v. Sharpe(470 U.S. 675 [1985]), officers followed two vehicles suspected of involvement in drug trafficking. One vehicle was stopped and the driver was detained for 40 minutes while the officers sought and stopped the second car and its driver.. The Court did not establish a bright-line rule for what time period is considered permissible, but it did state that "in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." Thus, the 40-minute detention of the driver of the first car was permissible.

A somewhat lesser known but equally controversial expansion of Terry has been applied to stops for loitering(stand or wait around idly or without apparent purpose). Generally, stopping a person requires reasonable suspicion.

However, certain statutes, known collectively as loitering statutes, authorize the police to stop or arrest suspicious-looking individuals based on a lesser degree of certainty than even reasonable suspicion. Because these statutes often permit the police to stop people based on less than reasonable suspicion, many of them have been declared unconstitutional on the grounds that they are too vague

Probable cause is not required for a consent search, because when a person gives consent to the police to conduct a search or ask questions, the Fourth Amendment does not apply. Assuming the citizen remains free to decline the officer's request to conduct a search, the officer can legally ask a person to look in his or her car, bag, house, or other area. The logic behind consent searches was touched on in Terry: "there is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets."

However, for a consent search to be truly consensual, the person must feel free to refuse.

A stop must be limited in duration, and after a passage of time, the stop may evolve into a de facto arrest.

However, there are no precise rules as to how long a stop may take.

Upon analyzing the facts of the case to determine whether the police officer had acted within Terry when searching the lump in Dickerson's jacket, the Supreme Court affirmed the decision of the Minnesota Supreme Court that the officer had unconstitutionally invaded Dickerson's privacy. Id. The Court upheld the state supreme court's interpretation that the officer's excessive probing into the defendant's pocket after it was apparent that the pocket did not contain a weapon, "overstepped the bounds of the 'strictly circumscribed' search for weapons allowed under Terry." Id. (citing Terryv. Ohio, 392 U. S. at 26).

Referring to Arizona v. Hicks, 480 U.S. 321 (1987), in which the Court held that moving an item to read its serial numbers and thereby develop probable cause to believe that the item was stolen went beyond the plain view exception, the Court stated that where the incriminating character of an item is not immediately apparent, a further search is unconstitutional. Dickerson, 113 S. Ct. at 2139. The Supreme Court concluded that since the officer in Dickerson discovered that the item in the defendant's pocket was cocaine only after closely examining it with his fingers, such action constituted further search and seizure and was constitutionally invalid. Id

The Court summarized the law by stating that in certain circumstances where an officer had a lawful reason and right of access to search a person or his vehicle, items in plain view whose "incriminating character is immediately apparent .... may be seized without a warrant. Dickerson, 113 S. Ct. at 2136-37. The Court explained the rationale for the plain view exception by noting that there is no reasonable expectation of privacy regarding objects open to public view. Therefore, there may be no unreasonable search or seizure which violates the Fourth Amendment in those situations.

The Court applied the plain view doctrine and its rationale by analogy to searches involving the sense of touch and specifically rejected the ruleof the Minnesota Supreme Court. First, the Court held that, as demonstrated in Terry, "the sense of touch is capable of revealing the nature of an object with sufficient reliability to support a seizure." Id. at 2137. In both cases, Fourth Amendment rights are protected by requiring articulable suspicion before the search is conducted. Second, the Court found that the proposition that touch is more intrusive than the other senses is inapposite, as a patdown for weapons is already justified. Id. at 2138.

With regard to the items that can be felt for during the course of a frisk, the Supreme Court in Ybarra v. Illinois emphasized that frisks must be directed at discovering weapons, not criminal evidence. In Ybarra, one of the police officers had removed what he described as a "cigarette pack with objects in it" from the suspect.

The Court basically decided that the officer's actions were too intrusive; the package could not have been considered a threat to the safety of the officers conducting the search. Significantly, the Court did not declare the seizure illegal because the officer was not looking for weapons. Rather, the search was illegal because the officer did not have reasonable suspicion to frisk every patron in the bar. Nevertheless, a frisk should not be used as a "fishing expedition" to see if some kind of usable evidence can be found on the person.

The Court's decision in Mendenhall stemmed from a confrontation between plainclothes Drug Enforcement Administration (DEA) agents and a 22-year-old African American woman in the Detroit airport. The agents had asked the woman for her ticket and identification, and she complied. When they realized the name on the ticket did not match her name, the agents asked the woman to accompany them into a nearby private room.

The Court did not actually decide whether the woman had been stopped, but it did create the objective test described in the previous quote.

Similarly, a person has not been "seized" unless the police have used force to apprehend the person or the person has yielded to police authority. The case of California v. Hodari D. (449 U.S. 621 [1991]), involved the apprehension of an individual who was chased by the police on foot.

The Court ruled that the individual had not been seized at the time he threw away a rock of cocaine because the police had not yet caught up with him. The individual argued that he was "stopped" when he was being pursued by the police officers because the chase was sufficient to cause a reasonable person to believe he was not free to leave. In other words, he argued that he was subjected to a "show of authority" stop. Accordingly, the individual argued in court that the cocaine should not be admissible as evidence. Rejecting his argument, the Court ruled that the seizure of a person during a pursuit occurs only when there is an application of force by the police or the suspect submits to police authority (gives up).

In Arizona v. Johnson (555 U.S. 323 [2009]), the Court further expanded the frisk doctrine. In that case, gang task force officers were patrolling and stopped a vehicle for a traffic violation. The officers had no reason to suspect the vehicle's occupants of criminal activity, but they nevertheless ordered them out of the car. One of them was frisked and a weapon was found.

The Court sanctioned this activity, noting that "a passenger's motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver."

terry v

The Supreme Court sanctioned the stops, patdowns, and subsequent weapon seizures on the grounds that requiring a warrant could threaten officer safety or the safety of others.

Florida v. Royer (460 U.S. 491 [1983]) was the first case to apply the test set forth in Mendenhall in order to determine the conditions under which a seizure or stop may take place. The facts in Royer were virtually identical to the facts in Mendenhall, except that the officers did not return the detained individual's plane ticket or driver's license. The Supreme Court held, in a 5 to 4 decision, that given the circumstances, when the officers did not indicate that the individual was free to leave, a seizure had taken place

The detained individual was subjected to the functional equivalent of an arrest, and as a result, the agents needed probable cause to detain him for as long as they did (which, incidentally, was only about 15 minutes). Moving the subject from a public location to a private location was one of the key factors that helped turn the encounter from a stop into an arrest.

in United States v. Sokolow(490 U.S. 1 [1989]), the Court upheld a stop that was premised on certain characteristics that the DEA had identified for drug couriers. In that case, DEA agents stopped Sokolow upon his arrival at Honolulu International Airport and found a large quantity of cocaine in his carry-on luggage. In support of the stop, the agents noted that Sokolow (1) had paid $2,100 for his airline ticket with a roll of $20 bills; (2) traveled under an assumed name; (3) had flown in from a major "source city," Miami; (4) had stayed in Miami for only 48 hours; (5) appeared nervous; and (6) did not check any luggage.

The district court denied Sokolow's motion to suppress the drugs, finding that the agents had reasonable suspicion to stop him in the airport. However, the court of appeals declared that the stop was illegal, a violation of the Fourth Amendment. The court relied on a two-pronged test to assess the legality of the stop. It required a showing that (1) there was "ongoing criminal activity" and (2) there were "personal characteristics" of drug courier profiles.

Terry and its early progeny permitted only brief investigative stops and extremely limited searches based on reasonable suspicion ... but this Court more recently has applied the rationale underlying Terry to a wide variety of more intrusive searches and seizures prompting my continued criticism of the emerging tendency on the part of the Court to convert the Terry decision from a narrow exception into one that swallows the general rule that [searches] are reasonable only if based on probable cause.

The exception Justice Brennan refers to is the exception made in Terry to the Fourth Amendment's requirement that reasonable searches be supported by probable cause. In a sense, Terry was intended to be only a minor exception to the Fourth Amendment. Brennan's concern in this case, then, is that the Fourth Amendment continues to be weakened in cases that continue to uphold police actions that would otherwise would have been considered searches, but for the Court's decision in Terry.

In another line of cases, the Court has recognized the need for police to check for identification in the course of investigating an incident. In Hiibel v. Sixth Judicial District Court of Nevada (542 U.S. 177 [2004]), police received a call reporting an assault. The caller reported having seen a man assault a woman in a red and silver pickup truck on a particular road. As an officer arrived at the scene, he observed a truck matching the same description parked on the side of the road. A man was standing beside the truck and a young woman was sitting inside it. The officer approached the man and informed him that he was investigating a reported assault. The man appeared intoxicated. The officer asked for the man's identification. He refused and asked why the officer wanted to see his identification.

The officer responded, once again saying that he was investigating a reported assault. The man became agitated, insisting he had done nothing wrong. During the confrontation, the officer asked the man 11 times for his identification and was refused every time. He arrested the man and charged him with "willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office," in violation of Nevada law.

Thus, there is an important distinction to be drawn between (1) a forcible seizure or a stop and (2) a less intrusive type of confrontation in which, for example, the officer merely questions a person who is free to ignore the officer and leave.

The seizure or stop requires reasonable suspicion (provided it is considered a Terry stop and not an arrest), but the simple questioning requires no justification.

In a controversial case, Montoya De Hernandez (473 U.S. 531 [1985]), even a detention of as long as 16 hours was allowed. In that case, a woman who was traveling from Colombia was detained for 16 hours in an airport because she was suspected of being a "balloon swallower" (a person who smuggles narcotics by hiding them in his or her alimentary canal).

The woman was given two options: (1) to return on the next available flight to Colombia or (2) to remain in detention until she was able to produce a monitored bowel movement. She chose the first option, but officials were unable to place her on the next flight, and she refused to use toilet facilities. Officials then obtained a court order to conduct a pregnancy test (she claimed to be pregnant), an X-ray exam, and a rectal exam. The exams revealed 88 cocaine-filled balloons in her alimentary canal. She was convicted of numerous federal drug offenses, but the court of appeals reversed that decision, holding that her detention violated the Fourth Amendment. The Supreme Court, in turn, reversed the court of appeals decision and ruled that the 16-hour detention was permissible. According to the Court, "The detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary canal."

in Ybarra v. Illinois (444 U.S. 85 [1979]), the Court ruled that officers did not have grounds to frisk 12 bar patrons during a search of the bar itself. Justice Stewart stated in Ybarra that "[t]he 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place."

Thus, just because someone happens to be in an area in which criminal activity is supposedly taking place does not make him or her eligible for a frisk.