A Critical Legal Review of the Concept of Stop-And-Frisk - Research Paper Example

Stop and Frisk of Introduction It is quite common to read about protests and other negative comments about police harassment. In the United States, numerous individuals have complained about police brutalities. Other minority groups complain that the police target them unfairly. This is often justified by the police as being necessary because the police needs to use statistics and other indicators to identify potential wrongdoers and apprehend them before they do any harm1. However, there are numerous limits that are placed on the operation and actions of the police. The civil liberties of individuals and their right to move freely often comes under violation if the police wrongfully stops them and questions them. On the other hand, the police also need some rights and authority to carry out their activities effectively. This has led to a series of contrasting views and ideas about the activities of police in relation to how they deal with members of the public. This paper will undertake a critical legal review of the concept of “stop-and-frisk”. This is a common term that is used in criticizing the police for exceeding their bounds in carrying out their duty. This research will take a look at the legal concepts underneath the idea of stop and frisk and provide an insight into the laws and other relevant definitions that come up to define the concept of stop and frisk. To this end, the research will undertake a critical review of the fundamental laws in the US constitution that relates to civil liberties and police powers. The next section will look at the evolution of the laws of stop and frisk. The final section of the essay will discuss specific laws that relate to stop-and-frisk. Fourth Amendment The police would argue that there is the need for them to stop people from time to time and question their identity and frisk them for illegally possessed weapons. Since this is the best way to detect and deal with crime in a timely manner. This is because no matter what happens, the rights of people to having a secured life is ahead of the liberties of criminals and suspects with a high probability of committing a crime in question. However, the Fourth Amendment of the United States prohibits unreasonable searches and seizures2. The Fourth Amendment was introduced to Congress by James Madison and it prohibited hold ups by the federal authorities in cases where they did not have warrants. The Fourth Amendment made it imperative for federal authorities to go for warrants that were judicially sanctions and supported by a probable cause3 The Fourth Amendment protects Americans from arbitrary and unreasonable searches and seizures. Thus, it means that people cannot just be stopped without the proper legal rights in criminal or public law. This law therefore restrains public officials and law enforcement personnel from abusing their power and authority to stop and search other people. There must be a genuine grounds and a reasonable explanation for every arrest or questioning by a public official. In other words, the Fourth Amendment estops a public officer from carrying out checks or limiting citizens rights unless there is a genuine and acceptable form of suspicion that is justified in law. And this must be based on a probable cause that is attributable to the individual in question. In the absence of such probable cause, a persons civil right under the Fourth Amendment is breached if an officer stops another person without any real or just cause and search him. The Fourth Amendment was mainly a Federal matter because it was a constitutional provision and since there were few Federal investigation in the first century of the existence of the United States, the Fourth Amendment was hardly evoked in American Law4. So there was a general question of whether the Fourth Amendment applied to states or not. Thus, cases in the 20th Century laid the foundation for the interpretation of Fourth Amendment in relation to the powers of the police at state level. In a landmark case of Mapp V Ohio (1961) the Fourth Amendment was invoked against state authorities. According to the facts of the case, the police of Cleveland, Ohio received information that Mapp was hosting a suspect in a bombing case on her premises. The information also indicated that Mapp had some illegal betting equipment on her premises. The police therefore dispatched three officers to Mapps home and sought permission to enter his premises. Mapp refused to grant them permission to enter her house on the grounds that they did not have a search warrant. On the basis of the challenge, two of the three police officers went back to the police station and one remained on her premises. The two returned with some other officers and presented a piece of paper that the police claimed was a search warrant. Mapp asked to see it it and she took it and put it in her dress. The police struggled with her, took the paper from her and handcuffed her for resisting arrest. They searched her house and could not find the bombing suspect nor the illegal betting equipment that was allegedly kept on her premises. Rather, the police found some pornographic materials and charged her for it. She was found guilty for the possession of pornographic material5. Mapp sued the state of Ohio in the Supreme Court for the violation of her rights under the Fourth Amendment. During the hearing, the Ohio police argued that the Fourth Amendment did not extend to state law. However, the plaintiff argued that it was a constitutional provision and hence, applied equally to state law. The Supreme Court held that in the strict sense, the Fourth Amendment which protects against “unreasonable searches and seizures” applies only in the Federal courts. However, they construed the principle of selective incorporation which sought to invoke the Fourth Amendment strictly on the federal courts and Fourteenth Amendment which seeks equality before the law in the state court6. This became known as the selective incorporation which sought to integrate the concept of probable cause which balanced the need for the police to work properly with the need for the protection of the rights of individuals7. This means that the states have to ensure that their authorities acted in relation to credible suspicion, but they must ensure that the rights of all persons are respected in their quest to promote vigilance and the control of affairs and enhance justice8 Stop and Frisk Laws: Evolution Since the concept of probable cause and the need of a warrant evolved from the Mapp case, other cases sought to broaden the definition of the rules and principles that covered the breach or limitation of the Fourth Amendment. And this happened in cases involving stop and frisk. Stop and frisk are forms of searches and seizures and therefore come under the Fourth Amendment, but because they are less intrusive than arrests, searches or seizures, all the police need to conduct them is reasonable suspicion rather than probable cause9. In other words, stop and frisk is more basic than the entrance of a police officer into the premises of a suspect. Hence, the standard of care moves from the high standard of probable cause to reasonable suspicion. This is because stop and frisk is not as serious as going to a persons house to go through the individuals personal belonging. Stopping and frisking are basic since they are just seizures. “A seizure occurs when a reasonable person believes he or she is not free to leave. An arrest is a formal restraint on ones freedom of movement. A seizure need not necessarily be an arrest byt all arrests are seizures10. And since the Fourth Amendment guarantees freedom from unreasonable searches and seizures, there is the need for some kind of control and restraint placed on police powers. Thus, the Fourth Amendment places some degree of restraint on the power or authority of the police. However, under law, the police must have some power to detain and to control actions and activities. And it is a general requirement for citizens to support and assist in investigations. Hence, there is the need for the police to be empowered to acquire the cooperation of people in investigations. But this, must be done in the context of normal law and normal rules. A landmark case that established the rules and the scope of stop and frisk in relation to US law is the case of Terry V Ohio (1968). The ruling of the case was that a police officer may stop an individual for a brief investigation provided they have a reasonable suspicion that criminal activity may be a foot11. This means that the police can undertake some degree seizure if and only if there is a reasonable suspicion, but not a probable cause. Reasonable suspicion is defined from the case as a degree of proof that is less than probable cause but more than suspicion. It represents a degree of certainty around 30% that a crime has or will be committed and that the suspect is involved in it12. This implies that the police have some right to limit a persons civil rights under the Fourth Amendment where there is more than a mere suspicion. There must be a suspicion that can be justified on a degree of certainty which the police officers can ascertain. In the absence of such suspicions, the police officers might be violating the rights of the individual in question under the Fourth Amendment and the Fourteenth Amendment. This can lead to some claims and some action from the individual affected. Requirements for Stopping As identified in the Terry V Ohio case, Justice Warren said that in order to justify a given intrusion, a police officer must be able to point out articulable fact which must be taken together with rational inferences from the facts that gives a reasonable warrant to the given intrusion13. The implication of the ruling is that there must be objective and stated facts that have been identified in relation to the individual in question. This could be a visible sign on the individual in question or a series of information that was given to the police officer and the individual in question must be exactly the person about whom the information is given. These facts must be articulable and verifiable in an objective sense. The next criteria is that the when the facts are interpreted logically and in an objective manner, it will be clear that there is a reasonable reason for the individual to be stopped by the police. This means that based on the facts known to the police officer, and the implication of the facts, it must be clear and logical for the police officer to stop the individual in question in order to take the relevant and necessary legal action. Requirement Frisking As identified above, it is apparent that stopping might be necessary where there are verifiable and credible facts that shows that the individual in question is on the path to taking some kind of action in question. In this case, the police officer has the right to question and take important information in a formal evidence gathering process. This is because in a case where a person has actually committed an offense, the interrogation and the criminal legal process against the person starts right at the point of interrogation or the point of stopping by a police officer14. There is therefore the need for the police officer to ensure that the questioning and possible interaction with the individual in question is done in an environment of no harm and no tension. There is a common maxim in criminal law which requires the police officer to protect his life first in the process of protecting the public15. This provision and requirement was established in the Terry case and ruling. To this end, Chief Justice Warren stated that in a case where a police officer reasonably suspects that an individual he has stopped has a weapon that can endanger his life or the life of other police officers in the questioning process, s/he will need to undertake a search of the suspect for weapons. This therefore gives the police officer a limited right to undertake a search necessary to discover weapons that can harm the officer or other police officers nearby16. Thus, the officer must do everything that is necessary and relevant to frisk and check the suspect in order to identify any hidden weapon. Thus, the search must be limited to the search of the individuals body for weapons that can be possibly used to harm the police officer. This check on the body of the suspect or frisking process must be conducted in a way and manner to discover guns, knives, clubs or other hidden instruments for the assault of the police officer17. Non-Arm Discoveries During Frisking In Minnesota V Dickerson18 an interesting twist occurred which tested the doctrine of reasonable suspicion further. In the case, Dickerson was known to be an area where drugs were common and the movement of drugs was somewhat common. Thus, in the process of the police frisking a man stopped for a reasonable suspicion, the officer ordered the suspect to remove his outer cloth for him to check for an offensive weapon. During the search of the suspect, the officer felt an unusual substance which he ordered the suspect to remove. When it was removed, it was found to be cocaine which was illegal. Action was taken by the police and the individual was arrested. The individual took the case to court and insisted that the police were searching for offensive weapons not for cocaine. The Supreme Court ruled that if a police officer has the lawful right to check a suspects clothes for offensive weapons and in the process, they feel a suspicious item under the suspects clothes and they make further enquiries and find it to be illegal products, then the seizure and action is verified and justified in law. Thus, effectively where an illegal item is found on a suspect, that item is subject to the same kind of process and procedure as any other offense. This means that in effect, frisking could be used to lead to further things that the police can investigate and trace further in order to come up with results. In that case, the police have acted within the scope of the law and they are not to be held accountable or limited in any way because of their search and their intrusion into what other people might consider to be the evasion of the privacy of the individuals in question. In that instance, there is a justification of the police and there is a justification of the further search. Practical Implications of Stop and Frisk Many people and individuals have identified the process of stop and frisk to be discriminatory and prone to racial profiling. This is because the use of statistics as a basis for the identification of suspects means that people from certain social groups are likely to be connected to specific crimes. Due to this, there is the propensity for the stop and frisk rules to be abused by police officers. Conclusion Bibliography Harr, J. S., Hess, K. M., and Orthman, C. M. H. (2011) Constitutional Law and the Criminal Justice System Mason, OH: Cengage Macmillan, S (2012) Criminology London: University of London Press. Romero, E. (1988) “Fourth Amendment – Requiring Probable Course for Searches and Seizures under the Plain View Doctrine” Journal of Criminal Law and Criminology Volume 78 (3) Schroeder, S. (2012) The Lure: The True Story of How the Department of Justice Brought Two of the Worlds Most Dangerous Cyber Criminals Mason, OH: Cengage Smith, J. (2011) Criminal Law San Antonio: University of Texas Press Van del Carmen, R. (2011) Criminal Procedure: Law and Practice Mason, OH: Cengage Van del Carmen, R. and Druben, C. R. (2011) Juvenile Justice Mason, OH: Cengage Cases Mapp V Ohio (1961) USSC 367 643 Minnesota V Dickerson (1993) 508 US 366 Terry V Ohio (1968) 392 US 1 Read More