Monday, April 25, 2011

Stop and Frisk

Every day, potential clients come into my office claiming that their arrests should be thrown out because they were illegally searched. The scenario is almost always the same: the client was walking down the street or driving in his car. He was told to stop for some reason by an officer, patted down, and illegal substances were found in his pocket. The client was then arrested for the substances, which the officer wouldn't have ever known about had he not stopped and frisked the client. Clients are often surprised to find that even though the officer didn't have a warrant, most of the time judges hold those searches to be perfectly legal. Why? Enter the Supreme Court in Terry v. Ohio.

In 1968, the Supreme Court held in Terry v. Ohio that because police officers face a lot of dangerous situations, they are allowed to "stop and frisk" anyone they are reasonably suspicious is committing, about to commit, or has just committed a crime. While it makes sense to give police officers some protection on the streets from purportedly dangerous criminals with weapons, the standard to stop and frisk is extremely low: an officer needs only "more than a mere hunch" that a crime is/has/was occurring.

Police officers can stop and frisk you for almost any reason, and they do - especially in high crime areas and minority communities. When an officer is writing his report, he'll say that he stopped you because you were acting strangely, you were in a high-crime area, it was late at night, you were loitering, you were hiding behind something, or any other number of behaviors deemed "suspicious." He'll say that he frisked you because he was concerned for his own safety, he didn't have backup, you were evasive, you were bigger than him, or any combination necessary to make the frisk (and any evidence found as a result) legal under the eyes of the law. Anything found during the frisk that is illegal gives the officer probable cause to make an arrest. This can turn a walk to your friend's house into a night in a jail and an extensive legal battle to clear your name.

Police encounters can be scary and confusing. Many people do what they are told by an officer, even when they don't have to, simply because they do not know their rights or are too nervous to remember them. Unless you are being detained, either by a show of force or a show of authority, you are free to walk away from a police encounter. The best way to determine if you are free to go is to ask! "Am I being detained or am I free to go?" The answer will be clear. If you aren't being detained, carry on with your day. No need to stick around, unless you really have a desire to chit chat with police officers on duty.

If, however, the officer tells you you are being detained, or he has the blue lights on in his patrol car, or he throws you up against a wall or the ground or his patrol car, it's a safe bet that you are being detained. The detention could very well be illegal, but if you find yourself in such a sitation: don't resist. Resisting can only make the situation worse for you. Let your lawyer fight it out later on in court.

When you are being detained, the officer can legally pat you down for what he believes in his "training and experience" to be concealed weapons or contraband. Some people think that they will be making things easier on themselves if they announce their possession of illegal substances right away. Doing the officer's job for him isn't making things easier on you - it's making it easier for the officer to arrest you and easier for the State's Atttorney to convict you. Anything you say can and will be used against you. Telling the officer you have weed in your pocket is a confession and voluntary confessions make defending you a whole lot more difficult. So, just remain silent if you are being stopped and frisked.

[You should also know that you don't have to pull out your pockets for them - that's their job. Emptying your pockets for a police officer is the same as consenting to a search. Don't do it; you have the right to refuse searches.]

Officers know what they need to say for a stop and frisk to be found legal. But remember, just because they write the buzz-words in their reports doesn't mean that your case is lost. It is up to your lawyer to challenge illegal searches. While Stop and Frisk laws (also known as Terry Stops) give law enforcement broad authority on the streets, knowing your rights and utilizing them can help your attorney use the law to your advantage to fight back in court.

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