The tragic death of Denzel Curnell in downtown Charleston and the media coverage that followed has shed light on the Charleston Police Department’s (CPD) “Stop and Frisk” policy. Stop and frisk is not a procedure limited to the CPD but rather it’s used by multiple law enforcement agencies in the state of South Carolina and throughout the nation. Where it typically comes to light is when it is used disproportionately in urban communities or predominantly applied to minorities. (See Stop and Frisk in New York)
But what is “stop and frisk” and how does it apply in the police/citizen encounter on the street?
Fourth Amendment roots
The Fourth Amendment prohibits “unreasonable searches and seizures” by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. It does not prohibit all searches and seizures but “unreasonable searches and seizures” and is a limitation on the government.
Terry Stop: What is it?
The case that defined Stop and Frisk was Terry v. Ohio, a United States Supreme Court decision from 1968. What Terry says is that a police officer may stop and briefly detain and question a person for investigative purposes, without treading upon his 4th Amendment rights, when the officer has reasonable suspicion supported by articulable facts, short of probable cause for arrest, that the person is engaged in criminal activity. (See also State v. Corley)
The justification for it: The reasoning for government stop and frisk procedures is that it promotes the strong government interest in solving crimes and bringing offenders to justice. (Hiibel v. Sixth Judicial Dist. Ct. of Nev.)
A closer look
What is reasonable suspicion: Reasonable suspicion requires a particularized and objective basis that the suspect is involved in criminal activity. (United States v. Arvizu) It’s a common sense approach that is not defined by legal rules. This is determined by the “totality of the circumstances” test. (State v. Wallace) Basically, the police must be able to state the facts that led them to believe that the suspect had been involved in criminal activity.
What can police do during the Terry Stop: After stopping a suspect with reasonable suspicion of criminal activity, an officer may pat down the outer clothing of a suspect to determine if s/he is armed and dangerous.
Can you ignore the police: A stop based solely on a suspect’s refusal to answer an officer’s questions and the suspect’s exercise of his right to ignore police, without more, is insufficient to support reasonable suspicion. (State v. Burton) Other states have a “Stop and identify” statute where a person must identify themselves but South Carolina is not one of them. (Hiibel.) So yes, you can ignore police and there is no requirement that you have to respond to there questions. The 4th Amendment is a restriction that applies to the government so the person stopped is not required to answer any of the police officers questions. (Hiibel)
Are all police stops reasonable: No, not all stops based on articulable suspicion are reasonable under Terry. To determine if a stop falls within Terry, a court must balance the public interest against the individuals right to be secure from arbitrary interference by law enforcement. (State v. Rodriquez) A court’s determination should consider the following factors:
- The seriousness of the offense;
- The degree of likelihood that the person detained may have witnessed or been involved in the offense;
- The proximity in time and space from the scene of the crime;
- The urgency of the occasion;
- The nature of the detention and its extent;
- The means and procedure employed by the officer; and
- The presence of any circumstances suggesting harassment or a deliberate effort to avoid the necessity of securing a warrant.
What is not reasonable suspicion?
Presence in high crime area: A persons presence in a high crime area, standing alone, is insufficient to support reasonable suspicion of criminal activity. (State v. Fowler)
Prior arrest record: A prior arrest or criminal record alone does not amount to reasonable suspicion.
Refusal to talk to police: a person has the right to ignore police and go about their business and police must let them do so without more. Other states have a “Stop and identify” statute where a person must identify themselves but South Carolina is not one of them. (Hiibel.)
So why the confusion?
One of the main problems in stop and frisk is in its definition, or lack thereof. Our courts have gone out of there way to state that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696 (principle of reasonable suspicion is not a “`finely-tuned standard”); Cortez, supra, at 417 (the cause “sufficient to authorize police to stop a person” is an “elusive concept”). But we have deliberately avoided reducing it to “a neat set of legal rules.”
No doubt if you have a frank discussion with any law enforcement officer that regularly patrol the streets they will tell you that it is a vital tool in the detection of crime. So its use is not going to disappear especially when its practice has been accepted by the highest court in the land. Where the debate falls is in the lack of guidance and therefore its application. When you cannot reduce an accepted practice to a neat set of legal rules, how are police departments suppose to instruct officers and then have those officers follow a procedure where there is no bright line rule.
That’s not to say that police have unfettered discretion. In fact our courts have recently thrown out cases where they have admonished law enforcement attempting to use innocent behavior to justify a Terry Stop. (See here, here, here and here)
We encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion.
So the conflict and confusion stems from living in a free society where you can go about your business and not be subjected to unreasonable government intrusion but the government does have an interest, an important one at that which enables us to live free, to solves crimes and bring offenders to justice. Until the courts change course and create a bright line rule these issues are sure to continue.
Charleston Criminal defense attorney
If you have been arrested from a “stop and frisk” incident with police call an experienced and trusted criminal defense attorney Charleston, SC at the Dale Savage Law Firm for a free case evaluation today at (843) 530-7813.