Terry Stop and Frisks Doctrine and Practice

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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While arrests are subject to Fourth Amendment requirements, courts have followed the common law in upholding the authority of police officers to take a person into custody without a warrant if they have probable cause to believe the person has committed a felony or a misdemeanor in their presence.1 Probable cause must be satisfied by conditions existing prior to the arrest and cannot be established retroactively.2 There are, however, instances when a person’s conduct or manner arouse a police officer’s suspicions, but probable cause to arrest such a person is lacking.3 In its 1968 Terry v. Ohio decision,4 the Court, with only Justice William O. Douglas dissenting, approved a police officer’s on-the-street investigation that involved “patting down” the subject of the investigation for weapons.

Terry arose when a police officer observed three individuals engaging in conduct that appeared to him, on the basis of training and experience, to be “casing” a store for a likely armed robbery. Upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men, patted the exterior of his clothes, and discovered a gun. For the Court, Chief Justice Earl Warren wrote that the Fourth Amendment applies “whenever a police officer accosts an individual and restrains his freedom to walk away.” 5 Because the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice considered whether the policeman’s actions were reasonable. The Chief Justice reasoned that the test of reasonableness in this sort of situation is whether the police officer can point to “specific and articulable facts which, taken together with rational inferences from those facts” would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a “frisk” was required.6 Because the police officer witnessed conduct that reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a “frisk.” Because the object of a “frisk” is to discover dangerous weapons, “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” 7

In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, “plain touch” reveals the presence of the object, and the officer has probable cause to believe it is contraband.8 The Court viewed the situation as analogous to that covered by the “plain view” doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.9 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.10

Terry did not address the grounds that could permissibly lead an officer to stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. The Court provided a partial answer in its 2004 decision, Hiibel v. Sixth Judical District Court, when it upheld a state law that required a suspect to disclose his name in the course of a valid Terry stop.11 Questions about a suspect’s identity “are a routine and accepted part of many Terry stops,” the Court explained.12

After Terry, the standard for stops for investigative purposes evolved into one of “reasonable suspicion of criminal activity.” That test permits some stops and questioning without probable cause in order to allow police officers to explore the foundations of their suspicions.13 Although it did not elaborate a set of rules to govern applying the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.14 The Court invalidated extensive intrusions on individual privacy, for example, transporting a person to the station house for interrogation and fingerprinting, absent probable cause,15 and the Court has held that an uncorroborated, anonymous tip is an insufficient basis for a Terry stop and that there is no “firearms” exception to the reasonable suspicion requirement.16 Since the 1980s, however, the Court has taken less restrictive approaches.17

The Court’s approach for when a “seizure” has occurred for Fourth Amendment purposes has evolved. The Terry Court recognized in dictum that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons,” and suggested that “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 18 In the 1980 United States v. Mendenhall decision, Justice Potter Stewart, joined by Justice William Rehnquist, proposed a similar standard—that a person has been seized “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 19 A majority of the Justices subsequently endorsed this reasonable perception standard20 and applied it in several later cases in which the admissibility of evidence turned on whether police actions prior to uncovering evidence violated the Fourth Amendment. No seizure occurred, for example, when Immigration and Naturalization Service (INS) agents seeking to identify unlawfully present aliens conducted workforce surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.21 The Court held this brief questioning, even with blocked exits, amounted to “classic consensual encounters rather than Fourth Amendment seizures.” 22 The Court has also ruled that no seizure occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, flashing lights, display of a weapon, or blocking of the suspect’s path), the Court concluded the police conduct “would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one’s] freedom of movement.” 23

The Court later ruled that the Mendenhall “free-to-leave” inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed.24 In conducting a bus sweep aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and at times, the luggage of selected passengers. The Court did not focus on whether an “arrest” had taken place, but instead suggested that the appropriate inquiry is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” 25 “When the person is seated on a bus and has no desire to leave,” the Court explained, “the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.” 26

The Supreme Court’s analysis of seizure, however, is different in the context of fleeing suspects, where the Court seemingly applies a more formalistic approach than the Mendenhall reasonable-perception standard. In Brower v. County of Inyo, the Supreme Court concluded that a seizure occurred when a suspect’s car collided with a police roadblock, and explained that a “[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control.” 27 The Court reasoned that such a use of force becomes a seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” 28 The Court seemingly modified that standard in California v. Hodari D., another Fourth Amendment case involving a fleeing suspect.29 In Hodari D., the Court held that an actual chase with evident intent to capture did not amount to a “seizure” because the suspect had not complied with the officer’s order to halt. The Court reasoned that Mendenhall stated a “necessary” but not a “sufficient” condition for a seizure of the person is through a show of authority.30 A Fourth Amendment “seizure” of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands) or submission to the assertion of authority.31 Three decades after Hodari D., the Court revisited the nature of seizure in the context of a fleeing suspect in its 2021 Torres v. Madrid decision.32 In Torres, the Court held that a suspect was seized when struck twice by bullets fired by law enforcement, even though she temporarily evaded capture.33 The Court reasoned that the “application of physical force to the body of a person with intent to restrain is a seizure” within the meaning of the Fourth Amendment, “even if the force does not succeed in subduing the person.” 34 According to the Court, such a seizure lasts “only as long as the application of force.” 35 Thus, in Torres, officers seized the suspect “the instant that the bullets struck her.” 36 The Court clarified that, unlike seizure by application of force, seizure by show of authority still requires either “voluntary submission” or “termination of freedom of movement.” 37

1: United States v. Watson, 423 U.S. 411 (1976).
2: Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10, 16–17 (1948); Sibron v. New York, 392 U.S. 40, 62–63 (1968).
3: “The police may not arrest upon mere suspicion but only on ‘probable cause.’” Mallory v. United States, 354 U.S. 449, 454 (1957).
4: 392 U.S. 1 (1968).
5: Id. at 16. See id. at 16–20.
6: Id. at 20, 21, 22.
7: Id. at 23–27, 29. See also Sibron v. New York, 392 U.S. 40 (1968) (after policeman observed defendant speak with several known narcotics addicts, he approached him and placed his hand in defendant’s pocket, thus discovering narcotics; this was impermissible, because he lacked a reasonable basis for the frisk and in any event his search exceeded the permissible scope of a weapons frisk); Adams v. Williams, 407 U.S. 143 (1972) (stop and frisk based on informer’s in-person tip that defendant was sitting in an identified parked car, visible to informer and officer, in a high crime area at 2 a.m., with narcotics and a gun at his waist); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (after validly stopping car, officer required defendant to get out of car, observed bulge under his jacket, and frisked him and seized weapon; while officer did not suspect driver of crime or have an articulable basis for safety fears, safety considerations justified his requiring driver to leave car); Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after validly stopping car, officer may order passengers as well as driver out of car; “the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger” ); Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (after validly stopping car, officer may frisk (pat down for weapons) both the driver and any passengers whom he reasonably concludes “might be armed and presently dangerous” ).
8: Minnesota v. Dickerson, 508 U.S. 366 (1993).
9: 508 U.S. at 375, 378–79. In Dickerson the Court held that seizure of a small plastic container that the officer felt in the suspect’s pocket was not justified; the officer should not have continued the search, manipulating the container with his fingers, after determining that no weapon was present.
10: Bond v. United States, 529 U.S. 334 (2000) (bus passenger has reasonable expectation that, although other passengers might handle his bag in order to make room for their own, they will not “feel the bag in an exploratory manner” ).
11: Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004).
12: 542 U.S. at 186.
13: In United States v. Cortez, 449 U.S. 411 (1981), a unanimous Court attempted to capture the “elusive concept” of the basis for permitting a stop. Officers must have “articulable reasons” or “founded suspicions,” derived from the totality of the circumstances. The Court stated “Based upon that whole picture the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. at 417–18. The inquiry is thus quite fact-specific. In the anonymous tip context, the same basic approach requiring some corroboration applies regardless of whether the standard is probable cause or reasonable suspicion; the difference is that less information, or less reliable information, can satisfy the lower standard. Alabama v. White, 496 U.S. 325 (1990).
14: E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual’s presence in high crime area gave officer no articulable basis to suspect him of crime); Delaware v. Prouse, 440 U.S. 648 (1979) (reasonable suspicion of a license or registration violation is necessary to authorize automobile stop; random stops impermissible); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random automobile stop solely on basis of Mexican appearance of occupants); Reid v. Georgia, 448 U.S. 438 (1980) (no reasonable suspicion for airport stop based on appearance that suspect and another passenger were trying to conceal the fact that they were traveling together). But cf. United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles at fixed checkpoints to question occupants as to citizenship and immigration status permissible, even if officers should act on basis of appearance of occupants).
15: Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S. 200 (1979). Illinois v. Wardlow, 528 U.S. 119 (2000) (unprovoked flight from high crime area upon sight of police produces “reasonable suspicion” ).
16: Florida v. J.L., 529 U.S. 266 (2000) (reasonable suspicion requires that a tip be reliable in its assertion of illegality, not merely in its identification of someone).
17: See, e.g., Prado Navarette v. California, 572 U.S. 393 (2014) (anonymous 911 call reporting an erratic swerve by a particular truck traveling in a particular direction held to be sufficient to justify stop); United States v. Sokolow, 490 U.S. 1, 9 (1989) (airport stop based on drug courier profile may rely on a combination of factors that individually may be “quite consistent with innocent travel” ); United States v. Hensley, 469 U.S. 221 (1985) (reasonable suspicion to stop a motorist may be based on a “wanted flyer” as long as issuance of the flyer has been based on reasonable suspicion).
18: 392 U.S. at 19, n.16.
19: 446 U.S. 544, 554 (1980).
20: See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which there was no opinion of the Court, but in which the test was used by the plurality of four, id. at 502, and also endorsed by dissenting Justice Harry Blackmun, id. at 514.
21: INS v. Delgado, 466 U.S. 210 (1984).
22: 466 U.S. at 221.
23: Michigan v. Chesternut, 486 U.S. 567, 575 (1988).
24: Florida v. Bostick, 501 U.S. 429 (1991).
25: 501 U.S. at 436.
26: Id. The Court asserted that the case was “analytically indistinguishable from Delgado. Like the workers in that case [subjected to the INS ‘survey’ at their workplace], Bostick’s freedom of movement was restricted by a factor independent of police conduct—i.e., by his being a passenger on a bus.” Id. See also United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus search in which one officer stationed himself in the front of the bus and one in the rear, while a third officer worked his way from rear to front, questioning passengers individually. Under these circumstances, and following the arrest of his traveling companion, the defendant had consented to the search of his person.
27: Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989).
28: Id. at 597.
29: 499 U.S. 621 (1991).
30: Id. at 628. As in Michigan v. Chesternut, the suspect dropped incriminating evidence while being chased.
31: Adherence to this approach would effectively nullify the Court’s earlier position that Fourth Amendment protections extend to “seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), quoted in INS v. Delgado, 466 U.S. 210, 215 (1984).
32: No. 19-292, slip op. at 1 (U.S. Mar. 25, 2021).
33: Id. at 1–3.
34: Id. at 1.
35: Id. at 10.
36: Id. at 11.
37: Id. at 14–15.