Slippery 4th Amendment Slope

I have been blasted for a comment about Stop-and-Frisk vs. a so-called ‘slippery slope’ down the Fourth Amendment.

Well considering although I do possess a GED from the state of New Jersey, I do not have a double degree in dance and psychology from one of the top East Coast Liberal and Arts colleges in America.

I will have to break it down so even THEY might understand the WHOLE issue.

Detention Short of Arrest: Stop-and-Frisk—Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or a misdemeanor in their presence.

The probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman’s stop, what is discovered thereafter not sufficing to establish retroactively reasonable cause.

There are, however, instances when a policeman’s suspicions will have been aroused by someone’s conduct or manner, but probable cause for placing such a person under arrest will be lacking.

In Terry v. Ohio, the Court almost unanimously approved an on-the-street investigation by a police officer which involved “patting down” the subject of the investigation for weapons.

The case arose when a police officer observed three individuals engaging in conduct which appeared to him, on the basis of training and experience, to be the “casing” of 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. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable to the situation, applicable “whenever a police officer accosts an individual and restrains his freedom to walk away.”

The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.

Since the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice continued, the question was whether the policeman’s actions were reasonable. 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.

Inasmuch as the conduct witnessed by the policeman 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 the “frisk” is the discovery of 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.”

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 presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object.

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.

Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.

If you are concerned I suggest the book Constitutional Law and the Criminal Justice System.

[available online here]

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