We see it every day—some young adults are standing on the side of the road in a small group. They're seemingly doing nothing wrong, just exercising their First Amendment right—the right to assembly. Just then, a police officer drives by and notices them. He or she walks up to the group and starts questioning them. The police officer then pats the young adults down (called a Terry pat), and what do you know—the police officer finds an unregistered gun on one of the young adults. Isn't this illegal? Can the police officer actually do this?
4th Amendment Seizures
The United States Constitution's Fourth Amendment restricts unreasonable searches and seizures. A seizure is defined when a law enforcement person approaches an individual and restrains his or her freedom to walk away, regardless of whether a formal arrest is made. In short, when a police officer uses his or her authority as a police officer to keep you from walking away—as far as the Fourth Amendment is concerned, you have been seized. Typically, this happens more than someone would think—people wouldn't just walk away from a police officer when they are talking to them. So how does seizure fit into the grand scheme of things?
Terry Pats
Terry pats came from an older case called Terry v. Ohio in 1968. A Terry pat (stop and frisk) is essentially when the police office does not actually arrest the seized individual, however searches the individual's arms, legs, body, and other outer extremities. To do a Terry pat, the police officer only needs reasonable suspicion of criminal activity, and can only search for weapons. Reasonable suspicion is defined as taking all of the articulable facts together with rational inferences from those facts. Said another way, while looking at the whole picture, the police officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. There are two main elements that allow a police officer to have reasonable suspicion, which comes from U.S. v. Cortez.
- Objective Observations, and
- The whole picture must yield a certain suspicion that the person is engaged in criminal activity.
#2 above is simple to understand, however #1 needs more explanation—what are objective observations? Turns out, these observations are police reports, modes and operations of law breakers, hearsay from other officers or informants, investigations, past criminal activity that is known to the officer, and the big kicker—profiling. Yes, you read that right—profiling. The police officer can in fact take lot of innocent acts together to make a suspicious activity. This law is about probabilities or inferences, and mere hunches will not work.
What does this all mean?
Turns out, the police can do this—it is legal. Take our hypothetical for example: the police can take a lot of innocent acts together—the young adults standing on the side of the road, looking at the cops very closely, and seeming nervous when talking to the police officer—and then profile the young adults from other information he or she knows to be a probability to basically stop and conduct a Terry pat or stop and frisk the young adults. This is not to say that a police officer can look at someone's skin color or cultural background and then arrest them because of that—this is clearly illegal. However, merely profiling people is very legal and has been for quite a while.
If you believe that you have been illegally arrested or need assistance with another criminal defense matter, give The Meranda Law Firm, LTD a call, where we will work diligently to resolve your case.