I am not an attorney. I don’t play one on TV, and this is not a legal brief.  As such, it should not be construed as legal advice. What it is, however, is a short piece intended to clear up all the hoopla surrounding the issues of “stop and frisk.”

So as we approach the 53rd anniversary of the date that created the “stop and frisk” rule, let’s get some history. Here are the facts on the incident that gave birth to stop and frisk.

Back on Oct. 31, 1963, a Cleveland, Ohio, detective, Martin McFadden, a 39-year veteran of the CPD, while on a downtown beat that he had been patrolling for 30 years, observed two strangers (John W. Terry, 31, and Richard Chilton, 32) standing on a street corner. Over the course of several minutes, McFadden watched as both subjects walked back and forth in front of a store pausing only to stare in the store window.  Each time, the two would stop and appear to be engaging in a conversation. Eventually, the duo was joined by a third subject, Carl Katz, 49.

After observing this suspicious behavior and suspecting the trio was casing this store for a potential robbery, McFadden approached the three subjects and told them he was a police officer. He then asked for their names. Upon receiving what he characterized as “mumbled responses,” McFadden turned Terry around, patted down his outer clothing and felt what he believed was a firearm.

Rather than engage them out in the open, he brought all three into the store, took off Terry’s overcoat and removed a loaded Beretta semi-auto pistol from the inside left pocket. (Note: Some reports refer to it as a revolver).  He then conducted the same pat down on Chilton, felt another item that he recognized as a handgun and removed it.  That object was found to be a loaded .38 caliber revolver.  He did the same brief frisk on Katz but felt nothing suspicious. Long story short, both Terry and Chilton were arrested for possession of a concealed weapon.

The defense moved to suppress the evidence arguing that McFadden searched the three without probable cause. While the trial court rejected the prosecution’s contention that the guns had been seized pursuant to a lawful arrest, the court denied the motion to suppress. The court admitted both weapons into evidence on the grounds that McFadden had reasonable cause to believe the subjects were acting suspiciously, questioned them appropriately, and properly patted them down for his own protection since his suspicion that they may be planning a robbery was reasonable, based on his many years of experience.

Both subjects were found guilty.

Their appeals went all the way to the US Supreme Court. In 1968, the case of Terry vs. Ohio established what we now have come to know as the “stop-and-frisk” rule—or, more accurately, the “stop-question-and-frisk” rule, since this temporary stop (or momentary detention) does not give an officer the automatic right to frisk unless during this brief detention additional specific articulable facts come to light that would lead a reasonable officer to believe the detainee/s may be armed or dangerous.  At that point, the frisk would be lawful.

Note: This frisk is for weapons only and must be limited to the outer clothing.

A lot has been made in the media recently about bringing back “stop and frisk.”  In realty, “stop and frisk” never went away. What has been challenged in some jurisdictions is the fact that the “question” part of the equation was missing or that the “stop” and/or “frisk” was being used improperly, without actual reasonable suspicion. Again, the reasonable suspicion that led to the stop is not sufficient to justify the frisk. There must be something more: additional facts that would lead that reasonable officer to believe the subject may be armed or dangerous.

Conclusion

First, officers may detain a person for investigation and make reasonable inquiries when that person’s conduct arouses the officer’s reasonable suspicion that the subject is involved in criminal activity. And second, an officer who is justified in detaining a person for investigation may conduct a protective frisk if the officer, in addition, has a reasonable suspicion that the detainee may be armed or dangerous.

Lastly, it should be noted that Detective McFadden’s clearly described observations and why they had a specific meaning to him because of his almost 40 years of experience—30 of which were in this downtown area of Cleveland where this took place—was a critical factor in the court’s conclusion that his suspicions were indeed justified.

[Author’s Note: A special “thank you” goes out to Attorney Douglas Mitchell for his review of this article. Doug is a career prosecutor from Ellensburg, Wash., and a retired reserve deputy sheriff.  He is also the co-author of the text Terry Stops: Legal Perspectives and Tactical Procedures.]