Terry stop

A Terry stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity.^[1][2] Reasonable suspicion is a lower standard than probable cause which is needed for arrest. When police stop and search a pedestrian, this is commonly known as a stop and frisk. When police stop an automobile, this is known as a traffic stop. If the police stop a motor vehicle on minor infringements in order to investigate other suspected criminal activity, this is known as a pretextual stop. Additional rules apply to stops that occur on a bus.^[3]

In the United States at the federal level, the Supreme Court has decided many cases that define the intersection between policing and the Fourth Amendment protection against unreasonable searches and seizures. However, Congress has not defined a baseline for police behavior. There has been some state action at both the legislative and judicial levels, and also some cities have passed laws on these issues.^[4][5]

Some law academics are concerned that jurisprudence permitting Terry stops does not account for possible implicit bias of officers, and that this possibly results in racially skewed decision-making.^[6] Communities that have high rates of incarceration may experience more intense and punitive policing and surveillance practices even during periods of time when general crime rates are decreasing.^[7]

The concept of a Terry stop originated in the 1968 Supreme Court case Terry v. Ohio, in which a police officer detained three Cleveland men on the street behaving suspiciously, as if they were preparing for armed robbery. The police conducted a pat down search and discovered a revolver, and subsequently, two of the men were convicted of carrying a concealed weapon.^[9] The men appealed their case to the Supreme Court, arguing that the search in which the revolver was found was illegal under the Fourth Amendment. This brief detention and search were deemed permissible by the court, judging that the officer had reasonable suspicion which could be articulated (not just a hunch) that the person detained may be armed and dangerous. This was not mere "suspicion" but "reasonable suspicion" which could be articulated at a later date.^[10]

This decision was made during a period of great social unrest in the United States in the 1960s, with rising crime, opposition to U.S. involvement in the Vietnam War and the civil rights movement, and race riots. It was thought that law enforcement needed to be provided with tools to deal with the unrest and new issues of urban crime. Some criticized the decision for watering down the prohibition against unreasonable searches and seizures; others praised it for balancing safety and individual rights.^[10]: 94

The United States Supreme Court held that where: a police officer observes unusual conduct by a subject; the subject's conduct leads the officer reasonably to conclude that criminal activity may be afoot, and that the subject may be armed and presently dangerous; the officer identifies themselves as a police officer; the officer makes reasonable inquiries; and nothing in the initial stages of the encounter serves to dispel the officer's reasonable fear for safety, the officer may conduct a carefully limited search of the outer clothing of the subject in an attempt to discover weapons, and that such a search is a reasonable search under the Fourteenth Amendment, so that any weapons seized may properly be introduced in evidence.^[11]

For practical purposes, a traffic stop is essentially the same as a Terry stop; for the duration of a stop, driver and passengers are "seized" within the meaning of the Fourth Amendment. The Supreme Court has held that drivers and passengers may be ordered to exit the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures. Drivers and passengers may be frisked for weapons upon reasonable suspicion they are armed and dangerous. If police reasonably suspect the driver or any of the occupants may be dangerous and that the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment. Otherwise, lacking a warrant or the driver's consent, police may not search the vehicle, but under the plain-view doctrine may seize and use as evidence weapons or contraband that are visible from outside the vehicle.^[10]

As decided in Ohio v. Robinette (1996), after an officer returns the driver's identification, there is no requirement that the officer inform the driver of his or her freedom to leave; therefore, although the encounter has changed to a consensual encounter, questioning can continue, including a request to search the vehicle.^[34]

Pretextual stops are a subset of traffic stops deemed constitutional by the Supreme Court in Whren v. United States (1996). They occur when a police officer wishes to investigate a motorist on other suspicions, generally related to drug possession, and uses a minor traffic infringement as a pretext to stop the driver. In the case of Whren, the defense used a "would-have" rule, asking whether a reasonable police officer would have made the stop without the suspicion of other criminal behavior. Some^[35] consider that pretextual stops can allow racial profiling to occur. There are numerous petty violations that a typical driver might commit, and the officer can be selective about whom to detain for questioning.^[36] Sixteen states ban pretextual stops based solely upon racial profiling or other immutable factors:^[37]

Police officers may develop schemas after continuously being exposed to certain environments, like high-crime minority neighborhoods, which can lead to their association of crime with race instead of focusing on suspicious behavior.^[12] Officers who have been in the police force for longer are more likely to have suspicions based on non-behavioral reasons.^[12] Forms of American culture that perpetuate negative stereotypes, such as black people being violent or white people committing white-collar crimes, can theoretically cause people to act on these stereotypes, even if they do not believe them, making implicit bias a possible factor in arrests.^[38] Some argue that Black and Hispanic people are more likely to be targeted and are more likely to be stopped than population and relative crime rates might suggest.^[39]

Terry stop regulations vary by area. Areas with high crime, such as public housing, might require less evidence for someone to be stopped.^[39] This places the inhabitants of the area at greater risk for detainment.^[39] In areas that are perceived to have high crimes, more police are deployed, which results in higher arrest rates, which are then used to justify more policing.^[12] When controlling for location-based stops, one study found that white people were more likely to have a weapon than are black or Hispanic people.^[39] Another study determined that the same proportion of racial groups were stopped during the day and at night, suggesting that stop decisions were not based on the physical appearance of the driver.^[39] However, the study was interpreted to suggest that black people are more likely to be detained for longer periods of time.^[39] The National Research Council states that "more research is needed on the complex interplay of race, ethnicity, and other social factors in police-citizen interactions."^[12]

One study suggested a 27% increase in the likelihood of black people experiencing force during a stop compared to a white person, and a 28% increase in likelihood that the officer would draw his or her gun.^[40] The study also determined that even during consensual stops, blacks are 29% more likely to experience force than other racial groups.^[40] Young people were found more likely to experience force compared to older people.^[40] In New York City between 1996 and 2000, there was a disproportionate number of complaints by blacks about officers' use of force.^[14] Governmental and nongovernmental organizations investigations have confirmed that police-perpetrated abuse has affected many people of all races.^[14] Another study blamed variances in types of nonverbal communication among races as a factor influencing some officers' suspicions.^[12]

A 2009 study theorized that police officers could use their power to enforce their masculinity.^[41] Because most police officers and detainees are men, officers are susceptible to the culture of honor stance and hypermasculinity, in which they are more prone to physical aggression in order to protect their social standing.^[41]

A 2015 study concluded that immigration does not have a positive correlation with crime, but that immigrants are disproportionately stopped and arrested, leading to distrust of law enforcement.^[42] The study also argued that immigrants typically possess less awareness of how to behave when stopped by the police.^[42] After being stopped more often, immigrants may hold distrust towards the police.^[42]

Many police departments all over the country have adapted courtesy policing as a response to criticism of racial profiling and police violence.^[45] Courtesy policing is when the police build rapport with the community through respect and friendliness.^[45] Legitimacy policing is a method used by police officers to interact with the community, where, in order to achieve a desired outcome, police officers utilize both punitive and courtesy strategies.^[45] While courtesy policing is used to gain trust and collect information, the punitive approach is used whenever it appears that the stopped people did not comply, making the police more aggressive; these approaches are adapted on a shifting continuum to the actions of the people they stop. People of color are more likely to see this community policing as degrading.^[45]

Cooper believes that in order to address hypermasculinity, which increases physical aggression in the police force, officers should be taught to not use command presence (where they use an authoritative tone of voice or even become physically violent) in situations where it is not needed.^[41] It should still be used when the officer is in a dangerous situation, but not when a situation does not require force. Instead of the officer punishing the harm doer, the officer should instead make it a goal to have a full understanding of the situation. Police training culture should not emphasize aggressive approaches and instead advocate for a more patient approach.^[41] An emphasis should be put on how to communicate with civilians who challenge their authority. Officers should also be made aware of any potential biases they may have.^[41]

Terry was originally created to prevent imminent armed robberies. However, 90% of individuals who are stop-and-frisked in New York City were free to leave afterwards.^[39] This demonstrates that they were not about to do serious criminal activity, which goes against Terry’s purpose of preventing serious crime. Hutchins wishes to narrow the scope of Terry, and prevent certain police encounters from happening in the first place, and proposes to limit the reach of Terry stops so that officers may not stop someone based on a possessory offense under nothing more than reasonable suspicion.^[6] Goel calls for the optimization of stop relating to criminal possession of a weapon (CPW). Because having a lower threshold of evidence to stop someone disproportionately affects black and Hispanic people, optimization would result in less racial disparities for Terry stops.^[39] Goel examines NYPD’s three million stops for cases where the stop yielded an individual involved with criminal possession of a weapon. In approximately 43% of these stops, there was less than 1% of a chance that the suspect had a weapon.^[39] Goel found that five stop circumstances are more likely to increase the likelihood of recovering a weapon for a stop: suspicious weapon, sights and sounds of criminal activity, suspicious bulge, witness report, and ongoing investigation.^[39]

Kwate and Threadcraft advocate for three ways to address Stop and Frisk, as a public health issue. First, they believe the health department’s citywide health surveys should include Stop and Frisk encounters, so that the data can be used to investigate health outcomes of a Stop and Frisk. Second, within 24 hours, reports of traumatic stops should be received by the city. Third, a registry should be created in which communities can report police encounters.^[44] Torres calls for more comprehensive data in stop and frisk reports.^[42] Specifically, since Latinos can also be white and black, current data is not as accurate.

The following states require stop-and-frisk data collection:^[37]

Using public record requests, the Stanford Open Policing project amassed 60 million state traffic stops in 20 states over the period 2011 through 2015.^[46][47]

North Carolina was the first state in the country to require the release of all traffic stop data starting in 2000.^[48] Researchers have analysed 20 million traffic stops from this data finding that African Americans as a share of the population were twice as likely to be pulled over than whites and four times as likely to be searched. Hispanics were not more likely to be pulled over, but had a higher likelihood of being searched.^[49]

There is a push to release more open police data nationwide. In 2015, the White House launched the Police Data Initiative which, as of 2018^[update], has 130 participating police departments, some of which provide data sets on stop-and-frisk.^[50][51] The 130 departments cover 15% of the population.^[52]

• Consent search case law
• Stop-and-frisk in New York City
• Sus law
• Powers of the police in England and Wales#Search without arrest