Sibron v NYS Brief Amicus Curiae
Public Court Documents
October 1, 1967
93 pages
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Brief Collection, LDF Court Filings. Sibron v NYS Brief Amicus Curiae, 1967. d4f5a660-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f34195bb-fbac-400a-a148-a559f3664cdc/sibron-v-nys-brief-amicus-curiae. Accessed May 16, 2025.
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In the
IhtprmT Glmtrt nf tlje llniteii Stairs
October Term, 1967
No. 63
NELSON SIBEON,
—■v.—
STATE OP NEW YORK,
No. 74
JOHN FRANCIS PETERS,
STATE OP NEW YORK,
No. 67
JOHN W. TERRY
STATE OP OHIO,
Appellant,
Appellee.
Appellant,
Appellee.
Petitioner,
Respondent.
BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., AS AMICUS CURIAE
Of Conns el:
W illiam E. McDaniels, Jr.
3400 Chestnut Street
Philadelphia, Pa. 19104
Jack Greenberg
James M. Nabrit, III
Michael Meltsner
Melvyn Zarr
10 Columbus Circle
New York, New York 10019
A nthony G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Attorneys for the N.A.A.C.P.
Legal Defense and
Educational Fund, Inc.
f
I N D E X
PAGE
Interest of the Amicus Curiae................................. ........... 1
A rgument
I. The Issues............................................................... 9
II. The Genius of Probable Cause ............................ 21
III. The Deceptive Allure of “Reasonable Suspi
cion” ............................- .... .................. -..................... 31
IY. Stop-and-Frisk, Law Enforcement and the Peo
ple ............................................................................ - 58
Conclusion ......... ...... ............ — ........................................ 69
Appendix ............................................ la
Table or A uthorities
Cases:
Aguilar v. Texas, 378 U. S. 108 (1964) .......................... 26,30
Beck v. Ohio, 379 U. S. 89 (1964) ...........13,14,15, 26, 27, 31
Berger v. New York, — — U. S. —-—•, 87 S. Ct. 1873
(1967)................................ ......... ......... 9,14, 21, 30, 31, 57, 58
Blefare v. United States, 362 F. 2d 870 (9th Cir. 1966) 31
Boyd v. United States, 116 U. S. 616 (1886) ...... ............ 35
Brinegar v. United States, 338 U. S. 160 (1949) .......15, 20,
31, 56
Camara v. Municipal Court,------U. S . ------- , 87 S. Ct.
1727 (1967) .............................................................-......... 31
Carroll v. United States, 267 U. S. 132 (1925) .... .......... 30
Chambers v. Florida, 309 U. S. 227 (1940) ................... 58
Chapman v. United States, 365 IT. S. 610 (1961) .........26, 30
Commonwealth v. Hicks, 209 Pa. Super. 1, 223 A. 2d
873 (1966) ............................. ........... - ........................ -40,41
Commonwealth v. Lehan, 347 Mass. 197, 196 N. E. 2d
840 (1964) ......... .................................................—.......... 49
Cooper v. California, 376 U. S. 58 (1967) ................... 30
Cox v. Louisiana, 379 U. S. 536 (1965) .......................... 24
De Salvatore v. State, 2 Storey (Del.) 550, 163 A. 2d
244 (1960) ............ ........... - ....................................... ...... - 16
Dokes v. Arkansas, 0. T. 1967, No. 109.......................... 2
Giordenello v. United States, 357 U. S. 480 (1958) ....... 30
Goss v. State, 390 P. 2d 220 (Alaska, 1964) ................... 41
Griswold v. Connecticut, 381 U. S. 479 (1965) — .......... 14
Hague v. C. I. 0., 307 IT. S. 496 (1939) ......................... . 24
Henry v. United States, 361 IT. S. 98 (1959) — 15, 20, 26, 30
Johnson v. United States, 333 IT. S. 10 (1948) ...............7, 26
Jones v. United States, 357 U. S. 493 (1958) .................. 30
Kavanaugh v. Stenhouse, 93 R. I. 252, 174 A. 2d 560
(1961), appeal dismissed, 368 IT. S. 516 (1962) ......... 16
Lankford v. Gelston, 364 F. 2d 197 (4th Cir. 1966) .......4, 69
Lawrence v. Hedger, 3 Taunt. 14, 128 Eng. Pep. 6
(C. P. 1810) .......... ............. ...... ........ .............................. 19
Louisiana v. United States, 380 IT. S. 145 (1965) ........... 25
ii
PAGE
I ll
Mapp v. Ohio, 367 U. S. 643 (1961) ........................... 26
Marcus v. Search Warrant, 367 U. S. 717 (1961) ...A, 21, 23
Marron v. United States, 275 U. S. 192 (1927) ........... 21
McDonald v. United States, 335 U. S. 451 (1948) _____ 23
Miranda v. Arizona, 384 U. S. 436 (1966) __________ 24, 58
Monroe v. Pape, 365 U. S. 167 (1961) ....................... ...... 26
PAGE
Niemotko v. Maryland, 340 U. S. 268 (1951) ................... 25
Olmstead v. United States, 277 U. S. 483 (1928) ......... 14
People v. Anonymous, 48 Misc. 2d 713, 265 N. Y. S. 2d
705 (Cty. Ct. 1965) ......... ...... ......................................... 53
People v. Beverly, 200 Cal. App. 2d 119, 19 Cal. Rptr.
67 (D. C. A. 1962) ......... ............. .................................. 41
People y. Cassesse, 47 Misc. 2d 1031, 263 N. Y. S. 2d
734 (Sup. Ct. 1965) .......... ...................... .......... .....18,50,55
People v. Hoffman, 24 App. Div. 2d 497, 261 N. Y. S. 2d
651 (1965) ........................... .............. ......... ............. 17, 49, 54
People v. Michelson, 59 Cal. 2d 448, 380 P. 2d 658
(1963) ................................................ ’....... ..................... 50
People v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595
(1966) .................. ............. ........ ...................33,40, 51, 54, 55
People v. Pugach, 15 N. Y. 2d 65, 204 N. E. 2d 176
(1964) .................... ............................17,18,48, 49, 50, 54, 55
People v. Reason, -------Misc. 2 d ------- , 276 N. Y. S. 2d
196 (Sup. Ct. 1966) ............ .............................18,50,53,55
People v. Rivera, 14 N. Y. 2d 441, 201 N. E. 2d 32
(1964) ....... .............................. ................................ 48,49,51
People v. Taggart, C. A. N. Y., App. T. 2, No. 120,
decided July 7, 1967 ....... .............................................. 50, 52
Rios v. United States, 364 IT. S. 253 (1960) ...... .............. 20
IV
Schmerber v. California, 384 U. S. 757 (1966) ...........14, 30
Shuttlesworth v. Birmingham, 382 U. S. 87 (1965) ....... 24
Stanford v. Texas, 379 IT. S. 476 (1965) .............4, 21, 22, 23
Staples v. United States, 320 F. 2d 817 (5th Cir. 1963) - 33
State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114
(1966) .................................................................... ........ - 34
Stoner v. California, 376 U. S. 483 (1964) ........... ........... 30
Thornhill v. Alabama, 310 U. S. 88 (1940) ..................... 24
United States v. Di Be, 332 U. S. 581 (1948) ...............13,14
United States v. Margeson, 259 F. Supp. 256 (E. D. Pa.
1966) ......... ........................................................................ 49
Warden v. Ray den ,-----■ U. S. ------- , 87 S. Ct. 1642
(1967) ....... - .......................................................... ......... 30
Wong Sun v. United States, 371 U. S. 471 (1963) .... 13, 30
Wright v. Georgia, 373 U. S. 284 (1963) ....................... 25
Tick Wo v. Hopkins, 118 U. S. 356 (1886) ............. 25
Statutes:
Del. Code Ann., tit. 11, §§ 1902-1903 ............................ . 16
N. H. Rev. Laws, §§594:2-594:3 (1955) ...................... 16
New York Code of Criminal Procedure, § 180-a.......16, 57
R. I. Gen. Laws, §§ 12-7-1-12-7-2 (1.956) ............ .......... 16
Uniform Arrest Act, § 2 .............................................. 16,17
Uniform Arrest Act, § 3 ........... .... ...... ............................. 18
PAGE
V
Other Authorities:
Adams, Field Interrogations, 7 P olice 26 (1963) .... 37, 46
Amebic ah Civil L iberties Union, P olice P ower and
Citizens’ R ights (1967) .......................................... 4, 7, 44
A merican Civil L iberties Union of Southern Cali
fornia, R eport, P olice Malpractice and the W atts
R iot (1965), reproduced in Cray, T he B ig Blue
L ine (1967) ....................................... ................................. 2
A merican Law Institute, Code op Criminal P roce
dure, § 18, Official Draft, June 15, 1930 ................... 32
A merican Law I nstitute, Model Code of P re-Ar
raignment P rocedure, Tent. Draft No. 1, March 1,
1966 ............................................. 10,16,17,18,19,20,32,38
PAGE
Aspen, Arrest and Arrest Alternatives: Recent
Trends, U. III. L. F orum 241 (1966) .......................... 11
Baldwin, Nobody K nows My Name (Dell ed. 1963) .... 44
Barrett, Personal Rights, Property Rights, and the
Fourth Amendment, Supreme Court R ev. (1960) ... 10, 34
Bator & Vorenberg, Arrest, Detention, Interrogation
and the Right to Counsel: Basic Problems and Pos
sible Legislative Solutions, 66 Colum. L. Rev. 62
(1966) 10
Bristow, F ield I nterrogation (2d ed. 1964) ...... 46,47,52
Brooks, New York’s Finest, 40 Commentary 29 (Aug.
1965) 44
Case Note, 35 F ordham L. Rev. 355 (1966) ............... 11
Comment, Police Power to Stop, Frisk and Question
Suspicious Persons, 65 Colum. L. R ev. 847 (1965) ....11,19
Comment, Selective Detention and the Exclusionary
Rule, 34 U. Ch i. L. R ev. 158 (1966) 11
VI
Cray, T he B ig Blue Line (1967) .... ............ 4, 6, 36, 37, 48
Cross, The Negro, Prejudice and the Police, 55 J.
Cbim . L., Crim . & P ol. Sci. 405 (1964) _____ _______ 44
Devlin, T he Criminal Prosecution in E ngland
(1958) ...................................................... ............... ........ 13
District op Columbia, R eport and R ecommendations
op the Commissioners’ Committee on P olice A r
rests for Investigation (1962) (The Horsky Re
port) ..................... — .................. ........-............ ............ 5, 6,10
3 E lliot’s Debates (2d ed. 1836) ..................................—. 22
Foote, The Fourth Amendment: Obstacle or Neces
sity in the Law of Arrest, 51 J. Crim. L., Crim. &
P ol. Sci. 402 (1960) ...... ....................... 6,10,13,33,48, 60
Foote, Law and Police Practice: Safeguards in the
Law of Arrest, 52 Nw. U. L. R ev. 16 (1957) .... . 5, 6,10,
48, 59
Fraenkel, Concerning Searches and Seizures, 35 Harv.
L. R ev. 361 (1921) ................ .............................. .......... 21,22
Goldstein, Police Policy Formulation: A Proposal for
Improving Police Performance, 65 Mich . L. R ev.
1123 (1967) ............................................................. - ...... 11,59
2 Hale, Pleas of the Crown (1st Amer. ed. 1847) .... 19
2 H awkins, Pleas of the Crown (8th ed. 1824) ____ 19
Hayden, The Occupation of Newark, 9 New Y ork R e
view of B ooks, No. 3, Aug. 24, 1967 ......... .................. 62
Hazard, Book Review, 34 U. Ch i. L. R ev. 226 (1966) 44
Hogan & Snee, The McNabb-Mallory Rule: Its Rise,
Rationale and Rescue, 47 Geo. L. J. 1 (1958) ............ 40
Kamisar, Book Review, 76 Harv. L. R ev. 1502 (1963) ....6,11
PAGE
vii
Kamisar, A Dissent from the Miranda Dissent: Some
Comments on the “New” Fifth Amendment and the
“ Old” Voluntariness Test, 65 Mich. L. R ev. 59
(1966) ......... ....... ......... ............ .......... ................... ..... . 11
Kennedy, Crime in the Cities: Improving the Ad
ministration of Criminal Justice, 58 J. Crim. L.,
Grim. & P ol. Sci. 142 (1967) -....................................... 60
Kuh, Reflections on New York’s “ Stop-and-Frisk” Law
and Its Claimed Unconstitutionality, 56 J. Grim. L.,
Grim. & P ol. Sci. 32 (1965) ...... ............... ........... ...... 11,19
LaF ave, A rrest— T he Decision to Take a Suspect
into Custody (1965) ..................................................2,5,10
LaFave, Detention for Investigation by the Police: An
Analysis of Current Practices, W ash. IT. L. Q. 331
(1962) ..... ........... ............... .............................5,10
LaFave, Search and Seizure: “ The Course of True
Law . . . Has Not . . . Run Smooth, U. III. L. F orum
255 (1966) ....................................................................... 11
Landynski, Search and Seizure and the Supreme
Court: A Study in Constitutional Interpreta
tion (Johns Hopkins University Studies in Histori
cal and Political Science, ser. 84, no. 1) (1966) ....21, 24, 26
Lasson, The H istory and Development of the F our
teenth A mendment to the United States Consti
tution (Johns Hopkins University Studies in His
torical and Political Science, ser. 40, no. 2) (1937) .... 21
Leagre, The Fourth Amendment and the Law of
Arrest, 54 J. Crim. L., Crim. & P ol. Sci. 393
PAGE
(1963)... .....................................................................................................................10,19,39
Legislation, 38 St. J ohn’s L. R ev. 392 (1964) ............... 11
V l l l
PAGE
Mascolo, The Role of Functional Observation in the
Law of Search and Seizure: A Study in Misconcep
tion, 71 D ick. L. Key. 379 (1967) ....... ........... ........... 32
2 May’s Constitutional H istory oe E ngland (Amer.
ed. 1864) ______ ____ _______ ____________ __________22, 23
McIntyre & Chabraja, The Intensive Search of a Sus
pect’s Body and Clothing, 58 J. Crim. L., Crim. &
P ol. Sci. 18 (1967) ............................. ............... ...... . 51
New York Times, January 23, 1966 .............................. . 8
New York Times, Edit., July 16, 1967 .......... .................... 62
Norris, Constitutional Law Enforcement Is Effective
Law Enforcement: Toward a Concept of Police in
a Democracy and a Citizens’ Advisory Board, 43 IT.
D et . L . J. 203 (1965) ............. .......... .......................... 59
Note, Detention, Arrest and Salt Lake City Police
Practices, 9 U tah L . R ev. 593 (1965) ................. .... ..5,11
Note, 4 H ouston L . K ey. 589 (1966) ....... ............. .... .... 11
Note, Philadelphia Police Practices and the Law of
Arrest, 100 U. P a . L . R ev. 1182 (1952) ............... 5,11,32
Note, “ Stop and Frisk” and Its Application in the Law
of Pennsylvania, 28 U. P it t . L. R ev. 488 (1967) .....11
Note, Stop and Frisk in California, 18 H astings L. J.
(1967) ............. ...... .................. ......... ........... .......... .......11,47
Note, 13 W ayne L . R ev. 449 (1967) ........................ ....... 11
P ayton , P atrol P rocedure (1966) ............................ ....47,49
Perkins, The Law of Arrest, 25 I owa L . R ev. 201 (1940) 13
P resident ’s C ommission on L aw E neorcement and
A dministration of J ustice , T ask F orce R epo rt :
T he P olice (1967) .....................2, 3, 5, 26, 45, 51, 61, 63, 67
P resident ’s C omm ittee on C ivil R ights , R eport : To
S ecure T hese R ights (1947) 4
IX
PAGE
Recent Case, 71 D ic k . L. R ev. 682 (1967) ........... ........... 11
Recent Decision, 37 M ic h . L. R ev. 311 (1938) ........ . 12
Recent Decision, 5 D uquesne L. R ev. 444 (1967) ........... 11
Recent Decision, 18 W. R es. L. R ev . 1031 (1967) .....— 11
Recent Statute, 78 H arv. L. R ev . 473 (1964) __________ 11
Reich, Police Questioning of Law Abiding Citizens, 75
Y ale L. J. 1161 (1966) ................................................. 23
Remington, The Law Relating to “ On the Street” De
tention, Questioning and Frisking of Suspected Per
sons and Police Privileges in General, 51 J. Crim.
L., Cr im . & P ol. Sci. 386 (1960) .......................... 10,17, 32
R eport of th e P resident ’s C ommission on Crime in
the D istrict oe C olumbia on th e M etropolitan
P olice D epartm ent (1966) ....... ..................................... .... 44
Rexrotli, The Fuzz, 14 P layboy (no. 7) 76 (July 1967) .. 2
Ronayne, The Right to Investigate and New York’s
“Stop and Frisk” Law, 33 F ordham L. R ev . 211
(1964)... ........... ................................... ............................ 11
Rustin, Black Power and Coalition Politics, 42 Com
m entary 37 (Sept. 1966) ......... ................... ........... ..... 63
Schoenfeld, The “ Stop and Frisk” Law Is Unconstitu
tional, 17 Syracuse L. R ev. 627 (1966) ...... ............... . 11
Schwartz, “ Stop and Frisk” in New York Law and
in Practice: A Case Study in the Abdication of
Judicial Control Over the Police (unpublished manu
script) ............................ .......... ................................. 3, 44, 49
Siegel, The New York “ Stop and Frisk” and “Knock-
Not” Statutes: Are They Constitutional?, 30 Brook
lyn L. R ev. 274 (1964) 11
X
Six Cities Study—A Survey of Racial Attitudes in Six
Northern Cities: Preliminary Findings, A Report
of the Lemberg Center for the Study of Violence,
Brandeis University, June 1967 __________________ 66
S k o ln ic k , J ustice W ith o u t T r ia l : L aw E nforce
m ent in D emocratic S ociety (1966) ....3, 5, 7, 36, 43, 45, 61
Souris, Stop and Frisk or Arrest and Search—The Use
and Misuse of Euphemisms, 57 J. Cr im . L ., Cr im . &
P ol. Sci. 251 (1966) ......................................... ....................11,48
S tate op N ew Y ork , T emporary S tate C ommission on
th e C onstitutional Convention , I ndividual L iber
ties, th e A dministration op Crim in al J ustice (1967) 11
2 S tudies in Crime and L aw E nforcement in M ajor
M etropolitan A reas (Field Surveys I I I ) (Report of
a Research Study Submitted to the President’s Com
mission on Law Enforcement and Administration of
Justice, 1967) ................... ......................................... 3,5,36
“ Summer Riots,” New Republic, June 24, 1967 .......... 62
Symposium Note, The Law of Arrest: Constitution
ality of Detention and Frisk Acts, 59 Nw. U. L. R ev.
641 (1964) .................................. 11,17
Thomas, Arrest: A General View, Cr im . L. R ev. 639
(1966) .......................................... 19
Thomas, The Law of Search and Seizure: Further
Ground for Rationalisation, Cr im . L . R ev. 3 (1967) .... 20
T iffan y , M cI ntyre & R otenberg, D etection of Crime :
S topping and Q uestioning , S earch & S eizure , E n
couragement & E n trapm en t (1967) ..................3 ,5 ,1 0 ,4 1 ,
47, 49, 52
Traynor, Lawbreakers, Courts and Law-Abiders, 31
Mo. L. R ev. 181 (1966)
PAGE
59
XI
Traynor, Mapp v. Ohio at Large in the Fifth States,
Duke L. J. 319 (1962) ..... ....................................... ....... 11
Trebach, T he R ationing op J ustice (1964) .... ........... 4
T udor, L ife of James Otis (1823) .................................... 23
Vorenberg, Police Detention and Interrogation of Un
counselled Suspects: The Supreme Court and the
States, 44 B. U. L. R ev. 423 (1964) ................... ....... 11
Waite, The Law of Arrest, 24 Texas L. R ev. 275 (1946) 13
Warner, The Uniform Arrest Act, 28 V a. L. R ev. 315
(1942) ....... ................... ..................................... ..........11,13, 16
Wilgus, Arrest Without a Warrant, 22 Mich. L. R ev.
541 (1924) .............................. .............. ................... ....... 13
Williams, Police Detention and Arrest Privileges
Under Foreign Law: England, 51 J. Crim. L., Crim.
& P ol. Sci. 413 (1960) ....... ............................................ 13
Wilson, Police Arrest Privileges in a Free Society: A
Plea for Modernization, 51 J. Crim. L., Crim. & P ol.
Sci. 395 (1960)
PAGE
11
In the
Bnpnmv (&mrt nt f c 'MnxUb Btntvz
October Term, 1967
No, 63
NELSON Sibron,
Appellant,
—v.—
State op New Y ork,
Appellee.
No. 74
John F rancis Peters,
Appellant,
— v.—
State op New Y ork,
Appellee.
No. 67
John W. Terry,
Petitioner,
—v.—
State op Ohio,
Respondent.
BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE AND
EDUCATIONAL FUND, INC., AS AMICUS CURIAE
Interest o f the Amicus Curiae
“I am married to Raymond Fullwood, a Negro. Because
I am Caucasian, in the five years of our marriage, we
have been stopped no less than twenty times by Los
Angeles police officers. . . . I am certain that the rea
son they chose to stop us is because we are a mixed
2
couple.” Mrs. Marilyn Fullwood, in Los Angeles, Cali
fornia.1
“Association of a woman with men of another race
usually results in the immediate conclusion that she
is a prostitute. If a Negro woman is found in the com
pany of a white man, she is usually confronted toy the
police and taken to the station unless it is clear that
the association is legitimate.” Detroit, Michigan police
practice, as observed by Professor Wayne E. LaPave.2
The N.A.A.C.P. Legal Defense and Educational Fund,
Inc., is a non-profit membership corporation, incorporated
under the laws of the State of New York in 1939. It was
formed to assist Negroes to secure their constitutional
rights by the prosecution of lawsuits. Its charter declares
that its purposes include rendering legal aid gratuitously
to Negroes suffering injustice by reason of race or color
who are unable, on account of poverty, to employ and en
gage legal aid on their own behalf. The charter was ap
1 Quoted in A merican Civil L iberties Union of Southern
California, Report, Police Malpractice and the W atts R iot
15-16 (1965), reproduced in Cray, The Big Blue L ine 31 (1967).
Cray documents for other cities as well as the prevalence of the
police practice of accosting interracial couples. Id. at 227 n. 3.
See also Rexroth, The Fuzz, 14 P layboy (No. 7) 76 (July 1967).
2 LaF ave, A rrest— The Decision to Take a Suspect Into Cus
tody 455 (1965). See President’s Commission on Law Enforce
ment and A dministration of Justice, Task F orce Report : The
P olice 184 (1967) : “ [F]ield interrogations are sometimes, used in
a way which discriminates against minority groups, the poor, and
the juvenile. For example, the Michigan State Survey found, on
the basis of riding with patrol units in two cities, that members of
minority groups were often stopped, particularly if found in
groups, in the company of white people, or at night in white
neighborhoods, and that this caused serious problems.” Of. TJokes
v. Arkansas, 0. T. 1967, No. 109.
3
proved by a New York court, authorizing the organization
to serve as a legal aid society. The N.A.A.C.P. Legal De
fense and Educational Fund, Inc., is independent of other
organizations and supported by contributions of funds
from the public.
A central purpose of the Fund is the legal eradication
of practices in our society that bear with discriminatory
harshness upon Negroes and upon the poor, deprived, and
friendless, who too often are Negroes. The stop and frisk
procedure which New York and Ohio ask this Court to
legitimate in these eases is such a practice. The evidence
is weighty and uncontradicted that stop and frisk power
is employed by the police most frequently against the in
habitants of our inner cities, racial minorities and the
underprivileged.3 This is no historical accident or passing
circumstance. The essence of stop and frisk doctrine is
the sanctioning of judicially uncontrolled and uncontrol
lable discretion by law enforcement officers.4 History, and
not in this century alone, has taught that such discretion
comes inevitably to be used as an instrument of oppression
3 President’s Commission on Law Enforcement and A dminis
tration of J ustice, Task F orce Report: The Police 183-185
(1967); 2 Studies in Crime and Law Enforcement in Major
Metropolitan A reas (Field Surveys III) 82-108 (Report of a
Research Study Submitted to the President’s Commission on Law
Enforcement and Administration of Justice, 1967) [hereafter cited
as University of Michigan Study] ; Skolnick, Justice W ithout
Trial : Law Enforcement in D emocratic Society 217-219
(1966); Tiffany, McIntyre & Rotenberg, Detection of Crim e :
Stopping and Questioning, Search & Seizure, Encouragement &
Entrapment 20-21 (1967) ; Schwartz (Herman), “Stop and Frisk”
in New York Law and in Practice: A Case Study in the Abdica
tion of Judicial Control Over the Police (unpublished manuscript)
31-34, and authorities cited.
4 See part III, infra.
4
of the unpopular.5 It was so in the case of the search and
seizure practices which the Fourth Amendment was written
to condemn.6 We believe that that Amendment protects
the unpopular, the Negro, and all our citizens alike, from
subjection to the oppressive police discretion which stop
and frisk embodies.
In the litigation now before the Court—as is usual in
cases where police practices are challenged—two parties
essentially are represented. Law enforcement officials,
legal representatives of their respective States, ask the
Court to broaden police powers, and thereby to sustain
what has proved to be a “ good pinch.” Criminal defen
dants caught with the goods through what in retrospect
appears to be at least shrewd and successful (albeit con
stitutionally questionable) police work ask the Court to
declare that work illegal and to reverse their convictions.
Other parties intimately affected by the issues before the
Court are not represented. The many thousands of our
citizens who have been or may be stopped and frisked
5 “Where lawless police forces exist, their activities may impair
the civil rights of any citizen. In one place the brunt of illegal
police activity may fall on suspected vagrants, in another on union
organizers, and in another on unpopular racial and religious minor
ities, such as Negroes, Mexicans, or Jehovah’s Witnesses. But
wherever unfettered police lawlessness exists, civil rights may be
vulnerable to the prejudices of the region or of dominant local
groups, and to the caprice of individual policemen. Unpopular,
weak, or defenseless groups are most apt to suffer.” President’s
Committee on Civil Bights, Beport: To Secure These B ights
25 (1947). See also Tkebach, The E ationing op Justice 5-6
(1964) ; Cray, The Big Blue L ine 113-127, 183-194 (1967) ;
A merican Civil L iberties Union, Police Power and Citizens’
Bights 6-13 (1967) ; Lankford v. Gelston, 364 F. 2d 197, 203-204
(4th Cir. 1966) (en banc).
6 See the history recounted in Marcus v. Search, Warrant, 367
U. S. 717 (1961), and Stanford v. Texas, 379 U. S. 476 (1965).
5
yearly, only to be released when the police find them inno
cent of any crime, are not represented.7 The records of
their cases are not before the Court and cannot be brought
7 The prevalence of the practice of street detention and interro
gation, and of the related practice of arrest for investigation, is
universally acknowledged. Concerning the former, see President’s
Commission on Law Enforcement and A dministration of Jus
tice, op. cit. supra, note 3, at 183-185; Skolnick, op. cit. supra,
note 3, at 224-225; LaFave, op. cit. supra, note 3, at 344-345; Tif
fany, McIntyre & R otenberg, op. cit. supra, note 3, at 5-86;
Note, Detention, Arrest, and Salt Lake City Police Practices, 9
Utah L. Rev. 593, 610-616, 618 (1965) ; Note, Philadelphia Police
Practices and the Law of Arrest, 100 U. Pa . L. Rev. 1182, 1189,
1193, 1195, 1200-1206 (1952). Concerning the latter, see District
of Columbia, Report and Recommendations of the Commission
ers’ Committee on P olice A rrests for Investigation (1962) {The
Horsky Report) ; LaF ave, op. cit. supra, note 3, at 300-364; Tee-
bach, op. cit. supra, note 5, at 4-7; Foote, Law and Police Practice:
Safeguards in the Law of Arrest, 52 Nw. U. L. R ev. 16 (1957);
LaFave, Detention for Investigation hy the Police: An Analysis of
Current Practices [1962], W ash. U. L. Q. 331.
What proportion of persons subjected to these practices and
frisked or searched is found to be innocent of any crime cannot
now be reliably determined. The National Crime Commission’s
Task Force on Police describes a study finding that twro out of ten
persons “frisked” were found to be carrying either a gun or a
knife. President’s Commission on Law Enforcement and Ad
ministration of Justice, op. cit. supra, note 3, at 185. We have
not been able to determine whether the study referred to is the
same study (involving 224 cases) that is summarized in 2 Uni
versity of Michigan Study 87, but it appears to be. The summary
coincides with the Task Force Report in showing that guns or
knives were discovered in twenty-one per cent of personal searches
by police. Like the Task Force Report, it does not purport to say
what proportion of these weapons was illegally possessed. It does
disclose that stolen property and other criminal evidence was very
infrequently found, with the result that seventy-nine out of one
hundred persons searched by police in confrontations originating
“on view” were discovered to have nothing incriminating; and
seventy-four out of one hundred persons searched in confrontations
originating with a police dispatch also were discovered to have
nothing incriminating. Most significant, the University of Michigan
study makes clear what the Task Force Report leaves ambiguous:
that the personal searches studied include (and may well be com-
6
here. Yet it is they, far more than those charged with crime,
who will hear the consequences of the rules of constitutional
law which this Court establishes. The determination of the
quantum of “belief” or “ suspicion” required to justify the
exercise of intrusive police authority is precisely the deter
mination of how far afield from instances of obvious guilt the
authority stretches. To lower that quantum is to broaden
the police net and, concomitantly, to increase the number
(and probably the proportion)* 8 of innocent people caught
prised primarily of) searches incident to a valid arrest on prob
able cause. Id. at 89. This last circumstance doubtless explains the
extraordinarily high yield (a little over 20 per cent) reported here,
compared with the low yield elsewhere observed for police investi
gative practices undertaken without probable cause—for example,
the arrests for investigation studied in the Horsky Report, D istrict
of Columbia, Report and Recommendations of the Commission
ers’ Committee on P olice A rrests for Investigation 34 (1962) •
Kamisar, Book Review, 76 H arv. L. Rev. 1502, 1506 (1963) (seven
teen out of eighteen persons arrested for investigation are released
without being charged), and the automobile stops and related prac
tices mentioned in Foote, The Fourth Amendment: Obstacle or
Necessity in the Law of Arrest, 51 J. Crim. L., Crim. & Pol. Sci.
402, 406 (1960). The data, of course, are fragmentary. Of. the
testimony of a retired Detroit policeman before the United States
Civil Rights Commission, quoted in Cray, op. cit. supra, note 5,
at 185:
“ I would estimate— and this I have heard in the station also
—that if you stop and search 50 Negroes and you get one good
arrest out of it that’s a good percentage; it’s a good day’s
work. So, in my opinion, there are 49 Negroes whose rights
have been misused, and that goes on every day. That’s just
about the entire population of Detroit over a period of time.”
8 Again, it is difficult to test this supposition empirically. See
note 7 supra; and see Foote, Law and Police Practice: Safeguards
in the Law of Arrest, 52 Nw. U. L. Rev. 16 (1957). However, if
the sort of police judgment assumed alike by the differing concepts
of probable cause and reasonable suspicion is at all rational, one
would suppose that the less compelling the perceived evidence of
guilt on which an officer acts, the higher proportion of persons he
will affect who turn out to be innocent.
7
up in it. The innocent are those this Court will never see.9
Yet we believe that some attention to their situation and
appreciation of their interests is indispensable to the ap
propriate resolution of the constitutional controversy now
presented. With deference, amicus curiae wishes to speak
principally in behalf of their interests—which we conceive
to be indistinguishable (but for the vagaries of a “ reason
able suspicion” ) from those of the citizenry generally.
These interests, of course, are not adverse to those of
the police, except insofar as the police interests may be
quite parochially defined. The citizen on the street needs
the protection of the police, amply empowered, just as he
needs protection from them. He is the potential victim
both of crime and of law enforcement. His interest does
not lie in “handcuffing the police.” But neither does it lie
in giving the police every power over his life which they
claim is indispensable to efficient crime control.10 Against
9 “ The statistical data [about abusive police practices] are diffi
cult to find and document, for most people who are mistreated by
the police tend to be poor, friendless, out-of-the-ordinary members
of society and frequently in trouble with the law in other situations.
They don’t complain often, and wrhen they do, seldom have the
money, time, confidence in the ‘system’ or knowledge of the agen
cies that could help them to thread their way through the maze of
legal steps necessary to challenge the abuse.
“Moreover, fear of reprisal by the police is quite real, especially
among Negroes and other minorities, but this trepidation has no
social or economic bounds. There is a general wish to ‘stay out of
trouble’ among many white, middle-class citizens.” A merican
Civil Liberties Union, Police Power and Citizens’ R ights 6
(1967). See also Skolnick, op. cit. supra, note 3, at 221-222, 233-
234.
10 Cf. Johnson v. United States, 333 U. S. 10, 14 (1948) : “ Crime,
even in the privacy of one’s own quarters, is, of course, of grave
concern to society, and the law allows such crime to be reached on
proper showing. The right of officers to thrust themselves into a
home is also a grave concern, not only to the individual but to a
society which chooses to dwell in reasonable security and freedom
8
that latter coarse the Fourth Amendment and every aspira
tion of a free society oppose.11
The parties have consented to the filing of an amicus
curiae brief by the N.A.A.C.P. Legal Defense and Educa
tional Fund, Inc. Copies of their letters of consent will be
submitted to the Clerk with this brief.
from surveillance. When the right of privacy must reasonably
yield to the right of search is, as a rule, to be decided by a judicial
officer, not by a policeman or government enforcement agent.”
11 It is not so with some societies. Consider the extraordinarily
efficient South African police practice reported in the New York
Times, January 23,1966 :
“Johannesburg, Jan. 22— The police in Johannesburg
have hit on an effective, if crude, way to reverse an alarming
rise in armed robberies in the city: to treat every black man
as a criminal suspect.
“ This is done by saturating a proscribed area with police
men under orders to check the ‘reference books’—the passports
all blacks must carry in ‘white’ areas— of every African they
encounter. Sometimes the orders also call for thorough searches
of any parcels the blacks may be carrying, or even of their
persons.
“ These police blitzes employ anywhere from 1,000 to 2,500
officers each. They come without warning, usually to the city’s
business district. .. .
“ The arrests are almost always for irregularities in the ref
erence books, not for armed robbery. But the effect is evi
dently to keep criminals off the streets and off balance. Since
early November the raids have been held almost weekly, with
the result that the number of armed robberies has been re
duced by more than 50 per cent.U
“ The undeniable success of the raids shows that it is not a
fantastic notion for the white authorities to find a suspicion
of criminality in a black skin— an indication of the extent to
which this is a society at war with itself.”
9
A R G U M E N T
I.
The Issues.
These stop and frisk cases present a congeries of issues.
May a police officer constitutionally restrain an individual
for the sole purpose of investigating him? If so, under
what circumstances? Upon probable cause to believe him
guilty of a crime? Upon “ reasonable suspicion” ?12 What is
the permissible extent of the restraint? How long may it
last?13 How much force may be used to effect it? May the
police officer constitutionally search the citizen incident to
such restraint, or incident to questioning without restraint?
If so, under what circumstances? Whenever a citizen is
restrained or questioned? When there is probable cause to
believe (or when there is “ reasonable suspicion” ) that the
citizen is armed? How intrusive may the search be? May
some or all objects discovered in the search be admitted
12 The present cases do not present factually the question of the
extent of police powers to “ freeze” the scene of a recent and pal
pable crime, as where patrol officers responding to a call find a man
bleeding on the ground and others fleeing. Nor are those cases
necessarily controlled by what the Court may hold here.
13 The present cases do not present factually instances of ex
tended on-the-street detention. Nor do they present instances of
removal of the citizen to a squad car or to the police station. How
ever, insofar as the New York statute here attacked on its face
may allow extended detention and a shift in the locus of custody,
this Court may properly consider the constitutionality of a stop-
and-frisk authorization which is not limited in the time or place of
the detention it allows. Cf. Berger v. New York, ------ U. S. ------ ,
87 S. Ct. 1873 (1967).
10
into evidence against the citizen in a criminal trial?
Weapons? Burglars’ tools? Narcotics?14
This Court may wish to treat these issues more or less
discretely. But their proliferation should not conceal the
point that what is fundamentally in question here is the
choice, under the Constitution, between two antagonistic
models of the police investigative process. This is true
conceptually, as study of the burgeoning literature of stop
and frisk reveals.15 It is true historically, because the Court
14 The present cases do not present factually the question whether
objects seized in a frisk, other than those which it is illegal to
possess, may be used in evidence in a criminal trial of the frisked
citizen. However, because of the intimate relationship between the
substantive constitutional rules regulating police conduct and the
exclusionary sanction by which they are enforced, see part II,
infra, the Court may wish to consider that question.
15 Detailed and useful analyses of stop and frisk doctrine and
related issues are found in A merican Law Institute, Model Code
of Pre-Arraignment Procedure, Tent. Draft No. 1, March 1,
1966, Commentary on §2.02, at pp. 91-105; D istrict of Columbia,
Report and Recommendations of tile Commissioners’ Committee
on Police A rrests for Investigation (1962) (The Horsky Re
port) ; L aF ave, A rrest : T he Decision to Take a Suspect Into
Custody 300-364 (1965); Tiffany, McIntyre & Rotenberg, D e
tection of Crim e : Stopping & Questioning, Search & Seizure,
Encouragement and Entrapment 5-94 (1967) ; Barrett, Personal
Rights, Property Rights, and the Fourth Amendment [1960], Su
preme Court Rev. 46, 57-70; Bator & Yorenberg, Arrest, Deten
tion, Interrogation and the Right to Counsel: Basic Problems and
Possible Legislative Solutions, 66 Colum. L. Rev. 62 (1966) ; Foote,
Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw.
U. L. Rev. 16 (1957) ; Foote, The Fourth Amendment: Obstacle
or Necessity in the Law of Arrest, 51 J. Crim. L., Crim. & Pol. Sci.
402 (1960) ; LaFave, Detention for Investigation by the Police:
An Analysis of Current Practices (1962), W ash. U. L. Q. 331;
Leagre, The Fourth Amendment and the Law of Arrest, 54 J. Crim.
L., Crim. & Pol. Sci. 393 (1963) ; Remington, The Law Relating
to “ On the Street” Detention, Questioning and Frisking of Sus
pected Persons and Police Privileges in General, 51 J. Crim. L.,
Crim. & P ol. Sci. 386 (1960) ; Souris, Stop and Frisk or Arrest
and Search— The Use and Misuse of Euphemisms, 57 J. Crim. L.,
11
is now asked for the first time to legitimate criminal investi
gative activity that significantly intrudes upon the privacy
Crim. & Pol. Sci. 251 (1966) ; Warner, The Uniform Arrest Act,
28 V a . L. Rev. 315 (1942) ; Wilson, Police Arrest Privileges in a
Free Society: A Plea for Modernization, 51 J. Crim. L., Crim. &
P ol. Sci. 395 (1960); Note, Stop and Frisk in California, 18 H ast
ings L. J. 623 (1967) ; Comment, Selective Detention and the Ex
clusionary Buie, 34 U. Chi. L. Rev. 158 (1966); Comment, Police
Power to Stop, Frisk, and Question Suspicious Persons, 65 Colum.
L. Rev. 847 (1965); Note, Detention, Arrest, and Salt Lake City
Police Practices, 9 Utah L. Rev. 593 (1965) • Symposium Note,
The Law of Arrest: Constitutionality of Detention and Frisk Acts,
59 Nw. U. L. Rev. 641 (1964); Note, Philadelphia Police Practices
and the Law of Arrest, 100 U. P a. L. Rev. 1182 (1952) ; Note, 4
H ouston L. Rev. 589 (1966); Case Note, 35 F ordham L. Rev. 355
(1966) ; Recent Statute, 78 Harv. L. Rev. 473 (1964).
See also State of New Y ork, Temporary State Commission on
the Constitutional Convention, Individual Liberties, the A d
ministration of Criminal Justice 67-70 (1967) ■ Aspen, Arrest
and Arrest Alternatives: Recent Trends (1966), U. III. L. F orum
241, 250-253; Goldstein,. Police Policy Formulation: A Proposal
for Improving Police Performance, 65 Mich. L. Rev. 1123, 1139-
1140 (1967) ; Kamisar, A Dissent from the Miranda Dissents:
Some Comments on the “New” Fifth Amendment and the “ Old”
Voluntariness Test, 65 Mich. L. Rev. 59, 60-61 n. 8 (1966) ; Kami
sar, Book Review, 76 H arv. L. Rev. 1502 (1963) ; Kuh, Reflections
on New York’s “Stop-and-Frisk” Law and Its Claimed Unconsti
tutionality, 56 J. Crim. L., Crim. & P ol. Sci. 32 (1965); LaFave,
Search and Seizure: “ The Course of True Law . . . Has Not . . . Run
Smooth” [1966], U. III. L. F orum 255, 308-311; Ronayne, The
Right to Investigate and New York’s “Stop and Frisk” Law, 33
F ordham L. Rev, 211 (1964) ; Schoenfeld, The “Stop and Frisk”
Law is Unconstitutional, 17 Syracuse L. Rev. 627 (1966); Siegel,
The New York “ Stop and Frisk” and “Knock-Not” Statutes: Are
They Constitutional?, 30 Brooklyn L. Rev. 274 (1964) ; Traynor,
Mapp v. Ohio at Large in the Fifty States [1962], D uke L. J. 319,
333-334; Vorenberg, Police Detention and Interrogation of Un
counselled Suspects: The Supreme Court a-nd the States, 44
B. U. L. Rev. 423 (1964) ; Note, “Stop and Frisk” and its Applica
tion in the Law of Pennsylvania, 28 U. P itt. L. Rev. 488 (1967) ;
Recent Decision, 18 W. Res. L. Rev. 1031 (1967) ; Recent Case,
71 D ick. L. Rev. 682 (1967); Recent Decision, 5 D uquesne L.
Rev. 444 (1967); Note, 13 W ayne L. Rev. 449 (1967); Legislation,
38 St. J ohn’s L. Rev. 392, 398-405 (1964).
12
of individuals who are undifferentiable from Everyman as
the probable perpetrators of a crime.16 It is true in the
practical, day-to-day world of the streets and the lower
courts, as we propose to develop more fully in the discus
sion that follows. Initially it will be helpful, we believe,
to identify the two contending models and their attributes.
The Classical Arrest-Search Model
Under classical criminal procedure, the police may accost
and question any person for the purpose of criminal inves
tigation.17 But they may not detain him, restrain or “ ar
rest” his liberty of movement in any significant way, except
16 See notes 35-36 infra and accompanying text.
u Most of the older cases cited by the proponents of modern-day
stop and frisk do no more than recognize that the police are free
to question an individual on the street so long as they do not detain
him in any way. Cases which denominate such questioning an
“arrest,” forbidden in the absence of probable cause, are generally
found to involve circumstances in which the police communicated
to the individual an effective sense of restraint. The decisions are
discussed exhaustively in the literature cited in note 15 supra;
note 18 infra. They are adequately summarized in the following
passage from Recent Decision, 37 Mich. L. Rev. 311, 313 (1938) :
“ [Although the courts rarely discuss the question, whether
stopping and questioning is an arrest seems to be decided on
the basis of whether any restraint of personal liberty is in
volved. Thus, where force or threat of force is used and the
subject submits to the authority of the officer for questioning,
an arrest occurs. On the other hand, where the officer merely
approaches or accosts the suspect and asks him questions,
there is no arrest because there is no restraint of the person.
Still other courts hold that merely stopping a traveler on the
highway is an arrest.”
So far as we are aware, no one seriously contends that the police
are or should be prohibited from non-coercive questioning of an in
dividual on the street, provided that it remains clear to him that
he is free to leave and to refuse to answer questions. We, cer
tainly, would not so contend.
13
for the purpose of holding him to answer criminal charges.18
Any such restraint of an individual is an arrest, and may
be made only on probable cause to believe him guilty of an
offense.19 The police may not make a personal search of an
individual, without a warrant or effective consent, except
_18 “ The police have no power to detain anyone unless they charge
him with a specified crime and arrest him accordingly. Arrest
and imprisonment are in law the same thing. Any form of physical
restraint is an arrest, and imprisonment is only a continuing ar
rest. If an arrest is unjustified, it is wrongful in law and is known
as_ false imprisonment. The police have no power whatever to de
tain anyone on suspicion or for the purpose of questioning him.
They cannot even compel anyone whom they do not arrest to come
to the police station.” Devlin, The Criminal Prosecution in Eng
land 82-83 (1958). Accord: Williams, Police Detention and Ar
rest Privileges under Foreign Laiv: England, 51 J. Crim. L., Grim.
& Pol. Sci. 413, 413-414 (1960). This is assumed by the principal
American writers on arrest, see Warner, The Uniform Arrest Act
28 Va . L. Rev. 315, 318 (1942); Waite, The Law of Arrest, 24
Texas L. Rev. 275, 279 (1946) ; Perkins, The Law of Arrest, 25
Iowa L. Rev. 201, 261 (1940) ; Wilgus, Arrest Without a.. War
rant, 22 Mich. L. Rev. 541, 798 (1924). It is also assumed in this
Court’s decisions under the Fourth Amendment, see note 54
infra. Concerning the “ charging purpose” component of classical
arrest theory, see note 55 infra.
Nothing said here touches the question wdiat powers police may
have to take custody of an individual for non-criminal purposes—
as when a sick or drunk adult or a lost child is found on the street.
The question is not now before the Court.
19 E.g., United States v. Di Be, 332 U, S. 581 (1948) ; Johnson v.
United States, 333 L. S. 10 (1948) ; Wong Sun v. United States,
371 U. S. 471 (1963); Beck v. Ohio, 379 U. S. 89 (1964). See
Foote, The Fourth Amendment.- Obstacle or Necessity in the Law
of Arrest, 51 J. Crim. L., Crim. & Pol. Sci. 402:
“In the law of arrest and by long constitutional history,
‘reasonable’ has been interpreted as the equivalent of probable
cause. An officer acts reasonably if, on the facts before him,
it would appear that the suspect has probably committed a
specific crime. This is the context in which the word is used
in the fourth amendment and in most state arrest laws. Our
cases sharply distinguish the reasonableness of an arrest on
probable cause from an unreasonable apprehension grounded
on ‘mere’ suspicion.”
14
that, incidental to a valid arrest, they may make a more or
less intensive personal search.20 The Classical Arrest-
Search Model thus recognizes two categories of police in
vestigative powers. Powers whose exercise does not signifi
cantly invade personal liberty and the right of privacy—the
“ right to be let alone” 21—are given the police to use at
large, indiscriminately, at their discretion, and without ju
dicial supervision. Powers whose exercise does invade these
rights may be used by the police, but not indiscriminately,
not against Everyman. They may be used only against
persons whom there is probable cause, to believe are crim
inal actors, and hence distinguishable from Everyman.
The “probable cause” determination made by a policeman
20 See note 54 infra concerning search incident to arrest. It
is plain that a personal search without a warrant, not incident to
arrest, is forbidden by the Fourth Amendment. United States v.
I)i Be, 332 U. S. 581 (1948) ; Beck v. Ohio, 379 U. S. 89 (1964) ;
and see Schmerber v. California, 384 U. S. 757 (1966).
21 See Mr. Justice Brandeis, dissenting, in Olmstead v. United
States, 277 U. S. 438, 471, 478-479 (1928) :
“ The protection guaranteed by the Amendments, is much
broader in scope. The makers of our Constitution undertook
to secure conditions favorable to the pursuit of happiness.
They recognized the significance of man’s spiritual nature,
of his feelings and of his intellect. They knew that only a
part of the pain, pleasure and satisfactions of life are found
in material things. They sought to protect Americans in their
beliefs, their thought, their emotions and their sensations.
They conferred, as against the Government, the right to be let
alone—the most comprehensive of rights and the most valued
by civilized men. To protect that right, every unjustifiable
intrusion by the Government upon the privacy of the individ
ual, whatever the means employed, must be deemed a viola
tion of the Fourth Amendment. And the use, as evidence in
a criminal proceeding, of facts ascertained by such intru
sion must be deemed a violation of the Fifth.”
Justice Brandeis’ view, of course, has subsequently been vindi
cated by the Court. Berger v. New York,------ U. S .------- , 87 S. Ct.
1873 (1967) ; Griswold v. Connecticut, 381 U. S. 479 (1965).
15
as the precondition of the exercise of these powers is
judicially reviewable.22 “ The rule of probable cause is
a practical, nontechnical conception affording the best
compromise that has been found for accommodating
these often opposing interests [of law enforcement and
personal liberty]. Requiring more would unduly hamper
law enforcement. To allow less would be to leave law-abid
ing citizens at the mercy of the officers’ whim or caprice.” 23
The Stop-Frisk Model
In theory, the Stop-Frisk Model differs from the Classical
Arrest-Search Model in that it recognizes at least three,
perhaps more, categories of police powers.24 First, police
may accost and question any person, so long as they do not
restrain or search him. Second, they may arrest him on
probable cause and search his person incident to that valid
arrest. The third category of powers is lodged between
these two. A law enforcement officer lacking probable cause
but having some state of mind (or encountering some cir
cumstances) which makes his focus upon a given individual
something other than random, something more particular
22 “ The requirement of probable cause has roots that are deep
in our history. The general warrant, in which the name of the
person to be arrested was left blank, and the writs of assistance,
against which James Otis inveighed, both perpetuated the oppres
sive practice of allowing the police to arrest and search on sus
picion. Police control took the place of judicial control, since no
showing of ‘probable cause’ before a magistrate was required.”
Henry v. United States, 361 U. S. 98, 100 (1959).
23 Brinegar v. United States, 338 U. S. 160, 176 [1949) (a case
of warrantless search), quoted in Beck v. Ohio, 379 U. S. 89, 91
(1964) (a case of warrantless arrest).
24 The conceptual basis for the Model may involve the repudia
tion of any attempt to categorize, leaving every individuated in
stance of police activity to be determined lawful or unlawful,
constitutional or unconstitutional, through a “balancing” of its
intrusiveness against its justification. See note 57 infra.
16
ized than whim, may “ stop” or detain the individual without
an “ arrest.” The nature of the prerequisite state of mind
(or set of circumstances) varies. The Uniform Arrest Act
uses the phrase “ reasonable ground to suspect.” 25 New
York Code of Criminal Procedure, § 180-a, employs “ reason
ably suspects.” The A. L. I. Model Code of Pre-Arraign
ment Procedure uses other formulations.26 The common
theme is something less than probable cause, but something
which purports to provide a judicial curb against wholly
indiscriminate police action.
The nature of the “ stop” that is not an arrest also varies.
The Uniform Arrest Act permits an officer, unsatisfied by
initial answers to questioning, to detain his suspect for two
hours. The A. L. I. Model Code limits the period to twenty
minutes, and expressly disallows the use of deadly force in
effecting a “ stop.” The New York statute is silent both on
the period of permitted detention and on the amount of
force which the officer may employ to enforce it. Specific
“ stop” authorizations also differ as to whether the “ stop
ping” officer is allowed to remove his detainee from the
25 Uniform Arrest Act, § 2. The Act is set out in Warner, The
Uniform Arrest Act, 28 V a . L. Rev. 315, 343, 344 (1942). Versions
of the Act (using the terms “reasonably suspects” or “reason to
suspect” ) are in effect in Delaware, New Hampshire and Rhode
Island. Del. Code Ann., tit. 11, §§ 1902-1903 (1953); N. II. Rev.
Laws, §§ 594:2-594:3 (1955) ; and Rhode Island, R. I. Gen. Laws,
§§ 12-7-1—12-7-12 (1956). The Act appears to have been gutted
by judicial construction at least in Delaware and Rhode Island,
see De Salvatore v. State, 2 Storey (Del.) 550, 163 A. 2d 244
(1960) ; Kavanaugh v. Stenhouse, 93 R. I. 252, 174 A. 2d 560
(1961) , appeal dismissed for want of a substantial federal ques
tion, 368 U. S. 516 (1962). These decisions appear to equate rea
sonable suspicion with the constitutional standard of probable
cause.
26 A merican Law Institute, Model Code of Pre-Arraignment
Procedure, § 2.02, Tentative Draft No. 1, March 1, 1966, at p. 6.
17
scene of their first encounter.27 They differ with regard to
the places in which and the circumstances under which the
“ stop” power is given. The Uniform Arrest Act allows
stops of persons “ abroad.” The A. L. I. Code has no such
restriction, but delimits the stop power by providing that it
shall not be used “ solely to aid in investigation or preven
tion o f” designated offenses. The New York statute uses
the term “ abroad in a public place” (which the Court of
Appeals in Peters construed to include the common hall
ways of apartment buildings, inconsistently with the con
struction previously put on the phrase in a circular pub
lished for police guidance by the New York State Combined
Council of Law Enforcement Officials),28 and also delimits
the “ reasonable suspicion” to suspicion of felonies and des
ignated misdemeanors.
Under the Btop-FrisJc Model, persons authorized to be
detained may also be “ frisked” or searched. (Undoubtedly,
a legislature might give the power to “ stop” without ac
companying power to “ frisk,” but all of the significant
pieces of legislation so far proposed or enacted couple
“ stop” with “ frisk,” and the proponents of stop and frisk
seem unanimous that “ frisk” is necessary if “ stop” is to
be effective.29 Frisk may be allowed whenever stop is al
27 The Uniform Arrest Act, §2 (2 ), (3) implicitly permits re
moval to a station house. The A. L. I. Model Code, § 2.02(1), (2),
(3) more or less explicitly disallows it. The New York Courts,
construing the New York statute, appear to permit it. People v.
Pugach, 15 N. Y. 2d 65, 204 N. B. 2d 176 (1964); People v. Hoff
man, 24 App. Div. 2d 497, 261 N. Y. S. 2d 651 (1965).
28 See pp. 54-55, infra.
29 E.g., A merican Law Institute, Model Code of Pre-Arraign-
ment Procedure, Commentary to § 2.02, Tent. Draft No. 1, March
1, 1966, at p. 102; Remington, supra,, note 15, at 391; Symposium
Note, supra, note 15, 59 Nw. U. L. Rev. at 652-653.
18
lowed; or it may be allowed only upon the fulfilment of
additional conditions, such as the existence of reasonable
grounds to suspect that the officer is in danger.30 It may be
allowed more or less extensively31 and more or less intru
sively.32 Its object may be limited or unlimited,33 and the
nature of the items discovered in the search which may be
30 The Uniform Arrest Act, § 3, allows search whenever the of
ficer “has reasonable ground to believe that he is in danger if the
person possesses a dangerous weapon.” (Emphasis added.) The
A. L. I. Model Code allows search if the officer “reasonably be
lieves that his safety so requires.” The New York statute purports
to limit the search power to situations in which the officer “rea
sonably suspects that he is in danger of life or limb,” but the
Court of Appeals in the Peters case appears to have read that re
striction out of the statute, by force of a presumption of law
that an officer making a stop is always ipso facto in danger of life
or limb.
31 The Uniform Arrest Act, § 3, and the New York statute au
thorize search of the “person” stopped. The New York courts
have extended the search power to packages carried by that person,
even though these might be put out of his reach during the period
of the stop. People v. Pugach, 15 N. Y. 2d 65, 204 N. Y. 2d 176
(1964) ; People v. Beason,------ Misc. 2 d ------- , 276 N. Y. S. 2d 196
(Sup. Ct. 1966) ; see People v. Cassesse, 47 Misc. 2d 1031, 263
N. Y. S. 2d 734 (Sup. Ct. 1965). The A. L. I. Model Code explicitly
allows the search of the stopped “person and his immediate sur
roundings, but only to the extent necessary to discover any dan
gerous weapons which may on that occasion be used against the
officer.”
32 See the provision of the A. L. I. Model Code quoted in the
preceding footnote. The Commentary to the section explains that
the “search envisaged here should not usually be more intensive than
an ‘external feeling of clothing,’ that is, the traditional ‘frisk.’ ”
A merican Law Institute, Model Code op Pre-Arraignment- P ro
cedure, Commentary on § 2.02, Tentative Draft No. 1, March 1,
1966, at p. 102. Neither the Uniform Arrest Act nor the New
York statute restrict the intrusiveness of searches, except perhaps
by implication in specifying a weapon as the object of search.
But see pp. 50-51, infra.
33 The Uniform Arrest Act, A. L. I. Model Code, and New York
statute alike specify a dangerous weapon as the object of per
mitted search.
19
seized may also be limited or unlimited.34 Tbe common
characteristic of the “ frisk” authorizations is that they
seek to delimit in some fashion the personal searches that
may be made incident to a “ stop,” but none apparently
include within the limitations any requirement of probable
cause (in the classical sense) to believe that the person
searched has a weapon.
It is relatively clear that the Classical Arrest-Search
Model was and is the common law of England, which
has never permitted detention for investigation nor on
less than probable cause.35 36 The same model has also been
34 Both the Uniform Act and the New York statute give the of
ficer power to seize a weapon. This might appear to exclude power
to seize other items found, hut of course the New York courts
have not given it this effect. The A. L. I. Model Code leaves the
question for later resolution.
36 This is the interpretation of the English law by such cele
brated scholars of that law as Sir Patrick Devlin and Glanville
Williams. See note 18 supra. We recognize that some American
commentators have purported to find a warrant for detention with
out probable cause in the old English books. E.g., Kuh, supra, note
15. But the authorities upon which they rely, principally Lawrence
v. Hedger, 3 Taunt. 14, 128 Eng. Rep. 6 (C. P. 1810) ; 2 H ale,
Pleas of the Crown 89, 96-97 (1st Amer. ed. 1847); 2 Hawkins,
Pleas oe the Crown 118-132 (8th ed. 1824), entirely fail to sup
port any such principle, as the more careful American studies
make clear. See Leagre, supra, note 15, at 408-411; Comment,
Police Power to Stop, Frisk and Question Suspected Persons, 65
Colum. L. Rev. 847, 851-852 (1965). The Americans who trace
stop-and-frisk to the English books have simply permitted them
selves to be confused by the English use of the term “reasonable
suspicion” which is not the equivalent of the same form of words
used in the Uniform Arrest Act and New York’s stop and frisk
legislation, but is the equivalent of American constitutional “prob
able cause.” Hale makes this clear enough. See 2 Hale, op. cit.
supra 76-86, 110. And see Thomas, Arrest; A General View,
(1966) Grim. L. Rev. 639, and comments following. There does
appear to be in English law some patchwork statutory authoriza
tion for stops and searches without warrant, rather in the nature
of the usual American game-law inspections. Whether probable
20
invariably assumed by this Court to describe the constitu
tional law of the Fourth Amendment.36 This is more than
historical happenstance. For the root notion of “probable
cause” which is mainstay of the model is not simply a long
cherished Anglo-American symbol of individual liberty.
It is, in view of the practical realities of criminal adminis
tration, an inevitable evolutionary product of our system’s
use of courts to confine police power within reasonable
bounds consistent with the conscience of a free people. * 36
cause is required for these is not wholly clear, but it seems to be,
see Thomas, The Law of Search and Seizure; Further Ground for
Rationalisation, (1967) Crim. L. Rev. 3, 11-18, and comments fol
lowing. In any event, the statutes are of very limited scope, as
Glanville Williams has noted. Williams, supra, note 18, at 414.
36 Brinegar v. United States, 338 U. S. 160 (1949); Henry v.
United States, 361 U. S. 98 (1959) ; Rios v. United States, 364 U. S.
253 (1960). Brinegar explicitly repudiates the grounds of deci
sion of the lower courts in that case, purporting to authorize an
automobile stop not amounting to a search on reasonable suspicion
not amounting to probable cause. The Henry decision is plainly
based on the same rejection of the same conception. (We can
hardly believe that the Solicitor General’s concession as to the
point of arrest in Henry was dispositive of the view the Court
took of the matter.) And Rios cannot possibly be read as anything
but a repudiation of stop and frisk. Although the force of the
decision has been slighted by some, e.g., A merican* Law Institute,
Model Code of Pre-Arraignment Procedure, Commentary on
§ 2.02, Tentative Draft No. 1, March 1, 1966, at p. 94, the Rios
opinion is not comprehensible on any other theory. The Govern
ment argued at length in Rios for the recognition of a power of
limited detention without arrest or probable cause. The Court’s
opinion was written to identify for the lower court on remand the
issues posed for its factual resolution. Those issues were, simply,
when there occurred an arrest and whether at that time the ar
resting officers had probable cause. These are the issues framed
by the Classical Arrest-Search Model, with its two categories of
police powers—those given officers with probable cause (including
arrest), and those given officers without. If the Court had
imagined that the Stop-Frisk Model presented an alternatively
permissible way of viewing the case, it is simply inconceivable
that its opinion would not have identified for the district court the
quite distinct issues (involving several degrees of detention, with
several accompanying states of justification) posed by that model.
21
II.
The Genius o f Probable Cause.
Whatever uncertainties there may he in the pre-Con-
stitutional history37 and the post-Constitutional evolution
of the Fourth Amendment, two core conceptions of the
Amendment emerge with indisputable clarity. First, the
Amendment’s purpose is to restrict the allowance of in
trusive police investigative powers to circumstances of
particularized justification, disallowing police discretion
to employ those powers against the citizenry in general.
Second, this restriction is enforced by the interposition
of judicial judgment between the police decision to intrude
and the allowability of intrusion.
The first conception is visible upon the face of the Amend
ment. It is the essential idea that gives meaning both to
the requirement of “ probable cause” and to the require
ment of warrants “particularly describing” the place to be
searched, and the things or persons to be seized. Concern
ing both the occasions and extent of police intrusion upon
the individual, “ nothing is left to the discretion of the
officer. . . . ” Berger v. New Y ork ,------U. S. --------, ------ ,
87 S. Ct. 1873, 1883 (1967), quoting Marron v. United
States, 275 TJ. S. 192, 196 (1927).
37 The history is canvassed in the Stanford and Marcus decisions
cited supra, note 6 , and in Landynski, Search and Seizure and
the Supreme Court: A Study in Constitutional Interpreta
tion (Johns Hopkins University Studies in Historical and Political
Science, ser. 84, no. 1) 19-48 (1966); Lasson, The H istory and
D evelopment of the F ourth A mendment to the United States
Constitution (Johns Hopkins University Studies in Historical and
Political Science, ser. 40, no. 2) 13-105 (1937) ; Fraenkel, Concern
ing Searches and Seizures, 34 Harv. L. Rev. 361 (1921).
22
History tells ns why. The general warrants and writs of
assistance against which the Fourth Amendment was
principally aimed were vicious precisely because they “per
mitted the widest discretion to petty officials.” 38 “ Armed
with their roving commission, they set forth in quest of un
known offenders; and unable to take evidence, listened to
rumors, idle tales, and curious guesses. They held in their
hands the liberty of every man whom they pleased to sus
pect.” 39 This practice was doubly damnable. In a society
profoundly committed to the liberty of the subject, the
notion that government should be given the power to in
trude indiscriminately and at the mere will of its officers
into the affairs of every citizen was wholly unacceptable.
Neither the random visitations of the King’s messengers
nor the practice in its more terrifying forms as an increas
ingly powerful bureaucracy might develop it—such as the
South African “ blitz” described in note 11 supra—were to
be countenanced in this free country. Government could
not invade the province of Everyman. To further its im
portant purposes, including criminal investigation, it might
invade the provinces of some individual men, but only
those whom circumstances sufficiently distinguished from
the generality of men so that the invasion could not be
broadside.40 The general warrant infringed this concern
38 Fraenkel, supra, note 37, at 362.
39 Stanford v. Texas, 379 U. S. 476, 483 (1965), quoting 2 Mat ’s
Constitutional H istory of E ngland 246 (Amer. ed. 1864).
40 See Patrick Henry in the Virginia Convention, 3 Elliot’s
Debates 588 (2d ed. 1836) :
“I feel myself distressed, because the necessity of securing
our personal rights seems not to have pervaded the minds of
men; for many other valuable things are omitted:—for in
stance, general warrants, by which an officer may search sus
pected places, without evidence of the commission of a fact,
23
and was accordingly denounced as a “ ‘ridiculous warrant
against the whole English nation.’ ” 11
In addition, the unbounded discretion allowed under the
general warrants and writs of assistance left government
officers free to heed every urging of personal spite, paltry
tyranny, arbitrariness and discrimination. “ In effect, com
plete discretion was given to the executing officials; in the
words of James Otis, their use ‘placed the liberty of every
man in the hands of every petty officer.’ ” 41 42 “ The right of
privacy was deemed too precious to entrust to the discretion
of those whose job is the detection of crime and the arrest of
criminals. Power is a heady thing, and history shows that
the police acting on their own cannot be trusted.” 43 So
the Fourth Amendment was designed both to delimit the
breadth of power and to constrain the possibility of
its abuse. Its language sometimes speaks obscurely in the
context of twentieth century circumstances, “but this much
is certain: there is no authority [in any American gov
or seize any person without evidence of his crime, ought to be
prohibited. As these are admitted, any man may be seized,
any property may be taken, in the most arbitrary manner,
without any evidence or reason. Every thing the most sacred
may be searched and ransacked by the strong hand of power.
We have infinitely more reason to dread general warrants
here than they have in England, because there, if a person
be confined, liberty may be quickly obtained by the writ of
habeas corpus. But here a man living many hundred miles
from the judges may get in prison before he can get that
writ.”
For a brilliant modern expression of the same concern, with par
ticular reference to police street interrogation, see Reich, Police
Questioning of Law Abiding Citizens, 75 Y ale L. J. 1161 (1966).
41 Stanford v. Texas, 379 U. S. 476, 483 (1965), quoting 2 Mat ’s
Constitutional H istory op England 247 (Amer. ed. 1864).
42 Marcus v. Search Warrant, 367 U. S. 717, 729 n. 2 2 (1961),
quoting Tudor, Life of James Otis 6 6 (1823).
43 McDonald v. United States, 335 U. S. 451, 455-456 (1948).
24
ernment] for the molestation of all those on whom the
long shadow of suspicion falls in the hope that something
damaging might turn up in the course of the search.” 44
Not surprisingly, these concerns of the Fourth Amend
ment converge with others that our society has found essen
tial and given enduring constitutional expression. They
deserve to be recalled here, because all are threatened by
the Stop-Frisk Model of criminal investigative process.
The Fifth Amendment Privilege also forbids government
to treat suspicion as guilt and to throw upon the citizen
the obligation to exculpate or explain himself to a govern
ment officer. Miranda v. Arizona, 384 U. S. 436 (1966).
It denies government power to employ coercive force of
any sort (be it brief or extended physical restraint or other
means of compulsion) to secure the cooperation of the
citizen in pursuing law enforcement efforts that may secure
his own criminal conviction. Ibid. Lessons to which the
First Amendment and the Due Process Clauses of the Fifth
and Fourteenth respond have taught us the impermissibility
of making law enforcement officers the unconstrained rulers
of the streets. Shuttlesworth v. Birmingham, 382 IT. S. 87
(1965).45 And our especial national history has given
44 Landynski, op. cit. supra, note 37, at 46.
45 “Literally read, . . . the second part of this ordinance says
that a person may stand on a public sidewalk in Birmingham
only at the whim of any police officer of that city. The con
stitutional vice of so broad a provision needs no demonstra
tion. It ‘does not provide for government by clearly defined
laws, but rather for government by the moment-to-moment
opinions of a policeman on his beat.’ Cox v. Louisiana, 379
U. S. 536, 579 (separate opinion of Me. J ustice Black). In
stinct with its ever-present potential for arbitrarily suppress
ing First Amendment liberties, that kind of law bears the
hallmark of the police state.” Id. at 90-91.
See also Hague v. C. I. 0., 307 U. S. 496 (1939) ; Thornhill v. Ala
bama, 310 XL S. 8 8 (1940); Cox v. Louisiana, 379 U. S. 536 (1965).
25
us the Equal Protection Clause as a bulwark both against
arbitrary and discriminatory abuses of our citizens by
government officials,46 and against the dangerous gener
ality of governmental authorizations rife with the potential
for such abuses.47
But the Fourth Amendment, most specifically addressed
to protecting these concerns where they may be threatened
by powers exercised in the investigative process, provides
its own singular procedural mechanism for the neces
sary accommodation of individual privacy and investiga
tion. That mechanism is judicial review of the police justi
fication offered to support an investigative intrusion. Time
and again this Court has repeated the theme:
“ The point of the Fourth Amendment, which often
is not grasped by zealous officers, is not that it denies
law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its pro
tection consists in requiring that those inferences be
drawn by a neutral and detached magistrate instead
of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime. Any
assumption that evidence sufficient to support a magis
trate’s disinterested determination to issue a search
warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a
46 Tick Wo v. Hopkins, 118 U. S. 356 (1886) ; cf. Wright v. Geor
gia, 273 V. S. 284 (1963).
47 Louisiana v. United States, 380 U. S. 145 (1965); cf. Niemotko
v. Maryland, 340 U. S. 268 (1951).
26
nullity and leave the people’s homes secure only in
the discretion of police officers.” 48
The Court has insisted upon procedures which assure that
the judicial determination will be rendered as an indepen
dent judgment, not a mere routine validation of police dis
cretion. See Aguilar v. Texas, 378 IT. S. 108 (1964). Al
though the requirement of prior judicial authorization of
police intrusions has sometimes been excused on considera
tions of history and practicability, the provision of some
available and effective judicial review of the police has
always been insisted upon. See Henry v. United States, 361
IT. S. 98, 104 (1959). Whether the forum be a criminal
trial against the individual who claims abuse of the police
investigative power, Mapp v. Ohio, 367 IT. S. 643 (1961),
or a damage action by the individual, Monroe v. Pape, 365
IT. S. 167 (1961), a court sits to provide in the last analysis
the “ neutral and detached” judgment which the Fourth
Amendment commands. This is no less true of arrests than
of other searches and seizures. Beck v. Ohio, 379 IT. S. 89
(1964).
Within this framework, the significance and the unique
genius of the “probable cause” concept is apparent. “ Prob
able cause” is not a self-efficient talisman. Nothing depends
upon the words themselves. “ Probable cause” is not inher
ently more fit for use than the verbalism “reasonable sus
picion” (which the English have long used to serve the
same function).49 But as it has evolved, probable cause
48 Johnson v. United, States, 333 IT. S. 10, 13-14 (1948), quoted in
Chapman v. United States, 365 IT. S. 610, 614-615 (1961). See
also Landynski, op. cit. siipra, note 37, at 47.
49 See note 35 supra.
27
has taken on an operative meaning and efficiency that is
inherently fit—indeed, irreplaceable—as an instrument for
mediating the demands of order and liberty in criminal
investigation. The particular efficacy assigned to it in the
Beck opinion, id. at 91, bears repeating: “ [P]robable cause
is a practical, non-technical conception affording the best
compromise that has been found for accommodating these
often opposing interests.” 50
Probable cause is addressed bluntly to the issue of par
ticularized justification that is the Fourth Amendment’s
first principle. As it has developed judicially, the phrase
connotes exactly that quantum of evidence pointing to likely
or probable guilt that serves to single an individual out
reasonably persuasively from the mass of men. It is the
standard designed to distinguish him from Everyman with
sufficient sureness that, if the individual’s arrest or search
be authorized, Everyman’s arrest or search will not be
authorized by parity of reasoning.
To serve such a function—to protect the “ liberty of every
man” 51 from subjection to police discretion—a test must
be relatively objective. The probable cause standard seeks
precisely to objectify, to regularize, the reasoning process
by which the judgment of allowability of police intrusions
is made. Of course, no judgmental standard governing an
issue of this sort can wholly eliminate the influence of sub
jective and impressionistic responses—particularly a stand
ard composed for general service in a multitude of varying
factual circumstances. And so (as the proponents of the
Stop-Frisk Model are quick to point out) even the Justices
50 See text at note 23 supra.
51 See text at note 42 supra.
of this Court have from time to time divided in applying
“ probable cause” to the facts of one case or another. But
the probable cause conception does operate—and its essen
tial design makes it operate with peculiar efficiency—to
diminish as much as is institutionally possible the impact
of subjective factors.
First, probable cause invokes that traditional juridical
device for the depersonalization of judgment: the enforced
perspective of the “ reasonable man” or “ ordinary man.”
Second, it frames very specifically the question which it
purports to submit to the ordinary judgment of the “ ordi
nary man.” The question is one of objective factual prob
abilities: is the individual whose arrest is sought to be
justified likely guilty on the perceived facts? No debatable
issue of values is expressly submitted. Doubtless, police
men and judges do in fact import some normative considera
tions into the determination. They may conclude “ likely
enough guilty,” or “ not likely enough guilty.” But this is
a small matter compared to tests (the inevitable instruments
of the Stop-Frisk Model, as we shall see) which baldly in
vite consideration of the normative desirability of the par
ticular police practice sought to be justified: “ Is the sus
pect likely enough guilty so that he should be arrested?”
“ Is he likely enough guilty so that he should not be ar
rested, but should be detained?” There are no answers to
such questions that do not turn almost entirely upon one’s
personal approval or disapproval of arrest or of detention.
Third, probable cause speaks to policeman’s, to the judge’s
and to the citizen’s common thought processes as rational
men. Although it may take account of the specialized
knowledge and the expert perceptual accuity of the police
man (to the extent that these can be objectified and com
29
municated to a court), it subjects them to review by ordi
nary judgment operating upon objective facts. It avoids
the dangerous mysticism, of police professional, and pro
fessionally motivated, intuition—what Mr. Justice Jackson
recognized as the mobilized mentality of “ the officer en
gaged in the often competitive enterprise of ferreting out
crime.” 62 (We shall discuss the characteristics of that men
tality more fully in the next section of this brief.) Probable
cause therefore directs the judge toward an exercise of
independent and autonomous judgment, properly respon
sive to the policeman’s expert capacity for observation and
induction, but freed from the controlling imposition of
police value judgments or from necessary reliance upon
the policeman’s inexplicable “hunches” which inevitably
embody those value judgments.
In short, probable cause is a common denominator for
police, judicial and citizen judgment. It permits the judge,
after hearing the officer’s account of his observations and
his inferences from them, to pass a detached, independent
and objective judgment on the rationality of those infer
ences. It permits the judge to express his judgment in
terms that are more or less comprehensible to the police,
for their future guidance. The same terms are more or less
accessible to the citizen who wants to know his rights or to
pass political judgment in turn upon a system which func
tions as the probable cause system does.* 53 This is not to
63 See text at note 48 supra.
53 One of the attorneys for amicus curiae has been for a while
adviser to a law student program under which students teach an
eight-week course in basic legal rights to ghetto-area high school
children in a large Eastern city. The law students report that the
concept of “probable cause” is one of the easiest to communicate
to their pupils. Even children who have endless complaints to
30
say that “ probable cause” functions unerringly, or with
perfect clarity. Of course, it does not. No standard for the
case-by-case determination of the legitimacy of police in
vestigative intrusions could. But the very failings of “prob
able cause” in this regard, together with its relative suc
cesses, caution against its abandonment in favor of more
arcane, more impressionistic, less objective, less histori
cally developed standards. It should not be forgotten that
probable cause is the only standard which this Court has
ever developed under the Fourth Amendment for judicial
regulation of the police.* 54 W e think that the nature of the
voice about real or supposed police mistreatment (and this appears
to be the case for a very large number of the children) are able
to appreciate and will admit the legitimacy of police stops, arrests
and searches of “ innocent” people where appearances of guilt
amounting to probable cause (as developed by discussion of hypo
thetical cases) exist.
54 Probable cause is, of course, the constitutional standard for
the issuance of both search warrants, Aguilar v. Texas, 378 U. S.
108 (1964), and arrest warrants, Giordenello v. United States, 357
U. S. 480 (1958) (constitutionalized in Aguilar, supra). Warrant
less searches may be made only in a handful of historically de
fined situations (see Jones v. United States, 357 U. S. 493 (1958) ;
Chapman v. United States, 365 U. S. 610 (1961) ; Stoner v. Cali
fornia, 376 U. S. 483 (1964) ; Berger v. New York,------ U. S .------- ,
87 S. Ct. 1873 (1967) ) : incident to a valid arrest (in which case,
of course, probable cause is required for the arrest; and cf. Cooper
v. California, 376 TJ. S. 58 (1967)) ; in the case of moving vehicles
(where probable cause is required, see Carroll v. United States,
267 U. S. 132 (1925) ; Henry v. United States, 361 U. S. 98, 104
(1959)); and in certain emergencies or “exigent circumstances”
where there is no time to obtain a warrant (in which case, the
existence of the criminal circumstances creating the emergency
must be established by probable cause, Schmerher v. California,
384 TJ. S. 575 (1966) ; cf. Warden v. Hayden,------ U. S .--------, 87
S. Ct. 1642 (1967)). (We put aside the consent doctrine, bot
tomed on a theory of waiver, see Stoner v. California, supra.)
Although warrantless arrests may be made under a greater range
of circumstances than warrantless searches, the constitutional
standard for warrantless arrest is also probable cause. Wong Sun
31
concept and the setting of its use as we have just described
them demonstrate the inevitably, as well as the wisdom, of
this development. We turn now to the “ reasonable sus
picion” construct with which the Stop and Frisk Model
undertakes—for partial but vitally important purposes—
to displace probable cause.
III.
The Deceptive Allure o f “ Reasonable Suspicion.”
At first blush, the argument for a Stop-Frisk Model of
criminal investigation, controlled by the standard of “ rea
sonable suspicion,” seems eminently, beguilingly reason
v. United States, 371 U. S. 471 (1963) ; Beck v. Ohio, 379 U. S. 89
(1964). In Brinegar v. United States, 338 U. S. 160 (1949), the
Court explicitly rejected the argument that warrantless stops of
automobiles (amounting, in the view of the courts below, to less
than “searches” ) could be made without probable cause. And the
Court has recently extended the warrant requirement, with its
probable cause constraint, to some sorts of non-criminal regulatory
searches. Camara v. Municipal Court,------ U. S. -------- , 87 S. Ct.
1727 (1967). In the latter eases, “probable cause” may not neces
sarily mean probability of individual culpability, as it does in the
criminal area (see Berger v. New York, supra), but it does pre
serve its individualizing function, requiring scrutiny to assure “ that
reasonable legislative or administrative standards for conducting
an area inspection are satisfied with respect to a particular dwell
ing,” 87 S. Ct. at 1736.
The only exception to the probable cause requirement in this
Court’s jurisprudence touching law enforcement practices is the
“border search” doctrine announced in dictum in the Carroll ease,
supra. In that area, no form of judicial regulation was intended
by the Court be substituted for probable cause, nor has any such
regulation developed. Customs and immigration officials at the
border are simply permitted to search as and when they will. E.g.,
Blefare v. United States, 362 F. 2d 870 (9th Cir. 1966). The
unique justifications for that principle range too far afield to
justify discussion here.
32
able.55 Surely, say the proponents of stop and frisk, our
inherited notions of “ arrest” and “ search” and “probable
cause” are too dogmatic, too inflexible. Not all police in
trusions are equally intrusive. Therefore, the same degree
55 The argument which we address in text is that which seems
to have persuaded the New York and Ohio courts, and which is
expounded by the most persuasive proponents of stop and frisk.
There is also another argument frequently made to square the
Stop-Frisk Model with the Fourth Amendment which is so palpably
insubstantial as not to require extended answer. This argument
goes: (1) The Fourth Amendment requires probable cause for an
“ arrest” ; (2 ) an “ arrest” is “the taking of a person into custody
in order that he may be forthcoming to answer for an offense”
(quoting A merican Law I nstitute, Code op Criminal Pro
cedure, § 18, Official Draft, June 15, 1930, or some similar text) ;
(3) but a “stop” (or an “arrest for investigation” ) lacks the
charging purpose of an “ arrest” (i.e., the person detained is not
detained “ in order that he may be forthcoming to answer” ) ; (4)
therefore, a “stop” is not an “ arrest” ; (5) hence, a “stop” may
be made without probable cause. There are three things wrong
with this argument. (A) Its premise is wrong. Common-law doc
trine did not require “ charging purpose” as an element of an
arrest. It is true that some criminal procedure codes authorized
an arrest only for the purpose of charging a citizen with crime.
(Not even all of these, it should be noted, including “ charging
purpose” in their definitions of “arrest,” as the A. L. I. Code
commentary recognizes, see id. at 227-228.) But the body of com
mon-law lore whose purpose was to define the citizen’s right
against arrest—the tort law of false imprisonment—treated any
restraint of liberty, whether with or without charging purpose, as
an arrest. See Mascolo, The Bole of Functional Observation in the
Law of Search and Seizure: A Study in Misconception, 71 D ick.
L. Rev. 379, 390-391 (1967) ; Note, Philadelphia Police Practices
and the Law of Arrest, 100 U. Pa . L. Rev. 1182, 1185-1188 (1952).
(B) Its conclusion does not follow from its premise. Even were
it true that a common-law “ arrest” required charging purpose, it
would not follow that a detention without charging purpose was
legal at common law. The point which the argument misses is that,
at common law, the only detention that was lawful at all was one
which an officer (or private citizen) could justify under his priv
ilege of arrest. See Remington, supra, note 15, at 387. The com
mon law gave no power, with or without probable cause, to detain
any person for any purpose other than to charge him with an
offense. See note 18, supra. So, if a “stop” is distinguished from
of justification should not be demanded for all. “ The at
tempt to apply a single standard of probable cause to all
[police] interferences [with individual privacy and liberty]
•—i.e., to treat a stop as an arrest and a frisk as a search—
produces a standard either so strict that reasonable and
necessary police work becomes unlawful or so diluted that
the individual is not adequately protected.” 56 Far more
sensible, far more realistic, is the accommodating approach
of “balancing” the extent of each particular police intru
sion against the extent of its justification. This “balancing”
approach (which seems to have been borrowed from the
First Amendment area without carrying along the First
Amendment’s strong preference for individual freedom)
finds its most articulate expression in Dean Edward L.
Barrett’s often quoted suggestion:
“Would not the policy of the Fourth Amendment
be better served by an approach which determines the
reasonableness of each [police] investigative technique
an “arrest” by the absence of charging purpose, the consequence
is not that it is lawful without probable cause, but that it is un
lawful even with probable cause. Thus it has been held under the
Fourth Amendment in the ease of “ arrest for investigation,”
Staples v. United States, 320 F. 2d 817 (5th Cir. 1963), and thus
it is, for the same reason, in the case of a “stop” which is sought
to be distinguished from arrest only by the absence of charging
purpose. (C) Its conclusion is irrelevant in any event. This is so,
of course, because the restrictions of the Fourth Amendment are
not cast in terms of “arrest.” They are cast in terms of “seizures”
of the person. An “ arrest” is a seizure of the person, but so is any
other seizure, for whatever purpose. The “ charging purpose”
argument, essentially a verbal quibble, is adequately laid to rest
in Foote, The Fourth Amendment: Olstacle or Necessity in the
Law of Arrest, 51 J. Grim. L., Grim. & P ol. Sci. 402, 403-404
(1960).
56 Judge Keating for the Court of Appeals in Peters. See People
v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595, 600 (1966).
34
by balancing the seriousness of the suspected crime
and the degree of reasonable suspicion possessed by
the police against the magnitude of the invasion of
the personal security and property rights of the in
dividual involved!” 57
The answer to that provocative question, amicus curiae
submits, is a flat and unequivocal No. However intellec
tually reasonable Dean Barrett’s balancing approach may
be in the corridors of academe, it is a delusive and un
workable proposition on the streets of our cities, and par
ticularly on the streets of our ghettos where stop-frisk
logic does its daily work. Closely inspected, we believe,
both the “balancing” theory of Fourth Amendment rights
and the Stop-Frisk Model that is built upon it show them
selves to be mere fine, scholastic pretexts for oppression.
The “minor interference with personal liberty” 58 that they
sanction is a major interference; the protections which
they promise are unreal illusions; the “balance” scale
which they purport to employ is invariably tipped by the
police commissioner’s thumb; and their consequence is noth
ing more or less than a police dictatorship of the streets.
We urge this Court to repudiate any such triflings with
the vital freedoms secured by the Fourth Amendment, and
to respond as it did nearly one hundred years ago when
asked to approve another like “ minor” invasion of those
same freedoms:
“ It may be that it is the obnoxious thing in its mild
est and least repulsive form; but illegitimate and un
57 Barrett, Personal Bights, Property Bights, and the Fourth
Amendment [1960], Supreme Court Rev. 46, 63.
58 Chief Judge Silbert for the Court of Appeals in Terry. See
State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114, 118 (1966).
35
constitu tional practices get their first fo o t in g in that
w ay, n am ely : h y silent approaches and slight devia
tions fr o m lega l m odes o f procedure. T h is can on fy
be obvia ted b y adhering to the rule that constitutional
p rov is ion s fo r the security o f person and p ro p e rty
should be libera lly construed. . . . I t is the duty o f
courts to be w atch fu l f o r the constitutional rights o f
the citizen, and against any stealthy encroachm ents
thereon. T h eir m otto should be obsta principiis.” 59
L et us exam ine first the nature o f the “ m in or” invasion
o f lib erty involved. P ropon en ts o f the “ stop ” like to p o r
tra y it as though it consisted at w orst o f a po lice “ H ey,
there.” S evera l poin ts should be obvious about this “ H ey,
there.”
(1 ) “ H ey , there” itself, w hen said b y a policem an, is a
significant intrusion, except perhaps to those fortu n ate
citizens w hose sole im age o f the police is a vague m em ory
o f the fr ien d ly fa ce o f the school crossin g guard. Such
citizens are not v e ry o ften stopped. “ H ey , there” to the
m an likely to be stopped— the m an on the street in a “ b a d ”
neighborhood , the m an in the ghetto— is a challenge, an
act o f dom inion b y the Fuzz, a th in ly veiled threat o f
force .
(2 ) “ H ey , there” m ay or m ay not be thought unduly
in trusive— once. B u t the m an likely to be stop ped is not
likely to be stopped once. H e is likely to be stopped again
and again, day in day out, and fo r the sam e reasons. The
fo llow in g com m ent o f a “ low er incom e N egro ,” w hich the
a Boyd v. United States, 116 U. S. 616, 635 (1886).
36
National Crime Commission’s Task Force on Police thought
worthy of publication, is a perfectly representative pic
ture of ghetto life—and resultant ghetto attitudes:
“When they stop everybody, they say, well, they
haven’t seen you around, you know, they want to get
to know your name, and all this. I can see them stop
ping you one time, but the same police stopping you
every other day, and asking you the same old ques
tion.” 60
(3) “Hey, there” looks better on paper than it sounds
on the streets. (We put aside the consideration that it is
almost invariably “ Hey, there, boy” in the ghetto.61) “ Field
interrogation procedure” is thus described (at its mildest)
in an instructional article for police:
“ . . . Meeting head-on. Let the subject get up even
with you or slightly beyond you. Then turn toward
the subject facing his side. Your hand should either
be holding onto the subject’s arm at the elbow or in a
ready position so that you will be able to spin him
forward and away from you in a defensive move.
This is the position of interrogation. You should make
60 President’s Commission on Law Enforcement and A dminis
tration of Justice, Task F orce Report: T he P olice 184 (1967).
61 See Cray, op. tit. supra, note 1, at 193; Skolnick, op. tit.
supra, note 3, at 80-82. The Crime Commission Task Force found
that “field interrogations are frequently conducted in a discourte
ous or otherwise offensive manner, which is particularly irritating
to the citizen.” President’s Commission on Law Enforcement
and A dministration of Justice, Task F orce Report: The P olice
185 (1967). An underlying study found that “Brusqueness or
nastiness was evident in the approaches more often than wa-s cour
tesy.” 2 University of Michigan Study 97 (emphasis in original).
37
a habit of interrogating from this position. Your great
est hazard is the unknown.” 62
(4) The method of police approach just described, the
power of the policeman to make “ Hey there” sound like a
threat, and the inevitable citizen response together make
the “ stop” powrer a de facto arrest power. The pattern
can be observed daily on any ghetto street. The police
man on “ aggressive patrol” (as it is coming to be known
in police circles) makes his approach; the citizen, touched
on the elbow or startled by the voice at his side and the
policeman with his hands up, raises an arm slightly in an
instinctive defensive gesture; the policeman is now free
to arrest him for assaulting an officer, obstructing an offi
cer, etc.63 Every policeman on the beat knows that the
power to make an enforced stop is the power to escalate
the episode into a technical “ assault” and to make an
arrest for the assault. The ghetto resident knows it too—
although he is seldom clever and dispassionate enough to
avoid the trick.
(5) In any event, the authority which the proponents
of “ stop” seek to give the police is not the authority to
say “Hey, there.” It is the authority to detain the citizen
who does not stop when “ Hey, there” is said. It is the
power to order him to a stand-still, and to lay hands on
him if he moves. It is the power, in the American Law
Institute’s draft Model Code, to use all force short of
deadly force to stop him. We do not know that New York
or Ohio law embodies even that humane limitation. Assum-
62 Adams, Field Interrogations, 7 Police 26, 28 (1963).
63 One version of the pattern is described in Cray, op. cit. supra,
note 1, at 124-125.
38
mg that it does, the “ stop” power ranges from, a hand on
the sleeve to a tackle, a patrol ear careening up on the
sidewalk, a bullet in the citizen’s leg. It must be thus, we
are informed, because “ it would be frustrating and humili
ating to the officer to grant him an authority to order
persons to stop, and then ask him to stand by while his
order is flouted.” 64
(6) Finally, the “ stop” power comports the “ frisk”
Xnower. The argumentation of the proponents of stop and
frisk is, in this regard, wonderfully devious. We are told
that “ stop” should be allowed without probable cause be
cause it is not very intrusive; and, in support of this propo
sition, the attributes of “ stop” alone are described (or
partially described). Invariably, we are later told that the
“ frisk” power is absolutely indispensable to the safe exer
cise of the police power to “ stop” ; hence, that once the
power to “ stop” is given, the power to “ frisk” must fol
low.65 We suggest that this is chop-logic. If “ frisk” is
indeed the necessary accoutrement of “ stop,” we think it
obvious that the kind of intrusion involved in “ frisk” must
be taken into account in the initial determination whether
“ stop” is, indeed, not very intrusive. We think that the
intrusiveness of “ frisk” hardly needs demonstration.
We pass next to the supposed safeguard of stop and
frisk—the preventive against its abuse—the prerequisite
of “ reasonable suspicion.” Used as the English use it,
the phrase means “probable cause” in the American con
64 A merican Law Institute, Model Code: of Pre-Arraignment
Procedure, Commentary to § 2.02, Tentative Draft No. 1, March
1, 1966, at p. 100.
65 See note 29 supra.
39
stitutional sense.68 But where it is used to mean something
less than probable cause, as it is in the Stop-Frisk Model,
what exactly does it mean! It seems to mean, under Dean
Barrett’s balancing formula, the degree of suspicion which
is sufficient so that the police ought to be allowed to do
whatever it is they do, in light of its intrusiveness. That
is a simply impossible test, depending as it does upon the
normative appraisal of the policeman himself in the first
instance and (in the few cases that come to court) upon
the retrospective, subjective and impressionistic judgment
of a lower-court judge who has before him a defendant
caught with the goods. It should not be forgotten that this
Court does not sit to decide every search-and-seizure case
in this country, still less every stop-and-frisk case, still
less every instance of stop and frisk. With all due defer
ence, we suggest that the liberty of the citizen in the street
would be a meaningless thing if it were committed almost
wholly to ad hoc police and criminal court determinations
of the normative propriety of particular police intrusions.
One careful student of stop and frisk has offered the
conception that “ reasonable suspicion” is something more
objective. “ If probable cause . . . can be defined as a rea
sonable belief in the probability that a crime has been
committed [and, to justify an arrest, that a particular
citizen has committed it], . . . [reasonable suspicion] means
that it must be reasonably possible that the individual has
committed some crime.” 67 But as to what citizen is it not
reasonably possible that he has committed some crime!
As to what unknown citizen on the street (even a crowded
street) near the scene of a known crime? As to what group 66 *
66 See note 35 supra.
87 Leagre, supra, note 15, at 413.
40
of ill-dressed young men on a ghetto street corner 1 As to
what Negro abroad on the streets in a “ white” neighbor
hood late in the day? Surely, it is reasonably possible
that each of these has committed a crime (or is about to
commit one, as the New York statute and common Stop-
Frisk logic provide). “ The finger of suspicion is a long
one. In an individual case it may point to all of a certain
race, age group or locale. Commonly it extends to any
who have committed similar crimes in the past. Arrest
on mere suspicion collides violently with the basic human
right of liberty. It can be tolerated only in a society which
is willing to concede to its government powers which his
tory and experience teach are the inevitable accoutrements
of tyranny.” 68
Speaking for the New York Court of Appeals in Peters,
Judge Keating assures us that “ Where a person’s activi
ties are perfectly normal, he is fully protected from any
detention or search.” 69 That is hardly very reassuring.70
It is still less reassuring when it is announced that “ By
requiring the reasonable suspicion of a police officer, the
statute incorporates the experienced officer’s intuitive
knowledge and appraisal of the appearances of criminal
activity.” 71 Yet here, we suggest, Judge Keating has laid
his finger precisely on the pulse of “ reasonable suspicion”
68 Hogan & Snee, The McN abb -Mallory Buie: Its Rise, Rationale
and Rescue, 47 Geo. L. J. 1, 22 (1958).
69 People v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595, 600 (1966)
(emphasis added).
70 It also appears not to be an accurate statement of common
stop and frisk law or practice. See the discussion of Pennsylvania’s
Kicks case, infra.
71People v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595, 599 (1966).
41
and given the best available sententious description of its
character.
For the native quality of “ reasonable suspicion”—as op
posed to the “probable cause” concept which our constitu
tional law has heretofore developed—consists precisely in
judicial recognition of the trained police “hunch” or “ intui
tion,” without more, as the basis for legitimating police
action.72 All of the mysticism of police expertise, of police
“ feel” for a street situation, is invoked here.73 Judges are
not expected to detach themselves from the reasoning proc
esses of the police. They are not to take an independent
view of police logic. They are to assimilate police logic
72 See, e.g., Ooss v. State, 390 P. 2d 220 (Alaska, 1964) (sustain
ing stop of automobile on nothing more than policeman’s testimony
that he observed it under the following “suspicious circumstances” :
it pulled away from the side of a commercial building at 12:45 a.m.
and drove one-half block without lights) ; People v. Beverly, 200
Cal. App. 2d 119, 19 Cal. Rptr. 67 (D. C. A. 1962) (sustaining stop
of automobile on nothing more than policeman’s testimony that- “ it
was kind of unusual for a ear to be coming out of that area [a
street occupied primarily by automobile wreckers] at that time
[9:33 p.m.J . . . all the auto wreckers at that time is usually
closed,” 19 Cal. Rptr. at 69) ; Commonwealth v. Hicks, 209 Pa.
Super. 1, 223 A. 2d 873 (1966) (sustaining stop and frisk of pedes
trian on downtown street at 4:30 p.m. on ground that policemen
observed him five blocks from the scene of a burglary; the burglar
was reported to be a Negro with a brown coat and mustache;
pedestrian was a Negro with a light-colored coat needing a shave).
73 See Tiffany, McIntyre & Rotenberg, op. cit. supra-, note 15,
at 40:
“ Training officers and officers in command of patrol forces
commonly urge patrol officers to rely on their own good sense
and to learn which persons should be stopped and questioned
from their own experiences in the field. Some police assert that
it is not possible to express, in a meaningful way, the basis for
the conclusion that the circumstances are sufficiently sus
picious to justify a field interrogation. It is said that the
officer must be ‘beat-’ or ‘alley-wise.’ ”
42
and appraise the officer’s work product by its lights. They
are to accept the attitudes of police intelligence for the pur
pose of adjudging the soundness of police guesswork—
exclusively in cases, of course, where that guesswork has
already proved itself right. Sound police intuition thus
becomes the measure of the citizen’s protection under the
Fourth Amendment.
What exactly is the nature of that intuition? Jerome
Skolnick’s recent systematic observation of the police con
firms the obvious:
“ [T]he policeman’s role contains two principal vari
ables, danger and authority, which should be inter
preted in light of a ‘constant’ pressure to appear
efficient. The element of danger seems to make the
policeman especially attentive to signs indicating a
potential for violence and lawbreaking. As a result,
the policeman is generally a ‘suspicious’ person.
U
“ However complex the motives aroused by the ele
ment of danger, its consequences for sustaining police
culture are unambiguous. This element requires him,
like the combat soldier, the European Jew, the South
African (white or black), to live in a world straining
toward duality, and suggesting danger when ‘they’
are perceived. Consequently, it is in the nature of the
policeman’s situation that his conception of order em
phasize regularity and predictability. It is, therefore,
a conception shaped by persistent suspicion. . . .
“ Policemen are indeed specifically trained to be sus
picious, to perceive events or changes in the physical
43
surroundings that indicate the occurrence or probability
of disorder. . . . ” 74
74 Skolnick, Justice W ithout Trial : L aw Enforcement in
Democratic Society 44, 47-48 (1966) (emphasis in original). See
generally, id. at 42-48, 54, 59, 64-65, 83, 206-207, 217-218, 220, 232.
Skolniek’s observations were made in Oakland, California (sub
nom. “Westville” ), which has a particularly good and enlightened
police department. Id. at 25, 32, 62. The observations are tersely
summarized by Geoffrey Hazard, of the American Bar Foundation:
“ . . . The chief environmental influence on police work is
a sensitization to dangerous behavior. Dealing with dangerous
behavior is at the same time the unique characteristic and the
special responsibility of the police. This orientation to danger
results in a peculiar type of social perception. If one’s job
is to deal with violence should it arise, it is both natural and
prudent to develop an alertness for signs of violence. People
incipient upon violence give off signs of their mood—agitation,
loud and excited speech, changes in posture and position in
preparation for action, and the like. The skill of the police
is to notice these signs and to react to them. Of course, such
signs are also emitted by people who are just naturally
agitated, loud-mouthed, or shifty, and it is often difficult to
tell what behavioral signs portend. The point is that, because
they have special responsibilities, the police read these signs—
and others more subtle—in a way that other people do not.
Compared to other people, they seem to have an anxiety neu
rosis, as indeed in a relative sense they do.
it
“ ■ ■ ■ Beginning with the fact that deviance may be a sign
of danger, the police tend to see all deviance as dangerous.
Policemen’s work thus tends to make policemen socially con
servative in the most fundamental sense. This has all sorts
of consequences. For one thing-, it helps to explain the strong
negative responses that the police tend to display toward such
events as picketing, wearing beards and sandals, and other
socially disassociative activities. For another, and perhaps
more practically significant, the police are inclined to classify
as crime all behavior that they see as discrepant with ‘ordi
nary’ behavior, regardless of whether such behavior is tech
nically a violation of law. This inclination is, of course,
checked by other pressures—political, social, and legal—so
44
This suspicious cast of mind is intensified in the ghetto.
The policeman on patrol in the inner city has little under
standing of the way of life of the people he observes, and
he believes (with considerable justification)* 75 that they are
hostile to him.76 The result is inevitable. “ The patrolman
that the police in operation do not fulfill their inclinations.
The policeman’s tendency to regard all deviance as crime is,
however, a real and largely uncontrollable social force.”
Hazard, Book Review, 34 U. Ch i. L. Rev. 226, 228-229 (1966). See
also Schwartz (Herman), “ Stop and Frisk” in New York Law and
Practice: A Case Study in the Abdication of Judicial Control
Over the Police (unpublished manuscript) 29-31, and authorities
cited.
75 “ rpkg hatred and fear of the police, whether overt or hidden,
felt by many Negroes, Puerto Ricans and Mexican-Amerieans can
not be overstated.” A merican Civil L iberties Union, P olice
P ower and Citizens’ R ights 11 (1967). See also Report of the
President’s Commission on Crime in the D istrict of Columbia
on the Metropolitan Police Department 62-65 (1966) ; Cross,
The Negro, Prejudice and the Police, 55 J. Crim. L., Crim. & Pol.
Sci. 405, 407 (1964). Stop and frisk practice, of course, is a not
inconsiderable part of the complex causes for this hatred and fear.
See notes 108-10 infra.
76 See Baldwin, Nobody K nows My Name 61-62 (Dell ed. 1963) :
“ . . . None of the Police Commissioner’s men, even with
the best will in the world, have any way of understanding
the lives led by the people they swagger about in twos and
threes controlling. . . .
“ . . . [The policeman] is facing, daily and nightly, people
who would gladly see him dead, and he knows it. There is no
way for him not to know i t ; there are few things under heaven
more unnerving than the silent, accumulating contempt and
hatred of a people. He moves through Harlem, therefore, like
an occupying soldier in a bitterly hostile country; which is
precisely what, and where, he is, and the reason he walks in
twos and threes. And he is not the only one who knows why
he is always in company: the people who are watching him
know why, too. . . . ”
See also Brooks, New York’s Finest, 40 Commentary 29, 29-32
(Aug. 1965).
45
in Westville, and probably in most communities, has come
to identify the black man with danger . . . 77 Little won
der that “ field interrogations are sometimes used in a way
which discriminates against minority groups, the poor, and
the juvenile.” 78
This is not an isolated or ephemeral abuse,79 nor one
that courts can control under the rubric of “ reasonable sus
picion.” Can any court say that the policeman is not rea
sonably suspicious of the group of young men lounging on
the ghetto corner? Of the man on parole for narcotics vio
lations who consorts with another? Of the man walking at
night with two companions who have records for robbery?
Of the interracial couple in the neighborhood frequented
by prostitutes? A police authority on field interrogation
gives policemen this advice respecting the “ selection of
subjects” :
“ A. Be suspicious. This is a healthy police attitude,
but it should be controlled and not too obvious. [#«?.]
“ B. Look for the unusual.
1. Persons who do not ‘belong’ where they are
observed.
2. Automobiles which do not ‘look right.’
3. Businesses opened at odd hours, or not accord
ing to routine or custom.
77 Skolnick, op, cit. supra, note 74, at 49.
78 President’s Commission on Law Enforcement and A dminis
tration op Justice, Task F orce Keport: The P olice 184 (1967).
79 See note 3 supra.
46
“ C. Subjects who should be subjected to field inter
rogations.
1. Suspicious persons known to the officer from
previous arrests, field interrogations, and observa
tions.
4. Any person observed in the immediate vicinity
of a crime very recently committed or reported as
‘in progress.’
5. Known trouble-makers near large gatherings.
6. Persons who attempt to avoid or evade the
officer.
7. Exaggerated unconcern over contact with the
officer.
8. Visibly ‘rattled’ when near the policeman.80
9. Unescorted women or young girls in public
places, particularly at night in such places as cafes,
bars, bus and train depots, or street corners.
20. Many others. How about your own personal
experiences?” 81
80 There doubtless is some safe middle ground between showing
exaggerated unconcern for the officer and being visibly rattled in
his presence, but one wonders how many inhabitants of our cities
are sufficiently astute students of the police mind to find that
ground. The same damned-if-you-do, damned-if-you-don’t dilemma
is presented in Bbistow, op. tit. infra, note 81, at 15.
81 Adams, Field Interrogation, 7 P olice 26, 28 (March-April
1963). Similar generalizations are found in the leading texts.
Bbistow, F ield Interrogation 13-19, 23, 31-46 (2d ed. 1964);
47
Is a judge to say that these bases of suspicion are unrea
sonable? How, in any meaningful way, is he to review a
police “ stop” based on any of them?
The answer to this question is evident from the reports.
The courts have not in fact imposed any limitations or re
strictions upon the stop and frisk power once that power
is granted. They have not done so because they could not
do so—because the essence of the doctrine of stop and frisk
on less than probable cause is judicial abdication to police
judgment. The judicial decisions demonstrate trenchantly
the practical unworkability of the Stop-Frisk Model. New
York’s cases will serve as an example.82
As we shall see, the major failing of the cases is that “ rea
sonable suspicion” has proved to be a broad, all-purpose
rubber stamp for validating police intrusions. Before pass
ing to that point, however, we pause to examine the nature
of the intrusions which the New York cases allow upon
“ reasonable suspicion.” What appears from such examina
tion is a thorough vindication of the most dire predictions
of those commentators who warned that no mere wordplay
Payton, Patrol Procedure 179-188, 190-195 (1986). Tiffany,
McIntyre & Rotenberg, op. cit. supra, note 15, at 38-43, remark
the failure of police departments generally to develop standards
governing field interrogation and related practices. Bristow rather
explicitly gives up the attempt: “ The question of what is suspicious
cannot be answered for the individual patrolman. Each officer must
seek this answer for himself on a basis of his knowledge of the area.
Bristow, op. cit. supra, at 19.
82 The only other jurisdiction which has had substantial case-law
development of the stop and frisk conception is California. The
decisions there make up a pattern much like New York’s. The cases
are discussed in Note, Stop and Frisk in California, 18 H astings
L. J. 623 (1967).
48
could make a “ stop’’ something less than an arrest, or
“ frisk” something less than a search.83
“ The stopping of the individual to inquire is not an ar
rest,” the New York Court of Appeals announced in its first
stop and frisk decision, explaining why “ the ground upon
which the police may make the inquiry may be less in
criminating than the ground for an arrest . . . People
v. Rivera, 14 N. Y. 2d 441, 445, 201 N. E. 2d 32 (1964).
Yet within two years, in the Peters case now before this
Court, the Court of Appeals was prepared to sanction as
a “ stop” something that seems to all appearances a quite
conventional arrest. A police officer collared Peters at gun
point on a stairway between floors of a private apartment
building. He tugged Peters down a flight of stairs to the
next floor where he questioned him. He then felt his
clothing, removed an opaque packet, took it out of Peters’
reach, and searched it. About all that is wanting here to
exhaust the powers ordinarily given an officer who makes
an arrest is a trip to the precinct station. The question
of the propriety of such a trip was not reached in Peters
because the “ frisk” had served its purpose. It had dis
closed the making of a de jure arrest, which followed. In
any event, the Court of Appeals had already made clear
in People v. Pugach, 15 N. Y. 2d 65, 204 N. E. 2d 176
(1964), that the “ stop” power alone included a trip to the
precinct station, if the officer found that desirable. Accord:
83 Cray, op. cit. supra, note 1, at 38 ; Foote, Law and Police Prac
tice: Safeguards in the Law of Arrest, 52 Nw. U. L. Rev. 16, 37-38
(1957) ; Foote, The Fourth Amendment: Obstacle or Necessity in
the Law of Arrest, 51 J. Grim. L., Crim. & Pol. Sci. 402, 403-405
(1960) ; Souris, Stop and Frisk or Arrest and Search—The Use
and Misuse of Euphemisms, 57 J. Grim. L., Crim. & P ol. Sci 251
(1966).
49
People v. Hoffman, 24 App. Div. 2d 497, 261 N. Y. S. 2d
651 (1965).
“ The frisk is less . . . invasion [of privacy] than an
initial full search of the person would be.” So held People
v. Rivera, supra, 14 N. Y. 2d at 446, reasoning that it
“ ought to be distinguishable also on pragmatic grounds
from the degree of constitutional protection that would sur
round a full-blown search of the person.” Ibid. However
valid this proposition,84 its endurance was fleeting. In
Pugach, supra, the Court of Appeals sustained as a “ frisk”
the searching of a brief case which police officers had taken
from their “ stopped” suspect in a squad car en route to the
precinct station.85 Peters, we have seen, sustained the
search of an opaque packet taken from the suspect and
wholly within the control of an armed policeman. Sibron
sustained a policeman who “ without first frisking the de
fendant, reached into his pocket and pulled out . . . nar
84 Consider the frisk described by police testimony in the record
in People v. Hoffman, supra, as recorded by Schwartz, supra, note
74, at 6:
“I asked both the defendant and his passenger to put their
hands on the roof of the police car and I started from their
necks and worked across their shoulders and under their arms
(indicating) all the way down their sides and down each
leg to determine whether they could possibly have a weapon
on them or not.”
Schwartz reports on the basis of conversations with police that “the
procedure employed in Hoffman is ‘customary usage.’ ” Id., at note
14. That report concurs with the procedures recommended for
policemen in Patton, op. cit. supra, note 81, at 224-228 (with
photographs). Cf. Tiffany, McIntyre & Rotenbekg, op. cit. supra,
note 15, at 46-48.
85 Compare United States v. Margeson, 259 F. Supp. 256 (E. D.
Pa. 1966); Commonwealth v. Lehan, 347 Mass. 197, 196 N E 2d
840 (1964).
50
cotics.” 86 Lower New York courts have gone further.
People v. Reason, 52 Misc. 2d 425, 276 N. Y. S. 2d 196
(Sup. Ct. 1966), authorizes search of a tin box standing
atop a pile of other articles on the sidewalk near the sus
pect. People v. Gassesse, 47 Misc. 2d 1031, 263 N. Y. S.
2d 734 (Sup. Ct. 1965) (alternative ground), holds that a
frisk may encompass the search of an automobile in which
the “ stopped” suspect is riding.87 There is no need to put
our own characterization on this New York evolution of the
“ frisk.” The Court of Appeals has recently reviewed its
prior decisions and, explicitly recognizing that in Pugach,
Sibron and Peters “ the arresting [sic] officers engaged
in ‘searches’ rather than ‘frisks’ in order to obtain inculpat
ing evidence,” nevertheless adhered to those holdings. Peo
ple v. Taggart, C. A. N. Y., App. T. 2, No. 120, decided
July 7,1967.
It is significant that the New York courts have
ibeen as unable to restrain police subversion of the
purpose of the “ frisks” that they have authorized as to
contain their extent or intrusiveness. Although the New
York statute authorizes only a search for weapons, and
the Court of Appeals in sustaining its constitutionality
continues to stress that concept, the police ignore it with
impunity. The officer in Sibron, for example, had no con
cern with weapons. He suspected Sibron of narcotics deal
ings, asked him for narcotics, and searched him for nar
cotics. Indeed, he was so little concerned with his own self
protection, that he let Sibron go into his pocket.88 This is
86 People v. Taggart, C. A. N. Y., App. T. 2, No. 120, decided
July 7, 1967, slip opinion, p. 6 (describing Sibron).
87 Compare People v. Mickelson, 59 Cal. 2d 448, 380 P. 2d 658
(1963).
88 See People v. Reason, supra, for a similar case.
51
apparently no rare practice. The National Crime Commis
sion Task Force on Police reports that “ In some cities,
searches are made in a high proportion of instances not
for the purpose of protecting the officer but to obtain drugs
or other incriminating evidence. In New York, for example,
where searches are permitted only when the officer reason
ably believes he is in bodily danger, searches were made in
81.6 percent of stops reported.” 89
Particularly as the scope of permissible “ stop” and
“ frisk” expanded, and as evidence of their use as pretexts
to justify plainly illicit searches accumulated, one might
have expected the Court of Appeals to tighten up on the
standards for “ reasonable suspicion.” It has not been able
to do so. In the first place, the statutory requirement for
a “ frisk,” that the officer “ reasonably suspects . . . he is
in danger of life or limb,” has been entirely abrogated by
the New York Court. This has been done by recognizing
what appears to be a conclusive presumption that officers
making a “ stop” are always in danger.90 Such might very
well be doubtful as a fact,91 but surely the Court of Ap
s9 President’s Commission on Law Enforcement and A dmin
istration of Justice, Task F orce Report: The P olice 185
(1967).
90 “The answer to the question propounded by the policeman may
be a bullet; in any case the exposure to danger could be very great.”
People v. Rivera., supra, 14 N. Y. 2d at 446. See also People v.
Peters, 18 N. Y. 2d 238, 219 N. B. 2d 595, 598 (1966) (although
the officer had Peters collared and was armed, “ the tables are
easily turned” ) .
91 It is rather interesting to notice that it is common practice
for policemen not to search females, even when they arrest them.
See McIntyre & Chabraja, The Intensive Search of a Suspect’s
Body and Clothing, 58 J. Grim. L., Crim. & P ol. Sci. 18 (1967);
52
peals cannot be faulted for believing that an officer may
always “ reasonably suspect” he is in danger.92 That is the
nature of reasonable suspicion.
As for the reasonable suspicion that is a statutory pre
requisite to the initial stop, it is fair to say that police
officers in New York State have been left to define that
concept pretty much as they go along. In the recent Tag
gart decision of the Court of Appeals, an anonymous tele
phone tip that a described young man on a designated
street corner had a gun was held to justify an officer’s ac
costing him, placing him against a wall, and searching his
Tiffany, McIntyre & Rotenberg, op. cit. supra, note 15, at 20.
The reasons for this appear to be a combination of chivalry, public
relations, and political sensitivity. It may well be that women are
less dangerous than men. Rut it may also be that the police do not
lack other means than a weapons search to protect themselves from
a suspect or an arrestee with a concealed weapon. One may specu
late, at least, as to whether the police are not here subordinating
to considerations of political expediency a concern for their safety
which this Court, in its cases authorizing warrantless search inci
dent to arrest, thought sufficiently important to require the sub
ordination of important Fourth Amendment values.
It is also interesting that Bristow in his work on field interroga
tion does not mention a frisk for self protection. To him the search
incident to field interrogation is the last, step in the process and
designed to determine “the subject’s possible criminality.” Bris
tow, op. cit. supra, note 81, at 92. Bristow therefore seems of the
view that probable cause is not a prerequisite for this search, al
though it is desirable.
“While it is true that the primary purpose of the search
in a field interrogation is not to secure evidence, but to aid in
establishing the subject’s character or criminal tendencies, the
legal rule of search and seizure should be conformed with
whenever possible. The subject of search and seizure is pres
ently receiving widespread interest on the part of the general
public, and violations of supposed ‘Constitutional Rights,’ no
matter how groundless, may bring unfavorable publicity.”
Id. at 93.
92 Bristow indicates that “ the patrolman should assume every
person he encounters may be armed.” Id., at 25.
53
pockets. In Sibron, eight hours’ observation of the defen-
fendant by a police officer discovered nothing but that he
was holding conversations with a number of narcotics ad
dicts ; nothing passed hands, and the officer overheard none
of the conversations. Reasonable suspicion was found. The
procedural history of the case, as we read the record,
portrays quite starkly the role of stop and frisk logic in
the dialectic of Fourth Amendment evasion. The arresting
officer appears at first to have wanted to present the case as
an ordinary “ dropsie”—one of those wonderfully lucky
cases in which the defendant takes occasion to toss away a
packet of heroin just as the officer appears on the horizon.
(See Complaint, Sibron R. 1.) At the hearing, however,
his testimony seemed designed to make out a “ consent”
case (id., 16). When the judge properly found no con
sent (id., 19), the prosecutor persuaded him that there
was probable cause for an arrest and search (id., 19-20).
That, of course, would not stand up on the record, and
“ reasonable suspicion” stepped into the breach at one or
another appellate stage. “ Reasonable suspicion” being
essentially unreviewable because the officer had a hunch
which proved right, the Stop-Frisk Model amply served to
justify the unjustifiable.
We have found only one New York decision in which any
court invalidated a stop for want of reasonable suspicion:
People v. Anonymous, 48 Misc. 2d 713, 265 N. Y. S. 2d
705 (Cty. Ct. 1965), where an officer stopped a boy walking
on a summer Sunday, in Hieksville, Long Island, with a
carton of books. It is enlightening, we think, to compare
that decision with People v. Reason, supra. In the latter
case, reasonable suspicion was found to be made out by
an officer’s observation that two Negro men got very quickly
54
into a taxi, on a Harlem street, one carrying a portable
phonograph and the other a portable T.Y., during day
light hours when the streets were full of people. A few
days prior to this date, the officer had attended a com
munity meeting at which residents complained of numer
ous burglaries in the area, but no complaint was made
of burglaries in the building before which the two Negro
men were seen to hail a cab, nor in the immediate sur
roundings, nor did the officer have any information relat
ing to any burglaries accomplished or in progress on that
date. Harlem is not Hicksville, however; burglaries do
occur frequently in Harlem; and there, doubtless lies the
difference in the cases. Such again is the nature of reason
able suspicion.
One additional point in the New York experience deserves
note. Coincidentally with the enactment of the Stop and
Frisk statute in that State, a circular was issued by the
New York State Combined Council of Law Enforcement
Officials setting guidelines for police performance under the
stop and frisk authorization. That circular is appended as
Appendix A to this brief. Inter alia, it provides that the
suspect is to be questioned and frisked “ in the immediate
area in which he was stopped,” but see People v. Pugach,
supra; People v. Hoffman, supra; that for “ purposes of
practical enforcement procedures,” the language of the
statute “ abroad in a public place” does not include public
portions of private buildings, such as hotel lobbies, etc.,
but see People v. Peters, supra; and that if “ the suspect
is carrying an object such as a handbag, suitcase, sack,
etc., which may conceal a weapon, the officer should not
open that item, but should see that it is placed out of
reach of the suspect so that its presence will not repre
55
sent any immediate danger to the officer,” but see People
v. Pugach, supra; People v. Peters, supra; People v. Rea
son, supra; and People v. Cassesse, supra. Obviously, offi
cers have regularly broken these rules, and the New York
courts as regularly have ignored them. The rules—flexible
and imprecise as they are—appear to be altogether too con
fining for a volatile conception of the nature of reasonable
suspicion.
We submit that what has happened even on the face
of the reported judicial decisions in New York fully con
firms our description earlier in this brief of the inevitable
consequences of the Stop-Frisk Model. “ Stops” have been
sanctioned that are not distinguishable in the extent of
their invasion of privacy from arrests; full-blown searches
are conducted in the name of “ frisks” ; and “ reasonable
suspicion,” incapable alike of explanation and judicial
supervision, serves only as a sophistical pretext for the
wholesale destruction of .Fourth Amendment rights.
We do not think that the New York experience is aberrant
in this regard, or that other States and other varieties of
stop and frisk might succeed where New York and its
section 180-a have totally failed. It is the basic Slop-Frisk
Model, we believe, that is aberrant. The intrusions which
it authorizes against the liberty and privacy of the citizen
are intolerable in a free society, unless they are hedged
about with effective checks and restraints. Such restraints
involve, first, the requirement of particularized justification
for the use of the intrusions against particular individuals
reliably believed to be criminally connected. They require,
second, that the justificatory standard be couched in terms
sufficiently objective and communicable that the citizen
can ascertain some inkling of the nature of his rights and the
56
policeman some conception of Ms powers and their limi
tations, so that, if those limitations be oppressively
transgressed, the policeman and his superiors can be
held accountable legally or politically as the case may be.
They require, in this last aspect, some fair opportunity
for independent review by the judiciary of the policeman’s
asserted justification for intrusion upon the citizen. The
means of providing these several related safeguards in
Anglo-American law has always been the probable cause
concept; and this Court has noted that it is a “ trouble
some line” which separates “mere suspicion” from probable
cause. Brinegar v. United States, 339 U. S. 160, 176
(1949). The innovation of stop and frisk theory which pur
ports to straddle that line with a turbid, amorphous, un
substantial conception of some state of police-perceived
putative guiltiness that is more than suspicion but less
than cause—whether the state be called “ reasonable sus
picion” or some other euphemism—is inherently, irremedi
ably defective.
The defect is exposed, we suggest, at the point where the
Stop-Frisk Model meets the real world of streets and
courts. There is nothing endemically wrong with the idea
of stop and frisk. Indeed, the mission of stop and frisk
theory to establish some third state of police powers, mid
way between those that can be exercised wholly arbitrarily
(such as the power of non-eoercive, non-detentive street
questioning) and those available only upon probable cause
(such as arrest and search), has the allure of sweet rea
sonableness and compromise. The rub is simply that, in
the real world, there is no third state; the reasonableness
of theory is paper thin; there can be no compromise. Prob
able cause is the objective, solid and efficacious method of
57
reasoning—itself highly approximative and adaptable, but
withal tenacious in its insistence that common judgment
and detached, autonomous scrutiny fix the limits of police
power—which has become, within our system of criminal
law administration, the indispensable condition of non
arbitrariness in police conduct. Police power exercised
without probable cause is arbitrary. To say that the
police may accost citizens at their whim and may detain
them upon reasonable suspicion is to say, in reality, that
the police may both accost and detain citizens at their whim.
But against that dangerous doctrine the Fourth Amend
ment sets its head. We urge that the Court so hold, un
equivocally and forcefully, in these cases.
We so urge although we recognize that, in some ways,
the issues before the Court in the Sibron, Peters and Terry
cases are framed quite narrowly. The immediate questions
are whether, on each record, the respective rights of Sibron,
Peters and Terry were violated and, in the New York
cases, whether Code of Criminal Procedure, § 180-a is
facially unconstitutional, see Berger v. New York, supra.
Those questions naturally invite attention to the factual
circumstances of each case—which show, we think, differ
ing degrees of police intrusiveness and differing degrees of
ostensible justification for it—and to the detailed body
of legal rules (which might be held separately or in com
bination offensive to the Fourth Amendment) that emerge
from the several provisions of the New York statute as con
strued. In this situation, we earnestly hope that the Court
will not choose to treat the questions before it as isolated
and independent matters—perhaps, in the process, giving
some color of authority to a “balancing” theory of the
58
Fourth- Amendment.93 Apart from Sibron, Peters and
Terry, thousands of our citizens daily are being stopped,
detained and searched without probable cause. The extent
of the intrusion varies from case to case; but all are uncon
stitutional, we believe, if there is (a) any restraint, or com
municated sense of restraint, of the citizen’s liberty of
movement; or (b) any physical touching, probing, “ frisk
ing” or searching of the citizen, (c) without probable cause
in its time-honored Fourth Amendment sense. We urge
the Court to so declare.
IV.
Stop-and-Frisk, Law Enforcement and the People.
We have as yet said nothing about the various arguments
to necessity and/or efficiency of the proponents of stop and
frisk. We think that, on any fair appraisal of the state of
present knowledge,94 those arguments can be dispatched
summarily: either as not proved (as the Court viewed
similar arguments urged upon it from Chambers v. Florida,
309 U. S. 227 (1940), to Miranda v. Arizona, 384 U. S. 436
(1966)), or as necessarily subordinated by the Constitu
tion of the United States (as the Court viewed the efficiency
arguments made in Berger v. New York, supra). Par
ticularly where, as here, the argument of police need is
advanced to support the allowance of new police powers
•—powers never heretofore given under the Constitution;
indeed, powers that erode pro tanto the bedrock principle
of probable cause which undergirds the settled constitu
93 See note 57 supra and accompanying- text.
94 See the literature collected in notes 15, 81 supra.
59
tional doctrine of the Fourth Amendment—-we believe that
the showing of need required to sustain the argument
should be both factually convincing and normatively com
pelling. The argument of police need for street detention
and frisk powers is neither.
Professor Herman Goldstein, a long-time student of the
police and police administrator put the matter most suc
cinctly in a recent article:
“ It is probably true that a program of preventive
patrol does reduce the amount of crime on the street,
although there has been no careful effort to measure
its effectiveness. It is also apparent, however, that
some of the practices included in a preventive patrol
program contribute to the antagonism toward the
police felt by minority groups whose members are
subjected to them. A basic issue, never dealt with ex
plicitly by police, is whether, even from a purely law
enforcement point of view, the gain in enforcement
outweighs the cost of community alienation.” 95
Others have asked the same or similar questions.96
Proponents of stop and frisk are fond of asserting that
“aggressive patrol” keeps the crime rate down. We have
not seen convincing evidence of this proposition. But even
were it established that the result of aggressive patrol was
95 Goldstein, Police Policy Formulation: A Proposal for Improv
ing Police Performance, 65 Mich. L. Rev. 1123, 1140 (1967).
96 See Traynor, Lawbreakers, Courts and Law-Abiders, 31 Mo. L.
Rev. 181, 201 (1966) ; Norris, Constitutional Law Enforcement Is
Effective Law Enforcement: Toward a Concept of Police in a
Democracy and a Citizens’ Advisory Board, 43 U. Det. L. J. 203,
221-224 (1965) ; Foote, Law and Police Practice: Safeguards in
the Law of Arrest, 52 Nw. U. L. Rev. 16, 28.
60
a decrease in street crime, of course it would not follow that
the stop and frisk methods of aggressive patrol were neces
sary to achieve the decrease. Aggressive patrol involves
both increased police presence on the streets and increased
police intrusion. To say, when a program of aggressive
patrol is followed by lower rates of reported crime (if it is)
that the increased intrusion, or the combination of increased
intrusion and presence is causing the observed effect—
rather than that the increased presence alone is causing it—
is mere speculation. The South African “blitz” practice de
scribed in note 11, supra, provides an obvious example. We
are told that when a wave of 1000 to 2500 policemen suddenly
inundates an area and manhandle all the blacks in sight,
the robbery rate falls 50 per cent. That is an impressive
figure. But one is led to wonder whether the robbery rate
would not be quite as startlingly affected if 1000 to 2500
policemen suddenly appeared on the streets of the same
small area, even if they did not stop and search the blacks.
Surely, 2500 policemen flooding a neighborhood would have
some effect, even if they did nothing but stand on the corners
and talk to one another.97
However that may be, the point remains, as Professor
Goldstein notes, that the evidence of the ill effects of stop
and frisk practices, particularly in the ghetto, is as strong
at least as any evidence of their good effects “ from a purely
law enforcement point of view.” We have earlier noted the
obvious, unhappy fact that the policeman today is the ob
97 For suggestions of the strong effect of increased poliee presence
alone on crime control, see Foote, The Fourth Amendment: Ob
stacle or Necessity in the Law of Arrest, 51 J. Ckim. L., Ceim. &
Pol. Sci. 402, 405 (1960); Kennedy, Crime in the Cities: Improv
ing the Administration of Criminal Justice, 58 J. Grim. L., Crim. &
P ol. Sci. 142, 143 (1967).
61
ject of widespread and intense hatred in onr inner cities.98
The National Crime Commission’s Task Force on Police
points to stop and frisk practices as one (obviously, only
one) of the causes of this phenomenon.
“ Misuse of field interrogations . . . is causing serious
friction with minority groups in many localities. This
is becoming particularly true as more police depart
ments adopt ‘aggressive patrol’ in which officers are en
couraged routinely to stop and question persons on
the street who are unknown to them, who are suspicious,
or whose purpose for being abroad is not readily evi
dent. The Michigan State survey found that both mi
nority group leaders and persons sympathetic to minor
ity groups throughout the country were almost unani
mous in labelling field interrogation as a principal
problem in police community relations.” 99
The least implication of these observations is that the
police assertion of a need for stop and frisk power may
itself reflect the same battle psychology100 that is respon
sible for over-frequent use of the power—a psychology that
is not always conducive to the best judgment, even on the
question of what is good for the police. But the observa
tions have other, more troubling implications which, in
candor, we cannot pretermit. We are gravely concerned
by the dangers of legitimating stop and frisk, and thus en
couraging, and increasing the frequency of occasions for,
98 See note 75 supra .
99 President’s Commission on Law Enforcement and A dminis
tration op J ustice, Task F orce Report.- The Police 184 (1967).
100 See notes 74-77 supra . See also Skolnick op . cit . supra , note
74, at 87-88,105.
62
police-citizen aggressions. Speaking bluntly, we believe
that what the ghetto does not need is more stop and frisk.
It is no accident that many major riots suffered since
1964 have been sparked by a public confrontation between
the police and Negroes. Regardless of the underlying fac
tors which set the stage for riot or increase its likelihood,
it is plain that police-community encounters have triggered
outbreaks of group hostility:
In Cincinnati a Negro man protesting the death
sentence of another Negro is arrested. In Boston, po
lice advance with truncheons on women sitting-in at
the welfare department. In Tampa, a cop shoots a
Negro burglary suspect in the back after he had re
fused to halt. Each incident triggered violence. Stores
were burned and looted, people injured. Rioting ended
in Boston not because the police had dispersed crowds,
but because the cops went away.101
Or as the New York Times put it:
“ Even before Newark the script was familiar. Some
minor incident begins it all, often the arrest of a
Negro by a policeman.” 102
We do not suggest, we emphasize lest we be misunder
stood, that police conduct in any way “ causes” riot or is
responsible for it. Would it were so; the wrong could then
be more readily righted. We will not repeat the “ appall
101 “ Summer Riots” New Republic, June 24, 1967, p. 7. See also
Hayden, The. Occupation of Newark, 9 New York Review of Books,
No. 3, Aug. 24,1967, p. 14.
102 Edit., New York Times July 16, 1967.
63
ingly familiar, statistical litany” 103 of social ills which are
responsible. We only observe that the frustration and bit
terness of poverty, unemployment, slum housing, ignorance
and segregation easily fixes on the police; that in return,
and often for quite good reasons, the police view the
Negro with fear; and—how apt the word here—suspicion.
The bloody turmoils which we have experienced are ignited
and intensified by this mutual hostility.
The gap between Negroes and the police is enormous. A
study by the National Crime Commission shows that “ non
whites, particularly Negroes, are significantly more nega
tive than whites in evaluating police effectiveness in law
enforcement.” 104 Negroes and whites have widely different
perceptions of police discourtesy, misconduct and honesty
and the need for police protection.105 The Commission’s
study supports the conclusions of the Director of the Lem
berg Center for the Study of Violence, in a letter to coun
sel, that the police and Negro youth have perceptions of
each other which escalate the conflict between them.106
You have asked whether the Lemberg Center for the
Study of Violence is in a position to make a state
ment on police-community relations as they affect
behavior within the Negro ghetto. We have done a
103 Rustin, Black Power and Coalition Politics 42 Commentary 37
(Sept. 1966).
104 President’s Commission on Law Enforcement and A dminis
tration of Justice, Task F orce Report : The Police 146 (1967).
105 President’s Commission on Law Enforcement and A dminis
tration of Justice, Task F orce Report: The Police 146-149
(1967).
106 The original of Dr. Spiegel’s letter of July 14, 1967 has been
deposited with the clerk.
64
great deal of face-to-face interviewing with Negroes
in the ghettos of six different cities and have accu
mulated observations on some of the psychological
aspects of interactions between Negro youth and young
adults on the one hand and white police officers on
the other.
According to our observation, police attitudes toward
working class Negro youths and young adults are often
based on the concept of the Negro as a savage, or
animal, or some being outside of the human species.
Therefore, the police expect behavior from Negroes
in accordance with this concept. The young Negroes in
cities have complementary attitudes toward police of
ficers. The police are perceived as animal-like, brutal,
and sadistic—again, outside the human species.
Because of the police officers conception of the Negro
male, he frequently feels that most Negroes are dan
gerous and need to be dealt with as an enemy even
in the absence of visible criminal behavior. Since he
feels that he is dealing with an unreliable and power
ful enemy, he has to deal with the threat in drastic
ways, namely by suddenly and ruthlessly stripping and
disarming any Negro who has aroused his suspicion.
Because of the Negro’s concept of the police, the young
Negro male feels that he has only two alternatives
open to him—intense resistance or abject surrender.
These complementary attitudes result in a vicious
circle of behavior which serves to confirm the image
which Negro males and police officers hold of each
other. In addition, police practices meant to over
power or cow the suspect before evidence of his of
65
fense is obtained have mainly a provocative effect.
Such provocation is especially unfortunate in that it
tends to produce an impression in the suspect that
the police are not only as brutal as assumed, but are
also frightened. In the mind of the Negro male, the
police officer is over-reacting to the potential offense
involved in the usual situation and this over-reaction is
probably the result of fear as well as sadism. If the
policeman is perceived as either frightened or brutal,
the Negro male develops an attitude of contempt for
the policeman as for his authority.
It is clear to me that it will be difficult to correct
this complex process of interaction. As a start, bet
ter guidelines are needed for police behavior in respect
to young Negro males. Specifically, it would be help
ful if the police were trained to make more careful
discriminations, wherever possible, with respect to
potential Negro offenders. They should begin by
interrogating any suspect as if he were a human be
ing and as if he could be trusted to give responsible
answers to the police officer in his mandatory role of
investigating possible criminal behavior. It is often
said that the police should be asked to show more “ re
spect” for ghetto dwellers. I think this expression over
simplifies the situation as it is difficult to show respect
to someone not considered to be a human being. My
idea is that police officers should have more familiar
ity with the psychology of Negro youths so that they
could make a more differentiated and appreciated re
sponse to their behavior. This would enable the police
officer more readily and reliably to distinguish those
Negro youths who are actually dangerous from those
66
who would cooperate with police officers if they were
treated as responsible human beings.
I realize that these statements are only a beginning
and that much more work in this area needs to be done.
However, I hope that you will find what I have to say
helpful in your own work.
John P. Spiegel, M.D.
Director
The Center’s study of recent riots describes how police
conduct may function, if perceived as unjust, to ignite
violence:
“ . . . riots tend to break out as a result of the
interaction of two factors—the ‘grievance level’ of
people in the ghetto and the inflammatory nature of
the event which precipitates the initial disturbance.
These two factors are in a reciprocal relation with
each other: the higher the grievance level, the slighter
the event required to trigger the riot. Low levels of
Negro discontent require an event which is highly in
flammatory in order that a riot break out. An ‘inflam
matory event’ is usually an incident which is initiated
by white people and which is perceived by black people
in the ghetto as an act of injustice or as an insult to
their community. The greater the injustice is per
ceived to be, the more ‘inflammatory’ is the effect of
the incident.107
107 Six Cities Study—a Survey of Racial Attitudes in Six North
ern Cities: Preliminary Findings, A Report of the Lemberg
Center for the Study of Violence, Brandeis University, June 1967.
67
There is, therefore, growing dissatisfaction on the part
of many Negroes, especially the young, which focuses on
the police as the most visible and provocative members of
the white community. At the same time, police conduct
and capacity is viewed in a dramatically distinct manner
by Negroes, the police and other residents of the community.
In such a context, the need for “ better guidelines . . .
for police behavior”, as Dr. Spiegel writes, is obvious. The
National Crime Commission Task Force on Police felt com
pelled to repeat again and again the conclusion we have pre
viously noted: that “ field interrogations are a major source
of friction between the police and minority groups” 108 and
that “misuse of field interrogations” causes “ serious fric
tion with minority groups in many localities.” 109 Arbitrary
police conduct epitomizes, and sets off a response to, many
grievances.110
108 President's Commission on Law Enforcement and A dminis
tration of Justice, Task F orce Report : The P olice 183 (1967).
109 Id., at 184. Although the Crime Commission believes that
there is a need to authorize the police to stop suspects and possible
witnesses of major crimes to detain them for brief questioning and
to search for dangerous weapons, the Commission recommends
such authority be hedged about with restrictions which the New
York and Ohio practices under scrutiny do not contain. Id. at 185.
In addition, the Commission concluded that “arrests for investiga
tion or on suspicion, whatever label is attached, should be abolished
by all departments that now utilize them. This practice has long
been a source of justified community hostility.” The Commission
reached this conclusion after surveying arrest statistics which
showed that arresting persons as a means of detaining them while
an investigation of their possible involvement in the crime is con
ducted has been a common practice. But as we have shown, there
is no real distinction between arrest on suspicion and detention
and search for suspicion.
110 See id., at 185:
'The study concluded that the juveniles understood being
sought and interrogated for their illegal activity:
68
To legitimate detention and search on “ reasonable sus
picion”—without probable cause—therefore is to give free
reign to police intervention in the most dangerous way
(without objective standards) in the most dangerous place
(the ghetto street). If the police and the ghetto dweller
view each other with fear, suspicion, often hatred, any en
forced stop is a potential source of conflict. But when the
stop is based on the inarticulate, unregulated judgment of
the cop on the beat, the potential is magnified.
We do not suppose that such considerations as these can
or should determine the Fourth Amendment question. We
have rested our constitutional submission not on them, but
on the firm grounds of history, authority and (we respect
fully submit) reason, set out in Parts I-III of this Brief.
However, we anticipate that the States of New York and
Ohio will make the familiar inflated claims for stop and
frisk as tools of lawT and order. If they do, let there be
no mistake about this call to practicality. Whatever its con
veniences and benefits to a narrow view of law-enforcement,
stop and frisk carries with it an intense danger of inciting
destructive community conflict. To arm the police with an
inherently vague and standardless power to detain and
search, especially where that power cannot effectively be
‘If you done something and you be lying and yelling when
the boys from juvy come around and they catch you lying,
well, what you gonna do? You gonna complain ’cause you
was caught? Hell man, you can’t do that. You did something
and you was caught and that’s the way it- goes.
But they were indignant about field interrogation for offenses
they did not commit—when “we were just minding our own
business when the cops came along.” And they particularly
resented being singled out because of their clothes or hair:
“Hell man, them cops is supposed to be out catching criminals!
They ain’t paid to be lookin’ after my hair!” The juveniles
consider this harassment by the police as a policy of confine
ment by a “ foreign army of occupation.” ’
69
regulated, contributes to the belief which many Negroes
undeniably have that police suspicion is mainly suspicion
of them, and police oppression their main lot in life. Arbi
trary police interrogation, street detention, and frisk are
nothing less than a major part of that social and psycho
logical constellation which in them produces “untoward
counter reactions of violence.” Lankford v. Gelston, 364 F.
2d 197, 204, n. 7 (4th Cir. 1966).
CONCLUSION
The Court should hold that neither stops nor frisks
may be made without probable cause. In each of these
cases, the judgment of conviction should be reversed.
Respectfully submitted,
Jack Greenberg
James M. Nabrit III
Michael, Meltsner
Melvyn Zarr
10 Columbus Circle
New York, New York 10019
A nthony G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Attorneys for the NAAGP Legal
Defense and Educational Fund,
Inc.
Of Counsel:
W illiam E. McDaniels, J r.
3400 Chestnut Street
Philadelphia, Pa. 19104
A P P E N D I X
la
APPENDIX
Circular of the New York State Combined Council
of Law Enforcement Officials
Circular No. 25.
I nstruction 's to M embers oe th e F orce Concerning
th e “ S top and F risk” (C hapter 86) and
“ No K n o ck ” (C hapter 85) L aws
Two new statutes, with major impact on police authority,
become effective in New York State on July 1, 1964.
These laws, if properly utilized, can be of considerable
aid in safeguarding our communities. Their passage re
sulted in part from the combined strenuous efforts ex
pended by New York State’s various law enforcement
agencies. As in the case with all other law enforcement
powers, whether or not these sorely-needed enactments will
withstand the attacks that will be made upon their con
stitutionality, and will stand as laws upon the books of this
State, will depend in large measure upon the fashion in
which they are carried out. They should be enforced with
full recognition that their purposes are to protect the com
munity, while simultaneously protecting and treating fairly
all persons in it.
Every member of the force has the responsibility of see
ing to it that the powers conferred by these new statutes
are used to further those purposes for which they were
enacted. Some guidelines for proper conduct pursuant to
these statutes are set forth herein:
2a
I T he “ Stop-and-Frisk” Law (Chapter 86, Laws of 1964)
The new statute, which becomes § 180-a of the Code of
Criminal Procedure, provides as follows:
§ 180-a. Temporary questioning of persons in public
places; search for weapons.
1. A police officer may stop any person abroad in a
public place whom he reasonably suspeets is commit
ting, has committed or is about to commit a felony or
any of the crimes specified in section five hundred
fifty-two of this chapter, and may demand of him his
name, address and an explanation of his actions.
2. When a police officer has stopped a person for
questioning pursuant to this section and reasonably
suspects that he is in danger of life or limb, he may
search such person for a dangerous weapon. If the
police officer finds such a weapon or any other thing
the possession of which may constitute a crime, he may
take and keep it until the completion of the question
ing, at which time he shall either return it, if lawfully
possessed, or arrest such person.
A. General Principles:
1. The new law does not permit an officer to stop just
any passer-by and search him, nor does it allow the
search of any person merely because he has a criminal
record.
2. The new law does not permit the stopping and
searching of any person found in the vicinity of a
crime scene, merely because he happens to be there.
3a
3. The new law does not dispense with the need for
adequate observation and investigation, depending
upon all the circumstances, before a stop is made.
4. No officer should stop anyone, under the new law,
unless he is prepared to explain, with particularity, his
reasons for stopping such person.
5. No officer should stop anyone, under the new law,
unless the crime he reasonably suspects is a felony
or one of those misdemeanors listed in § 552 of the
Code of Criminal Procedure.
6. When a person is stopped under the new law, the
officer—if not in uniform—must properly and promptly
identify himself to the person stopped.
7. Not everyone stopped may be searched; searches
are only permitted when the officer reasonably sus
pects that he is in danger.
8. The right to stop provided in the new law in no
way changes the previously existing authority of an
officer to make an arrest without an arrest warrant,
as provided by § 177 of the Code of Criminal Proce
dure. The new rights to stop and to search, as defined
in the new statute, are separate and distinct from the
established right to arrest, as provided by existing
law, and to make a complete search incident to such
arrest.
9. Whether or not an arrest follows a stopping under
the new law, whenever any force is used in stopping
the suspect, or whenever any frisk or search is made,
a written report shall be made to the officer’s superior
officer. Form for such reports, together with instruc-
4a
tions for their use, will he distributed with separate
orders.
B. T he R ight to “ Stop.”
1. “ stop” :
The new statute gives the officer the right to stop a
person under the indicated circumstances. If the sus
pect refuses to stop, the officer may use reasonable
force, but only by use of his body, arms and legs. He
may not make use of a weapon or nightstick in any
fashion. (Of course, if there is an assault on the offi
cer or other circumstances sufficient to justify an ar
rest, the officer may use necessary force to effect that
arrest.)
2. “ abroad in a public place” :
a. For the purposes of practical enforcement proce
dures, this phrase is viewed as being restricted to
public highways and streets, beaches and parks (to
include outdoor facilities open to the public even
though privately owned), depots, stations, and pub
lic transportation facilities.
b. For the purpose of practical enforcement proce
dures, this phrase is viewed as not including the
public portions of private buildings such as hotel
lobbies, moving picture theatres, licensed premises,
etc.
c. Definitions of the words “ public place” as found in
other laws, such as those dealing with disorderly
conduct, are not to be substituted for the strict
definition of “ abroad in a public place” as out
lined above.
5a
3. “whom he reasonably suspects” :
a. The words “ reasonably suspects” are not to be
lightly regarded; they are not just an incidental
phrase; they have real meaning. “Reasonable sus
picion” is clearly more than “mere suspicion.” At
the same time it is something less than “ reasonable
ground for believing” that a crime is being com
mitted, as is necessary for an arrest.
b. No precise definition of “ reasonably suspects” can
be provided, other than that it is such a combina
tion of factors as would merit the sound and objec
tive suspicions of a properly alert law enforcement
officer, performing his sworn duties. Among the
factors to be considered in determining whether or
not there is “ reasonable suspicion” are:
i. The demeanor of the suspect.
ii. The gait and manner of the suspect.
iii. Any knowledge the officer may have of the
suspect’s background or character.
iv. Whether the suspect is carrying anything,
and what he is carrying.
v. The manner in which the suspect is dressed,
including bulges in clothing—when con
sidered in light of all of the other factors.
vi. The time of the day or night the suspect is
observed.
vii. Any overheard conversation of the suspect,
viii. The particular streets and areas involved.
6a
ix. Any information received from third per
sons, whether they are known or unknown.
x. “Whether the suspect is consorting with
others whose conduct is “ reasonably sus
pect.”
xi. The suspect’s proximity to known criminal
conduct.
(This listing is not meant to be all inclusive.)
c. “ Reasonable suspicion” of any crime at all does
not afford a basis for stopping under the new law;
there must be reasonable suspicion that the suspect
is committing, has committed, or is about to com
mit either any felony or one of those misdemeanors
enumerated in § 552 of the Code of Criminal Pro
cedure. (These misdemeanors are weapons crimes,
burglar’s tools, receiving stolen property, unlawful
entry, escape, impairing, carnal abuse, indecent ex
posure, obscenity and other indecency provisions,
sodomy, rape, narcotics, amphetamines and hypo
dermic needles.) Suspicion of disorderly conduct,
an offense, is not for the purpose of practical en
forcement procedures a basis for stopping.
C. T he R ight to “ Question” .
1. No questions are to be asked until the officer has,
either by being in uniform or by showing his shield
and stating he is a police officer, identified himself.
2. Promptly thereafter, the suspect should be ques
tioned (and frisked, when appropriate) in the imme
diate area in which he was stopped.
7a
3. Should the suspect refuse to answer the officer’s
questions, the officer cannot compel an answer and
should not attempt to do so. The suspect’s refusal to
answer shall not be considered as an element by the
officer in determining whether or not there is a basis
for an arrest.
4. In ascertaining “ his name” from the suspect, the
officer may request to see verification of his identity,
but a person shall not be compelled to produce such
verification.
5. If the suspect does answer, and his answers ap
pear to be false or unsatisfactory, the officer may ques
tion further. Answers of this nature may serve as an
element in determining whether a basis for arrest
exists. (But if an officer determines that an answer is
“ unsatisfactory” and relies upon this in part to sus
tain his arrest, he should be able to explain with par
ticularity the manner in which it is “unsatisfactory.” )
6. If, after he has been stopped and the officer has
identified himself, the suspect attempts to flee from
the officer, this fact may be an element in determining
whether a basis for arrest exists. However, the officer
should not resort to the use of a weapon or other
extraordinary means to stop the flight unless he has
information which now leads him to reasonably be
lieve that the suspect has committed a felony.
D. The B ight to “ Search.”
1. Clearly no right to search exists unless there is a
right to stop.
8a
2. Nor is a search lawful in every case in which a right
to stop exists. A search is only justified under the new
law when the officer reasonably suspects that he is in
danger. This claim is not to be used as a pretext for
obtaining evidence. In instances in which evidence is
produced as a result of a search, the superior officers,
the prosecutors, and—it is anticipated—the courts, will
scrutinize particularly closely all the circumstances
relied upon for justifying the stopping and searching.
3. No search is appropriate unless the officer “ reason
ably suspects that he is in danger.” Among the fac
tors that may be considered in determining whether to
search are:
a. Nature of the suspected crime, and whether it in
volved the use of a weapon or violence.
b. The presence or absence of assistance to the officer,
and the number of suspects being stopped.
c. The time of the day or night.
d. Prior knowledge of the suspects’ record and reputa
tion.
e. The sex of the suspect.
f. The demeanor and seeming agility of the suspect,
and whether his clothes so bulge as to be indicative
of concealed weapons.
(This listing is not meant to be all inclusive.)
4. Initially, once the determination has been made that
the officer may be in danger, all that is necessary is a
frisk-—an external feeling of clothing— such as would
reveal a weapon of immediate danger to the officer.
9a
5. A search of the suspect’s clothing and pockets
should not be made unless something is felt by this
frisk—such as a hard object that feels as if it may be
a weapon. In such event, the officer may search that
portion of the suspect’s clothing to uncover the article
that was felt.
6. If the suspect is carrying an object such as a hand
bag, suitcase, sack, etc. which may conceal a weapon,
the officer shoud not open that item, but should see that
it is placed out of reach of the suspect so that its pres
ence will not represent any immediate danger to the
officer.
E. A n E xample:
An example may help to illustrate. Assume that a mug
ging has just occurred. The officer questions the victim..
She says that her pocketbook was taken and she gives a
description of the suspect stating, among other things,
that he is about six feet tall and was wearing a brown
leather windbreaker. While the victim is receiving medical
treatment, the officer starts a search of the area. He sees
a man hurrying down a dark street. The man’s hand is
clutching at a bulge under his brown windbreaker, and he
glances back at the officer repeatedly. The suspect meets
the description of the perpetrator except for one discrep
ancy: he is only five feet tall.
The officer does not have reasonable grounds to arrest
the suspect for his description is clearly inconsistent with
the victim’s estimate of the perpetrator’s height. However,
from the officer’s experience he realizes that victims of
crime, in an excited condition, often give descriptions which
are not correct in every detail. Although he lacks reason
10a
able grounds to make an arrest, from all of the circum
stances the officer “reasonably suspects” that the man he
has spotted has committed the crime. Under the new law,
the officer may stop this person, and may ask for his iden
tification and an explanation of his actions. And because the
crime involved violence and the suspect’s windbreaker
seems to conceal unnatural bulges, a frisk may be in order.
®B MOBTON »TBKr»
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