QUIZ: Spot the Illegal Police Stop

When police departments get into trouble, it’s often due to how they’re stopping people on the street. Since 1994, the Department of Justice has opened 68 investigations of law enforcement agencies for civil rights violations, and in 29 of those cases, police were under fire for allegations of unlawful stops, searches or seizures. Even when the Justice Department isn’t involved, unlawful stops can still get police in trouble — as was the case with New York’s stop-and-frisk policy in 2013.

The stakes in an investigatory police stop can be high — what an officer discovers during a stop, and how, helps determine whether someone is allowed to carry on with their day or whether they’ll be sent to jail. If they’re arrested, the way the stop is conducted may also determine what evidence can be used at trial.

The Fourth Amendment is meant to protect against unreasonable searches and seizures, but when it comes to police stops, the law can be “very permissive,” according to John Rappaport, an assistant professor of law at the University of Chicago and a former clerk for Supreme Court Justice Ruth Bader Ginsberg. “Language that the court uses in 1966 to describe a frisk makes it sounds like they really understood that this is a gross invasion of privacy, when an officer frisks someone, this is a serious thing.” Now, he says, such stops happen “thousands of times a day.”

So what exactly are the limits of the law? That’s a question the Supreme Court has been forced to address time and time again over the years. The cases below are only a snapshot of the legal history around police stops, but they offer a sense of how the court has thought about this issue. See if you can spot when police crossed the line. Good luck.

The Indiscriminate Checkpoint

In 1998, police in Indianapolis began setting up vehicle checkpoints around the city in a bid to root out illegal drugs. At each checkpoint, police would stop a set number of vehicles. One officer would conduct an open-view examination of the car or truck from the outside, while another officer would walk around it with a narcotics dog. Stops were designed to last no more than five minutes.

Is it a legal stop?

ANSWER: NO

True, the Supreme Court has given the green light to roadblocks for police to check for illegal immigration or to get drunk drivers off the road. But in Indianapolis v. Edmond, decided in 2000, it ruled that a search or seizure conducted “in the absence of individualized suspicion of wrongdoing” goes too far. With sobriety checkpoints, the court said, the point is to reduce “the immediate hazard” posed by drunk drivers. With immigration checkpoints, it said that suspicion-less searches can be allowed given the “formidable law enforcement problems” associated with the “tide of illegal entrants into the United States.” In her opinion for the majority in the Indianapolis case, Justice Sandra Day O’Connor wrote: We cannot sanction stops justified only by the generalized and ever present possibility that interrogation and inspection may reveal that any given motorist has committed some crime. In short, O’Connor said, if the court allowed suspicion-less stops around narcotics, “there would be little check on the authorities’ ability to construct roadblocks for almost any conceivable law enforcement purpose.” When the Department of Justice investigated police departments inFerguson, Mo. and Newark, N.J., among others, it pointed to the Indianapolis checkpoints as an example of “unreasonable” searches or seizures by law enforcement.

Robbery in Progress?

A plain clothes police officer sees two men walking back and forth on a downtown street in Cleveland, pausing to stare in the same store window about 24 times. At the end of each run, the two men hold a quick conversation on the corner. At one point they’re joined by a third man. Suspecting the men of “casing a job, a stick-up,” the officer approaches them, identifies himself as a policeman, pats them down and finds weapons on two of them.

Is it a legal stop?

ANSWER: YES

This stop was not only legal, it established much of the foundation for what’s considered a reasonable stop and search under the Fourth Amendment. On the afternoon of Oct. 31, 1963, a Cleveland detective named Martin McFadden noticed three men, John Terry, Richard Chilton and Carl Katz in the middle of what he thought may be the start of a robbery attempt. After identifying himself as a police officer, McFadden patted down the outside clothing of all three men. He didn’t notice a weapon on Katz during the pat down, so he never placed his hands beneath his outer garments. He did feel guns on both Terry and Chilton — so he reached into their pockets and confiscated them. Terry and Chilton were charged with carrying concealed weapons, but at trial they argued that the officer’s “search and seizure” violated their Fourth Amendment rights. At issue in the case, Terry v. Ohio, was whether it’s always unreasonable for a police officer to seize a person and subject him or her to a limited search for weapons without any probable cause for an arrest. In an 8-1 opinion, the Supreme Court ruled that as long as an officer has reasonable suspicion that a crime may be in progress, it wasn’t. Writing for the majority in the case, Chief Justice Earl Warren explained:

"… where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

Today, the principles laid out in Terry form the basis for what’s known in law enforcement as a “Terry stop,” more commonly known as “stop and frisk.”

Underlying it all is the idea of “reasonable suspicion, a lower standard than what’s needed to make an arrest: probable cause. “Reasonable suspicion they’ve made clear is more than a hunch, but it’s not much more than that,” said Rappaport. “It’s a very forgiving standard,” according to Seth Stoughton, an assistant professor of law at the University of South Carolina. “If probable cause is a low bar, you can imagine how much lower reasonable suspicion is.”

Footprints in the Desert

Border Patrol officers in Arizona begin to notice human footprints in the desert. Based on these prints, they guess that groups of around 8-20 people are crossing the U.S. border illegally from Mexico and walking to an isolated pickup spot on a nearby highway.

After some more detective work, they develop a theory around when these pickups are taking place. Early one morning, they pull over a driver whom they suspect of being the smuggler. The officers ID themselves and announce that they’re performing an immigration check.

In the passenger seat is a man whose shoes match a footprint found earlier in the desert. In a camper attached to the truck are six people who are in the country illegally. The driver and the passenger are arrested and charged with six counts of “transporting illegal aliens.”

Is it a legal stop?

ANSWER: YES

The opinion in this 1981 case, United States v. Cortez, is among a handful of key decisions to expand on the standard set in Terry v. Ohio. In a 9-0 decision, the Supreme Court said that the police have the authority to stop someone if “the totality of circumstances — the whole picture” leads to a reasonable suspicion that criminal activity may be underway.

In this instance, the court said it was clear that the Border Patrol had more than enough circumstantial evidence to justify its stop of Jesus Cortez, the driver, and Pedro Hernandez-Loera, the passenger.

Obviously there’s nothing inherently suspicious about a pickup truck driving down a highway, but in this case, the officers had taken other factors into account. For example, they knew the highway spot where immigrants were being picked up; they guessed that the driver would have to be coming from the east; they knew, based on when the foot tracks were discovered, that pick ups happened on clear nights and that they happened between 2 a.m. and 6 a.m. The smuggler would also need a large truck or camper to carry large groups of people.

All these factors were at play when they stopped Cortez and Hernandez-Loera, who argued in court that officers lacked adequate cause when they made their investigative stop.

“The process of assessing all of the circumstances does not deal with hard certainties, but with probabilities, and the evidence collected must be weighed as understood by those versed in the field of law enforcement,” the court said. “Also, the process must raise suspicion that the particular individual being stopped is engaged in wrongdoing.”

That principle has been highlighted in other important decisions. In the 1989 case United States v. Sokolow, for example, the court reinforced the point that “the totality of the circumstances must be evaluated to determine the probability, rather than the certainty, of criminal conduct.” In that case, the Drug Enforcement Agency stopped a suspected drug trafficker in a Honolulu airport after he bought ticket in cash, appeared nervous and did not check any of his luggage.

The High-Crime Area

A man is standing in a Chicago neighborhood known for heavy narcotics trafficking. He’s holding an opaque bag when he sees police officers enter the area. Suddenly, he begins to run. The officers catch him, pat him down for weapons and find a .38-caliber handgun. The man is placed under arrest and convicted of unlawful use of a weapon by a felon.

Is it a legal stop?

ANSWER: YES

Before this 2000 case, Illinois v. Wardlow, the Supreme Court ruled inBrown v. Texas that just being in a neighborhood “frequented by drug users, standing alone” is not enough of a basis to conclude that someone is “engaged in criminal conduct.” Without that basis, a stop is usually illegal.

The court agreed in Wardlow, writing that “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”

But when you introduce another element into the equation — in this case, running away from the police — that can be enough to give police reasonable suspicion that criminal activity is afoot.

“Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such,” wrote Chief Justice William Rehnquist in his opinion for the majority. “The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior,” he said.

The Anonymous Tip

Police in Miami receive an anonymous tip from an unknown caller at an unknown location that a black male in a plaid shirt was standing near a bus stop carrying a gun. Two officers respond to the call and find three black males — including a 15-year-old who is wearing a plaid shirt. Apart from the tip, they have no reason to suspect either of the three of illegal conduct, but they frisk the teen anyway and find a gun on him. He’s charged with carrying a concealed firearm without a license and possessing a firearm while under the age of 18.

Is it a legal stop?

ANSWER: NO

In the 2000 case Florida v. J.L., the Supreme Court ruled 9-0 that an anonymous tip alone is not enough to justify a stop and frisk.

Generally speaking, Justice Ruth Bader Ginsberg wrote for the court, if an officer can reasonably conclude “in light of his experience that criminal activity may be afoot,” then he or she can make a stop. But when Miami-Dade Police stopped the teens in this case, it was based on a tip, not their own observations. At a minimum, a tip needs to offer a moderate level of reliability, including some form of “predictive information” that gives officers “means to test the informant’s knowledge or credibility.” As Ginsberg said:

The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Ginsberg also made a distinction between an anonymous tip and one from a known source.

“Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated … ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,’” she wrote. Yet there are times when an anonymous tip can be used to help justify a stop.

In the 2014 case, Navarette v. California, police in California received an anonymous tip from a 911 caller with the information that a Ford F150 pickup truck had run an unidentified vehicle off the road. The caller also gives a license plate for the truck. When officers found the truck and pulled it over, they smelled marijuana. In the bed of the pickup, they discovered 30 pounds of marijuana. The driver and his passenger were both arrested for transportation of marijuana.

Writing for the majority in the case, Justice Clarence Thomas said that because the tip came from the woman who had been run off the road by the truck, it carried more weight. She was also able to provide the license plate number. As Thomas explained:

This is in contrast to J. L., where the tip provided no basis for concluding that the tipster had actually seen the gun … There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m. (roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

Taken altogether, that was enough to provide the officers with reasonable suspicion, Thomas said.

"Step Out of the Car"

Two Philadelphia police officers pull over a driver for an expired license plate. They ask the driver to exit the car to show his license and registration. When he does, one of the officers notices a large bulge under his jacket. When the police frisk him, they find a loaded revolver. The driver is arrested and then indicted for carrying a concealed deadly weapon and for unlawfully carrying a firearm without a license.

Is it a legal stop?

ANSWER: YES

In the 1977 case Pennsylvania v. Mimms, the Supreme Court was forced to answer the question of whether an officer can order a driver out of his or her car during a routine traffic stop — an issue that came up last year after the death of Sandra Bland in Texas.

In the Mimms case, it ruled that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.”

According to the majority, police had already stopped Harry Mimms for a perfectly legitimate reason — an expired license plate. It called any intrusion on his “personal liberty” by the order to exit the car at that point “a mere inconvenience” that “cannot prevail when balanced against legitimate concerns for the officer’s safety.”

Three justices dissented to the decision. Justice Thurgood Marshall argued that any search that comes out of the stop needs to relate to the reason for the original stop. “The officer did not have even the slightest hint, prior to ordering respondent out of the car, that respondent might have a gun,” he wrote.

In their dissent, Justices John Paul Stevens, William Brennan and Thurgood Marshall said the decision gave too much discretion to police, and warned of the implications. As they wrote:

"… to eliminate any requirement that an officer be able to explain the reasons for his actions signals an abandonment of effective judicial supervision of this kind of seizure and leaves police discretion utterly without limits. Some citizens will be subjected to this minor indignity while others — perhaps those with more expensive cars, or different bumper stickers, or different-colored skin — may escape it entirely.

The Drug House

Police in Salt Lake City receive an anonymous tip about “drug activity” at a house. A narcotics detective monitors the house over several days, and after seeing some occasional foot traffic in and out of the home, he suspects something might be up. After watching the house for a total of about three hours over a week, he decides to stop the next person to walk out and ask him some questions. He stops the man in a nearby parking lot, asks for identification and has a dispatcher run a warrant check. The check shows that there was an outstanding warrant for a traffic violation. The officer arrests the man, searches him and finds a baggie with meth and drug paraphernalia in his pockets. The man is charged with several drug-related offenses.

Is it a legal stop?

ANSWER: NO ... BUT

Even though the Supreme Court called this an “illegal stop,” the justices ruled that the evidence collected by narcotics detective Douglas Fackrell from Edward Strieff could still be used in court.

The ruling, issued just this month, is among the most consequential Fourth Amendment decision in years. In the 1963 case Wong Sun v. United States, the court ruled that evidence uncovered during an illegal stop is considered “fruit of the poisonous tree” and is suppressed in court under what’s known as the exclusionary rule. The point is to deter police misconduct.

In his opinion for the court in Utah v. Strieff, Justice Clarence Thomas said that even if a stop is illegal, evidence may still be used in court if an officer uncovers it after learning that the defendant had an outstanding arrest warrant. The detective in the case “was at most negligent,” Thomas wrote, adding that “there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

Orin Kerr, a professor of law at George Washington University, called the case “a significant win for the police.” Writing in SCOTUSblog, he said:

If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime.

The decision drew a stinging rebuke from Justice Sonia Sotomayor, who wrote, “Do not be soothed by the opinion’s technical language; This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.” The majority opinion, she said, “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

PBS.org | Frontline report by JASON M. BRESLOW | DAN NOLAN | JUNE 28, 2016