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by Peter Moskos

August 13, 2016

Use and Abuse of Terry

There are some excerpts from Cop in the Hood that seem particularly relevant in light of the DOJ's report on the Baltimore police. This is from pp.30-31.]

The 1968 Supreme Court case Terry v. Ohio gives officers the right to frisk a suspect for weapons if they have reasonable suspicion that a suspect might be armed. A “Terry Frisk” is a limited pat-down of the outer clothing for weapons. This is distinct from and less than a “search” (for which probable cause is needed).

While a limited pat-down of the outer clothing for weapons may seem benign, a frisk is very personal and intrusive. During any encounter, an officer can justify a frisk of a suspect by noting the drug trade in the area and the inherent link between drugs and violence. Legality depends on an officer’s perception of his or her own safety. And given the violence, officers in some neighborhoods have good reason to fear for their safety.

The result of Terry v. Ohio is a huge legal loophole in which people in high-crime neighborhoods, usually young black men, are stopped and frisked far more often than people in other neighborhoods. Intended or not, constitutional rights depend on the neighborhood where you live. While race-blind in theory, the Terry Frisk (confusingly also known as a Terry Stop or Terry Search) gives police the legal right to stop and frisk most individuals in a violent, high-drug area.

Technically a Terry Frisk may be used only to find weapons. But any contraband in plain view or “plain feel” is fair game, even if the found object was not the original goal. While reaching into someone’s pockets is technically and legally a search, one can easily feel drugs from outside a pocket while ostensibly frisking for weapons.

In the police academy, trainees are instructed how to use the Terry Frisk to make drug lock ups. If drugs are found on a suspect during a frisk for weapons, officers should complete their search for weapons before addressing the issue of the suspected drugs. If a police officer were to stop a frisk for weapons upon finding drugs, it would be obvious--since drugs are not a direct threat to a police officer’s safety--that the intention of the search was not really officer safety. Once hands go in pockets, a legal frisk becomes an illegal search. The Terry Frisk explicitly does not give police the right to search or empty pockets. But on the street the line between a frisk and a search is not as clear-cut as the Supreme Court wants to believe. Necessary as the Terry Frisk is, in the war on drugs, officers on the street commonly exploit and abuse Terry v. Ohio.

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