June 30, 2000
STOP AND FRISK SEARCHES
By: Gregory Joiner, Research Fellow
Christopher Reinhart, Associate Attorney
You asked us to (1) analyze the recent U.S. Supreme Court decision, Florida v. J.L., (2) describe the standard police officers must use in determining whether or not to stop and frisk suspicious individuals, and (3) determine whether there are different standards for conducting weapon and contraband searches.
In Florida v. J.L. (No. 98-1993 (2000)), the U.S. Supreme Court unanimously ruled that an anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a police officer's stop and frisk of that person. The Court also refused to create an automatic firearm exception to the normal need to establish the reliability of an anonymous tip before acting on it.
Connecticut's stop and frisk standard for weapons mirrors the standard the U.S. Supreme Court set in Terry v. Ohio (88 S. Ct. 1868 (1960)). Terry permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause necessary for contraband searches.
But the United States and Connecticut constitutions both allow a police officer to seize non-threatening contraband detected during a lawful pat-down search in certain circumstances. The U.S. Supreme Court ruled that the Fourth Amendment of the U.S. Constitution requires the officer to have probable cause to believe the object is contraband. Similarly, the Connecticut Supreme Court ruled that the state constitution requires the officer to have a warrant to seize the object or an exception to the warrant requirement. One exception to the warrant requirement is a search incident to an arrest. In State v. Trine, the court stated that information obtained through the sense of touch during a lawful pat-down search could be used to establish probable cause to make an arrest. The officer could then search the person incident to the arrest and seize the object (236 Conn. 216 (1996)).
FLORIDA v. J.L.
On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Sometime after the police received the tip, two officers arrived and observed three males hanging out at the bus stop. One of the three, J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from his pocket. The second officer frisked the other two individuals, against whom no allegations had been made, and found nothing.
The defendant was charged under state law with carrying a concealed firearm without a license and possessing a firearm while under the age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court granted his motion. The intermediate appellate court reversed, but the Florida Supreme Court ruled the search invalid under the Fourth Amendment. The U.S. Supreme Court agreed to hear the case noting that the state Supreme Court decision conflicted with decisions of other courts declaring similar searches compatible with the Fourth Amendment.
Florida claimed that the search that led to the discovery of the concealed firearm was compatible with cases declaring similar searches constitutional and the fourth amendment to the U.S. constitution, which provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The state also urged the U.S. Supreme Court to modify the standard Terry analysis to permit a “firearm exception.” Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.
Holding and Decision
The U.S. Supreme Court ruled that an anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a police officer's stop and frisk of that person. The Court also refused to create an automatic firearm exception to the normal need to establish the reliability of an anonymous tip before acting on it. Thus, the judgment of the Florida Supreme Court was affirmed.
The Court's reasoning was based on the following points.
First, the officers' suspicion that J.L. was carrying a weapon arose not from their own observations, but solely from a call made from an unknown location by an unknown caller. Thus, the tip lacked the indications of reliability previously required by the Court in Alabama v. White (496 U.S. 325 (1990)). In that case, the police received an anonymous tip that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Only after police observation showed that the informant had accurately predicted the woman's movements did it become reasonable to think the informant had inside knowledge about the suspect and therefore to credit his assertion about the cocaine.
Second, the anonymous call concerning J.L. provided no predictive information and left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers had a reasonable basis for suspecting J.L. of engaging in unlawful conduct prior to the frisk. The reasonableness of suspicion is measured by what the officers knew before they conducted their search.
Third, an automatic firearm exception to the established reliability analysis created by Terry is too broad. It would enable anyone to set in motion an intrusive, embarrassing police search of a targeted person simply by placing an anonymous call falsely reporting that the person is carrying a gun. In Terry, the U.S. Supreme Court ruled:
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.
Fourth, if police officers could conduct Terry frisks on the basis of unsubstantiated tips about guns, it would be reasonable to maintain that the police should have discretion to frisk based on unsubstantiated tips about narcotics. The Fourth Amendment is not so easily satisfied.
Fifth, the requirement that an anonymous tip bear indications of reliability in order to justify a stop does not diminish a police officer's prerogative under Terry to conduct a protective search of a person who has already been legitimately stopped.
CONNECTICUT'S STOP AND FRISK STANDARD
Connecticut's stop and frisk standard mirrors the U.S. Supreme Court's standard in Terry. As interpreted by the courts, Connecticut's Constitution permits a police officer in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes even though there is no probable cause to make an arrest (Article First §§ 7 and 9). In determining whether the detention was justified, a court must consider if, based on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person. A court reviewing the legality of a stop must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences derived from it (Connecticut v. Wilkins, 240 Conn. 489 (1997)). If, during the course of a lawful investigatory detention, the officer reasonably believes that the detained individual might be armed and dangerous, the officer may undertake a limited pat down search of the individual to discover weapons (Terry v. Ohio, 88 S.Ct. 1868 (1960)).
STANDARDS FOR WEAPONS AND CONTRABAND SEARCHES
Terry gives police authority to conduct a reasonable search for weapons where the officer has reason to believe he is dealing with an armed and dangerous person regardless of whether he has probable cause to arrest the person for a crime. Reasonable and articulable suspicion is an objective standard that focuses on what a reasonable person, with the information available to and known by the police, would believe. The police officer's decision must be based on more than a hunch or speculation. In justifying the particular intrusion the police officer must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion (State v. Gant, 231 Conn. 43 (1994)).
In order to stop and frisk an individual suspected of carrying contraband, police must first have probable cause to make an arrest. Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution to believe that a felony has been committed (State v. Cobuzzi, 288 A.2d 439 (1990)). While probable cause requires more than mere suspicion, the line between mere suspicion and probable cause must be drawn in light of the particular situation and all of the circumstances (State v. Marra, 222 Conn. 506 (1992)).
U.S. Supreme Court. The U.S. Supreme Court ruled that under the Fourth Amendment of the U.S. Constitution police officers can seize non-threatening contraband detected during a Terry protective pat-down search (Minnesota v. Dickerson, 113 S.Ct. 2130 (1993)). The Court compared this situation to objects discovered in plain view and stated that in both circumstances going to a magistrate for a warrant would be impractical and would not promote the objectives of the Fourth Amendment. The Court stated that the officer could seize an object detected during a lawful pat-down search without a warrant if the object's “contour or mass makes its identity immediately apparent” as contraband. The Court stated that the Fourth Amendment requires that the officer have probable cause to believe that the item is contraband before seizing it.
Connecticut Supreme Court. The Connecticut Supreme Court adopted a similar standard when interpreting the state constitution's search and seizure provision (Art. I, § 7). In State v. Trine, a police officer detected an object he believed was rock cocaine while conducting a pat-down search (236 Conn. 216 (1996)). The court stated that the officer conducted a lawful pat-down search for weapons but any further intrusion must be based on a warrant supported by probable cause or an exception to the warrant requirement.
The court stated that the nature of the object must be immediately apparent and the officer's belief that it is contraband must be objectively reasonable under all of the circumstances known at the time of the search. In this case, the officer thought he detected cocaine and the person was in a private residence that the officers were searching under a warrant from a magistrate who found probable cause to believe the site was used for cocaine trafficking. The court stated that the officer had probable cause to believe the person was committing the felony of possession of narcotics in his presence and the officer could arrest him without a warrant, conduct a search incident to the arrest, and seize the object.