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Texas Stop and Frisk: The New York City Stop and Frisk Law Just Held Unconstitutional – Texas Law Is Not Involved Here

There’s a lot of chatter this month about “stop and frisk laws” and the recent ruling by U.S. District Judge Shira Scheindlin who presides over a federal trial court up in the heart of New York City. In a lengthy (195 pages) decision (read it here), the Manhattan federal judge ruled that it violates the Fourth Amendment of the United States Constitution as well as the Fourteen Amendment (equal protection) when New York police officers implement the New York stop and frisk law because, to quote her words:

“A police department may not target a racially defined group for stops in general—that is, for stops based on suspicions of general criminal wrongdoing—simply because members of that group appear frequently in the police department’s suspect data….”

Judge Scheindlin’s decision is controversial. Ted Nugent has announced his opinion that stop and frisk laws violate the U.S. Constitution (all of them)(read his Newsmax interview here). New York City Mayor Michael Bloomberg approves of the New York Police Department’s ability to “stop and frisk,” though the New York City Council has recently affirmed legislation over Bloomberg’s veto that bars “discrimatory application” of stop and frisk procedures. For more on both sides of this controversy, check out the New York Times’ web page dedicated to “stop and frisk” articles and commentaries.

Stop and Frisk in Texas: Terry v. Ohio and the “Terry Stop”

The legal right for police officers to stop someone who they have a reasonable suspicion is involved in criminal activity is solid in both Texas law and federal precedent. Back in 1968, the United States Supreme Court issued their opinion in the case of Terry v. Ohio giving the High Court’s approval for a police officer to stop and frisk. Known as a “Terry Stop” after this case, a police officer in Texas is legally allowed to stop and briefly detain anyone that the officer believes, based upon his or her “reasonable suspicion,” is breaking the law.

How long is the “stop” here?

Under Terry, the police officer can detain that person for a time period necessary for the police officer to resolve his suspicion. That happens in one of two ways: either the officer decides that no laws are being broken (and his suspicion was wrong) or an arrest is made.

What is a “frisk”?

What can the officer do during that “stop” is a big legal question. Many cases have been brought before higher appellate courts on this issue; as a general rule in a “Terry stop,” it is constitutionally acceptable for the police officer to perform a limited search of that person (the “frisk”) without a search warrant if:

  • There is a factual basis for the police officer to reasonable believe that the person could be armed with a weapon; and
  • The search, or frisk, is limited to patting down the outer garments to feel for things that might be weapons and if something is found which might be used as a weapon, then the officer can reach inside the person’s clothes to check out what it is, to see if it is a weapon.

From the Terry opinion (page 24):

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm….

We merely hold today that 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.  Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

 

Stop and Frisk in Texas – Texas Police Officers Caught on DashCams

How Texas law enforcement understands Texas’ stop and frisk law might make for more interesting news stories that the recent New York coverage where racial profiling is the concern. Texas has a stop and frisk procedure that Texas law enforcement uses all the time.

Consider two of our recent posts.

1. TEXAS POLICE OFFICER ARRESTS 77 YEAR OLD GRANDMA AFTER TRAFFIC STOP: YOU BE THE JUDGE – IT’S ALL ON CAUGHT ON POLICE CAM

Last September, here in Texas, a 77-year old grandma was driving home from church when she was pulled over by a local police officer who had clocked her as going 66 mph in a 55 mph speed limit. When the grandma explained to the officer that she desperately needed to use the bathroom, not only does the officer ignore her need, he drags her out of the car, arrests her, and handcuffs grandma.

Incrudulous? Watch the dashcam video here.

2. DALLAS ROADSIDE BODY SEARCH BY DPS TROOPERS NOW SUBJECT TO FEDERAL LAWSUIT – SHOCKING VIDEO OF DALLAS ROADSIDE SEARCH OF TWO INNOCENT WOMEN

In July 2012, Angel Dobbs and her niece Ashley, 24, were driving along Highway 161 when they were pulled over by a Texas DPS Trooper who claims to have pulled the car over because he saw a cigarette butt being tossed out of the car window, and that he called DPS Trooper Kelley Helleson to assist him after he allegedly smelled marijuana coming from the vehicle.

No marijuana, nor any other drugs, were ever found in their car. Moreover, the two women both denied using drugs or knowing anything about any drugs, or having any drugs including marijuana in their possession, custody, or control.

It didn’t matter what they said.  Trooper Kelley Helleson performs a cavity search on these two women during a routine traffic stop here in Dallas, Texas, there on the side of the road.

Again, it’s all caught here on video (and yes, Angel and Ashley Dobbs have sued for damages).

What To Do If You’re Stopped by Texas Police? Know Your Legal Rights

Here in Texas, the police may or may not perform their duties in accordance with constitutional standards and state law.  The New York ruling, no matter the amount of news coverage it is getting right now, does not deal with the Texas state law, and Texas police officers can – and will – be stopping and frisking people today.

It’s important that you know your legal rights in the event that you are stopped by the police.  For details on those legal rights, check out Michael Lowe’s “Ten Things to Know In Case Your Car is Pulled Over in Texas” here on our resources page.

 


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