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The national pendulum seems to be swinging back toward the public wanting to see proactive policing. Therefore, this may be the time to revisit the most effective tool gifted to law enforcement by Detective Martin McFadden and the United States Supreme Court for that purpose: the Terry stop.
This review is done not as a legal expert but by a long-time Terry stop practitioner.
Reviewed by the courts
The Terry stop enables officers to positively impact public safety by conducting short-term investigations after legally stopping persons where reasonable suspicion exists to believe those persons are about to commit, are committing or have committed a crime.
Since reasonable suspicion is about a buck and a quarter shy of probable cause for arrest, these stops allow officers a unique opportunity to conduct short-term investigations that can lead to arrests, preventing rapes, robberies, burglaries and even homicides.
After a successful Terry-stop-inspired arrest occurs, count on the reason for the stop and how it was conducted being challenged by the defense and scrutinized by judges during hard-fought pre-trial and post-conviction motions. To justify your arrest decision, a combination of factors contributing to your stop decision must be thoroughly articulated in your report.
Terry stop decisions
Some combined factors that can help bolster justification for a Terry stop include:
- The officer’s training and experience: The more trained and experienced you are, the more credibility your assessments will have in the eyes of judges.
- Knowledge of the beat: By having an expert working knowledge of the people and places on your beat, you will be more easily able to justify your stop. For example, in a report where a Terry stop led to a burglary arrest, you might write: “I was aware that the business the black SUV was backed up behind was closed on Tuesday nights, and neither the owner nor the cleaning crew drives a black SUV.”
- Crime in the area, past and recent: Knowing an area has been victimized by a serial burglar or terrorized by a rapist will justify making investigative stops designed to locate the perpetrators.
- Matching descriptions given by victims/witnesses: You can justify stops of individuals who closely match descriptions of suspects, drive similar vehicles, have similar tattoos or possess a distinctive limp like the perpetrator, etc. For example, Utah Highway Patrol Sergeant Robert Hayward stopped a man driving a Volkswagen Beetle seen lingering in front of an extra-attention request made by the parents of two teenage girls who were left home alone for the first time. Sgt. Hayward knew of a case nearby in which a young female had fought off her abductor recently, where the suspect drove a Beetle. This Terry stop led to the first arrest of serial killer Ted Bundy and prevented a tragedy.
- Wrong plate, no plate or buggy plate: When a plate does not belong on a vehicle, or a vehicle has no plate or no front plate in a state that requires one, then a Terry stop can be justified. Such was the case when the Oklahoma City bomber was stopped by Oklahoma Highway Patrol Officer Charlie Hanger shortly after the deadly blast. If you spot a rear plate with dead bugs on it, consider taking a closer look. Buggy rear plates can indicate a stolen front plate. Rear plates do not splatter bugs.
- Subterfuge: Someone wearing a mask, cutting into darkened alleys, through culverts, residential yards, railroad yards, driving without lights at night or on a bike without lights at night to avoid detection warrants taking a closer look in an area experiencing nighttime burglaries or car entries.
| RELATED: Why the Terry stop is still a lifesaving tool
- Unique clothing of a suspect: Clothes can often facilitate the commission of a crime. Wearing bulky clothing to conceal stolen property, weapons or burglary tools are some examples. To our benefit, they can also be a telling part of a criminal’s description. One personal case comes to mind where a suspect in a residential burglary was described as wearing “moon boots.” The suspect was easily spotted and, after a Terry stop, arrested just blocks away since he was wearing his moon boots in the summertime.
- Tell-tale reaction to officer presence: When a suspect is involved in criminal activity, they may physically react to the presence of an officer. Note a suspect that changes directions, stops or stutter-steps, then keeps moving. Watch for the “no look-look,” glancing momentarily at you and then abruptly looking straight ahead as if wearing a neck brace. A suspect may also subconsciously tap an area on the body or adjust their clothing to confirm their weapon, drugs or burglary tools are still concealed.
- Headlong flight: When a suspect’s response to the presence of an officer is “headlong flight,” in most jurisdictions, this is grounds to pursue and stop that person. However, check your policies, as some agencies have restrictions on foot pursuits and Terry stops.
- Known criminal history: When you identify a career criminal on sight, dressed in dark clothing, emerging from an alley at “zero dark thirty” from behind closed businesses in a high-crime area, that suspect will most likely be stopped by an alert officer.
- Repetitive short-term contacts: When you observe a subject receiving many short-term contacts with a secretive exchange, this may indicate illicit drug sales.
- Sounds: It is expected that an officer would investigate upon hearing breaking glass, shots fired, a car crash, metal-on-metal grinding, squealing tires, loud threats, screams for help or any sounds that might indicate a crime is being committed or someone is in danger.
Although not illegal, a vigilant officer would be expected to investigate in certain situations. For example:
- A driver suddenly pulls over, swings the driver’s door open and vomits.
- A person walking down the street wearing a swimsuit or less in the dead of winter.
- An individual walking down the street at night carrying unusual items, such as a bar stool, street sign, small safe, pillowcase filled with items or a lawn ornament, may warrant further observation.
- A person open-carrying a weapon while walking toward an elementary school in session.
There are certain situations where an officer has immediate grounds to stop someone, such as when observing a person:
- Involved in a crime in progress.
- Beating another person.
- Committing an ordinance violation.
- Wanted on a valid outstanding warrant.
- Committing a traffic offense or driving without a license while revoked, etc.
- Appearing endangered.
- Appearing incapacitated.
- Appearing to be having car problems and blocking traffic.
If probable cause exists to arrest on sight, an officer has justifiable grounds to stop the individual.
| RELATED: 5 simple rules for staying safer during a Terry stop
The pat-down search or frisk
Officers must realize that even though the stop is justified, there must be separate articulable justification to conduct a pat-down search. This is the patting down of the outer clothing for hard or cylindrical objects that may be weapons.
Here are examples that can be given to build a case for a justifiable pat-down search or frisk:
- The crime the suspect is suspected of is one usually committed while armed.
- Bulges in clothing give the appearance a weapon is concealed underneath.
- Furtive movements made by the suspect may have been made to acquire/conceal a weapon.
- Hands disappear suddenly and deliberately.
- The suspect scans the area for witnesses or escape routes.
- A named complainant reports the suspect is armed.
For your safety, when justification exists to pat a suspect down for weapons, have backup when possible and use tactically sound tactics to pat the outer clothing until you identify something hard or cylindrical that could be a weapon. Recent court decisions also allow an officer to remove items that are instantly recognizable during a pat-down as stolen property or contraband.
Here are a few things to remember about stop and frisk:
- You must have reasonable suspicion a suspect is about to commit, is committing or has committed a crime to make a Terry stop.
- You must have separate reasonable suspicion the suspect is armed before you can conduct a pat-down search of a suspect you stop. The pat-down is not automatically authorized just because you can justify the stop.
- The stop must be for a reasonable length of time.
- Use a good technique for conducting a pat-down safely.
- Know the difference between a pat-down search and a search incident to arrest, which is much more intrusive than a pat-down.
- If the stop and frisk leads to probable cause for an arrest, advise the suspect they are under arrest, handcuff them and then conduct a thorough search incident to arrest.
- Be professional and courteous throughout the contact. That approach will go far in gaining cooperation as well as protecting you if it turns out the suspect you are stopping is not a criminal but has a reasonable explanation for their suspicious behavior.
- Complete a thorough report, including all justifications for the initial stop and subsequent pat-down search.
Conclusion
If a fellow officer properly conducts a legal Terry stop and pat-down search leading to a major arrest, remember to conduct a stop and pat-down of your own. Stop that officer, pat them on the back and say, “That was a great piece of police work!”
