This AP article on the increasing use by police of a practice called the "stop and frisk" caught my eye recently (while I'm not a criminal defense trial attorney, I do write motions to suppress illegally obtained evidence for a handful of lawyers who are criminal defense trial attorneys). The article opens with this scenario -
Ronnie Carr's experience was typical: He was fumbling with his apartment door after school in Brooklyn when plainclothes officers flashed their badges.
"What are you doing here?" one asked, as they rifled through his backpack and then his pockets. The black teenager stood there, quiet and nervous, and waited.
Carr said the officers told him they stopped him because he looked suspicious peeking in the windows. He explained that he had lost his keys. Twenty minutes later, the officers left. Carr was not arrested or cited with any offense.
The article goes on to state -
The practice is perfectly legal. A 1968 Supreme Court decision established the benchmark of "reasonable suspicion" - a standard that is lower than the "probable cause" needed to justify an arrest.
The 1968 Supreme Court decision would have to be
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) which did establish "reasonable suspicion" as the standard for investigatory stops (as opposed to the higher standard of "probable cause" for arrests). However, the scenario of the police search of Ronnie Carr, while it might be typical, is certainly not "perfectly legal."
The actual holding of
Terry v. Ohio was this -
[W]here 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.
Notice that police rummaged through Mr. Carr's backpack and picked through his pockets. That's a no-no in a stop-and-frisk. The police are free to chat with anyone they please. If police reasonably suspect based on specific and articulable facts and inferences that a person is, has been, or is about to be engaged in criminal activity the police may temporarily "seize" the person for an investigatory stop (also called a "Terry stop").
And if the police have reasonable safety concerns, an officer can pat down the outside of a person's clothes, but only for weapons - and nothing else. So, in other words, if an officer pats down a person's clothes in one of these stop-and-frisks, and if the officer feels something in a pocket that feels for all the world exactly like drugs or drug paraphernalia, but feels nothing at all like a weapon of any kind, then the officer is prohibited from further investigating whatever it is he thinks he might have found - at least unless and until he finds some legal reason to search further. If officers are using the stop-and-frisk to turn up evidence of crimes, then they're breaking the law (and any competent criminal defense attorney ought to be able to have the evidence suppressed at trial).