Academic journal article Washington Law Review

Stop and Frisk in a Concealed Carry World

Academic journal article Washington Law Review

Stop and Frisk in a Concealed Carry World

Article excerpt

Introduction

Few doctrines have strained the interpretive bounds of the Fourth Amendment or influenced the relationship between police officers and civilians more than "stop and frisk."1 "The Fourth Amendment was once considered a monolith," where "'[p]robable cause' had a single meaning" and "'searches' and 'seizures' were all-or-nothing concepts."2 But when the U.S. Supreme Court ruled in Terry v. Ohio3 that a police officer could "seize a person and subject him to a limited search for weapons"4 on nothing more than reasonable suspicion,5 the Court "broke [this monolith] entirely."6 In the half century since Terry, the controversial practice has become synonymous with the beat tactics of the country's largest metropolitan police force,7 exacerbated rifts between zealous (or worse) officers and distrustful communities of color,8 and diminished the once-dominant warrant requirement to second-class Fourth Amendment status.9

The "stop and frisk" standard is deceptively easy to describe, if nearly impossible to apply with any precision. As the Court explained in Terry, an officer may (1) seize an individual for a brief investigatory stop upon "reasonable suspicion that the suspect was involved in, or is about to be involved in criminal activity,"10 and (2) frisk the outer clothing of the individual for weapons if she has "reason to believe that [s]he is dealing with an armed and dangerous individual."11 This "reasonable suspicion" standard necessary to justify a stop and frisk is low: "'considerably less than proof . . . by a preponderance of the evidence,' and 'obviously less' than is necessary for probable cause."12

In large part because of this low and malleable "reasonable suspicion" standard, the permissible scope of the stop and frisk practice has expanded significantly since Terry. While Terry involved an on-the-street stop of a would-be robber casing an establishment with a gun bulging from his coat,13 since then the Court has upheld an officer's ability to frisk individuals stopped for minor traffic violations who are suspected of carrying weapons,14 search car compartments within "the lunge area" of the stopped individual,15 arrest suspects for refusing to affirmatively identify themselves during a Terry stop,16 and initiate a stop based on a mistake of law.17

But in the last decade, this near linear expansion of pre-arrest investigative powers has been stymied from an unlikely source-the Second Amendment. The U.S. Supreme Court's recent decisions recognizing an individual's Second Amendment right to keep and bear arms for personal protection18-and concurrent increase in the number of states authorizing concealed and open carry of firearms in public19-has forced a reexamination of traditional stop and frisk jurisprudence.20

"Before the Court's decision in [District of Columbia v.] Heller2 there was a widely-held 'assumption that a person carrying a concealed weapon was engaged in the crime of unlawful weapons possession,'" thus justifying a stop under the first Terry prong.22 Moreover, there was once "nearly unanimous agreement that to be armed was to be dangerous," giving officers the right to frisk armed individuals on the basis of this "blanket assumption of dangerousness."23 But in a post-Heller world, where more than forty states have little or no restrictions on the public concealed carry of firearms,24 courts can no longer assume that public handgun possession is unlawful.25 Moreover, "holes have begun to appear in the blanket assumption of dangerousness that courts used to apply to firearms and their carriers."26

This Article explores the growing tension between increasingly permissive "right to carry" laws throughout the country and the rights of officers to safely conduct investigative stops and searches. In doing so, the Article makes three contributions to the existing literature and offers a word of caution about the conclusions it reaches.

First, it corrects a misconception often repeated by courts and scholars that Heller directly forces a reexamination of Fourth Amendment stop and frisk doctrine. …

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