What makes a stop by police legal under the Constitution?
The Fourth Amendment to the U.S. Constitution is designed to protect the people from unreasonable searches and seizures. Many police departments in the last few decades have employed an anti-crime strategy known as "stop and frisk," where officers stop people seemingly at random to make inquiries and pat them down.
There appears to be a conflict between these two policies. However, a police officer is permitted to stop and search an individual and not violate the Fourth Amendment if they have "reasonable suspicion."
If not a warrant, then reasonable suspicion
A warrant is typically required before search and seizure. The U.S. Supreme Court has recognized that a obtaining a warrant may not always be practical. The court stated in, the 1968 case, Terry v. Ohio, in a situation "Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Of course, the definition of "unusual conduct" is often the problem.
The concept of reasonable suspicion has been around a long time. The U.S. Supreme Court described it in Terry, stating the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."
The "specific and articulable facts" are at the core of reasonable suspicion. A police officer must have those facts before seizing an individual and searching them. Unfortunately, the Terry court failed to identify any facts in the case other than that two black men were observed walking in front of a store.
Looking at the "facts" of Terry, one commentator has noted that they are very weak and that it appears the stop was initiated on little more than the supposedly improper "hunch" the Court juxtaposed as being unacceptable as compared to the required "articulable facts."
Reasonable or meaningless?
These types of stops have been permitted to reach far beyond what would be reasonable due to somewhat unclear guidance from the Court as to when a seizure occurs. In Terry, for instance, the Court found the seizure occurred when the officer physically spun Terry around and began to frisk him.
A more reasonable conclusion would be that the seizure took place when the officer ordered the three men into a store, as they would have recognized at that point that they were no longer free to ignore the officer and walk away.
This has allowed later courts to further erode the Fourth Amendment's protection, by permitting more police-citizen interaction to occur prior to the supposed seizure. For the average individual walking along the street, a question by a police officer is not like that of any other person, and the loose standard for what constitutes a seizure in the context of a reasonable suspicion stop has lead to the erosion of trust many individuals feel towards the police.
The Terry decision pointed out that crime prevention is an important societal goal. The problem is the lax standard of supervising police conduct from that case has led to the virtually unbridled reliance of that aspect of the totality of the circumstances balancing test and gives almost no weight to the Fourth Amendment concerns.
Cities like Philadelphia and New York City have been sued to stop this level of basic police harassment of anyone they wish. In New York, 700,000 stops occurred under the stop and frisk policy in 2011. In 2015, it had fallen to 23,000 with virtually no change in the crime rate.
Even with the ending of this policy, significant questions of police compliance remain. In many police reports, there is often an open violation of the requirement that officers explain the "suspicion" that warranted the stop.
Philadelphia has been sued numerous times for similar activity by the police, both during the 1980s and 1990s. Yet another lawsuit was filed after a 2009 incident led to the handcuffing and detention of state legislator, who observed what appeared to be an illegal stop to two elderly black men.
The Fourth Amendment protects us all
We all are at risk from this illegal behavior by the police. When reasonable suspicion is used in an unreasonable manner, it places all citizens at risk of arbitrary conduct. The creation of the extreme "us against them" mentality in many police forces leads a false sense of entitlement in such departments. They begin to believe that they have "right" to break fundamental laws, such as the Fourth Amendment when pursuing the enforcement of lesser ordinances or statutes.
Combine this with the militarization of many police departments, the frequent use of deadly force and use of traffic stops and fines as a means of financing city government; it paints a troubling picture of police-citizen interaction.
The laws of the Commonwealth of Pennsylvania and of the United States only have legitimacy because of the authority they derive from the U.S. Constitution, which is the supreme law of the land.
When it is dismissed by those sworn to uphold it, as a mere technicality, the question really becomes one of what law do they think they are enforcing?