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On our eroded privacy from Terry reasonable suspicion stops and frisks

Fairfax criminal defense/DWI defense lawyer on dealing with the eroded Fourth Amendment

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In law school, I got irritated reading about the Supreme Court’s then recent affirmance of criminalizing consensual adult sodomy (Bowers v. Hardwick, which was later overturned by Lawrence v. Texas), greenlight for capital punishment, and erosion of the Fourth Amendment through the Terry v. Ohio case that skirts the probable cause rule to allow a huge universe of police stops and frisks for nothing more than probable cause.

Today, the Fourth Circuit affirmed a conviction for a felony weapons conviction, where the defendant was Terry-searched after being found as the only person in the vicinity of a fired gun that was reported by an anonymous hangup call to the police. U.S. v. Foster, ___ F.3d ___ (4th Cir. My 24, 2016). In finding reasonable suspicion for the frisk of Foster, the Fourth Circuit pointed out the totality of the circumstances of Foster’s being the sole person present in the vicinity of the reported gunshot only minutes after the anonymous call, his presence at night in a high crime area, his non-responsiveness to the police, and his putting his hand in his pocket (possibly to secure a weapon) when asked if he had any weapons on him.

Fortunately, Foster provides fodder for arguing no reasonable suspicion for a stop and frisk in other anonymous police tip cases, because Foster confirms that the police would not have had reasonable suspicion to frisk him absent his putting his hand in his pocket after being asked if he had any weapons on him.

Foster confirms that the purpose of a Terry frisk is “to protect the safety of officers and suspects alike.” Fortunately for me, the only times I have been frisked have been at airports when opting for a frisk over an intrusive x-ray, and during a drug possession bench trial when I invited the police officer to replicate on me his frisk, to successfully show the judge that the cop’s hand movements exceeded a mere frisk/patdown.

Terry  is nearly forty-eight years old. We will need a huge sea change in the Supreme Court’s composition to reverse the Fourth Amendment-violative tide of Terry.