Criminal Justice: Frisk & Find

One warm July afternoon in 1964, off-duty New York City Policeman Samuel Lasky heard a noise outside his apartment door in suburban Mount Vernon. Two strangers were tiptoeing down the hall. Lasky hurriedly grabbed his pistol and managed to collar one, John F. Peters, who protested that he was merely visiting a married girl friend in the building. Not impressed, Lasky frisked Peters and felt something that “could have been a knife.” What Lasky actually found was an envelope containing burglar’s tools—for possession of which Peters was duly convicted.

Most citizens would surely agree that Patrolman Lasky was the model of an alert, courageous cop in action. Civil-libertarians, however, were quick to ask whether his search violated Peters’ constitutional rights. In a decision written by Judge Kenneth Keating, the New York Court of Appeals has just answered that question with a resounding no. It affirmed Peters’ conviction and declared that Lasky deserves “our highest praise.”

Beyond that, by a vote of 5 to 2, the court specifically upheld New York’s controversial “stop and frisk” law, which empowers a policeman not only to “pat down” a suspect for concealed weapons in any public place, but also to seize “any other” illegal objects that he finds in the process.

Bullet for an Answer. The legislators who wrote New York’s stop-and-frisk law in 1964 held that big-city police clearly need authority to stop and question anyone whom they “reasonably suspect” of committing or being about to commit a felony or serious misdemeanor. They justified the frisk on grounds of elemental safety. As the New York Court of Appeals put it in a key 1964 case (People v. Rivera): “The answer to the question propounded by the policeman may be a bullet.”

Ironically, what may yet shoot down the frisk law is the fact that the new high-state-court decision affirms the power of police to seize not only weapons but also anything else “the possession of which may constitute a crime.” In the Peters case, dissenting Judge Stanley H. Fuld protested that the Fourth Amendment guarantee against “unreasonable searches and seizures” now means that any search made without the authority of a warrant is “reasonable only if conducted as incident to a lawful arrest” based on probable cause—something Patrolman Lasky admittedly did not have until after his frisk produced not a weapon but burglar’s tools.

In a companion case, dissenting Judge John Van Voorhis protested that the policeman involved was only “allegedly” frisking for a weapon when he discovered a supply of heroin in the defendant’s pockets. “Without probable cause,” said Van Voorhis, “the frisk discovered the heroin, then the heroin served as a basis for arrest, which, in turn, was claimed to justify the search which disclosed it.” Judge Van Voorhis insisted that a frisk should be tightly limited to its only legitimate purpose: “To discover and seize dangerous weapons.” If it becomes “a general search of the person” in patent violation of the Fourth Amendment, warned Van Voorhis, “we shall have progressed a considerable distance toward the police state.”

Rewritten Rules. Carrying on the argument, the American Civil Liberties Union plans to help appeal the Peters decision to the U.S. Supreme Court, which has yet to rule on stop-and-frisk. If the court takes the case, the key issue may well be whether a person stopped for questioning and frisking is actually under arrest—for it is only lawful arrest, with or without a warrant, that carries with it the right to make a search “incident” to that arrest. Without grounds for arrest, police cannot simply search a person and then use whatever evidence they happen to find. In short, a search cannot be justified by its fruits alone. Yet stop-and-frisk laws may authorize just that.

To bypass this problem, many courts have simply declared that a stop is not an arrest and a frisk is not a search, thus enabling police to act on “reasonable suspicion” rather than the stricter standard of probable cause. All this seems to assume that an arrest begins only with some sort of formal announcement. By contrast, some courts view arrest as the first “actual restraint” that stops a person from doing whatever he pleases—a definition that may well bar searches made on mere “suspicion.”

The Supreme Court may have handed down a hint of its own attitude in last month’s Miranda v. Arizona decision, which affirmed the rights to silence and to counsel as soon as a person is “deprived of his freedom of action in any way.” On the other hand, defenders of stop-and-frisk laws see the court leaning their “reasonable” way because it declared in 1963 (Ker v. California): “The states are not precluded from developing workable rules to meet the practical demands of effective criminal investigation and law enforcement in the states, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures.”