Considerations In Determineing Whether a Stop and Frisk Is Permissible

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A common misconception is that law enforcement officials are entitled to stop and question citizens without any basis or reason for doing so. In reality, a set of firm legal guidelines are in place that govern whether or not an officer is permitted to stop and frisk nearby pedestrians.

For a police officer to stop someone, the officer must have a reasonable belief that a crime is either being committed or about to be committed. While this standard falls well below the probable cause an officer must have to arrest or search a suspect, an officer must be able to identify and articulate specific facts that explain their reasonable belief that the person stopped has been engaged in criminal activity. Circumstances considered in justifying an officer's reasonable belief are whether an individual is near where a crime was recently reported, whether the individual matches a suspect description, whether or not the individual attempts to flee, and whether the individual exhibits nervous or agitated behavior upon being stopped. It is important to note that while an officer may stop an individual based upon a reasonable belief, the individual being stopped is not required to respond to the officer and may only be arrested if their responses or actions create probable cause for arrest.

Similarly, an officer may frisk an individual if they have a reasonable belief, supported by articulable facts, that the individual stopped may be armed or poses a threat to the officer. Justifications commonly used to support a reasonable belief for a frisk are physical indications that a weapon is being concealed, nervous or agitated behavior, or the size and number of suspects being stopped. It is important to remember that the officer must either suspect the person is carrying a gun or feel physically threatened in order to conduct a frisk. For example, suspicion that an individual stopped is in possession of narcotics is not alone sufficient to justify a frisk, unless there is an articulable fear that the individual is armed or poses a physical threat.

A stop and frisk case was recently heard by the Maryland Court of Special Appeals in In Re: Lorenzo C. In this case, police were responding to a nearby robbery that was reportedly committed a group of individuals, one of whom was riding a bicycle. A few blocks away, two police officers spotted a group containing one person on a bicycle. The two officers approached the group, at which point the individual on the bicycle fled, while the Defendant Lorenzo stayed behind. One officer proceeded to pursue the individual on the bike, while the other officer stopped, questioned and frisked Lorenzo. Upon frisking Lorenzo, the officer found a gun in his pocket and placed him under arrest for possession of a firearm.

The Court of Special Appeals found that the frisk of Lorenzo was appropriate given his behavior after being stopped. The officer, in support of his reasonable belief that Lorenzo was armed, stated that Lorenzo continually kept his hands in his pockets and refused several requests made to remove his hands from his pockets. Other factors that the Court deemed significant in finding the frisk permissible were that Lorenzo displayed nervous behavior, and that the officer was outnumbered three to one by the suspects. It is somewhat conspicuous that the Court refrains from addressing whether the fact that the individual on the bicycle fled could itself be used to support a reasonable belief that Lorenzo was armed or dangerous.

The law firm of Portner & Shure has many years of experience representing criminal defendants in both Maryland and Virginia.

 If you have been charged with a crime or believe that you have been charged with a crime as the result of an illegal stop or frisk, please contact our Maryland criminal defense attorneys.

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