Page 37 - TPA Journal July August 2021

timely appealed solely on the issue of the suppression department policy prohibited their questioning him
motion. about the aggravated robbery, and therefore they lacked
an investigatory purpose for the stop. We will consider
The Fourth Amendment protects “[t]he right of the the issues in that order.
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” Reasonable suspicion to support the stop and the frisk
Warrantless searches and seizures are per se
unreasonable unless one of the recognized exceptions Reasonable suspicion to support an investigatory stop
applies. The Government bears the burden of showing exists if the officer has “a particularized and objective
that a warrantless search or seizure fits within one of the basis for suspecting the particular person stopped of
exceptions. criminal activity.” This standard is met if “specific and
articulable facts” give rise to a suspicion that the person
One exception to the warrant requirement, first stopped “has committed, is committing, or is about to
articulated in Terry v. Ohio, 392 U.S. 1 (1968), permits commit a crime.” “[T]he level of suspicion the
officers to conduct “an investigatory stop (temporary standard requires is considerably less than proof of
detention) and frisk (pat-down for weapons) . . . if two wrongdoing by a preponderance of the evidence, and
conditions are met.” First, the investigatory stop must obviously less than is necessary for probable cause.”
be supported by a reasonable suspicion “that the person The standard “permit[s] officers to make commonsense
apprehended is committing or has committed a criminal judgments and inferences about human behavior.”
offense.” Id. Second, assuming the initial stop is lawful, Moreover, the Supreme Court has repeatedly
the officer may conduct a protective pat down if the recognized that officers “need not rule out the
officer “reasonably suspect[s] that the person stopped is possibility of innocent conduct.” Rather, observations
armed and dangerous.” capable of innocent explanation may, in the aggregate,
amount to reasonable suspicion. “[T]he essence of all
When conducting a stop and frisk, officers are that has been written is that the totality of the
“authorized to take such steps as [are] reasonably circumstances — the whole picture — must be taken
necessary to protect their personal safety and to into account.” Based on this framework, we must
maintain the status quo during the course of the stop.” determine whether the officers had a particularized and
The officers’ manner of conducting the stop and frisk objective basis for suspecting that Thomas was
does not violate the Fourth Amendment unless they involved in the completed crime of an aggravated
“were unreasonable in failing to use less intrusive robbery. One factor is that Thomas was encountered in
procedures to safely conduct their investigation.” a high-crime area, which provides some support for the
stop. However, “[a]n individual’s presence in an area of
Each police action must be “justified at its inception.” expected criminal activity, standing alone, is not
“Reasonable suspicion must exist before the initiation enough to support a reasonable, particularized
of an investigatory detention.” Similarly, reasonable suspicion that the person is committing [or has
suspicion that the suspect is armed and dangerous must committed] a crime.” Thomas’s connection to the
exist before an officer may conduct a frisk, but those stolen vehicle, through his close physical proximity and
facts may emerge after the officer initiates the stop. his association with others inside and around the
vehicle, is another specific and articulable fact. In
Thomas makes three arguments on appeal: (1) the stop urging otherwise, Thomas contends that the stop was
violated the Fourth Amendment because the officers unreasonable because the officers lacked suspicions
lacked reasonable suspicion that he was involved in that were particularized to him. He argues that a person
criminal activity; (2) the manner in which he was cannot be subjected to a Terry stop based solely on his
detained — the officers’ drawing their firearms, proximity to another person suspected of criminal
ordering him to the ground, and handcuffing him behind activity. Any “suspect’s companionship with or
his back — converted the stop into a de facto arrest propinquity to an individual independently suspected of
unsupported by probable cause; and (3) the stop cannot criminal activity is a factor to be considered in
be justified under Terry because the officers knew that assessing the reasonableness of a seizure.” It was

30 www.texaspoliceassociation.com • (512) 458-3140 Texas Police Journal