Does ‘Stop and Frisk’ Include the Right to Remain Silent?

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Photo by D.C. Atty via Flickr

Individuals detained briefly by police “stop-and-frisk” tactics are entitled to the same constitutional right to remain silent that the Supreme Court recognizes for those who are arrested, according to a paper in the American University Law Review.

“Time and again (lower) courts have found the law in this area sufficiently unsettled to deny recovery to those alleging that they were unconstitutionally arrested for refusing to cooperate with police investigations,” said the paper, written by Sam Kamin and Zachary Shiffler, both from the University of Denver.

The authors acknowledged that the Supreme Court “has never explicitly found a right to remain silent” when individuals are briefly detained under the authorization of the 1968 Terry v Ohio ruling, which allowed officers to stop and frisk individuals if they had a “reasonable suspicion” that a crime was committed, or about to be committed.

But the failure of lower courts to recognize that right is “inconsistent not just with the Court’s repeated pronouncements on the subject but also with the Court’s broader conception of the right to remain silent,” the authors said in the paper, entitled “Obvious but not Clear: The Right to Refuse to Cooperate with the Police During a Terry Stop.”

They added: “It makes no sense that only those…who have been briefly detained but not yet arrested have no right to remain silent in the face of police questioning.”

To underpin their argument, they cited Justice Byron White’s concurrence in Terry v. Ohio where he stated, “[o]f course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.”

But what was obvious to Justice White is not as obvious today for lower and appellate courts, the authors said, noting that lower courts consistently deny restitution to individuals who alleged that they were wrongfully arrested after refusing to answer questions by police during so-called “Terry stops.”

The argument often is made that since the right is “not clearly established,” officers who arrest suspects for not speaking are “entitled to qualified immunity,” the paper said.

An example of how Terry stops fall between the legal cracks, according to the authors, is the case of Rebecca Musarra, who was pulled over by a New Jersey State Highway officer in 2015. Musarra, an attorney, gave her license and registration willingly to the officers, but sat “mutely behind the wheel as they asked her if she knew why they had pulled her over.”

Dash-cam footage from the officer’s patrol vehicle showed the officers becoming increasingly angry at her silence.

Only then did she say, “I’m a lawyer, I don’t have to answer your questions.”

Soon after that, one of the officers arrested her on a charge of obstruction of justice.

Musarra sued the officers for violating her constitutional rights. The case was settled in January 2019 for $30,000, but the state never issued an apology; nor did it admit any wrongdoing on behalf of the officers.

A state patrol spokesperson eventually said it was “simply a matter of insufficient officer training.”

Kamin and Shiffler suggest three solutions to the problem:

      • Lower federal courts should “…simply acknowledge that the right exists and is clearly established by Supreme Court precedent;”
      • But if they are unwilling to find authority for this right in Supreme Court precedence, they “should themselves establish that such a right exists;”
      • State courts and legislatures should make clear that “statutes permitting arrest for obstruction of justice or interfering with a police officer are not violated by the mere refusal to answer police questioning.”

The states should also clarify that the failure by police to make clear to anyone that they stop has the right to remain silent would carry a penalty, the authors said.

This “would have the effect of providing injured plaintiffs with something they currently lack – a meaningful way to recover damages when they are arrested for asserting their constitutional right to refuse to cooperate with a police investigation.”

The full article can be downloaded here.

 This summary was prepared by TCR staff writer Andrea Cipriano.

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