An Offense-Severity Model for Stop-and-Frisks
38 Pages Posted: 20 Mar 2013 Last revised: 4 Mar 2014
Date Written: December 2, 2013
This Note joins a growing chorus of scholarship criticizing the lack of proportionality analysis in the Supreme Court’s Fourth Amendment jurisprudence. Rather than simply bemoan the current state of legal doctrine, we offer a practical test that state and federal courts could use to determine the permissible scope of pedestrian stop-and-frisks. Specifically, we propose that courts adopt an offense-severity model that distinguishes minor offenses (like jaywalking, public alcohol consumption, and simple trespass) from more serious misdemeanors and felonies. Two state supreme courts — Massachusetts’ and Washington’s — have already adopted a similar approach. As a result, police in those states may not engage in intrusive stop-and-frisks based on mere suspicion of noncriminal infractions. Our Note takes these decisions as a starting point to engage in a broader debate about crime-severity’s usefulness as a rubric for assessing police conduct under the Fourth Amendment and its state law equivalents.
Keywords: Terry v. Ohio, Fourth Amendment, Floyd v. City of New York, stop and frisk, infractions, violations, petty offense, crime severity, Virginia v. Moore, Atwater v. City of Lago Vista, Welsh v. Wisconsin
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