An Offense-Severity Model for Stop-and-Frisks

作者：Keenan David^*; Thomas Tina M

来源：Yale Law Journal, 2014, 123(5): 1448-1485.

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's and Washington's-have already adopted part of our approach, distinguishing noncriminal from criminal activity for the purposes of stop-and-frisks. That is, police in those states may not engage in stop-and-frisks based on mere suspicion of noncriminal offenses. Our Note further advocates for a rebuttable presumption against stop-and-frisks for petty misdemeanors. To overcome this presumption, prosecutors would bear the burden of demonstrating that an officer reasonably believed the suspected offense posed an immediate threat to public safety. In advocating such a model, our Note contributes to a broader debate about crime-severity's usefulness as a rubric for assessing police conduct under the Fourth Amendment and its state law equivalents.

• 出版日期2014-3