Miyerkules, Marso 19, 2014



A police officer cautiously implement the Stop and Frisk or the 
Terry Frisk to individuals he suspected to possess illegal objects
 like gun. This mode of search and seizure has been sanctioned
 by jurisprudence as necessary to put the lives of the police out 
of danger.

Political observers opined that barangay (village) election in the Philippines is more intense emotionally than the provincial and municipal elections in the May 13 polls this year.
 The protagonists in the village elections, they said, have more personal ax to grind against each other than their counterparts in May 13.
 There is this perception that killings through the use of guns particularly among political rivals and their supporters in this poll could eclipse those numbers of corpses in the May 13 electoral derby.
 Barangay election is fast approaching. It would be held on October 28 this year.

 PNP incorporates Stop and Frisk
 Since this writer was “flattered” by the disclosure of Pangasinan Police Director Senior Superintendent Marlou Chan that his article titled “Police Stop and Frisk help Lower Shooting Incidents “(that compared shooting incidents last year in the 8.5 million populated New York City that claimed 450 lives versus the 3 million populated thriving gun-for hire province Pangasinan where killers snapped out 249 lives in the same year (you can accessed it at http://wwwmortzcortigoza.blogspot.com/2013/08/polices-stop-and-frisk-help-lower.html ) ) has been integrated in the Philippine National Police’s pilot project in Malasiqui town.
 Police Regional Director Ricardo Marquez lauded recently on TV Chan and the provincial police rising star Lieutenant Colonel Rodolfo Castro (lately reassigned as chief of police of another "Tombstone" City  San Carlos) whose Lennon-McCarthy collaboration in the Squad Patrol 101 (Read: Police visibility, check point, etc.)  resulted in a zero shooting incident since the project’s inception recently.
 The pronouncement of General Marquez on TV was refreshing since the 73 villages’ strong town has been a lair of hired killers according to the former chief of police there.
“Bawat barangay dito may hired killer (Every village here has hired killer),” he told me over a cup of coffee in his office.

 Assassins in Pangasinan thrive as Village poll approaches
 Now that the village poll is just around the corner, assassins are honing their target shooting accuracy and their motorcycle proficiency in their hideouts ready to go for business to clients who can afford their price tag.
If remains unabated, this turmoil will cause losses of precious lives, a broken peace and order situation as residents live in fear, anxieties among public officials as the acrimonious media assailed them for their incompetence to put a plug on hit men in a rampage.
 As what I told former police general and incumbent congressman Pol Bataoil in the last national and local election that the police are afraid to do the stop and frisk or open the trunk and compartment of the motorists even with the latter consent because the police fear the motorists complain or sue them at the People’s Law Enforcement Board, human right bodies, or the court.
 “That’s part of the hazard of the service. But as long as the policeman is doing his job properly and in accordance with their police procedures they can defend their actions even in Plaza Miranda,” the solon told me.

 Brief history and legal dynamics of Stop and Frisk
For starter, here’s the brief history and legal dynamics of Stop and Frisk (Terry v. Ohio) if the PNP wanted to adopt it on the October poll so it can mitigate the number of shooting incidents and other gun related crimes.
On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department in the United States detective Martin McFadden, 62, saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious.
 Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets, he observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of "casing a job, a stick-up", detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

 Police approach the suspects
 The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men "mumbled something", whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry's or Chilton's outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Guns seized on Stop and Frisk as Evidence 
The defense of the charged individuals moved to suppress the use of the seized weapons as evidence (Filipino law practitioners called them Fruits of a Poisonous Tree) on grounds that the search and subsequent seizure were a violation of the Fourth Amendment to the United States Constitution (where Philippine Constitution adopted it at Section 2, Article III ( Illegal search and seizure" of the Bill of Rights).
 Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the grounds that:
 1) The officer had (reasonable doubt) cause to believe that Terry and Chilton were acting suspiciously;
 2) That their interrogation was warranted, and;
 3) That the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed.
 Terry and Chilton were found guilty by Court of Common Pleas of Cuyahoga County (U.S version of the Philippines’ Regional Trial Court) , an intermediate appellate court (Philippines’ version of its Court of Appeals) affirmed the conviction, and the Ohio State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved.

 Why Stop and Frisk Necessary

 1) Police need a certain flexibility in dealing with quickly evolving and potentially dangerous situations that arise during routine patrol of the streets;
 2) A rigid and unthinking application of the exclusionary rule (The rule means that a search of a person should be with the benefit of a warrant or illegal object is seen inflagrante delicto before the police arrest him) in futile protest against practices which it can never be effectively used to control, may exact a high toll in human injury and frustration of efforts to prevent crime.
 3) The court made room for the idea that some police action short of a traditional arrest (through Plain View and Search Warrant) could constitute a seizure—that is, "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.
 Thus, when the police detective took hold of Terry and patted him down on that Cleveland street, the detective "seized" Terry and subjected him to a "search" within the meaning of the Fourth Amendment.
But the Fourth Amendment protects only against unreasonable searches and seizures, so the Court next had to determine whether Terry’s seizure and search were "reasonable".
 4) Reasonable search for weapons is for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.
The court however cautioned the police to avoid using good faith or hunch to stop and seize a person.” If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their persons, houses, papers, and effects,' only in the discretion of the police," the court quoted Beck v. Ohio, 379 U.S. 89 (1964).
 5) Evidence found on Terry's person was properly admitted because the search was reasonable. The detective had observed Terry and his companions acting in a manner of a stick-up. A reasonable person in the detective's position would have thought that Terry was armed and thus presented a threat to his safety while he was investigating the suspicious behavior he was observing. The events he had witnessed made it reasonable for him to believe that either Terry or his cohorts were armed.
 6) The police detective here limited his search to the outer surfaces of Terry's clothing. His searched was reasonably related for his own safety that justified the stop from the beginning. Accordingly, the Court concluded that the revolver found on Terry's person was properly admitted into evidence.
 7) The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer."

 Subsequent Jurisprudences on warrantless Search after Terry v. Ohio. 
1) The Supreme Court ruled that car compartments could be searched if an officer had reasonable suspicion that the suspect is armed and dangerous. Thus the compartments are viewed as an extension of the suspect's person. This is known as "frisking the lunge area" as an officer may protect himself by searching any areas the suspect could grab a weapon from.
2) The Court most recently cited Terry v. Ohio in Arizona v. Johnson. In that 2009 case, the Court ruled 9-0 in favor of further expanding Terry, granting police the ability to frisk an individual in a stopped vehicle if there is reasonable suspicion to believe the individual is
1) armed and dangerous (in the Philippines we have a jurisprudence on warrantless search through Moving Vehicle (you can accessed my article on this at  http://northwatch.wordpress.com/2013/02/16/ortigoza-its-a-joke-police-tied-to-visual-search/. ). This fulfills only the second prong of Terry (the first prong—reasonable suspicion that a crime has, is, or will be committed—is fulfilled by whatever traffic violation prompted the pull-over). According to Whren v. United States,
 2) any traffic violation, no matter how small, is legitimate basis for a traffic stop.

 Oh by the way, if you are probably confused why a lot of U.S cases were cited here when we are Filipinos living in the Philippines. Philippine courts are liberal for litigants who adopt the U.S jurisprudence if it involves constitutional issue of an individual like our search and seizure topic here.
 Remember America was our colonizer where we hammered many of our constitutional provisions from her. Our Bills Of Rights are almost if not copy cat of the U.S Bills of Rights.
(Send comments to totomortz@yahoo.com

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