We have heard a lot about stop and frisk in the last couple of months, namely the New York police’s former stop and frisk policy and the Trump-Pence campaign’s claims that that tactic is an essential crime prevention tool uniquely capable of fending off anarchy and saving lives in crime-ridden communities.
There are conflicting arguments on the constitutionality of stop and frisk policies and their implementation across the United States. But, what are the stop and frisk rules in Montana?
Under Montana law, an officer can initiate an investigative stop and frisk “[i]n order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person.” The stop and frisk can include stopping any person or vehicle that is “observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.”
What can the officer do during an investigative stop and frisk? An officer who has lawfully stopped a person or vehicle may:
(a) request the person’s name and present address and an explanation of the person’s actions and, if the person is the driver of a vehicle, demand the person’s driver’s license and the vehicle’s registration and proof of insurance; and
(b) frisk the person and take other reasonably necessary steps for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present. The officer may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe that the object is a deadly weapon until the completion of the stop, at which time the officer shall either immediately return the object, if legally possessed, or arrest the person.
See Montana Code Annotated § 46-5-401.
It is important to recognize that the officer must have particularized suspicion that a person has committed, is committing, or is about to commit a crime. The particularized suspicion must be based on what the officer has observed, and on articulable facts.
Thus, in order to justify an investigative stop on a vehicle, the state has the burden to establish 1) objective data from which an experienced police officer can make certain inferences; and 2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity. State v. Gilder, 1999 MT 207.
Particularized suspicion is less than reasonable cause or probable cause. The essence of this test is that the totality of the circumstances must give law enforcement a particularized and objective basis for suspecting the person of criminal activity. State v. Reynolds, 272 Mont. 46 (1995).