Introduction and Overview
There are some seizures of the person that are so minimally intrusive and serve a significant government interest that these seizures can be done on something less than probable cause (the frisk or Terry stop). There are some searches of the person that are so minimally intrusive and also serve such an important government interest that those searches can be done based on something less than probable cause (the stop, the investigative detention, the Terry search). These cases originated from a supreme court case known as Terry v. Ohio. These searches and seizures of the person can be done on something less than probable cause – reasonable suspicion. You will not find this phrase anywhere in the U.S. Constitution, but it was a court-created concept under the overall banner of reasonableness. We will be discussing a number of concepts related to reasonable suspicion in the future, but the first question should be, “What is reasonable suspicion?” Well, the Supreme Court has said that reasonable suspicion is “less demanding standard than probable cause and requires showing considerably less than a preponderance of evidence.” While that is not a percentage, we can say that your suspicion, based on the totality of circumstances, could be wrong a considerable majority of the time.
Legal Supplement
Terry v. Ohio, 392 U.S. 1 (1968),
We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Illinois v. Wardlow, 529 U.S. 119 (2000),
While ’reasonable suspicion’ is a less demanding standard than probable cause and requires showing considerably less than a preponderance of evidence . . .
U.S. v. Arvizu, 534 U.S. 266 (2002),
A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.
United States v. Vercher, 358 F.3d 1257 (10th Cir 2004),
That the facts may not support a conclusion that Terrell actually violated the law is irrelevant; reasonable suspicion requires "a showing considerably less than preponderance of the evidence," Id. at 123, and may be justified on a quantum of evidence far less than that required to establish probable cause--a fortiori, far less than to establish guilt.
