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Rewritten Rules. Carrying on the argument, the American Civil Liberties Union plans to help appeal the Peters decision to the U.S. Supreme Court, which has yet to rule on stop-and-frisk. If the court takes the case, the key issue may well be whether a person stopped for questioning and frisking is actually under arrest—for it is only lawful arrest, with or without a warrant, that carries with it the right to make a search "incident" to that arrest. Without grounds for arrest, police cannot simply search a person and then use whatever evidence they happen to find. In short, a search cannot be justified by its fruits alone. Yet stop-and-frisk laws may authorize just that.
To bypass this problem, many courts have simply declared that a stop is not an arrest and a frisk is not a search, thus enabling police to act on "reasonable suspicion" rather than the stricter standard of probable cause. All this seems to assume that an arrest begins only with some sort of formal announcement. By contrast, some courts view arrest as the first "actual restraint" that stops a person from doing whatever he pleases—a definition that may well bar searches made on mere "suspicion."
The Supreme Court may have handed down a hint of its own attitude in last month's Miranda v. Arizona decision, which affirmed the rights to silence and to counsel as soon as a person is "deprived of his freedom of action in any way." On the other hand, defenders of stop-and-frisk laws see the court leaning their "reasonable" way because it declared in 1963 (Ker v. California): "The states are not precluded from developing workable rules to meet the practical demands of effective criminal investigation and law enforcement in the states, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures."