불심검문에서 ‘정지’의 요건과 한계 - 미국의 stop and frisk 법리와의 비교 -

Abstract

Police stop and question is the important authority for police officers to prevent crimes and arrest suspects. However, it has been criticized to pose a potential danger to the invasion of an individual rights. Police Duties Performance Act in Korea states that a police officer can stop and question someone if they have probable cause to believe that a person has committed the crime or is intending to commit crimes under surrounding circumstances. In particular, stop by police officer is the beginning of stop and question. In these days, some people are likely to refuse to police officer’s request to stop. In this case, it is not clear whether police officer can use physical force to stop someone. The Supreme Court recently held that the police officer`s action to stop and block the movements of the person who refused to stop and seemed to be the suspect is permissible and reasonable considering the seriousness and involvement of crime, urgency of the situation and necessity of the question. Yet, there is no objective guidelines for police officers to use force when people do not obey the police stop request. This study examined the legal condition and limits of police stop compared to ‘stop and frisk’ in United States. In the United States, ‘stop and frisk’, which is called “Terry stop”, is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity. The Supreme Court of the United States held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity. The Court also held that police may do a limited search of the suspect’s outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”. Reasonable suspicion depends on the “totality of the circumstances”. Based upon this research, this study suggests that more clear and objective guidelines for police stop should be established.