Frisks
Terry v. Ohio
392 U.S. 1 (1968).
Terry and a codefendant were convicted of carrying a concealed weapon.
Question
Was the stop and seizure a violation of the fourth amendment?
Rule
Much like a “stop” a “frisk” (although a search) must be reasonable to occur without a warrant. A search is reasonable if a reasonably cautious person would believe that his or other’s safety was in danger. This must be based on reasonable inferences based on his experience (on a case by case basis). Hunches are not enough.
Holding
This was a proper search. Affirmed.
Facts
Officer McFadden was walking the streets when he observed Terry and one other individual acting suspicious. They repeatedly walked past a store to the corner and back, glancing in every time they passed. Based on Officer McFadden’s experience, he believed that Terry and his companion were preparing for a day-time robbery of the store. When the individuals stopped in front of the store, the officer determined that it was time to act. He stopped Terry and his associates. Believing that they had a weapon (highly associated with this type of assumed robbery), he conducted a brief search of the outer layers of their clothing. Feeling a weapon, the officer reached in and removed it.
Analysis
There is a strong need to balance the interest of the government (in fighting crime), the officer (in their safety from undisclosed weapons), and the supposed criminal (in their constitutional liberty and against unreasonable invasions of privacy).
Taking all these interests into account justifies the articulation of a reasonable stop and seizure. This rule is not a violation of the Constitution (deliberately allowed as “reasonable searches and seizures”). The rule, as outlined above, in application of this particular scenario, was a fine stop and search. The officer had years of experience with observing these crimes. Knowing that these crimes often had a weapon, it was reasonable for him to assume that a weapon was present. Additionally, he limited the search to the outer clothing of the individuals until he found a weapon. At that point, the only intrusion to the interior was to remove the weapon from the defendant’s possession. The search was reasonable and the actions limited.
However, the dissent argues that the standard should be probable cause (being the standard for a usual search and seizure (amounting to a full arrest). Failure to utilize this standard would result in officers making stops and seizures outside of judicial authority in violation of the Fourth Amendment.
Additional Notes
The defendant argued that this case should have been resolved based on probable cause. However, the state is saying that this is a dangerous job and if there is reasonable suspicion of a weapon, then they should be able to conduct a search to remove a weapon.
Holdings: This was a search and the reasonableness (rather than probable cause) standard will be applied (authorized by the Fourth Amendment). A frisk can only occur if there is a reasonable suspicion for the stop plus a reasonable suspicion of a weapon. The scope of this search is limited to those places where a weapon may be located.
In the present case, there was reasonable suspicion for the stop (based on the officer’s experience and the actions of the defendant). Additionally, there was reasonable suspicion of a weapon (based on how the suspected crime often involves a weapon). Finally, the scope here was limited to the suspect’s outer clothing and any intrusive search was only to remove the weapon.
The dissent argues that the standard should be probable cause because officers should not have more discretion than the judges or a Constitutional amendment should be made.
This decision makes sense because (1) it is tied to the practical reality of police (that’s how the police work anyways, (2) other rule making bodies could influence police actions, (3) police need to fight crime safely.
Scope of Frisks
Terry allowed the search because of the urgent nature of ensuring public and officer safety within the brief search. The cases below address whether this scope could be expanded to include evidence searches or be more intrusive.
Commonwealth v. Wilson
805 N.E.2d 968 (Mass. 2004).
Question
Whether the scope of the search was justified by the circumstances.
Rule
A Terry frisk is permissible if the officer reasonably believes the individual is armed and dangerous. “The scope of this search is not exceeded if, during a lawful pat frisk, it is immediately apparent to the police officer, in light of the officer’s training and experience, that a concealed item is contraband.” This is called the “plain feel” doctrine.
Holding
The search did not exceed the scope of the Constitution.
Facts
After receiving a call from a pizza parlor that said several men were outside either beating up or stabbing a man with a hammer or knife, the police entered the area and discovered the men. After making eye contact with the officer, the defendant, turned, began walking away, and put his hand to his hip. Believing the individual had a weapon, the officer stopped him, felt his waist, and discovered not a gun, but packages of weed. This discovery was readily apparent by the officer’s experience in drug arrests and participation in the gang unit.
Analysis
First, the officer had reasonable suspicion for the stop. Everything was exactly how the pizza parlor described, a group of several men across the street. When the defendant turned and put his hand on his hip, this provided suspicion that he was involved in a crime and that he was armed. Both would justify the stop and the frisk. Because the officer was lawfully within the boundary of the frisk, and he recognized the drugs right away (with no other need to investigate further), the search was lawful. This is similar to the plain view doctrine where, if the officer is in a lawful place and discovered the activity in a readily apparent matter, there is no need for a warrant.
Additional Notes
Using the rule, there is reasonable suspicion for a stop (the call regarding a crime) was made and the scene fit the description. There is also reasonable suspicion for a weapon (the call described the use of a weapon and the defendant put his hand on his hip).
In this jurisdiction a Terry frisk “scope of this search is not exceeded if, during a lawful pat frisk, it is immediately apparent to the police officer, in light of the officer’s training and experience, that a concealed item is contraband.” This is called the “plain feel” doctrine. So, because he was in a lawful frisk, and found the contraband based on his experience and identified it before seeing it, this was within plain feel. The frisk was within scope. This search can expand to backpacks and purses.
States differ as to whether the scope is only for a weapon (see Arkansas), or if it can be expanded to a certain amount (see Mass. and Montana).
If an officer is conducting a search for an item (other than a weapon) it will still require either a warrant or probable cause.
Rules for vehicles: Under Mimms, an officer can ask the driver to exit without any additional suspicion, but a frisk still requires reasonable suspicion about the weapon. Under Long, if there is reasonable suspicion of a weapon in the car, the officer can search the places where a weapon is expected to be located and within the reach of the driver. The same applied to passengers (see Johnson and Wilson). This analysis assumes there is reasonable suspicion for the stop.
Administrative Stopes and Searches
An administrative stop is where an officer makes a random stop to ensure a general administrative purpose (e.g., highway safety by ensuring drivers are licensed or not impaired). There is no need reasonable suspicion to make these stops.
City of Indianapolis v. Edmond
531 U.S. 32 (2000).
Rule
Administrative stops must be general in nature and not for the purpose of criminal enforcement.
Holding
The stops here were not administrative in nature but instead focused on criminal enforcement. Affirmed.
Facts
The City of Indianapolis created roadblock system where, with a very particular set of rules, they would stop random vehicles, ask for license and registration, have a dog sniff the outside of the vehicle, and conduct any additional searches if there are signs of impairment.
The primary purpose of these stops? Discover the use of narcotics. This purpose was successful in catching about 4.2% of motorists who were stopped. A secondary purpose was for highway safety.
Analysis
There were previous cases where the U.S. Supreme Court has determined an administrative stop is constitutional without any reasonable suspicion. These programs were to catch drunk drivers and unlicensed drivers for the primary purpose of ensuring highway safety and the secondary purpose was criminal enforcement (driving while impaired is a crime).
This case is different because the primary purpose was to discover the use of narcotics, criminal activity. A stop for criminal activity looks for reasonable suspicion, something that is nonexistent when random stops is conducted.
However, the dissent argues that this is no different than Whren, where one purpose (stopping a vehicle for a traffic violation) can be reasonable grounds for another (finding drugs). In other words, the purpose of why the stops are not happening as long as a constitutional purpose is currently ongoing. That is, even though highway safety is secondary, it is a valid purpose which would then justify the criminal enforcement too.
Additional Notes
Rule: Administrative stops need no reasonable basis as long as they are not discretionary and they have a general administrative purpose, and limited in duration (e.g., license and registration checks, highway safety by managing drunk driving).
Sitz – sobriety stop was ok
Prouse – license checks are fine, but cannot have discretionary stops.
This is different from Whren because in Whren they were looking for crimes, which requires a reasonable basis for the stop. Here there was no reasonable basis.
Dog sniffs are fine, if they do not expand the duration of the stop.
The exception is that nonconforming roadblocks are allowed with exigent circumstances (e.g., escaped felon or terrorist attacks).
Disclaimer
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.
