In my last blog post I addressed the issue of when a police officer can stop your car. As part of my “when can a police officer (fill in the blank)” series, today I am addressing the issue of when a police officer can search your person, or as it’s more crudely referred to as, frisking.
Frisking is a technique frequently used by the police of running his or her hands up and down the suspect’s outer clothing to detect weapons or other contraband. As can reasonably be expected, the guilty and the innocent are not comfortable with a stranger feeling up and down their body, to say the least. So when is a police officer lawfully justified in doing so?
As was discussed in my prior post, the principles and rationales for when a police officer can make an investigatory stop were laid down in Terry v. Ohio by the United States Supreme Court in 1968. That same case also laid down the rules for when an officer can pat down, frisk, or otherwise search an individual’s person subsequent to a Terry Stop.
Just because a police officer has a lawful basis to make a Terry Stop does not mean that they are thereby justified in frisking that individual. For example, a police officer can stop your car because he witnessed you speeding. That would satisfy the reasonable articulable suspicion requirement that I spoke of earlier, but the officer would not then be justified in frisking you subsequent to the stop based on the speeding violation alone.
The United States Supreme Court has held that a police officer must have additional reasonable articulable suspicion that the individual to be searched is armed with a dangerous weapon and is presently dangerous. In other words, not only must the officer have a reasonable articulable suspicion that the individual is armed with a weapon, but must also have a reasonable articulable suspicion that the individual may use that weapon.
To illustrate, take for example a man who is pulled over for speeding who the officer has reason to believe is carrying a concealed weapon, and the officer knows this from a reliable source who would be willing to testify in court, but beyond that he has no reason to believe that the man is dangerous. The officer approaches the man in his car, the man greets the officer kindly, and he cooperates with the officer’s investigation. It would be hard to imagine how the officer could justify laying hands on someone in these circumstances.
Now, take the same set of circumstances, but change the man’s perceived behavior from friendly and cooperative, to unfriendly, angry, and belligerent. And to make the example even more clear, let’s assume that he is making threats towards the officer. Now we can see a set of circumstances where the police officer has reason to believe that the man is armed, and that the man is presently dangerous. A criminal defendant would be hard pressed to convince a judge that the police didn’t have a basis for frisking the defendant for weapons.
The reason for this rule is obvious. We do not want to give police full reign to spend their days frisking every individual they encounter. However, we also do not want to tie an officer’s hands in a situation where he has reason to believe a suspect is dangerous and armed. If he has a good reason for believing this, then it makes sense to let him disarm the man he is attempting to investigate.
As anyone who has seen an episode of Cops may know, it is very common for police officers to frisk a suspect, find no weapon, but turn up other contraband, like drug paraphernalia. You may ask yourself, if the search is for weapons, and officer safety is the justification, then why are they finding drug contraband? Well, to answer that question, you need to understand what has come to be known as the “plain feel doctrine.” Essentially what “the plain feel doctrine” means is if during a lawful search for weapons an officer feels something in the clothing of a suspect, the identify of which it is immediately clear, the officer can remove that object. So if an officer is searching for weapons, and feels over the suspect’s pocket and does not feel a gun, but does feel a marijuana pipe, and through his “training and experience” the officer knows what a marijuana pipe feels like through clothing, then the officer can lawfully remove the pipe.
Do not be confused though by a different type of frisk you may see on a show like Cops. If a defendant is being frisked after being arrested, then the officer is operating under a different exception to the warrant requirement, and that is the search incident to an arrest exception. That is an exception that I will discuss in more detail in a later post. Suffice it to say, if a suspect is under arrest, the police are allowed to frisk the suspect for weapons and contraband. They are not required to have reasonable articulable suspicion that the suspect is armed and presently dangerous. All they need to show is that the frisk was done as part of a lawful arrest.
Also, this analysis does not apply to the recent fiasco with the TSA and their new frisking policy prior to boarding a flight. This is another issue that I will probably be writing a blog post about later. Suffice it to say, a frisk by the TSA is known as an administrative search, and while this particular search is still analyzed under a Fourth amendment analysis, such a warrantless search is valid if it is “no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives” and passengers may avoid the search by electing not to fly.
Have you been frisked by a law enforcement officer? Do you believe the police officer was justified in doing so? Share you comments below.
When can a police officer stop me in my car?
I alway keep in mind when Wade Feldner was shot and killed. What went wrong with that trafffic stop? The car was stolen that the boys were in and the driver had a hand gun (loaded). What should Wade have done differently? Called for back-up? Payette County doesn’t have much back-up in the middle of the night. It is incidents like this that make police officers be on their guard at all times. Food for thought.
There are some errors in the above analysis. If someone is committing a minor traffic the cop has probable cause not reasonable articulable suspicion. For the frisk however, as pointed out above more is needed. Making threats to a cop after a stop may also rise to probable cause for arrest if it puts the cop in fear of a battery. After arrest, frisk is to be expected. In the case of the C.I., it may be enough based on the recent Supreme court irrationale to prevent possible harm to others.
finally based on the S.Ct. decision in Texas v. Atkinson they can even take you to the station on a minor, non-arrestable offense and can search prior to transport.
STU,
Thank you for your comments. I agree with your analysis, and should have been more clear in my examples. I was trying to use examples that are clear in order to avoid confusion. In doing so I used examples that exceeded the reasonable expectation standard and amounted to probable cause. However, since it amounted to probable cause, it most certainly met the reasonable articulable suspicion standard, and thus served its purpose.
Also thank you for bringing up the Texas v. Atkinson case. I will address that case in a future post. Please feel free to come and discuss your opinions of that case.
I was stopped for a tail light being out after having two beers. The officer asked whether I had been drinking and I answered (as it happens, I had been pulled over 10 minutes before, by a nice cop, and blown .01, or .1 – anyway, really low). This cop called for backup, made me get out the car, frisked me, and administered a roadside test in a very obnoxious way. I’m a middle-aged guy in an old Volvo, about as non-threatening as you can imagine. I knew that if I refused to be frisked this cop (of what I call the sadistic variety) would make things as hard as possible for me and that any subsequent action on my part would not result in any significant reprimand for the officer. What should you do if you want to stand up for your rights? It seems like a very scary thing to do even in our liberal upstate NY town.
Hi, I am 17 with a provisional license. i was driving a friend home after we decided to not go to a party around 3. I pulled into a parking lot because I got nervous of a cop behind me and upon leaving my spot, I got stopped. My car had no scent on it, I wasn’t under the influence of anything and i was completely cooperating with the police officer. What would be the probable cause for him to search me for weapons? And if none is clear, would I still be liable for possession of marijuana?
Antonio,
A police officer does not need “probable cause” to search someone for weapons. A frisk for weapons is called a “Terry Frisk.” An officer needs to have reasonable articulable suspicion that you are armed and dangerous in order to frisk you for weapons. If the officer did not have reasonable articulable suspicion that you were armed and dangerous, then he had no right to frisk you. If that were the case, then you could motion to have the evidence suppressed. If the evidence were successfully suppressed, then there would be no evidence of a crime to use against you at a trial, and the case would then have to be dismissed.
Thank you for your reply. Please if you don’t mind explain what suppressing the evidence actually means?
Would you know if driving past 12 with a provisional license in the state of MD is reasonable articulable suspicion?
And please ignore my reply to your comment. I understand what suppressing the evidence is.
I was pulled over (by myself) for speeding around 4pm (daylight and rainy), Alabama State Police officer said I was doing 60 in a 45 on Labor Day this year. I was wearing shorts, t-shirt, and flip flops. The trooper ordered me out of the car told me to place my hands on the car and he searched me. Okay, I felt it was abuse of power. I’m white 47 years old and retired military, pretty clean cut as most would say; so I don’t look like a character on sons of anarchy. What right did this trooper have to do this (pat or frisk me) for a questionable speeding ticket ( I know I wasn’t doing 60 and I fighting the ticket)
My son was just pulled over for speeding. When the license plate was run, another officer called over the radio and said “that name has a drug history” so the officer proceeded to frisk my son. Is that legal or can we fight it? He did not suspect he had been smoking, nor did he smell smoke or see any contraband in the vehicle, so why the hell did he frisk him?
From what you’ve told me, they shouldn’t have. Was your son charged with a crime? Was something found during the frisk? Before I could give you a competent opinion on the matter I would need many more details.
I am a young female student. recently I was stopped by university police ( while I was not on school property) for dead tags. The police officer asked me if I was armed. I told him I had my pistol with me but I also have my concealed weapons permit. He then asked me to step out of the car and frisked me. I had to ask him to look at my permit and drivers license. Does this sound normal? To frisk someone if they have a gun and a permit for that gun?
i was driving not doing nothing wrong when i seen a cop turn around to follow me. he followed me for about 2 blocks when i pulled up to my house. the officer pulled up behind me and turned on his lights but i was already out of the car. i proceeded to walk up to my house and the cop told me to stop and turn around. so i did so. he then told me to drop my cigarette and as i was doing so the officer grabbed me with force and threw me against the car and kept telling me not to resist arrest but i wasn’t i was just freaked out and kept saying i didn’t do anything wrong. then they searched me and just looked in my car. found nothing of course. and then checked my license which i don’t have. they let me go and wrote me a ticket for no operators. and the car was in my girl friends name which is completely legal. im just wondering if this is even legal. he didn’t even pull me over. and there was no reason for him to follow me besides the vehicle is a suv with 22 rims. maybe he thought i was some sort of thug. idk im just sooo confused.
Please help i was pulled over at 3am in my girlfriends car for expired registration i live in Vermont where concealed carry is legal. The officer asked if i had been drinking i said yes two drinks 4 hours ago he asked me to get out of the car i did. He asked if i had a weapon on me i said yes my pistol is in my inside jacket pocket the magazine is loaded but the chamber is empty (gun not loaded) he told me to put my hands on the car and patted me down he felt my glass pipe and bag of marijuana. After taking my pistol he asked me too pull out the contents of my pocket so i did it was 1 gram of marijuana and pipe. after receiving my ticket for no registration and a citation for possession of marijuana i asked for my pistol back and he said he couldnt give it back until after my court date. I was very nice and calm the whole time and did what he asked. was his pat down legal and can he legally keep my gun.