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.