Back in January, I wrote about the first half of the “stop and frisk” rule (Have You Ever Been Stopped by the Police?). This post will discuss the frisk or “weapons patdown” portion of what is commonly referred to as a “Terry stop,” named after the US Supreme Court’s decision in Terry v. Ohio.
Two things are worth mentioning at the beginning. A cop’s number one rule is: Go home alive. Terry was decided in 1968, so there is no law enforcement officer working today who wasn’t taught the Terry rule at the police academy. They may not have been taught it correctly, or they may have forgotten, but it is safe to say there are a lot of abuses of this special power the Supreme Court gave police.
If you recall from the January post, the police may stop, or detain, someone if they have “reasonable suspicion” (a standard lower than probable cause) that a crime is about to be committed, is being committed, or had just been committed, in order to conduct a preliminary investigation.
The Terry decision also says the police may frisk, or “pat down,” that person for weapons if the officer has reasonable suspicion that the person is armed and presently dangerous. The reasonable suspicion necessary to justify the patdown is separate and apart from the reasonable suspicion relied upon to trigger the detention.
That is where many officers mess up. They think, believe, or don’t care, that once they have reasonable suspicion to detain you, they automatically are justified in patting you down.
Also, the suspicion must also be “articuable.” In plain English, can the officer write (articulate) in his or her report the reason or reasons he or she thought you were armed and presently dangerous. A patdown is not justified because the officer was afraid, had a hunch, didn’t like your looks, or any other such ambiguous reason.
One way officers avoid that reasonable suspicion hurdle is to ask you for consent. In a calm, "let's-just-get-along" voice, the officer will ask if you are carrying any weapons or other things he should know about, and whether you have anything in your pockets that could stick or poke him. After you (hopefully) answer in the negative, the officer will ask in the same friendly voice, "You wouldn't mind if I conduct a quick patdown for my safety, would you?"
Face it. Most of us want our police to be safe. Likewise, most of us want to be cooperative if for no other reason than to get this nonsense over with and get on our way. So what happens? The person rolls over and abandons his constitutional rights under the Fourth Amendment.
What’s that matter with asking in return, in your own, friendly, "I'm-trying-to-be-cooperative" voice, "I don't know, officer. Is there some reason you think I have a weapon on me?"
Trust me, you're going to get patted down anyway but the officer is now on notice that you're someone who is aware of his/her rights.
Also remember, the law allows a patdown for weapons, not for drugs or anything else.
After you have been stopped by the police you are likely frightened and upset, but if you can think about it, pay attention to the both the manner, and speed, the stop and frisk happen so you can tell me about it later.
The Terry frisk is a patdown of your outer clothing. What constitutes outer clothing can depend on the officer and the situation. If it is winter and you are wearing a heavy leather coat or a thick down jacket, the officer can't very well feel if you have a weapon in your shirt pocket. He or she can require you to remove the coat until a patdown of those areas of your body covered by the coat is completed.
Even though he may be grasping your interlocked fingers behind your head with your body bent over the hood of a car, an officer knows he is more vulnerable at this time so he, or she, is not going to waste time conducting the frisk. They know how to do it and can do it thoroughly but fast.
Come back next week for Part 2 of this subject, which, among other things, will answer the question whether male police officers can frisk female suspects.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.