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Terry Stop & Frisk (podcast transcript)

Miller:    Hey, this is Jenna and Tim.  We’re back.  Let me kind of sum up where we are Jenna.  We’ve discussed that a government intrusion into a place where somebody has a reasonable expectation of privacy triggers the 4th Amendment to the Constitution of the United States.

Solari:    Right.

Miller:    And once it’s triggered, the intrusion has to be reasonable, agreed?

Solari:    Yes.

Miller:    And to be reasonable, the courts are typically going to require a warrant supported by probable cause.

Solari:    Absolutely.

Miller:    But, there are exceptions.

Solari:    There are.  Would you like to talk about some of the exceptions to that PC and warrant requirement?

Miller:  Yea.  Which one would you like to talk about first?

Solari:    Well let’s talk about Terry Stops and Terry Frisks.  How about that?

Miller:    Good to go.

Solari:    Okay.  Let’s start with Terry Stops.  A Terry Stop, as you know, is an investigative detention of a suspect.  We can conduct one with reasonable suspicion that criminal activities is a foot.  An agent can stop a suspect and investigate that person for a reasonable period of time.  And, even though that’s not a formal arrest, it is a seizure.  The suspect’s not free to leave during that Terry Stop.  The agent’s going to control that stop and can even use reasonable force to stop the suspect and keep him there while the agent does his investigation. 

Now in addition to a Terry Stop, there’s another legal tool that’s similar, it’s called a Terry Frisk.  After legally detaining the suspect in that Terry Stop, if the agent also has reasonable suspicion that the suspect’s presently armed and dangerous, then the agent can conduct a limited search of that suspect’s outer clothing for weapons.  Now weapons are basically anything that can be used to hurt the officer.  So the search is going to be limited to searching for hard objects that the suspect could use to hurt the officer like guns, pocket knives, mace, clubs, … it’s not limited to just those things we ordinarily think are weapons.  It could also be things like car keys or pens because those could hurt an officer as well.

Miller:    Okay, now why is the frisk an exception to the probable cause and warrant requirement?

Solari:    Well most generally because it’s reasonable; again, it’s not based on probable cause or warrant; it’s based on reasonable suspicion alone. 

It wasn’t always the case that we had such a thing as a Terry Stop or a Terry Frisk and as the name suggest, it’s based on a Supreme Court case called Terry v. Ohio that was decided in 1968.  Previously before the Terry case, there were only two types of police/citizen encounters.  There was a voluntary contact and then anything above that in the way of a seizure was a full out arrest. 

Well, in Terry v. Ohio a police detective who had been walking the beat for over 30 years was in plain clothes and came across two men that were standing on a sidewalk in front of a store, sort of talking to each other.  They would intermediately take turns walking back and forth past the glass door window.  Now normally if someone does that once or twice they’re probably window shopping, but these men would take turns doing it, then sort of converse after each time one of them had past the store window looking inside and they did it probably about 10 to 12 times a piece over the course of I don’t know, 15 or 20 minutes.  Officer McFadden, being a seasoned officer, recognized this as “casing the joint.”  Officer McFadden thought they were going to rob this store.  He reached that conclusion based on his observations, walked up to these men, identified himself, and asked them who they were.  They sort of muttered something and in return, McFadden  quickly put them up against the wall.  He did a frisk - patted them down for weapons because of course he thought they were about to rob the place. 

What do you rob a place with; usually some sort of a gun or a knife or a weapon so he reasonably suspected that they were armed and dangerous at that time.  He found concealed weapons on Terry and both were charged with carrying concealed weapons. 

Of course Terry challenged McFadden’s seizure and frisk because at the time Officer McFadden didn’t have probable cause to make a formal arrest.  So they said well anything short of that that obviously was not a voluntary contact, we weren’t free to leave so it must have been in violation of the 4th Amendment. 

The Supreme Court considered Terry’s argument and agreed that while it wasn’t supported by probable cause, and obviously not a warrant, the limited stop and limited frisk could be based on something less than probable cause.  The key here was that Office McFadden had facts that led him to reasonably suspect criminal activity was a foot; that these guys were casing the joint - they were going to rob this place.  And, also the officer had facts that led him to his reasonably suspect Terry was presently armed and dangerous.  He knows that robbery or armed robbery is accompanied by weapons so the courts said that even though that something less than PC, what drives the 4th Amendment as reasonableness and his actions were reasonable in that case so that’s where we get the Terry Stop and the Terry Frisk.

Miller:    Okay, well earlier you used a staircase to describe various burdens of proof.  You remember that?

Solari:    Yes, sir.

Miller:    In using your analogy, at the bottom at the stairs there are no facts.

Solari:    Right.

Miller:    And, of course, an agent can not stop and frisks somebody without some facts, do you agree with that?

Solari:    Yes.

Miller:    However, the agent can do a voluntary contact.  Do you remember that?

Solari:    Sure.

Miller:    So, for example, if an agent sees someone in a public place, like on a sidewalk and simply has a hunch the guy is up to no good.  The agent can ask the suspect questions, right?

Solari:    Mmmhmm, sure.

Miller:    Also, the agent can ask the suspect for a peak inside the suspect’s briefcase, ah um, do you agree with that?

Solari:    Sure, I mean free country right, I mean police officers are citizens just like anybody else.  We can walk up to each other on the public sidewalk, say hello and asks some questions.  If you decide you don’t want to talk to me, so be it.  And the same is the case for interaction, a voluntary contact between an officer and a person on the street.

Miller:    Okay.  I think I understand, but just tell me again why would the courts say that this voluntary contact is reasonable?

Solari:    Because it’s consensual.  A reasonable person observing that contact between the officer and the person on the street would recognize that the suspect at that time is free to leave.  It doesn’t look in any way like it’s a seizure or the suspect isn’t free to break away from.  And, when the officer asked for a peek inside the briefcase that’s based on the suspect’s freely given consent.  All the officer did was asked permission to look inside.

Miller:    And, if the suspect refuses the stop, or declines the request to search then …

Solari:    Well then the agent or the officer can’t force the suspect to stop, or force him to consent to a search without some level of proof higher up the staircase.

Miller:    Alright, well let’s take a step up that staircase and talk about, were up there at reasonable suspicion, correct?

Solari:    Yes.

Miller:    And with reasonable suspicion criminal activity is a foot, the agent could now stop the suspect.

Solari:    Right.

Miller:    It’s non-consensual.

Solari:    Yes, that’s actually a seizure; so that Terry Stop is not a consensual encounter.  The officer is in charge of that stop at that point and the person is not free to leave.

Miller:    So, so you’re telling me the officer can actually use reasonable force to stop.

Solari:    Yes, if it’s necessary.  If the person won’t stop, voluntarily, and interact with the officer, the officer can use a reasonable amount of force to make the suspect do that.

Miller:    And, if the agent also has reasonable suspicion to believe that the suspect is presently armed and dangerous the agent can frisk that person for weapons.

Solari:    Right.

Miller:    And, again this is a non-consensual search.

Solari:    Right.  And its non-consensual.  The officer/agent can always ask for consent.  You may or may not want to do that tactically but the bottom line is if the officer has reasonable suspicion that the subject is presently armed and dangerous; they can go ahead and conduct that frisk without any consent at all.

Miller:    Well help me understand reasonable suspicion to stop and then frisk.

Solari:    Okay, well and it’s important to know that those are two different things.  First, to stop a suspect, the officer has to have reasonable suspicion, like you said, that criminal activities a foot.  Now that just means facts that allow a reasonable person to conclude that crime has been, is being, or is about to be committed and this person this officer is interacting with is somehow involved.  Reasonable suspicion that someone’s presently armed and dangerous is just what it sounds like, but most importantly, the officer/agent has to have facts to support that conclusion.

Miller:    I think you told me that reasonable suspicion to stop does not automatically mean reasonable suspicion to frisk.

Solari:    That’s right.  They are two different things.  So, for example, you may conduct a Terry Stop of someone if there’s reasonable suspicion he’s in possession of stolen credit cards.  The officer will want to conduct that brief detention to investigate that further; however, there’s nothing in particular about being in possession of stolen credit cards that would automatically lead this officer to believe the person is presently armed and dangerous, so without some additional facts, the officer would have the authority to conduct a Terry Stop, but a Terry Frisk wouldn’t be authorized without something more.

Miller:    What are some factors to consider in deciding whether the suspicion to stop is reasonable?

Solari:    Well the source of the information needs to be considered.  Of course, we know um, you need a credible source with a basis of knowledge.  There are some sources that are just presumed credible, law enforcement being the primary one, but witnesses and victims that come forward and identify themselves are also presumed credible. 

Importantly though, anonymous tips by themselves aren’t enough to establish reasonable suspicion; however, if you couple the tip with some additional facts, you maybe able to get there.  So, for instance, someone calls and leaves an anonymous tip that there’s a guy wearing a plaid shirt carrying a concealed weapon standing at the corner of 5th and Main.  Now, that’s not, by itself, reasonable suspicion to stop that person, or to frisk that person; however, a good officer is going to follow up on that and going to go out to 5th and Main, maybe do a voluntary contact, maybe look at that person a little bit to see if he sees a bulge in his clothing, or maybe something like that, and might subsequently develop reasonable suspicion based on what he personally sees to stop and frisk.  Ah, if he develops additional facts to couple along with that anonymous tip.

Miller:    What are some factors to consider in deciding whether the suspect is presently armed and dangerous?

Solari:    The suspected offense can certainly be one thing.  I mean some offenses like drug distribution or burglary just go with weapons.  The courts have held that folks who distribute drugs most often need to protect the drugs and the money they have on them so they are probably in possession of weapons.  Burglars need burglary tools - things to break windows or slim jims or to pry locks, or maybe a crow bar.  Some offenses just go with weapons.  For instances, the officer who stopped Terry, reasonably suspected that the criminal activity was a foot – a robbery.  With those facts, he had reasonable suspected that they were armed in order to commit that robbery.  But, again as we talked about stopping someone who’s committing some other form of offense that doesn’t go with weapons, like stolen credit cards, you can’t automatically jump to the conclusion they’re presently armed and dangerous. 

The officer can also consider the suspect’s reputation.  Some officers are quite familiar with people in their neighborhoods and just know from their previous experience with people or their reputation on the street that they are most often in possession of some sort of weapon or maybe they belong in a gang who’s known to carry a weapons all of the time.

Miller:    Maybe previous assaults or something like that.

Solari:    Sure.  Furtive movements on the part of the subject.  Maybe he reaches for something real quickly.  Or, he won’t take his hands out of his pockets when the officer orders him to do that.  Or, he moves real quickly like he’s hiding something.  Or, there’s a bulge is in his pocket or in the clothing, especially where we know people often conceal weapons like in a waistband or a front pocket area.  Things like that are important to consider and can support reasonable suspicion that someone is presently armed and dangerous.

Miller:    What is the scope of the frisk?

Solari:    Well initially let’s talk about the frisk of the person.  The officer’s going to be able to pat down the suspect’s outer clothing and garments and when I say pat down, that doesn’t mean the officer has to use a flat hand and just sort of pat the subject.  The officer can feel, crush, and twist that outer clothing as long as the officer’s not manipulating things inside the clothing that he can clearly tell are not weapons.  So a frisk of the outer clothing simply for weapons or hard objects that can be used to hurt the officer is permissible and you can feel, crush and twist. 

Also the officer can frisk containers that are in the possession of the subject, so bags, purses, unlocked briefcases - containers where the subject might gain immediate control of a weapon.  So of course, you don’t need to pat down the container, that’s really not going to do you any good.  The officer needs to actually open it up and look inside for weapons; and, of course, that applies to unlocked containers. 

If the officer comes across say a locked briefcase in possession of the subject, usually the best thing to do is just separate that locked container from the subject.  If the officer stops a suspect in a car or the suspect just gotten out of his car when he’s stopped, the officer can frisk the passenger compartment of that vehicle.  Um, again the frisk is limited to areas where the suspect might obtain immediate control of a weapon, so that includes the unlocked glove box, a briefcase, or console in the passenger compartment in vehicle, but importantly a frisk does not include the trunk because it’s a separate area that the suspect doesn’t really have any access to.

Miller:    It’s like immediately available.

Solari:    Right.

Miller:    Okay, how long can the officer hold the suspect during the that investigative stop?

Solari:    Well, for a reasonable period of time.  Now the officer stopped the suspect because he had a reasonable suspicion the suspect was engaged in crime so the purpose of the stop really is to determine whether there’s going to be probable cause for an arrest. 

There’s no bright line time limited that’s been given to us by the courts on how long the officer can hold the suspect to figure that out, but the courts require that throughout the stop that the officer be diligently pursuing an investigation that’s likely to either confirm or dispel that probable cause.  So, for example, with reasonable suspicion that there are drugs in the car officers can hold that vehicle and the people in it for a reasonable period of time until the drug dogs get there. 

Now, if the officer can develop probable cause, he can arrest the subject, but importantly if he does not develop probable cause in the course of that brief investigation, his investigation ends at some point and the suspect has to be released.

Miller:    Okay, do officers ever inquire evidence during these stops and frisks that can be used at, at trial?

Solari:    Sure.  In Terry v. Ohio, Terry was charged with and convicted of carrying that concealed weapon that Officer McFadden found on his person when he frisked him.  Officers can open unlocked containers in the possession of the subject that can hold a weapon and, and find something in there.  For example, if the officer has reasonable suspicion to stop and frisk a person in a car, the officer can open that unlocked glove box in the car to look for weapons and if there’s a bag of green leafy substance inside the glove box that the officer recognized as marijuana, of course, he can seize it.  The marijuana is said to be in plain view.  Now we’ll talk more about the Plain View Doctrine later, but for now suffice it to say that an officer can seize evidence in plain view if he can see it from a place he has a right to be. 

So he’s in that car and opened the glove box to conduct a frisk - the evidentiary nature of the evidence is readily apparent as marijuana and finally the officer has a legal right to access that glove box.  He’s legally in the glove box because he was looking in there for weapons so he has a legal right to access that marijuana.  However, the officer should be careful, officer wouldn’t have a right however, to access a closed film canister inside that glove box because it’s not reasonable to think that a weapon could be in there so in a frisk that would be off limits.

Miller:    You know I could imagine a police officer patting somebody down like a suspected drug dealer and feeling what he’s pretty sure is a bag of marijuana in his pocket.  Can the officer seize that?

Solari:    Possibly, the officer just has to be able to satisfy the criteria of what we call the Plain Touch Doctrine.  The first element of the Plain Touch Doctrine is that the frisk itself has to be lawful.  It means that the officer of course has to have reasonable suspicion first stop the suspect and reasonable suspicion to frisk the subject.  Otherwise, the officer probably has no legal authority to be feeling the guy’s pocket at all. 

Second, the incriminating nature of that object has to be readily apparent so that means the officer has to have probable cause to believe the object is subject to seizure like contraband. 

So, in this case and the facts you gave me, the officer would have to be confident to the level of probable cause that what he feels is a baggie of marijuana and there are some officers who have encountered so many baggies of marijuana that they just know ah what it feels like inside somebody’s pocket. 

Finally the third element is it is limited to the initial touch.  Once the officer realizes what he’s feeling in that pocket isn’t a hard object that could be a weapon, he has to move on unless he can articulate probable cause to believe that the item in that pocket is contraband that he can recognize.  Now, if he’s not sure, he has to just let it go and continue on with the frisk.  The officer’s not allowed to go back to that pocket after the frisk to move the baggie around, manipulate it, to feel it to try to figure out what it is.  He has to recognize it as a baggie of marijuana when he initially touches it.

Miller:    No manipulation.

Solari:    No manipulation

Miller:    Okay.  Hey listen, let’s take a break now and we’ll come back later on and we’ll talk about this thing called protective sweeps.

Solari:    Okay.