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Frisk Searches Are Not Automatic, Part 1

Much misinformation has been promulgated in the law enforcement about if and when officers may lawfully conduct frisk searches. Several things need to be clarified. First, stops and frisks, though usually factually related, are two separate matters legally. Just because a stop is permissible doesn’t mean a frisk is permissible. In fact, in most stops, a non-consensual frisk would not be permitted because of the absence of reasonable suspicion of the presence of weapons.

Second, the mere words “officer safety” do not by themselves complete (or even really begin) the required articulation of justification for a non-consensual frisk search. Rather, the officer is required to explain the facts and circumstances that would underpin a conclusion of reasonable suspicion of the presence of a weapon that would constitute a threat to the officer.

Third, in most cases, an officer who is a skilled interpersonal communicator will be able to obtain a valid, voluntary consent to a frisk search. Of course, a voluntary consent is premised on offering someone an apparent choice then awaiting an affirmative indication before proceeding. All of the legal requirements for frisk searches discussed in this writing disappear if the officer obtains a legally valid consent before conducting a frisk.

Fourth, the same types of rules that limit an officer’s authority to frisk during an investigative detention also generally apply to an officer’s authority to handcuff someone during a stop. That is, just because a stop is permissible doesn’t mean handcuffing is permissible. Similarly to frisk law, the officer must be able to articulate facts and circumstances that lead to reasonable suspicion that the subject constitutes such a threat that handcuffing is reasonably necessary. The words “officer safety” do not by themselves fulfill this requirement of factual justification.

Searches of people for weapons involve substantial risks, physical and legal, to the law enforcement officer. They also involve some of America’s most valued freedoms. Let’s consider the constitutional issues of 1) if and when if a frisk search is permitted; 2) the permitted extent and limit of a lawful frisk search; 3) if and when sensory perceptions gained during a frisk search can be used toward justification for other, more intrusive police actions.

Frisk Searches

The landmark case dealing with frisk searches is the United States Supreme Court decision in Terry v. Ohio, 88 S. Ct. 1868 (1968). In Terry, the court defined an officer’s authority to conduct a limited search of a person for weapons during some investigative detentions, or “stops.” Officers sometimes want to check a subject for quickly accessible weapons. For such a weapons “frisk” to be reasonable (and constitutional under the Fourth Amendment) the preceding seizure of the subject’s person (the stop) generally must be lawful and there must be an objectively reasonable basis for the frisk itself.

A frisk is a limited search of outer clothing (and sometimes carried belongings) for weapons. The sole purpose and justifying theory of a frisk search is officer protection. The United States Supreme Court has characterized the frisk as a “search” because it constitutes an intrusion upon a person’s reasonable privacy expectations. The court has recognized that it is sometimes reasonable for an officer to conduct a protective search for weapons even when the officer does not have probable cause to arrest.

Just as an investigative stop must be supported by articulable circumstances that establish reasonable suspicion of criminal activity, a frisk must be supported by an articulable reasonable suspicion that a person (lawfully stopped) is armed and may be dangerous. As is true also for stops, reasonable suspicion to conduct a frisk may be based on the officer’s own knowledge and personal observations (plus reasonable inferences which training and experience allow) or from reasonably reliable information supplied by others.

Information from anonymous sources is not considered reliable without additional indicators of credibility. In Florida v. J. L., the United States Supreme Court held that an anonymous tip that a particular person at a particular place is carrying a gun is not alone a sufficient reason to stop and frisk.

Suspicion Factors

The justification for an investigative stop is not necessarily also justification for a frisk. In each case, an officer conducting a frisk must be prepared to point to the specific, articulable facts that justified that particular frisk. Many such possible (articulable) justifications (or factors) for a frisk search exist.

Specific information, which is information received from witnesses or other sources that a person is armed. Anonymous source information may be considered if circumstances indicate reasonable trustworthiness of the information.

Visual observations, which are observation of bulges in a suspect’s clothing consistent with the presence of weapons. Typically, the observation of such a bulge in a suspect’s clothing will be sufficient by itself to justify a protective frisk during a lawful stop.

Nature of the suspected criminal activity—the reasonable suspicion that justifies an investigative stop—does not automatically justify a frisk. In some instances, the very nature of the suspected criminal activity may suggest the presence of weapons. For example, officers normally would be justified in conducting a frisk of a person stopped on reasonable suspicion of armed robbery. The potential presence of weapons is reasonably inferred from the nature of the suspected criminal activity.

Discovery of weapons, which is when an officer observes a weapon in the vicinity of a person who has been lawfully stopped, the officer may reasonably suspect that other weapons are present and pose a threat. It is usually reasonable for an officer to take preventive measures to ensure that there are no other weapons within the person’s reach.

Officer knowledge of area and/or groups means officers often have considerable knowledge and/or experience regarding certain places and/or groups. For example, an officer stops a person coming out of a nightclub well known for its armed patrons.

Suspect behavior, which includes high belligerence levels and/or suspicious movements and gestures, may be a basis for suspecting that weapons are present. Failure to comply with an officer’s command to remove one’s hand from a pocket might reasonably cause suspicion that a weapon is present. Extreme suspect nervousness may serve as a factor toward reasonable suspicion of the presence of weapons.

Randy Means is a partner in the Charlotte, NC law firm of Thomas and Means, LLP, and specializes entirely in police operations and administration. He formerly served as head of legal training for North Carolina’s state law enforcement training center and then police attorney for the city of Charlotte. He is the primary legal instructor for the IACP. He has conducted law enforcement training in 47 states and Canada and is the author of a “The Law of Policing.” He can be reached at rbmeans@aol.com.

Published in Law and Order, Mar 2008

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