By Christie Nicholson, J.D. | Legally reviewed by Rhonda Earhart, Esq. | Last reviewed October 04, 2023
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Do you know what it's like to be minding your business when, suddenly, a police officer approaches you? They have questions for you, and you aren't sure how to respond. When you hesitate in responding, the officer aggressively pushes you against a fence and does a pat-down search of your outer clothing to check for concealed weapons. Instead, they discover a vial of cocaine.
Was the police officer acting within the law? It depends on whether the court will characterize the search as a "stop and frisk." What is stop and frisk, and how do you know if it's legal? A stop and frisk occurs when a police officer stops you for questioning and pats down your clothing to see if you're carrying a gun or knife. Although the U.S. Supreme Court has upheld this practice, there are still boundaries that police cannot cross.
Imagine a police officer is on patrol and becomes suspicious of two individuals he observes staring into a store window. They seem like they might be casing the store for a robbery. When the officer approaches them, they ask one of the individuals a question. The person mumbles a response. Can the officer forcefully spin them around and pat down their outer clothing to check for dangerous weapons?
These were the basic facts of Terry v. Ohio. This precedent-setting 1968 Supreme Court case settled the law regarding searches during a stop and frisk.
The United States Supreme Court justices held that law enforcement officer Martin McFadden did not violate a defendant's Fourth Amendment rights when he chose to approach John Terry and Richard Chilton while they were loitering outside a closed store and conduct what is now referred to as a stop and frisk.
The court held that, while investigating suspicious behavior, an officer may lawfully pat down the outer clothing of someone they reasonably believe to be armed and dangerous. A pat down aims to discover weapons that the person can use to assault the officer or someone nearby. In other words, the objective is to ensure officer safety.
The Court concluded that a stop and frisk doesn't violate the Fourth Amendment, which prohibits unreasonable searches and seizures. Because of the name of this landmark decision, many people now refer to a stop and frisk as a "Terry frisk" or "Terry Stop."
The police can stop somebody they think may have committed a crime. They are also entitled to pat the individual down to determine if they have any weapons on their person. However, the police aren't allowed to target people willy-nilly.
While the officer doesn't need probable cause to stop you, they must have reasonable suspicion that criminal activity is underfoot. In addition, they can only frisk you if they reasonably believe you are armed and dangerous.
Any contraband officers find during the weapons pat-down, such as illegal drugs, can usually be used against you in court, but it will depend on the circumstances. For example, if an officer feels a hard container in which a weapon could reasonably be stored, the officer would be permitted to open it to ensure a gun was not inside. If drugs were found when the container was opened, they would likely be admissible because a weapon could reasonably have been found in the container.
The point of a Terry stop is to ensure officer and public safety and to hold evidence discovered while frisking for weapons inadmissible would not deter police misconduct.
If an officer is conducting a Terry frisk and feels, based on their training and experience, what they believe to be packaged drugs, for example—and clearly not a weapon—under the Plain Feel doctrine, the seizure would likely be upheld. However, the officer must immediately believe that the item is, in fact, drugs or other believed contraband based on its plain feel by the officer. The officer cannot further manipulate the concealed item but must remove it.
The officer must be able to articulate the training and experience they have which caused them to immediately, upon a plain feel, know that they likely had discovered packaged drugs.
Specific state criminal procedure laws also limit the scope of a stop-and-frisk. According to Florida Statute Section 901.151, an officer can temporarily detain a person in two situations. First, they can stop someone to determine their identity if the officer believes they committed a crime. Second, the officer can stop and frisk someone they believe has committed or is about to commit a crime. This is known as an investigatory stop.
One caveat of Florida stop and frisk law is that the officer's detainment must be limited to the circumstances giving rise to their reasonable suspicion. If a member of law enforcement stops a person they suspect of drug dealing, they cannot question them about an unrelated robbery or shooting.
The ongoing debate with stop and frisk is how to prevent law enforcement from engaging in racial profiling when deciding whom to stop and frisk. The American Civil Liberties Union (ACLU) and other groups have claimed that the police violate the Constitution by using race to judge whether a person appears suspicious or dangerous.
Critics scored a major victory when a federal judge declared New York City's stop-and-frisk policy unconstitutional in 2013. The court based its decision on statistical evidence that suggests that officers disproportionately target people of color.
Although a federal court of appeals blocked the judge's decision from taking effect, the Mayor of New York announced a plan to reform controversial police practices to ensure that police do not conduct Terry stops in a discriminatory manner.
While civil rights activists have successfully challenged police department policies, stop and frisk remains lawful and widely used throughout the United States. However, officers must remain within constitutional boundaries and comply with local police guidelines. In cases where the court suspects discrimination, the judge will carefully scrutinize the officer's actions.
When an officer already has an arrest warrant, they can stop a suspect and pat them down to ensure they do not have any dangerous weapons. They can then proceed with the arrest, regardless of the results of the Terry stop.
This applies if the officer pulls somebody over for a traffic violation. If the officer reasonably believes a driver is speeding or driving while intoxicated, they can stop the vehicle.
They are also allowed to ask the driver to submit to a breathalyzer test or field sobriety test if they have an articulable suspicion that the driver is under the influence of drugs or alcohol.
If you believe you've been stopped and frisked illegally, don't wait to speak with an experienced attorney who knows the law and can protect your Fourth Amendment rights. They can review your case and provide the legal advice you need. If they believe the exclusionary rule should have kept specific evidence out in your case, they can help you file an appeal.
Contact a qualified criminal defense lawyer near you today to protect your rights.
Contact a qualified criminal lawyer to make sure your rights are protected.
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