When Is a Stop and Frisk Legal? Know Your Rights

Imagine you’re sitting at a bus stop when a police officer approaches you. They begin asking questions, and you aren’t sure how to respond. When you hesitate, 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 baggie of marijuana. Unfortunately for you, weed isn’t legal in your state.

Whether the officer acted within the law in this scenario depends on whether the court will characterize the search as a “stop and frisk.” 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, knife, or other weapon. Although the U.S. Supreme Court has upheld this practice, there are still boundaries that police cannot cross.

This article describes the laws and limitations surrounding stop-and-frisk procedures. You can also talk to a criminal law attorney in your area if you need legal advice specific to your situation. An attorney can determine whether the elements of a stop and frisk were legal, including whether the police had reasonable suspicion to stop you.

When Stop and Frisk IS Legal

A police officer on patrol may become suspicious of two individuals he observes staring into a store window, believing 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.

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 stop.”

The point of a Terry stop is to ensure officer and public safety. The Supreme Court reasoned that holding evidence inadmissible because it was discovered while frisking for weapons would not deter police misconduct. 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 that could reasonably hold a weapon, the officer would be permitted to open it to ensure a gun is 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. 

When Stop and Frisk Is NOT Legal

While an officer doesn’t need probable cause to stop you, they must have reasonable suspicion that criminal activity is occurring. In addition, they can only frisk you if they reasonably believe you are armed and dangerous.

A Terry stop is not lawful at any other time. Law enforcement cannot perform pat-downs for no reason. Some examples of unlawful Terry stops include:

• Stops that pre-emptively target minorities or any other protected class
• Searches that go beyond the permitted grounds of a Terry stop
• Searches that lack a reasonable belief that the individual may be armed
• Routine traffic stops

During a routine traffic stop, police cannot search your vehicle without probable cause or consent. However, they may frisk you for weapons if they reasonably suspect you’re armed and dangerous, just as in any Terry stop.

Police may sometimes carry out a “pretext stop” and pull vehicles over for minor violations when the purpose is to see if the driver is intoxicated or impaired. They’ll then often ask for consent to search. These “vehicle Terry stops” have the same limitations as a personal Terry stop.

“Plain Feel” Doctrine

The “plain feel” doctrine is an extension of the “plain view” doctrine, which states that if contraband is in plain sight, an officer does not need a warrant to seize the item. This was established in Minnesota v. Dickerson. In that case, a subject left a known drug house, and officers conducted a Terry stop. While searching the subject, the officer claimed to feel a lump in the suspect’s pocket, which they believed was a “lump of crack cocaine.” On removing it, the officers found it was a baggie of cocaine, and arrested the subject for possession.

The U.S. Supreme Court ultimately reversed the conviction for possession, holding that while the Terry stop was reasonable under the circumstances, and that officers could seize any readily identifiable weapons or narcotics, they could not seize any unidentifiable items. In this case, the “lump” was not identifiable as cocaine until it was removed. The Court ruled that officers cannot squeeze or manipulate objects to determine their substance. They can only locate an object and identify it as a weapon or contraband immediately.

Let’s go back to the bus-stop example we opened this article with. The officer feels a soft, pliable baggie in your pocket during the pat-down. Under Dickerson, the officer cannot open or remove that baggie just because they feel it. A baggie is not immediately identifiable as contraband, as it could contain anything from marijuana to a peanut butter sandwich. The officer would need to manipulate or open it to determine the contents, which exceeds the scope of a lawful Terry frisk.

However, if the officer feels a hard object shaped like a gun or knife, they could remove it immediately because weapons are what the frisk is designed to detect. The marijuana would only be admissible if the officer had probable cause to arrest you for another reason and then searched you as part of that lawful arrest.

Depending on the jurisdiction, police stop-and-frisk practices have been justified to find individual crack rocks, LSD blotters, and marijuana joints. Many of these cases are overturned on appeal. Specific state criminal procedure laws also limit the scope of a stop-and-frisk.

Racial Profiling Concerns

There’s an ongoing debate concerning 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 ruled that New York City’s stop-and-frisk policy was unconstitutional in 2013. The court based its decision on statistical evidence that suggested that officers were disproportionately targeting people of color. Although a federal appeals court blocked the judge’s decision from taking effect, New York City’s mayor 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. Officers must remain within constitutional boundaries and comply with local police guidelines. When the court suspects discrimination, the judge will carefully scrutinize the officer’s actions.

What To Do During a Stop-and-Frisk

If you are the subject of a stop-and-frisk action, your first response is likely to be anger and fear. Try to stay calm and follow the officer’s orders. Do not physically resist, and avoid any urges to yell or become verbally abusive. Anything you say can be used against you, even if you are not under arrest yet.

Police can only conduct a stop-and-frisk patdown if they reasonably believe that a crime has been or is about to be committed and you are involved in some way. It’s to your benefit to cooperate at this point. Utilizing these tactics can help you achieve the best possible outcome:

• Do not resist: Do what the police request, such as putting your hands against a wall. If they ask your name, tell them. Police can only briefly detain you during a Terry stop. In some states, refusing to identify yourself during a lawful stop can lead to additional legal complications and an arrest.
• Do not voluntarily consent to a search: Say out loud in a calm voice, “I do not consent to a search, I am invoking my right to remain silent, and I want a lawyer if I am arrested.” Don’t make any other elaborate statements or say that you “know your rights.”
• Ask to leave: When the search appears to be over, ask, “Am I free to go?” If the officer says yes, walk away. Do not prolong the encounter or make any other comments. If they say no, ask, “Am I under arrest?”

If they won’t clarify whether you are free or being detained, assume you’ve been arrested. Ask a passerby or a friend if you’re with someone to contact an attorney for you. Do not assume you are free to leave until the officers tell you that you may go.

Getting Legal Help

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 (which prevents illegally obtained evidence from being used in court) should have kept specific evidence out in your case, they can help you file an appeal. Contact a qualified criminal defense lawyer near you to protect your rights.