California Criminal Defense Lawyer Blog
THE TERRY STOP – “STOP AND FRISK” DETENTION
You’ve seen it in the movies and on TV shows: The police approach a person on the street or tell them to get out of a vehicle after a traffic stop and command the person to submit to a frisk. In my previous post, I discussed the lawfulness of police detentions so you might wonder what factors must be present for an officer to lawfully conduct what is commonly called a “Stop and Frisk.”
In 1968, the U.S. Supreme Court held that it is not an unlawful search and seizure when an officer stops an individual in the public arena and frisks that individual if the officer has reasonable suspicion that the individual is committing a crime, has committed a crime, or is about to commit a crime and furthermore, has a reasonable belief that the individual might be armed and therefore dangerous. Officers and legal authorities often refer to this as a “Terry Stop,” referencing the Supreme Court decision, Terry v. Ohio, 392 U.S. 1, in which this decision was pronounced. The decision is premised on officer safety, that is, if the officer has reasonable suspicion of the criminal activity, the officer can lightly frisk the detained individual for a weapon. Because the officer has reasonable suspicion of criminal activity, the individual is considered “detained” (but not arrested) and is not free to walk away without the officers consent.
The reasonable suspicion requirement means that the officer can’t just base his or her suspicion on a hunch or on a good faith belief; there must by “specific and articulable facts” on which the suspicion is based. A Terry Stop is not an arrest; however, it may lead to an arrest if the officer develops probable cause to believe the individual is involved in a crime. The Terry Stop must be brief, although “brief” is defined in different ways among different jurisdictions. If no probable cause to arrest develops during this brief detention, the officer must release the individual.
Under the rules of a Terry Stop, the officer is only allowed to frisk for weapons, not drugs or other contraband. Legally, the officer is allowed only a light frisk to identify any concealed weapons on the individual’s person. However, if drugs or contraband are clearly felt during the frisk, the officer may remove that object from the person being frisked. The drugs or other contraband must be obvious to the officer’s touch; in other words, the officer must be able to know by the light frisk allowed under a Terry Stop that the item the officer is feeling is drugs or contraband. The officer cannot poke, prod, reach into pockets or otherwise explore for drugs or other contraband. In reality, officers often use the Terry Stop as a pretext to explore for drugs or other contraband on individuals they suspect are concealing illegal items. This is, of course, unlawful and if the person is arrested after drugs or other concealed contraband is found on the individual, the evidence (i.e., the drugs or contraband) may be challenged by a motion to suppress that evidence.
Terry v. Ohio is one of the most important decisions the Supreme Court has made in the context of criminal law. It has been interpreted and refined over the years by every appellate court in this country. Many defense attorneys believe that the Terry decision opened the door to unlawful searches and seizures and indeed, it probably has. Consider the racial profiling use of Terry Stops. Some jurisdictions have recognized that the use of the Terry Stop has given the police too wide a berth and have established procedures that protect the public from officer use of the Terry Stop as a pretext.
William Weinberg is an experienced criminal defense attorney. If you have any questions regarding your criminal defense matter, please feel free to contact him to set up a confidential consultation without charge at www.bill@williamweinberg.com or (949) 474-8008.