TERRY FRISK UPDATE risk to the officer / agent or others.

If the
The Law, Field Examples and Analysis explanation is found to be reasonable, the
frisk is good.
Steven L. Argiriou
Senior Legal Instructor All Armed Persons Are Not
“Dangerous”: Not every armed person is
THE “FRISK” automatically a risk to the officer / agent
or others. For example, Wildlife
Defined: A limited search for weapons, Conservation Officers checking “take for
generally of the outer clothing, but also of the day” in an authorized hunting area are
those areas which may be within the not likely to frisk every hunter they
suspect’s control and pose a danger to the contact because they are all armed with
officer / agent.1 Many law enforcement large caliber rifles. Additionally, many
agencies teach officers to frisk via a “pat citizens are often “armed” with
down” of the suspect’s outer clothing. conventional and unconventional weapons
such as pocketknives, pens, flashlights,
Legal Basis / Justification for a Frisk: etc. A suspect “stopped” for suspicion of
Reasonable Suspicion that the suspect is check fraud, will generally not be frisked
armed and dangerous (see the previous simply because he or she has a pen in their
article for a discussion of what constitutes pocket.3
“reasonable suspicion”).2
What Can be Removed/Inspected?
Frisk Indicators: See the previous article Items the officer / agent recognizes as a
for a discussion of Reasonable Suspicion weapon (conventional or unconventional)
Indicators as they are virtually the same. or that could reasonably contain a weapon.
The key is that the reasonable suspicion The officer / agent must articulate the
support a belief that the suspect is “armed pertinent facts and the experience, training
and dangerous.” and knowledge that establish the
reasonableness of the conclusion that the
“Stopping” and “Frisking” a Person are item is a weapon or could contain one.
two Different Things: An officer / agent
cannot automatically frisk everyone Field Example: An officer / agent has
lawfully “stopped” under Terry. In valid reasonable suspicion to conduct a
addition to reasonable suspicion that stop and frisk. The officer pats the suspect
criminal activity is afoot, the officer / down and feels a small box like item in a
agent must also be able to articulate pocket. The officer / agent seizes the box
reasonable suspicion that the suspect is which turns out to be a cardboard flip-top
armed and dangerous. “Officer Safety” box of cigarettes. The officer / agent opens
alone will not justify a frisk. The officer / the box up to see if a small knife or
agent must articulate “why” officer safety derringer handgun is concealed inside.
was an issue (exactly what risk / danger to
the officer / agent or others existed). The 3
Note however, since a pen can be used as a
officer must “explain” why there was a weapon, it can support frisk if the person is
otherwise acting in a manner that an officer / agent
1
Terry v. Ohio, 392 US 1 (1968), Ybarra v. can articulate posed a threat to their safety or others
Illinois, 444 US 85 (1979). (i.e. threatened to “poke out their eyes with a
2
Id. stick.”)
Upon inspection, the officer / agent sees only to detect weapons. But, if while doing
what is recognized, based on knowledge, that I lawfully discover contraband, then I
training and experience, to be crack will seize it!”
cocaine.
“Plain Feel” Doctrine: If while
Analysis: If the officer / agent can conducting a valid stop and frisk for a
articulate, based on knowledge, training weapon, an officer / agent feels what is
and experience, that knives and small “immediately recognized” as contraband,
single and five shot derringers exist that the contraband may be lawfully seized.
can fit inside a flip-top cigarette box - the The incriminating nature of the contraband
seizure will likely be a good one. must be “immediately apparent.” If an
officer / agent must “manipulate” the item
Plain View Doctrine: Under the plain to figure out it is contraband – it is not
view doctrine, if an officer / agent is lawfully seized.
lawfully present and sees what is
immediately apparent as contraband or Field Examples:
evidence of a crime, the item may be
seized and admitted into evidence against Good Seizure: During a valid stop
a defendant.4 If, during a valid stop and and frisk, the officer / agent feels in the
frisk, an officer / agent seizes an item that front pants pocket of the suspect what the
reasonable feels like a weapon (or could officer / agent immediately recognizes as a
contain one) that instead turns out to be small quantity of bagged marijuana. The
contraband or evidence of a crime, that officer / agent seizes the item by pulling it
item is admissible. out of the suspect’s pocket and upon
inspection and field testing, determines the
Field Example: During a valid stop and item is a small bag of marijuana
frisk an officer / agent discovers a belt unlawfully possessed.
attached, closed, leather knife sheath. The
officer / agent opens the sheath up to see if Analysis: This is a good seizure since the
a knife is inside and, instead, sees what officer immediately recognized the item
appears to be a small bag of marijuana – upon first touch as contraband.
this is likely a lawful seizure based upon
the plain view doctrine. Bad Seizure: Same as above
except upon performing the frisk, the
Note: It is important to remember that the officer / agent feels in the suspect’s front
purpose of a frisk is to find and seize pants pocket and “thinks”, but is not sure,
“weapons” NOT evidence of a crime the item is bagged marijuana. The officer
(contraband).5 If, while lawfully frisking / agent squeezes and manipulates the item
for a weapon, an officer / agent discovers through the pockets with his fingers until
contraband – it may be seized and used convinced it “feels” like bagged
against the defendant. If asked by Defense marijuana, and then seizes the item which
Counsel, “When you frisk, one of the turns out to be bagged marijuana
reasons you frisk is to detect contraband, unlawfully possessed.
right?” the answer should be “No. I frisk
Analysis: This is a bad seizure since the
4
Horton v. California, 496 US 128 (1990) officer / agent did not “immediately”
5
Adams, Warden v. Williams, 407 US 143 (1972)
recognize the item as contraband upon amounts to forcibly stopping a fleeing
touch. suspect and using reasonable force to
overcome resistance to a lawful frisk. The
Frisking the “Lunging Area”: An officer force used must be reasonable under the
/ agent, with lawful authority to conduct a circumstances. The US Supreme Court
stop and frisk, may frisk not only the has used language such as “some degree of
person of the suspect for weapons, but physical coercion” in describing
also any “lunging area” from which the permissible use of force to execute a Terry
suspect could obtain a weapon. This will stop.9 This article is not intended to review
include such nearby areas as a newspaper “use of force issues” in detail. Refer to
on the ground, a trash barrel, a jacket in your agency guidelines on the use force as
the back seat of a car, under the car seats they will be applicable in executing Terry
(if the suspect was originally sitting in the stops. Keep in mind that pointing a
car).6 service pistol at a suspect can be
considered the use of force and that this
Frisking Containers: An officer / agent has been found by the U.S. Supreme Court
who finds a closed container within as being justified in the execution of a
lunging distance of a suspect who is being Terry stop of a suspected violent felon.10
lawfully stopped and frisked, may open
the container to see if it contains a weapon Additional Points:
if: a) in light of the officer’s experience
and training the item could contain a Ordering Driver Out of a Vehicle: A
weapon, and b) the container is NOT driver may be directed out of a car
locked.7 lawfully stopped by the police for a
moving violation or on a “Moving Terry
Field Example and Analysis: During a Stop” with no additional justification.11
lawful “moving” terry stop an officer / The U.S. Supreme Court made this
agent directs the driver out of the vehicle decision primarily based on “officer
and conducts a lawful frisk. In this case, safety.” This is a tactical decision for the
the officer / agent may “frisk” under the officer / agent. Some officers like the idea
front driver’s seat, a jacket in the back of ordering a driver out of a car for officer
passenger compartment and inside the safety and control of the suspect. It may
unlocked center console for weapons since also be easier to see items in plain view,
all of these areas are within the lunging handguns concealed on the driver’s
distance of the suspect (when he was in person, and to watch for contraband falling
the car) and the “containers” were not onto the roadway as the driver steps out.
locked.

Use of Force Issues: Since a Terry stop is

an “involuntary” detention, reasonable to make an arrest or investigatory stop of an
force may be used to execute the stop and, individual, as a “reasonable” seizure under the
if justified, the frisk.8 This usually Federal Constitution’s Fourth Amendment,
necessarily carries with it the right to use some
degree of physical coercion or threat thereof to
6
Michigan v. Long, 463 US 1032 (1983) effect such arrest or stop.
7 9
Id. Id.
8 10
Graham v. Conner, 490 US 386 (1989) at New York v. Earl, 431 US 943 (1977)
11
Headnote 9: The right of law enforcement officers Pennsylvania v. Mimms, 434 US 106 (1977)
Ordering Passenger Out of a Vehicle: In commonly located, and make motions as if
addition to the driver, the passengers of a they are about to draw a handgun. The
vehicle lawfully stopped may be directed two then look in the direction of the squad
out of a vehicle by an officer / agent for car, then run in the opposite direction at
officer safety.12 The same points outlined full speed. The officers chase only the
above apply. target who appeared to reach into his
waistband, tackle him and perform a frisk,
Running From Police as Grounds to finding an unlicensed handgun.
Stop: Running from the sight of a police
officer / agent is a factor that may be Analysis: This is a good stop as the
considered in determining whether or not officers had more than just “running from
Reasonable Suspicion to stop exists but the police” as a Reasonable Suspicion
may not “by itself” justify a stop and Indicator. In this case the officers saw
frisk.13 There must be some other what indicated to an experienced officer
Reasonable Suspicion Indicators to that the target may have been armed with a
support the stop in addition to running concealed firearm. That, coupled with
from the police. running from the police added up to good
Reasonable Suspicion to perform the stop
Field Example: and frisk.

Bad Stop: Two uniformed officers Anonymous Tips as Grounds to Stop:

are driving down a city street in a An anonymous tip alone, even if detailed,
jurisdiction with very strict handgun cannot form Reasonable Suspicion to
licensing regulations. Concealed handgun conduct a stop and frisk. The officer /
permits are rarely granted. The officers agent must add personal observations to
see two males, approximate age 20 – 25 corroborate and / or add to information
years old look in the direction of the received from the anonymous source.14
marked squad car, turn and run at full
speed in the opposite direction. The Bad Stop: Police dispatch receives
officers have no other Reasonable an anonymous 911 call that a white male,
Suspicion Indicators. The officers pick approximately 40 years old, wearing tan
one of the targets, chase him down, tackle trousers and a blue polo shirt is standing on
him and perform a frisk, finding an the corner of 4th Avenue and 71st street and
unlicensed handgun. is armed with a silver revolver concealed in
an ankle holster. The patrol jurisdiction
Analysis: This is a bad stop since the only has strict licensing requirements and rarely
“unusual” thing the officers noticed was issues concealed handgun permits. A two
running from the police and nothing more. officer patrol unit arrives at 4th Avenue and
71st street within two minutes of the
Good Stop: Same fact pattern as dispatch broadcast. They see a male while
above except that before the suspects run fitting that description and immediately
away, the officers see one of them place perform a stop and frisk, finding an
their hand inside their waist jacket, on the unlawfully concealed handgun.
strong side where belt attached holsters are

12
Maryland v. Wilson, 519 US 408 (1997)
13 14
US v. Wardlow, 528 US 119 (2000) Florida v. J.L., 529 US 266 (2000)
Analysis: This is a bad stop and frisk as existed to support the stop and / or frisk.
the officers relied solely on the The officer / agent must, through use of
anonymous tip. words, make the Judge “see, hear, smell
and feel” what the officer / agent did. The
Good Stop: Same as above but in officer / agent must paint a verbal picture
this case, once on the scene, the officers that makes the Judge “see” the situation
spot what appears to be a “bulge” at the through the eyes of an experienced police
left ankle of the target, under his pants officer. To an average citizen, a bulge at
cuff. This indicates to an experienced the lower left ankle, under a pants cuff,
officer that an ankle holster may be may mean nothing. To an experienced
present. The officers then immediately police officer it indicates an ankle holster,
perform a stop and frisk and find an perhaps because he or she has worn an
unlicensed handgun. ankle holster in the past and knows from
personal experience the “print” it
Analysis: This is a good stop since the demonstrates. Or, perhaps the officer /
officers added personal observation that agent has seen other officers, both on and
corroborated and added to the information off duty, use them and knows how they
contained in the anonymous tip. appear.
Note: If sufficiently detailed information
is received from an identified and reliable Quantify Your “Experience”: If relying
person (not an anonymous source), it may on the “plain feel” doctrine, where the
form Reasonable Suspicion.15 officer / agent performed a stop and frisk
for a weapon but discovered powdered
Evidence Suppression / Court cocaine in a pocket, the officer / agent
Testimony Tactics: Reasonable must be able to justify how they are
Suspicion forms the legal basis to conduct qualified to “immediately” recognize
a Terry stop. If a defense attorney can powdered cocaine through at suspect’s
convince a Judge, in an Evidence pants. You can be sure the defense
Suppression Hearing that an officer / agent attorney will make this an issue. The court
lacked sufficient Reasonable Suspicion to must be convinced that the officer / agent
perform a stop and / or frisk, any evidence has the training and or experience to back
found as a result of the stop / frisk will be up the “immediate recognition.” Here is
suppressed. Since it is often the weapons an example of what has worked in the
or contraband found on a frisk that form past16:
the basis of an arrest, losing the evidence
will obviously create a significant risk of “I have personally frisked at least
having the entire case dismissed for lack one hundred (100) suspects, both
of evidence. during Terry Stops and searches
incident to arrest and discovered
Articulate!: The definition most often powdered cocaine in small plastic
used for Reasonable Suspicion includes bags in trousers pockets. In
the phrase “Articulable facts….” An
officer / agent must be able to “articulate” 16
Author’s personal experience in New York and
factors that lead the officer / agent to Indiana criminal courts
conclude that Reasonable Suspicion
15
Adams, Warden v. Williams, 407 US 143 (1972)
addition, during in-service field patrol unit, it was 4:30 a.m., the driver
training for our officers in “drug had no driver’s license or vehicle
recognition, I routinely “frisk” other registration, the car’s rear window was
officers who have placed cocaine in broken and I feared the car may have been
their trouser pockets. I have done recently stolen. I know that car thieves use
this at least once a month in the burglar’s tools to steal cars and these
past year. I have also handled at tools can be used as a weapon against me.
least 25 bags of cocaine in its Auto theft is a felony offense and in my
powdery form seized from experience, the stop and / or arrest of a
automobiles, and this has added to felon by a one officer patrol unit often
my familiarity with how it feels to results in an assault against the officer. I
the touch I have received formal was concerned with officer safety.
training on how powdery cocaine
feels to the touch at my police Important Note: All Federal Law
academy and while on active duty in Enforcement Officers must check their
the Air Force, using actual agency regulations on policy and guidance
powdered cocaine.” regarding application of the Terry stop
legal concepts. This article reviews U.S.
Note: Obviously, an officer / agent must Supreme Court rulings on the subject, not
testify truthfully about their experience individual officer / agent / agency arrest
and training in detecting contraband by or investigative authority or policy. Most
feel. The above is intended to serve only Federal Law Enforcement Officers while
as a guide on what has worked in the past. on-duty and conducting official duties will
have “police” authority as outlined in the
Officer Safety Alone Will Not Justify a preceding reviews. Some Federal Law
Frisk: Assuming that a Judge finds proper Enforcement Officers have been granted
Reasonable Suspicion to support a Terry “peace officer” type status (on and / or off-
stop, a weapon seized can still be duty) by state, county or local police
suppressed (lost) if a defense attorney can authority / statute. It is the individual
convince a Judge that there was no responsibility of the officer / agent to
Reasonable Suspicion that the suspect was coordinate with his or her agency to
“armed and dangerous.” Therefore, when determine if and when he or she has
an officer / agent answers the question “police” authority regarding Terry stop
Why did you conduct the frisk? by simply legal and operational concept.
saying “Officer safety” and nothing more
– there is a great likelihood that the
evidence will be lost.

Field Example:

Question: Why did you frisk the suspect?

Bad Answer: Officer safety

Good Answer: I was in fear for my safety

because I was patrolling in a one-officer