When Does a Frisk Become a Search and Seizure?
This article is simply a brief description; a credible attorney should always be consulted in any situation. For assistance in legal situations call The Law Offices of Travis Koon, our criminal defense attorneys can determine if your rights were unlawfully infringed upon.
It almost seems common knowledge that a law enforcement officer is within their legal rights to frisk (a limited search) a person for weapons (for the safety of themselves and those around them) during temporary detainment – such as a traffic stop. This is a common misconception; law enforcement is only allowed to frisk an individual when they have ‘reasonable suspicion’ of a weapon.
The United States Supreme Court ruled in 1968 Terry v. Ohio:
Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, …he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
This shows that in order to frisk a suspect, two requirements must be met:
• The suspect must be legally detained, meaning the detention must be based upon reasonable suspicion of a criminal activity.
• There must be reasonable suspicion that the person detained is armed and dangerous. Reasonable suspicion includes the totality of the situation – a bulge in clothing, behavior, the nature of the suspected offense and even the time and location of the stop .
The next question is to what extent is the officer allowed to frisk the detained person. The restraining officer is allowed a limited search of the outer clothing. A ‘limited search’ consists of a pat down of the outer clothing, then if the officer detects what he/she believes to be a weapon may they reach into the clothing to remove the object in question.
But what happens if the object in question is not a weapon, but perhaps an illegal controlled substance? If the officer believes the questionable object may be a weapon but turns out is in not, but still an illegal substance, as long as it was a lawful frisk, the contraband is admissible in evidence. But if the contraband was found by manipulating the outer clothing by squeezing or sliding the contents in the detainee’s pocket, then it is considered an invalid seizure, and any contraband found is invalid as well – as ruled in Perkins v. State .
Many laws are unquestionably confusing, and a person should not be expected to try to figure them out alone. It is in your best interest to hire a strong criminal defense attorney, such as those at The Law Offices of Travis Koon, who will guide you through the court systems and work hard to ensure your legal rights were maintained.