Search and Seizure - Terry Stop – Improper Frisk

Minnesota v. Dickerson, 508 U.S. 366 (1993)

The police frisked the defendant after he was stopped for engaging in “evasive” behavior. The police officer conducted a Terry frisk. While frisking the defendant, the officer felt an object which was clearly not a weapon, but which felt like it might be contraband. The Supreme Court held that an officer who is engaging in a legal Terry frisk of a subject may seize an object which the officer realizes immediately to be contraband. This is the “plain touch” analogue to the “plain view” exception. That is, the officer need not limit his seizures to weapons if he is immediately aware that he is touching contraband. Applying the rule to this case, however, the Court concluded that the officer was not immediately aware that he was touching contraband. Rather, “the officer determined that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket – a pocket which the officer already knew contained no weapon.” The seizure, therefore, was not authorized by the “plain touch” exception.

Arizona v. Johnson, 555 U.S. 323 (2009)

If the police stop a vehicle lawfully and there is a passenger in the vehicle, if the police have a reason to believe the passenger is armed and dangerous, he may be frisked. This is true, even if the passenger is not believed to have committed any crime.

United States v. Noble, 762 F.3d 509 (6th Cir. 2014)

The police were watching the Interstate for a vehicle that was suspected to be involved in a methamphetamine distribution operation. When the vehicle was spotted, an officer pulled behind it. The vehicle crossed a lane line without a proper signal. The officer activated his lights. The officer determined that the tint on the window was too dark. The driver and the passenger (the defendant) were excessively nervous. The driver consented to a search of the vehicle, at which point the passenger/defendant was asked to exit the vehicle and he was frisked. Because there was no basis to believe that he was armed or dangerous, there was no legitimate basis to frisk the defendant and the evidence derived from this frisk should have been suppressed. The facts that the driver and passenger were nervous and that the vehicle was suspected of being involved in a drug trafficking operation are not sufficient to support a reasonable belief that the passenger was armed or dangerous, even coupled with the officer’s experience that drug dealers are often armed. The court ridicules the notion that any passenger in a car can be frisked if the driver or the vehicle is suspected of being involved in drugs: this would presumably include “a fourth grader, a ninety-five-year-old gentleman with Parkinson’s disease, or a judge this court.” The law requires individualized suspicion of the person who is to be frisked, not a general belief that someone in the vehicle might possibly be armed.

United States v. Williams, 731 F.3d 678 (7th Cir. 2013)

Though there was a basis for a Terry stop, there was no basis for a frisk, because the absence of sufficient information that the defendant was armed or dangerous.

United States v. I.E.V., 705 F.3d 430 (9th Cir. 2012)

At a border checkpoint, a drug-detecting dog alerted to a vehicle. The occupants were asked to get out and were frisked. The Ninth Circuit held that a dog alert, with no additional evidence that the occupants were armed or dangerous in any way, was not a sufficient basis to authorize a frisk of the occupants.

United States v. Powell, 666 F.3d 180 (4th Cir. 2011)

The defendant was a passenger in a car. The driver was stopped and he had a suspended license. The police asked the defendant/passenger for his license to see if he would be allowed to drive the car. A record check was performed on the defendant’s license and it revealed a prior armed robbery conviction and also a suspended license. The police then frisked the defendant, discovering evidence used in a drug/firearm prosecution. The Fourth Circuit held that the frisk was not lawful, because there was no reasonable basis for believing that the defendant was armed, or dangerous, and therefore no reason to frisk him.

United States v. Camacho, 661 F.3d 718 (1st Cir. 2011)

The police went to the scene of a street brawl and saw two people walking on the sidewalk. Suspicious that they had been involved in the brawl, the police pulled their car in front of the defendant, stopping him and then frisked the defendant and felt a gun. The defendant pushed the officer’s hand away, after which the defendant was arrested. The First Circuit concluded that the initial encounter was a seizure; there was no lawful basis for the seizure (i.e., there was no articulable suspicion); the frisk was not proper; the discovery of the weapon was not the result of a valid search incident to arrest.

United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011)

The police had no basis for frisking the defendant and the evidence obtained from the frisk should have been suppressed. The police drove to the scene where there was a reported shooting. Four men were seen a few blocks away. No evidence linked them to the shooting. They were responsive when the police approached them. They answered the officers’ questions and said that they, too, had heard gunshots. When the police asked for consent to frisk them, two consented, but the defendant declined. This did not provide a basis to conduct a non-consensual frisk. The court also rejected the government’s invitation to rely on the “collective knowledge” doctrine, based on testimony that another officer, who did not actually conduct the frisk, had seen a bulge in the defendant’s pocket. The Fourth Circuit held that the collective knowledge doctrine did not apply in this case, because the searching officer had no reason to believe that any other officer had sufficient information to support the search.

United States v. Jones, 606 F.3d 964 (8th Cir. 2010)

The police saw the defendant walking in a church parking lot, wearing a “hoodie” and clutching his right front pocket. The police approached him and frisked him. There was no basis for this detention or frisk and the discovery of the gun should have been suppressed.

Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010)

The defendant was walking with a wheel barrow through a neighborhood late at night. The police were called. When the police arrived, they summoned the defendant over to their car and told him to “keep his hands up.” This amounted to a seizure, which was not supported by an articulable suspicion. The officer then patted down the defendant, locating a garage opener. There was no basis for this frisk: there was no reason to believe the defendant was armed or dangerous and he was not subject to a legitimate arrest or detention. Moreover, there was no basis to keep the garage door opener (and thereafter walk down the street seeing if it opened any garage in the neighborhood), because it was not a weapon, or apparent to be contraband. Finally, the search of the wheelbarrow was illegal. Though some items on the top of the pile in the wheelbarrow were subject to plain view, other items below the surface could only be seen when the officer probed beneath the surface. The defendant’s trial counsel was ineffective in failing to move to suppress the fruits of the search.

United States v. Zavala, 541 F.3d 562 (5th Cir. 2008)

The police may not flip open and examine a motorist’s cell phone during a Terry stop. A Terry stop permits a brief frisk to ensure officer safety and not an investigation into the contents of a cell phone, including looking for the subscriber number.

United States v. Askew, 529 F.3d 1119 (D.C.Cir. 2008) en banc

The police brought a defendant back to the scene of a robbery and unzipped his jacket so the witness could view his clothing under the jacket. Over the course of a forty-five page opinion which represents an encyclopedic review of Terry jurisprudence, the D.C. Circuit, en banc, held that this amounted to a search for Fourth Amendment purposes. The Court suggested that in some circumstances, unzipping a defendant’s jacket may be permissible in this situation, but that there was insufficient information known to the police in this case to justify this procedure. The Court relied principally on Minnesota v. Dickerson, 508 U.S. 366 (1993), in holding that a protective “search” or frisk, is limited to what is necessary to achieve the goal of officer safety, not crime investigation.

United States v. Davis, 530 F.3d 1069 (9th Cir. 2008)

The defendant was lawfully frisked when he arrived at the location of premises that were being searched, because the police had a reason to believe that he might be armed. Nevertheless, when the frisk was conducted, a “tin” was located and the officer “manipulated” the tin, even though there was no basis for believing that the tin contained a weapon. This amounted to an improper frisk. The hashish oil that was found should have been suppressed. Harmless error.

United States v. Hughes, 517 F.3d 1013 (8th Cir. 2008)

The police received a tip that there were two suspicious people trespassing at a specific location. The police went to the scene, but the two men were across the street, waiting at a bus stop. The police approached them and frisked them, finding ammunition. Because the two men were doing nothing improper when the police arrived (and at most were previously trespassing), stopping them and frisking them was not permissible.

United States v. Wilson, 506 F.3d 488 (6th Cir. 2007)

Though the defendant, a passenger in a car, exhibited extreme nervousness when pulled over, this did not justify a frisk and the drugs found in his pocket were properly suppressed by the trial judge.

United States v. Holmes, 505 F.3d 1288 (D.C. Cir. 2007)

The defendant was seen in an alley by the police at 3:40 in the morning and when the officers approached him, he fled, scaling several fences in the process. The officers followed him and when they caught him, he was frisked and a set of car keys were discovered and taken from him. The officers then used the car keys’ remote door opener to find the car. The defendant then gave consent to search the car and a gun was found in the car. The D.C. Circuit held that taking the keys from the defendant after the frisk violated his Fourth Amendment rights. There was no probable cause to seize the keys and the fruit of that unlawful seizure was the discovery, and ultimately the search, of the vehicle in which the gun was found. The government’s argument that the taint of the illegal seizure was purged by the subsequent consent to search was rejected. The attenuation doctrine did not save the search in this case.

United States v. Garcia, 496 F.3d 495 (6th Cir. 2007)

The police lawfully stopped the defendant’s car and properly conducted a frisk. However, it was not proper to seize a pager that was located during the frisk. The pager was not obviously contraband. Harmless error.

United States v. Flatter, 456 F.3d 1154 (9th Cir. 2006)

The defendant, a postal worker, was suspected of stealing mail. Prior to interviewing him, and fearing that the interview might become confrontational, the investigators frisked the defendant and found incriminating evidence. There was no basis for frisking the defendant, however, because there was no basis for believing that he had a weapon. The frisk was unlawful and the evidence should have been suppressed.

United States v. McKoy, 428 F.3d 38 (1st Cir. 2005)

After the police pulled the defendant over in a high crime area, the police noticed that he acted nervous and twice headed for the center console. Based on these observations, the police frisked the defendant. The First Circuit held that this frisk was improper. The defendant’s conduct was consistent with a motorist being nervous in connection with a traffic stop and reaching for his license and registration.

United States v. Glenn, 152 F.3d 1047 (8th Cir. 1998)

Defendant was pulled over for a traffic violation. The police determined that he did not have a driver’s license on his person. The defendant was directed to get in the back of the patrol car. Before being placed in the patrol car, however, he was frisked, yielding a gun. There was no basis for frisking the defendant. Law enforcement officers are not permitted to pat down all traffic offenders simply by choosing to place them in the back seat of patrol cars during traffic stops. However, the police inevitably would have learned that the defendant had no license at all. This would have supported an arrest and a search incident to arrest.

United States v. Schiavo, 29 F.3d 6 (1st Cir. 1994)

The police stopped the defendant’s vehicle, believing that he had recently obtained drug “sting” money which an informant had paid for some cocaine to the defendant’s underling. When the defendant was stopped, the officer saw a bulge in the defendant’s pocket, but could not determine what it was, even after the pat-down. A Dickerson plain-feel seizure was not authorized. Because the nature of the bulge was not immediately apparent to the officer, he could not seize the bag.

United States v. Jaramillo, 25 F.3d 1146 (2d Cir. 1994)

The police raided a bar and immediately spotted two patrons with weapons. The defendant then exited a bathroom and was frisked. A gun was found. This frisk was not proper. There was no known connection between the defendant and the other patrons and no basis for believing that he was in the possession of any weapon. Moreover, this is not a case in which the officers entered upon private premises at which the officers had the right to conduct a search or make a security check. This case is controlled by Ybarra v. Illinois, 444 U.S. 85 (1979). In a public place, people can only be frisked if there is an articulable suspicion that they are acting suspiciously, or that they possess a weapon.

United States v. Thomas, 863 F.2d 622 (9th Cir. 1988)

A police officer pulled over the defendant on the basis that he apparently matched the description of a counterfeiting suspect. After the officer blocked the defendant’s car, the defendant exited the car and approached the officer. It was immediately apparent that the defendant did not meet the description. Nevertheless, the officer frisked and continued to question the defendant. The continuing detention was unlawful once it was determined that the defendant did not meet the suspect’s description. There was no basis for the police officer to fear for his safety.

United States v. Bonds, 829 F.2d 1072 (11th Cir. 1987)

The Eleventh Circuit defines the conditions which must exist to authorize a Terry stop and a frisk. The two standards are not necessarily the same. In order to authorize a frisk, there must be specific facts supporting a reasonable belief by the frisking officer that he is in danger. This is different than the standard used to determine whether an investigatory stop is permitted. In this case, the Court upholds both the stop and the frisk of the defendants.

United States v. Meadows, 885 F.Supp. 1 (D.D.C. 1995)

The police stopped a man on the basis of a lookout which they received. The suspect did not, however, match the description of the lookout. He was frisked and a gun was found. The question in this case is whether the frisk of one of that suspect’s companions could be justified on the basis of the “automatic companion frisk” rule. The court holds that the frisk was not lawful in this case. If the police lacked an articulable suspicion to search the first suspect, they could not use information from that unlawful frisk to justify the search of the companion. Otherwise, the police could approach a crowd and start searching everybody. As soon as a weapon was found on one person (even if not the first person searched), further frisks would be deemed lawful.