Back in January, I wrote about the first half of the “stop and frisk” rule (Have You Ever Been Stopped by the Police?). This post will discuss the frisk or “weapons patdown” portion of what is commonly referred to as a “Terry stop,” named after the US Supreme Court’s decision in Terry v. Ohio.
Two things are worth mentioning at the beginning. A cop’s number one rule is: Go home alive. Terry was decided in 1968, so there is no law enforcement officer working today who wasn’t taught the Terry rule at the police academy. They may not have been taught it correctly, or they may have forgotten, but it is safe to say there are a lot of abuses of this special power the Supreme Court gave police.
If you recall from the January post, the police may stop, or detain, someone if they have “reasonable suspicion” (a standard lower than probable cause) that a crime is about to be committed, is being committed, or had just been committed, in order to conduct a preliminary investigation.
The Terry decision also says the police may frisk, or “pat down,” that person for weapons if the officer has reasonable suspicion that the person is armed and presently dangerous. The reasonable suspicion necessary to justify the patdown is separate and apart from the reasonable suspicion relied upon to trigger the detention.
That is where many officers mess up. They think, believe, or don’t care, that once they have reasonable suspicion to detain you, they automatically are justified in patting you down.
Also, the suspicion must also be “articuable.” In plain English, can the officer write (articulate) in his or her report the reason or reasons he or she thought you were armed and presently dangerous. A patdown is not justified because the officer was afraid, had a hunch, didn’t like your looks, or any other such ambiguous reason.
One way officers avoid that reasonable suspicion hurdle is to ask you for consent. In a calm, "let's-just-get-along" voice, the officer will ask if you are carrying any weapons or other things he should know about, and whether you have anything in your pockets that could stick or poke him. After you (hopefully) answer in the negative, the officer will ask in the same friendly voice, "You wouldn't mind if I conduct a quick patdown for my safety, would you?"
Face it. Most of us want our police to be safe. Likewise, most of us want to be cooperative if for no other reason than to get this nonsense over with and get on our way. So what happens? The person rolls over and abandons his constitutional rights under the Fourth Amendment.
What’s that matter with asking in return, in your own, friendly, "I'm-trying-to-be-cooperative" voice, "I don't know, officer. Is there some reason you think I have a weapon on me?"
Trust me, you're going to get patted down anyway but the officer is now on notice that you're someone who is aware of his/her rights.
Also remember, the law allows a patdown for weapons, not for drugs or anything else.
After you have been stopped by the police you are likely frightened and upset, but if you can think about it, pay attention to the both the manner, and speed, the stop and frisk happen so you can tell me about it later.
The Terry frisk is a patdown of your outer clothing. What constitutes outer clothing can depend on the officer and the situation. If it is winter and you are wearing a heavy leather coat or a thick down jacket, the officer can't very well feel if you have a weapon in your shirt pocket. He or she can require you to remove the coat until a patdown of those areas of your body covered by the coat is completed.
Even though he may be grasping your interlocked fingers behind your head with your body bent over the hood of a car, an officer knows he is more vulnerable at this time so he, or she, is not going to waste time conducting the frisk. They know how to do it and can do it thoroughly but fast.
Come back next week for Part 2 of this subject, which, among other things, will answer the question whether male police officers can frisk female suspects.
Could the police enter your home without a search warrant even if no criminal activity is suspected?
The answer is yes and most of us would be happy for it…unless you actually are involved in criminal activity.
Back in 1999, two San Diego officers were called to a complex of two duplexes in Pacific Beach separated by a walkway. A neighbor reported loud music had been coming from one of the units and she and other people at the complex were upset and worried.
On arriving, police could hear the music from outside the complex. The neighbor informed them she knew the two men who lived in the apartment and described them as quiet and in their late 20s. To her knowledge the loud music had been coming from their unit for about 24 hours. During this period, she had not seen the men but thought one was out of town. She said it was very unusual for loud music to be coming from the unit.
After the police noticed what appeared to be a couple of days of mail and newspapers stacked at the doorstep, one officer pounded very hard on the door. Receiving no response, the officers tried to look inside the residence but all the blinds were closed. They then tried the doors and windows and found they were locked. Police were able to look inside a small bathroom window but it was pitch black inside except for a light coming from a back bedroom. There was a light on in a stereo unit.
The police tried to find the telephone number to the unit by calling their department's communication division. No telephone number listed.
Another neighbor told police the loud music had been playing since the previous evening and it was abnormal. She had not seen the men in the last 24 hours and thought there might be someone injured inside. Police then tried to contact other neighbors without success. They tried to determine if the residents' cars were in the garage, but it was locked.
One officer, a 15-year police veteran, said he had a bad feeling something might be wrong inside the unit, in part because he had never responded to a loud music call where the occupant was not at home. He had recently responded to a home where the house seemed fine from the outside but the occupant had committed suicide. He felt it was his responsibility to enter the residence to determine if everything was all right inside. Over his radio, he spoke with his sergeant who recommended kicking the door open, which he did.
After forcing entry, the officers went in the darkened residence with their guns drawn. They called out their presence but received no answer. They did not see anything extraordinary but the music was so loud inside that they could not hear anything else. They then searched the rooms. Inside the partially opened closet in one of the bedrooms, marijuana plants were found growing. Growing equipment was also found. With guns still drawn, the officers continued searching for possibly injured persons. In a second bedroom closet, they found additional marijuana plants and equipment for growing marijuana.
Based on the marijuana plants and equipment found inside the residence, the officers obtained and executed a search warrant.
The legal fine points of the case aren’t important here, except to say the appellate court said the initial entry and search was legal. As part of their “protect and serve” role, police can sometimes make a forcible, warrantless entry into private homes even though no criminal activity is suspected.
If some event in or about your home triggers either the community caretaker exception or the rescue doctrine, and the police arrest you after they stumble across something illegal, maybe not a kilo of cocaine or a dead body, but something less onerous like a switchblade knife or brass knuckles you bought in Tijuana, or an inert hand grenade you have a souvenir, or anything else they know or think you shouldn’t possess, what should you do?
First, don’t say anything except biographical information (name, date or birth, etc.) for the booking sheet. Two, tell the police, and keep repeating it, that you want a lawyer before you say anything else. And three, call me any time of the day or night, criminal defense attorney Rebecca Ocain at 619-431-1076.
I previously wrote about the “Stop & Frisk” being one of the recognized exceptions to the requirement in the Fourth Amendment that the police obtain a warrant before they can search you or your property. Well, another of those exceptions is consent. Just like your rights under the Miranda Rule or any other constitutional protection, you can waive, or give up, your right to have the police go get a warrant.
But why would you?!
Let’s say you are driving home at night and, unknown to you, one of your car’s taillights has burnt out. A police officer pulls you over based on the probable cause that you have violated the Vehicle Code statute requiring all your lights to be in operative condition.
The officer walks up to your car and speaks to you through the window. (The officer chooses which window he or she wants to use.) You are informed about the light problem but the friendly officer says you are only going to get a warning so you can get it fixed. You’re happy you are not getting a ticket and, besides, you want to get the taillight fixed for your own safety.
During the exchange, the officer, of course, will ask to see you driver’s license, the car’s registration, and your proof of insurance. If they are expired or don’t exist, you risk walking home.
Your name will also be called into the police dispatcher to see if you have any open arrest warrants. If you do, and depending on the original crime, you may be required to sign a Promise to Appear or be arrested and taken to jail.
This night, however, everything is current and you have no warrants. After the officer has you sign the warning, he or she asks in the same friendly tone, “You’re not carrying any bombs or bazookas today, are you?” You laugh and say, “Of course not, Officer.” The officer, still smiling, says, “Then you wouldn’t mind if I had a look inside your car, would you?”
You’re a law-abiding citizen. You’re trying to be cooperative. You feel indebted to a certain extent because the officer only gave you a warning. So, like a dummy, you say, “Sure, Officer, go ahead.”
The officer explains he can’t have you standing behind him while doing the search so asks you to stand on the curb or back with his “cover” officer. Again, you agree.
Maybe the officer searches your car, finds nothing, says “thanks,” and sends you on your way. You drive off thinking how nice the officer was and what a cooperative citizen you are.
Maybe, instead, the officer finds a baggie of coke or meth dropped by your daughter’s shady boyfriend or that old high school buddy you gave a lift to last week. Maybe it’s an envelope of child porn photographs your brother-in-law left in the glovebox after you let him “borrow” your car. What are you going to say? “Gee, Officer, I don’t know how that got there. It’s not mine.”
Do you think there are any cops who haven’t heard that alibi from half the crooks they arrest? Do you think you are not going to be arrested? Think again – and then call me or any good criminal defense attorney.
Better yet, know your Constitutional rights and don’t just give them away because you want the police office to think you’re a nice person.
If a law enforcement officer asks you for permission to search your car and you are still trying to be polite, what’s the matter with just saying, “No, I’m sorry, Officer, I’m late for an appointment, for work, for picking up the kids, etc.?”
Or, if you foolishly threw away your constitutional right and gave permission, you can take it back! Just say, “Oops, sorry, Officer, please stop. I just realized I’m late for this or that. I’m going to have to take off.” The officer may not like it, but he or she will have to stop. If, by chance, the officer stumbled across something illegal in your car after you withdrew consent, it could not be used against you in court.
I will continue this topic next week when you will learn how the police will try to get consent to search your house without a search warrant. Until then, feel free to contact me through my website about any questions on the criminal law or, if you have been arrested, call me directly at 619-431-1076.
Because they have an important job to enforce the laws and apprehend criminals, society gives the police a lot of authority. One of those powers is the authority to stop, or detain, suspected law violators.
First, do not confuse a stop with a consensual encounter. The police are certainly free to try to talk to you just the same way you may attempt to engage any stranger in conversation. As officer might say, “Excuse me, do you mind if I ask you a few questions?” You can either choose to cooperate, say nothing and keep walking, or say, “Gee, I’d like to, officer, but I’m late for an appointment.”
If an interaction doesn’t sound consensual, to avoid any confusion, simply ask. “Officer, am I being detained?” If she says, “No,” you can either walk away or stay and find out what the officer wants, after which you are still free to walk away.
Detentions are not consensual encounters and, make no mistake, a stop/detention is a seizure under the Fourth Amendment.
What exactly is a constitutional “seizure?” 1) A governmental interference (usually by the police) with any property in which you have a possessory interest, or 2) with your liberty to move about freely.
As mentioned in an earlier post, the Fourth Amendment says police need a warrant to search and seize a person or item. However, almost a half century ago, the U.S. Supreme Court created one of the exceptions to that rule.
In the case of Terry v. Ohio, the Supreme Court said the police are trained and put on the street for a reason. Therefore, the court was not going to require probable cause or a warrant to detain someone. Instead, if they have “reasonable suspicion” (a standard lower than probable cause) that a crime is about to be committed, is being committed, or had just been committed, the police have the authority to stop/detain someone in order to conduct a preliminary investigation.
How does a detention occur?
The most common one is you yielding to some demonstration of police authority. For example, you are walking out of the mall and an officer says, “Stop! Police!” and you obey his or her command and stop. Rarely will an officer stop you by putting his hand on your chest, or grabbing a hold of your shirt, but if it happens, you have been detained.
Maybe more familiar to most people is the traffic stop. While you are driving, a marked police unit gets behind you with flashing lights and one solid red light, with or without the use of the “chirp” or the siren. As soon as you pull over, you have been detained.
Detentions must be of short duration, no longer than the police need to find out if criminal activity is happening. If the detention goes on too long without added justification, it can turn into an “in fact” arrest, which is the equivalent of a false arrest. However, even though you are not under arrest, the officer is in charge of you during the detention and you are not “free to leave.”
Of course, in order to investigate the possibility of criminal activity the police must be able to ask questions. There is no requirement for the police to recite the Miranda rights because the person being stopped is not under custodial arrest at that point. However, that doesn’t prevent you from telling the police you want a criminal defense attorney present before you answer any questions.
During the stop, if the correct conditions are present, the police may also “frisk” you, or stated another away, pat you down for weapons, but I will take up that subject in a future blog post.
If you ever have any question about this or any of my other blog posts, feel free to send me an email at firstname.lastname@example.org.
In my December 28, 2015, blog post about Miranda, I briefly mentioned the importance of not waiving (giving up) your Miranda rights and speaking to the police after being arrested without the presence of an attorney who will stick up for you. Today, I want to emphasize the need, and the importance, to actually ask for such representation.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.