STOP AND FRISK -- COURT
INTERPRETATIO~J
OF TERRY, S!BRON, AND PETERS
CRAI G LESLI E
TARLE OF r.ONTENTS
BODY .. .. ................................. .. ............................... .... .... .. ..........................
1
I.
Tntroductlon ••.•••••••••••••••• . .•.•••• .••• .. . ••••
1
IT.
The Supreme Court EstAhlishes StAndards . • •• •..••• .
2
A. Terrl/ v. Ohio
2
8. Sibron v. New York
III.
C. Peters v. New York
7
Some Prnbl em ArRas jn Stop and Frisk ••••••••.•• • • •
8
A. The Stop ••••••••.• • • • ••••••.•••••.• • •••••.•••••
F\
1. Stop based upon actual observation by
the police •••••••.•••••.••.•• • ••••••••. • ••.•
A
2. Stop based upon impersonal ana lysis • • ••••••. 12
3. Stop basRd upon information supplied
bl! anl1ther. • • . • • • • . . • • • • • • • • • • . • • . • • • • • . . • . . . 11
a.
I'
I~nnldn
i nfl"Jrmer .•• • ••••••••••• . ••••••••••• 13
b. Anonymous informer •• • •••••••.. . •••••....•
1LI
8.. The Fri.sk ... .. ................... .. .............. .. ................... .. .... .. .... 18
1. Justification for the frisk •••••••••••••••• • 1A
2. TeetHe sensations revmlJ Rd hll thR frisk
2LI
3. Admissahility of 811trlRnrp nthnr than n
IlJeApnn •••••••••••••••••••••••••••••.••• • ••.• 27
4. The scope of the frisk •. •• • . ••••••••.••• • ••. 29
Ttl.
Conclusi on •••••••••••••••••••.••••••••••••••••••.•
3 lf
FOnTl\lOTES .. ............ .. ...... .. ...... .. .... .. ........ .. ............ .. ........ .. .... ........ ........ ...... . 1 c:;
APPENDIX •• • •• • • • • •••.•••••.••••••. • .. .• . . • • • • .• . • . • •• • . • .• •
lin
STOP AND FRISK -- COURT INTERPRETATION
OF TERRY, SIBRON, AND PETERS
I.
Introduction
Prior to 1968 the Supreme Court had constantly avoided
any confrontation with the problem of stop and frisk, even
though it was a r outine investigative procedure employed by
most of the police forces in the country.1
This total absence
of any central regulation left the state and federal courts
with the responsibility of dictating the s ta ndards bv which
the pblice should conduct themselves in this area.
Few courts had said that the police could stop and frisk,
but neither had thrsaid that it was improper.
2
New York seems
to be fairly indicative of the struggle that the states were
having in arriving at a workable approach to the problem.
3
In 1964 New York enacted legislation which established
stanriards by illhich th e poUte could be fJllided
j
n stop and
frisk situations (see Appendix A). 500n th ereAftRr, the 8 AS8
4
of _peopls v. Bjvera was decided based upon this statute.
The caSe heIr! that
evsry stop .
th ~
statute
811r.II~IArl
a frisk fallOlJlinll
The court felt that thi s was a reasonable method
of minimizing the danger which accompanies any stor which a
police officer must mak e.
5
An attempt was made to minimize
the impact of this ruling by distinguishing a "frisk" from
a "search".
The frisk is less intrusive than a search ,
being only a "contact or patting down of the outer clothinq
of a person to detect by the sense of touch if a concealed
-2lJJ8apon is beinr} carrierl."
This is onlv a "m; rJf JI' i nconllBni encE'!
nr Jlettl/ indir}ni tv" as compared to the ma ior ;. ntrlls i em uonn R
JlPrsonls privaclf that R search entails .
In People v. Pugach
7
6
a New York court allowed the seRrch
of a briefcase carried by a susJlect in an assault case.
The
court reasoned that this was a frisk justified upon thB qrounds
of safetl/. 8
This case was cited and relied upon as authorizinn
a frisk which is as broad as a search incident to arrest, el/en
q
where there is no forceable detention at all. Up un I. -j 1 1967 onl" one New York case out of tLtlelve
reported had Failed to I'ind "reasonable suspicionll as
qui red blf the statute.
1'13-
The cour ts were relvinq almos t entirel '/
upon the judgment of the police as to what was suspicious.
10
In order to aid the police in making this rlptermination there
were published guidelines whl!:!l contained
El
check-U st of
SIJ -
called suspicious circum8tances (see Appendix n).
With the adoption of th e Bxclusionarv rule thr s tor
and frisk procedure became even more important and thE'! need
for somp s[ledFie Iluidelines a ppli_cablc to all ,ilJrisdictions
became greater and qreater as time passed.
This set the
stage for the Supreme Court tlJ finall" intervene and provide
some much needed guidance.
II.
The Supreme Court Establishes Standards
A. Terrv v. OhilJ
While on routine patrol a plain-clothes poli ceman noticed
-3-
two
individuals acting suspicious ly .
He could not point
to exact Iv what it was about them that first caught his
attention, but somethinr, (J ut of his thirty-nine years
experience on the force told the officer that these men
"didn't look right."
On this basis he stepped back ou t
of sight into the entrance to a store and observed the
suspects .
As he watched, one of the lil8n leFt his companion and
walked down the street. Dllring t he course of this walk he
stopped and looked into a particular store, proceeded on
down the street a distance, turn ed around and returned to
his partner, stopping to glance into the same store dur i ng
his return.
After confer r ing for some time, the other in-
dividual followed the identical procedure.
Th is ritu a l
was repeated fiv e or six ti mes while the officer watched.
These two men were th en joined by a third.
After
a short co nfe rence the t hird man walked away and was
followed by the other two.
The officer also follow ed
and When th e three suspects stopped in Front of a store ,
he chose this time in which to act.
The officer approac hed
the men, identified himself and inquired as to their names.
When he was answered only by unsatisfactory mumbling, he
spun the man nearest him around s o that he was facing the
other two and
patted down the nutside of his clothing.
This revealed an object in an insid e coat pock et which
felt very much like a pistol.
After unsuccessful IV attemptinq
-4-
to
r en ~ve
the object, he ordered the men inside a near-by
store where he removed the suspect's coat and took a pistol
from the pocket.
The remaining suspects were subs equentl y
search ed and on e was found to be carrying a pi stol while
the other was unarmed.
It was this basic factual situation wh i ch confronted the
·
T
Supreme Court inerrV
v. Ohj Q11 and which
led to the first
real attempt by the Court to confront the problem of stop
and frisk.
The Court began its analysis by stating that this was mos t
assuredly a constitutional problem and that street encounters
are no t distinguishable from invasions of the home because
"the Fourth Amendment protects people, not places.,,12
Nor
was the Court persuaded by the argument that a stop and fri s k
was to be
di ~ tinguished
from an arres t a nd search.
A s top anrl
fri s k is not a "retty i ndiqnlty" as held by NeIll York courtf-l ,
hu t "a s erious intrusion upon th e s anc tity of th e l1 eTson • • •
··
an annoying, fr i gh t enin~, an d ner h aps huml· 1
Jatln~
To Mifferentiate would s er ve to r emov e ell
.
e x perl e n~e .
,,1 -~
rol'~ ~- ~itiz e n
street encounters from cons titutiona l scrutiny and allnw no
limjtations to be pl a ced nn th eir jni ti ation and SCOpB.
The Court concluded that the s top mus t be evalua t(:1i in an
object i ve ma nner and that th e t es t i. s :
"Itloulrl the f acts
availabl e t o the oFficer at the moment of s ei. zur e or the
search 'warrant a man of reasonahl e c aution in th e he li ef
that the action taken was appronriate . ,,,14
Althou~h vprv
-5-
general, this test of the
v~liditv
of A stnp
inrli~ates
thAt
stops for investigation are permissable on evidence thAt
is insuffictent for arrest.
15
Someilihat more Iluirlanr;e IIIa8
provided bl/ the Court lJ.lhen it st.aterl that:
"ltlh erf"'. a rml i r;e
officer nhserves unusual conduct which leads him reasona hlv
to concll wle in light of his experlence th:: t criminal activi tv
is afoot ••• " an i nvestigative stop is justifi8d.1~
But it must be emphasized that pure intuition alone js
n8ver sufficient grounds to justif" a stan.
"In iLisfifllin'l
the parttcular intrusion the of f i r.p.r mus t tlP ahle to point to
specific and articlilable f8cts luhich , takp.n trJllether I,li th
rationi'll inferences from those facts, r eRsonRb llf l"Arrant
. t
.
,,17
th
1'IIS10n.
, a t" In
That a policeman has reason to briefl" stop a suspect
under proper cj1'cums tances does not necpssaril" mA an th a t he
also has t.he automati.c 1'1 rjht to fri 5k hi m.
CAn
h~
A [:IlIhlic fri skinrj
mu ch more hum11i8ttnrj thAn R merA investinRtiv8 stnn
whers only a few questions a1'S asked , and for this l'p. Rsnn
thp. court held that thR1'e must be snme .i115ti fj catton fnr the
fri sk independent from the stop.
The stFlndArrl
j
5 ",,,hethf:]r 8
re8f1onabl" prud ent m8n :in th 8 circumstances Itloulrl he 1J.IFlrrEJnted
in the be] ip.f that his safet'! or that. of others IIiAS i.n
d anqp.r.
,,18
The frisk s hould be initially limiterl to A
pat-down of the outer qarments.
Should somethinq fep.ltnq
like a weapon be discovp.red bV the pat-down, then the offl cRr
is justified in reBchinn insi.de of thp. c]ot.hinr] Rnrl
-6-
removing it.
The procedures emplolfed bV the officer in Ternl were
upheld because "a reasonablV prudent man lJJould have been
warranted in believing Petitioner was armed and thus presented a threa t to the oFficer's safetv."
19
B. Sibron v. New York
The Terrv
~ as e
served to finallv provide some much
needed guidance in the area of stop and frisk and these
guidel i nes were soon applied when the Supreme Court
decided the companion cases of Pet ers v. New Yo rk and
Sibron v. New York
20
on the same dalf that it decided
Terrlf.
In Jlibrorl, a polir.e officer observed a man conversl.ng
with known narcotics addicts.
On this basis alOl18 l!i'! stopped
the man on th e street and told hi m:
lIyou know what I nm after. n2 1
When the suspect reached into his por.ket the policeman
simultaneousllf thrust his hand into the s ame pock et a nd
pulled out several envelopes containing heroin.
The Court did not touch upon the leqalitv of the initial
stop, but dealt directlv with the frjsk issue.
In this case
th e frisk was held to be unlawful because the officer was seeking
narcotics rather than acting from fear for his own safetv.
Also, the officer had not followed the re quired procedures
for a frisk for weapons in that his action i n reaching into
th e pocket and removing the narcotics had not been preced ed
bV a pat-down.
22
-7-
c.
PRtprr,
In the PetRI'S case
R
II .
Npiol
Ynrk
police officAr WRS at home in hi s
arartment when he heard a noise outside of his door.
Throun,h a reephole in the door he ViAlaled tltlO indj I/i ri us l s
sl.lspid ollS] V tiptoeinq out of th e al cllve IdheT'p. his ar18rtment
llias locnted and toward the stai rldal/ .
Idhen the offi. cer onenerl
his door the man fled down the stairs and he i mm ediate1"
qal/ 8 chase.
and
1~lhen
He caun,ht up with one of the men 011 the stall's
th e mRn ldF.lS unable to give a sat j sfactorl/ eXfllanati on
of his rT'esence in th e bllHrHng, hR "Jas patted down.
fRel inq somethinq I,Jh1ch he thouqht ml.llht hal/ e been
rI
Uron
klli fp,
thp. officpr remol/p.d thp. nh ,iect and discovered it t.o he
R
rlastic enl/plope containinq a I/aried assortment of buro1F.lr
tools.
Thi s F.lct inn on the part of th8 offi r,el' was urhp,l rl , hilt.
nn t nn the basis of stafl Bnd fT'isk.
The Court r 88 s onerl thRt
81 nee therR 1111']9 a mple prnha blG caliSP. tn Rr r es t hi.m FnT'
attp.mrted hur('11F.lt'\I, . then the search binS r8a80n1'Ih18 Unrl8T'
the COhsti tutl nn h er,8usl") it IJIBS
j
nei rlpnt.RI to ar rP'8 t.
23
But
the Court dld fall bAck urmn TerT'l! t n 80me extent Itlhen it
obserl/ed t.hat th e
ofncr:n~:
" • •• dl.d no t enllage i.n an unr p.st rai nr:rl
Rnd thorouqh qninq examination of Pete rs and his rersonsl
effects .
He seized him to cut s hort his fl i ght and he
Ternl , Sibron, and Petprs are the most siqntficAnt
to date in the Rrea of st nr a nd fdsk.
sP8~~hrrl
C8SPS
Tp.T'rl, C'lttpmrtP.rl tn
-8-
establish basic standards under which the law enforcement agencies and the courts can operate, yet not all
qu es tions were answered by the Supreme Court and the
job of developing an effective constitutional approach
in these problem areas has fallen to the state and federal
courts.
III.
Some Problem Areas in Stop and Frisk
A. The Stop
The threshold issue in every stop and fri s k situation
is, of course, the lawfulness of the stop.
Unless the
initial stop is justified, then the validity of any subsequent frisk is mooted.
As previously pointed out, about the only guidance
which the Terry case provides in this area of the stop is
the broad question of whether a reasonable man would believe
such en Bction warrant Ad under the available facts.
Such
a qeneral standard indicates that less caus e is required
for an investigative stop than the "probable causR" hecessarv
fo r arrnst , hut just hnw much 1s
r8 ~u1 r A d
is left eDen to
state and fed eral interpretation.
1. Stop Based Upon Actual Observation BV Police
In those cases where the officer actually observes the
actil/ity of the suspect, Terrv provid es a somewhat more
definite standard.
Tf the officer can draw on his experience
and conclude from suspicious actions that criminal activity
may be afoot, then a stop is iustified.
-9-
Uniteri StAtes v . Davis raised the question of the
legalitv of an investigative stop based upon the obs8rvations of two patrolmen.
While drillinr] b\!
8
rnotp.l lIJhi ch
was a known hang out of narcoti cs addicts, the officers
observed a man standing out front who was hailing trouble
sustaining his balance.
They turneri their pa trol car
around, returned to the motel , and stopped an automohilp.
int o which the unsteady individual had entereri and
riding
8S
a passenger.
A frisk followed lJlhi ch
lI~S
uncOV R J ',i~ d
evidence leading to an indictment For pos s ession of stolen
mail.
The court, in concluding that the stop was unjustiF i ed,
stated:
"The need for police action must be balanced a,g ai nst
the intrusion and inconvenience occasioned bV the stop."
27
The following factors were held to be of importance when
detRrmining the reBsonableness of 8 Rtop:
(1) The serious -
np. E! S of the affp.ns 8 ; ( 2) TI10 need for immerliate rm l i CPO !llork:;
.
. . 28
ac t,lon
an d (3) Th e nee d f or preven t Ive
The obserlJ8-
tione and suspicions o f the police in thjs case mere lv
suggested that an intoxicated person
lI~S
aLtiRY from a resort of j 11 l'epute and thj s
beinq driven
W8S
not sufficient
justification for an investiqatille st op .
A similiar prohlem confronted the court in.Unitp.rl
St a tRs v. Nicholas~8
ntlo police offic ers ohserved a car
with out-of-state licensR plates parked in front of a pool
hall in a predominantlv black neiqhborhood .
A black man
-10-
WBB
sttting in the car when it was first observed and he was
soon joined by another man from the pool hall.
At this point
the policemen drove up behind the r.ar, got out, and flashed
their badges t o the occupants.
When the windows were rolled
down they smelled rrari ,iuana and mad e an arrest.
The court concluded that when th r o FFicers stationed
themselves around the automobile they had seized
the
occupants and the constitutionalitv nl ' this stop must be
examined.
Thouqh the court recoqnized that in T8T'1"'1I th 8T'8
was a stop and frisk involved and in this case the sear ch occurred onlV aFter the oFficers had smelled mari1uahA, this
distinctlon Illas hr-lld to be not relevant.
Since the Supreme
Court in Terril r8 "jected the notion that police conduct
amounting to a stop i 8 outside the purview of the Fourth
Amendment, the geizur 8 of the def endant must be j udged
ac cording
toT mrr~
standards.
29
The cou r t put emphAs is on the followin g f ac t s of the
case e
(1) The poli er!) ",'r~re not investiqattnq a [1articulAr
crime ; (2) The pal ic R had no inf or mat i on res pect i nn th e r.A T'
oT' 1. ts ocr.upants; (3) There Idas no 8vi.rlence of ,oilSpi r.j nus
ar.t i vity i n the vic i nitv of the pool hall on that eveni nq ;
(4) The auto was ohs erv Ad for on] v a short time ; (5) Th e
hour of the eveninq was re asonab l e; (6) Both men wer e
black in
B
predominantly black neiqhhorhoori ; and (7) An
out-of-state license plate dops not bV itself s uC]C]est
. . Iac
t 'IVI. t V. 30
crlmlna
-11-
From this it was inferred that the police were acting
upon a "generalized suspicion" that any black person
drivin~
a car with out-of-state plates miqht be engaged in criminal
activity.
stop.
This was not sufficient justification for the
Thpre are no reasonable i nferences to be drawn from
these facts which would warrant a man of reasonable caution
to believe that the ac ti on taken was appropriate.~1
In other cases in this specific area stops have been
upheld where an automobile had its
Ij ~ e nse
plates wired
on because this method is frequently used on stolen cars.
32
Stops have been justifierl where police observed a can jn
a high crime areB pullout rapidly at th e ir
the
while
passE!~ers bent forlJJard as if to hide 33 or where an
automobile
and
approac~
the~
[uClS
parked in front of a bank for a lonq time
followerl a rl elivery truck
~~en
Out of the ml/ r 1 arl of cases rJ eal i nq
it pullerl
[~i th
awav.~~
th i.s sr1P.ci fi c
problp.m of IJJhfln a POlir:R nfFicer cCln s tor an inrl1 vi dual
based upon his personRl ohs8rvation8 , the rr8viol1s1 " rH s ClISSf'!d cases of Davis Ami 1\J1. r: holAS SI'lRm to prcl\lirJe the hRst
8xamples of the current state of the law in this area.
80th would approac h any problem of whet hpr or not An
investi~ative
questinn:
stop was justified bv askinq the initial
lilould the far.ts avai lable to t.he ofn r.8r nt.
the moment of the stop warrnnt a reAsonabl"
prL~ent.
the bplief thAt thp act.ion t.aken WAS appropriatp?
to anSlder thi s kev questi on
j
mAn in
In orripr
tis ner.pssaJ'l/ tn look to t.hp
-12specific j'acts of the individual case that were available to
the officers at the time that they acted.
Th es e should be
consi dered in light of the existing circumstances, such as
the type of neighborhood or the time of night.
Would this
combination of facts and circumstances lead a reasonable msn
to believe that a serious offense had been or was about to be
committed and that there was an immediate need for police
work?
If so , then an investigative stop is appropriate under
2. Stop Based Upon Impersonal Anal vs is
Stops have also been allowed on the basis of reliable impersonal analysis rather than on an officer's personal observation.
This line of cases has been limlted almost exclusivellf
to the airline boarding cases .
United States
\1.
LOQez 35 uphe]~
a stop based s olely on a passenger profile analysis and
maqnetometer r NadinQ.
The exact nature of the per s onal i ty profile has not beRn
publicly discl osed.
It was apparently derived from studi es
of characteri s tics and ma nnerj s ms of
air traveling public qenerallv.
knn~m
The theory
hj iackerR and t he
s uch
hehin~
B
sr.heme is that hijackers share certain characteristics that
distinguish th em from the [jelleral tra\leling pubHc .
So , \f erv
basically, this profile relays throuqh the airlille s gent
to the officer that a s uspect has di s played certain per sonslitv cha racteristics which indicate that he may be
po t en-;1a
I · 1 h"IJac k eT. 36
Courts have found that the
8
rE~]
i alli 1 i t v
-13of such a profile comhined uJith the stronrt lluhU c nonclI in
support of ai rline safety provides sufFicient reasonableness
to satisFv the requireme nts of Terril .
Courts have also held that a magnetometer, which record s
the pres e nce of larrte metal ohjects on the person, may Ilrovide
'1. n l l8 ._>I ~ ; qatorll s t op. 37
su ff 1' C l. ent groun d s f
Dr an
has prO\l8n itse lf so rel1 able in th e rms t t hat
This del/ice
pnsi tiv e
8
reading is re asonable basis to stop. '
3.
Stop Based Upon Information Suppli ed
a.
l~nouJn
ey
Another
Informer
Stops baseil s ol el ,! lI llon information su pplied hll a n
informer ha \le been alloloJed in some instances .
Thi s incll!rips
informers luho are knOl dn clOri r e liAhl e anri Al s n those l!.Ihn arp.
unknolJln anri ulhn sp. reliahi.Htv is IInt r:1sted .
The case of the knnr.Jn and re I i.abl e informer uln]
rten8rA 11'1 lwol/ide the r.oLlrt iJli th a rp.AsonAh 1 e IJ rou nds "pon
IJJht e h to uphold th", RtO[l.
thorotJ~h
treatm ent to this problem nf A knmtln infnrmp,r
Illhn hf':1 S [lrnven hirnr,e l F rp.HA hle in thp, past .
Serll; ce agent r ec r:!i li ed i nfnrnlf'li::i on From
1'1
A Ser. r nt
r eI i Ah] e i n f nr -
ma nt t ha t a ma n hJoul d hI'! in tmln lIli t h a numher of cou nt erf ei t teLJlnt" dol] ar bi Ils.
Th e allent Ldas prmlidpd Ill; t h th n
n ame thAt the s us[Jp.ct lJJnuld h8 Ilsi nC] Alonr] Ltli. th A ri pser ; [1tton of the ma n And nf t he
dr i v i n~ .
T'f~nted
car th a t he iJJolllrJ he
The pnlic e later found A man mat c hinlJ t he d es-
cription s i.ttinq in a car loJh ich also matched t he
desr.ri~tinn.
-14This stop eventually led to the discovery of the counterfeit money.
The defendant sought to distinguish the Terry case on
the grounds that the officer s had not personally observed
any suspicious conduct on his part as of the time of the
initial stop.
This argument was flatly rejected by the court:
"We do not believe that the justification for an investigative stop under the Fourth Amendment is necessarily
predicated upon personal observat i on.
It 1s rather predicated
. upon the 'specificity of information' upon which the police
ac t • "39
The next step was to look at the facts of the CAse
in order to determine if the police had enough specjfic
information to justify the intrusion.
name, a physical description of
B
Since they had a
person and his automobile,
and 'even the description of the counterfeit billa, there
was more than enough specific information to justify a
stop under the standards laid down by the court.
b. Anonymous Informer
In cases where the identity of an informer is known, the
courts have tended to rely heavily upon this fact when upholding a stop based upon information provided bV him
40
,but
what of the situation where a stop is made based solely upon
information provided by an anonymous source, or at least
a source whose reliability has not been proven?
There
would 8e em to be some question concerning the reasonableness
-15-
of a stop under these circumstances.
This problem was cod 'ronted in. United States
\I.
FT'lI e.
41
In this case the police received a tl.[l from an Iinidentified
citizen th at a certain automobile was carrying weapons.
They
followed the car and while doing so they had a license check
run.
The check reveal ed that the
l~hich
these plates actually belonged did not fit the descrip-
d 0 3 ~r iption
of the car on
tion of the car on which they were presently located.
at this point that the aut omobile was stopped.
It waR
The def endant
arqued that there uJas no probable cause to stop the car
because the citizen giving the initial information was not
identified.
The court upheld the validity of the stop, but on the
basis of the anonymous tip and the license check ccimbined.
So thete was not total relia nce upon information suppljed by
an unknown source.
The court did qo on to saV, hmtlever, that
the police must act fast in moving strsst encounters and theT's
is no intent on the part of the courts to throttle them in their
dutie~.
It is for this reason that a ston based upon informa-
tion from an unknown source may be upheld.
But, the court
warned, every reasonable effort should b r! made to obtain
and rscord th e identity of th e person who sU[lplied the infor"
42
ma t lon.
In People v . Bronk
L. 3
an officer was stopped on the
street by an unidentified man and told that a certain individual was carrying a gun.
On this basis alone the officer
-16approached the suspect from th e rear , wrapped hi s Brms
ar ound the man in a bear-hug and physically carried
hi m off of t he street and into a doorway where he
s uhsequent ly removed a qun .
The court deni ed the
valid it" of this stop, bil L has ed t hi s denial more UJlon
the dr astic natur e o f the offic er's reac tion to th e
tip rather than upon the tip itsel f.
Actuall", the
court seemed to impl" that a stop uloliid havR been
jus tif ied had the officer's Bct i ons been somewhat mor e
tempered:
"Althouqh there was nothing in thjs bRre
statement (of the info r mer) to i nd ica te that defendan t
would use the gun if stopped for questioning, th e offi cer,
if fearful of such dan ger, need on IV approach wi th hanri
on his gun . "
t hat
8
44
Thi.s would certainllj seem to suqgest
stop based upon an unknown i nformer's informa-
ttoh 18 8cceptahle if nnt JlerFormed in
A drA8t i~
man-
nero
In YRt anot her sHuaUrm of this tl/pe a stop uiRS
allowed 111hen
11F1R8rl
'Ipon B tip from an annn'lmOl.J9 cRller
r Rpn rtinq that a man carryi nr] a weapon "las planni nrJ to
. 1 all'
. l'Iner. 45
boar d a commerclR
fied because there 'das
R
5 uc h BC t·
. t 1· .l on was lUS
possibilitl/ of a cdme of a
vel'" serious nature whi c h co uld onl" he prevented bv
prompt action.
In the area of stops based upon i nfo r matio n
derived b" means other than personal observ ati on t he r e
-17seems to be little problem with such procedures as
passenger profile analyses, magnetometer readings, or
even information supplied bV a known, reliable informer.
In the latter type of situation, if the known informer has
proven reliable in the past and is r easonably specific in
the information which he relates, then the stop is
.iusti F-i Rd.
But a mOT e difficult problem is presented by thosR
tips which are supplied by unidentified informers.
The
cases in this area do not appear to have squarely confronted this rroblem, but it all boils down to whether
there is sufficient
I~A llse
to infringp upon the riqhts
of an individual solely upon the basis of infoTmation
pTovided by an unknown person
proven.
I ~hose
reliability is un-
The stops have been upheld, as 1 n the. Frlle case,
or t"le ld i lleg81,
138
in the BroDk case, on qrounds other
than the anonymous tip standlnq alone.
license check combined with th e
In FT\le it was the
Inon~mous
informant that
support ed the stop, and In Bronk it was the
drasti~
Action
of the pollcernan that caused it to be hr:!ld illeqal; hut in
bo t h cases the courts jndicated that the stop miqht have
been justi.fied eVAn if based soleI" l.I[lon an anOnllmOlm tip.
In any event, if the officer ohserves
~ ircumst R nces
which tend to corroborate th e informer's information,
then it would seem very likel" that this would qreatly jn-
-18hance the reasonableness of a stop in this sjtuation .
least such a conclusion could certainly be
stop cases from the arrest case of Dr , qlP. r
analo~ized
\I
where it was held that the observations of a
At
to
4h
llni tP.d States,
nfficer
poli~e
L~ich tenrl to support an informer~ tip can combine to
furnish
~:iI
d:Ti ci ent probable cause tn arrRst a SUSPp.ct..
47
But the stop is only the first step in any stop and
frisk situation.
Just because a stop is clearly called
for does not neces sari ly mean that the right to rnnrlu ct
B
frisk automatically follows.
B. The Frisk
1. Justification for the Frisk
The
n rst problem confronUng nn offi cer follol,Ji ng
an investiqatory stop is
justi fled .
L~ether
or not a f1'i Ak is
TR1'rl/ makes it clear that he must have reason
to beli eve that he is deal inl") IJJ1 th an armed and rl ang 8roIJs
inrllvtrlual . 48
Sjhrnn , provtd RrI
A
rule hV dRclarjnq 8 fri s k illegal
rRady R~AmpIR of thiR
~~en
an officer conducted
the frisk solElly Fnr the pll1'pos8 rrF rliscoverinrj nArr.nt; r.s.
If the individual is suspRr.ted- nf a v10lpnt crimp.
such as rape or murder, then it would seem that an officRr
hAS re8son to believe that the susppct may bP. armed.
Convp.rsely. if he iA sURpected of a non-v iolent cri mp.
such as cOlJnterfeiting or forgery. then there is little
reason to believe that the individual is armed.
50
But the
L1q
-19-
c ases are not so easily catagorized Rnd the courts have
indicated no inclination to acc ept such a distinction.
In the case of ..1illr!lrlifl illJlealth \/. Moh1811 51 a druq seller
IJias talking to a companion on the street when the police
approached.
r8m~ined
a pistol.
The drug seller fled, but his companion
and was
sub~ectRrl
to
8
frisk which turnerl up
The court he ld that this weapon LlIas got ten as
the result of an illeQal search and denied its use as evidence .
It was reasoned that the association of the defenrlRnt with
a seller of dope was not grounds for a frisk.
The officeI'
was not acquainted with the person frisked no r did he have
anv information concernjng the man and he certainlv had
no Teason to fear fOT his life.
Compare thLs holding with United States v. Gonza]ez~2
Th f:1 rl Eifendant was
B
paA8enrler in a car ltlhe n it !'Jas st oJlJlRd
bV tho pollce and the rll'ill8r tlla8 l3:rrFlstp.rl [lUrSl.ltlOt to a
war rant fo r ill8gal 8ale of narcoti cs .
A fr is k of th e
passenger was upheld on th8 qrounds that this was a high
crime ne iqhhorhood and th e pass enger tri er! to break and
run ltlhen the car came to a stop.
Also consid ered bIt the
co ur t was the possibility t hat the arrest ee miqht have
tossed a qun to his companion.
This reasoning seems to have been affjrmed bll a
later case wh i ch held:
"All companions of an arrestee within
the immediate vicinity capable of accomplish i ng harmful
assault on an officer, are constitutionallv subjected
-20to a cursory 'pat-down' rB8sonably necessary to qive assurance
that they were unarmed. u53
So, at this point it would seem that mere association lili th
someone who is known to be involved in criminal activities,
combined with nothing more, is not grounds for a fri s k.
But
mere association with someone who is arrested for c riminal
activity is grounds for
B
frisk of those in his company at
the time of his arrest.
In a different type of situation, the police followed
a suspicious car during which time it made several turns
and finally stopped.
The driver left the csr partially parked
i n the street with the lights on and exited in a hurry.
When he was called back by the police they not iced a buldqe
under his sweater.
They then frisked him 8nd found a weapon.
The court upheld the fri.sk becalJs e :
(1) The stop Illas
j
n
an arBa where many policemen had been shot; (2) It was after
midnight; 0) The suspect had driven 8u!'1!1i.cioIISll/ ami hRd
parked his car in the street with the llghts on; (4) He had
tried to fles; anrl (5) There
sweater.
bl8S
8 huldqe notir:p.d under his
54
55
. United States v. Rundle,
on the other hand , provides
an example of a situation where the validity of a frisk was
denied.
An officer saw a qroup of boys run out of a druq storp
i n an area that had been plaqued by robberies.
He gave chase
without first checking to see what had t n-Inspired in the druq
.store.
The boys manaqed to evad p the officBr, but as he
-21continued a search of the neighborhood he noticed a group
of boys who fit the descript i on of the ones that he had
been chasing.
proach.
All of the boys but one fled at his ap-
The straggler was stopped by the
pol~ceman
and,
despite his protestations of innocens e, was fris ked .
The court cited the rule in Terry which requires
that the officer be abl e to point to particular facts
from whi ch it can be inferred that the individual was
armed and dangerous.
The following facts were relied
upon in concluding that the ta was no reason for the
officer to be in fear of his safety:
(1) He had no
idea that a crime of any t ype had been committed; (2)
He made no inquiries of the suspect and gave him no
opportunity to explain; (3) The suspect was docile and
passive when seized; (Lf) The suspect made no attempt
to
f l~a ;
and ( 5) Nothing in t he officer's t es timonv i nd i -
cated t hat he
othera . 56
f ~ar9d
f or hi a own safety or that of
1M an ai r line boar ding case a t hree step proced ur e
was applied by the court.
It was required that the off i cer
f i rs t obs erve unusual conduct, that he conduct an
interrogation, and the interrogation must furnish
reasonable grounds for a beli ef that th is suspect i s armed
and dangerous.
57
It is difficult to discern any overall uniform
interpretation and application of the Terrv st andard in
-22so Far as the necessary qrounds for
A
frisk are concerned .
All courts begin with the initial premi s e that the
polic~
officer must be in fear of hi s saFety Dr the safety of
others and all seem to require that he be able to justify
this fear bV reference to s pecific and ar ticulable facts.
But, as illustrated, the courts d i Ffer widely in the degree of w81 qht that they may attach to certain facts .
The following are some of the factors which the court s
have weiqhed heavily in reachinq a conclusion; (1) the
nature of the neighborhood, (2) the time of day or night,
0) the people in whose company the suspect llias in at
the time of the frisk, (4) the docility of the suspect,
(5) whether Dr not he attempted to flee,
(6) the suspicious
nature of the suspect's actions, and (7) some positive
indi c~ tion
in the officAr's testimony that he did or
dirl riot FRar for his safetv .
TIlege ArB but a f ell] of the
factor s loIh1 ch mAy be com:Jidered, hut the\! F.l t. l east he lp
to Ulustrate the fact that the court s can liar,! widel v
j
n thE'li r. conclllAinns, depe nd1 ng fillon thp. f act s loIh1 r h
they r.hoose to emphasize.
In the area of traffic violations it has been held
that a stop for a mere minor traffic I/iolation, combined
Wl·t.h
..
t'f
fr18
' k . SB
no th"lnqmore,llll'11 nO t
. ',lUS,lVa
Thi s 100nLlJrl
seem to be the hest reasoned author.itv in that it is ba sed
upon the sound rational that a minor violation of this
nature does not, in i.tself, provide suffi dent r.AIISP to
-23-
suspect that the violator I s in any way armed or danqerous.
59
Up tn t he present there has been little troubl e
I~it h
frisks
grounded solely upon the results of l pas senger profile analv sis or a positive magnetometer readin8 .
Just as a ston is
lawful when based upon either of these two impersonal
methods, so also is a frisk.
60
The courts have justified
such a holding by reference to a statistical report which
indicates that the chances are 1 i n 15 or 6% that any person
fri s ked under t.his procedure will have a ".le8Pon .
61
It lilrlS
felt that a 6% probability was suff icient cause toiustify
a frisk.
But a recent case indicates, IlJithout sayinC) so directlv,
that somethinq more then a positive maqnetometer reading is
need ed to support a frtsk.
ing the stop on the
ba ~i s
62
There Illas no troubl e in Justifl/-
of the magn etomet er reading, hut
this court stated that the subsequent fr is k was reaso na ble
only Illhen lithe hiqh me ta l indication of the magnetometer lLlas
not sa tjsfactorilv explai ned" bV the deF endant.
G3
Such
8
statement would seem to implv that the court was lookinq
fo r s omething more than a positive mAqn etometer reariinq
in order to give sanction to a frisk.
ThA best procedure in situat i ons such as this would be
to ask any boarding passenger to explain any high readinq
'dhich he miC)ht have gotten from the magnetometer.
Should he
fail to satisfactorily explain the presence of a large metal
-24objects on his person or produce it upon request, then
a frisk is in order.
2. Tactile Sensations Revealed BV th e Fr isk
Even though the right to frisk a suspect i s clearlv
established, this initial frisk must be limited to a
pat-down.
If, during the pat.down, the officer
f R~ l s
somethinq which he believes to be a weapon, he may rearh
inside of the suspect's clothing to remov e it.
64
Since
shape and hardness or softness are .1bout th e only tttlO
characteristics of an ob1ect that a basic pat-down will reveal ,
there has been some question concerninq jus t what tactile
s ensa tions revealed bV a pat-down will suggest the
pr c ' , . ~ ilr: p.
nf
0"1
weapon.
In Uni ted States v. Gonzalez,
frisked a suspected dope pnddler.
a soft buldge in the
8
~ llspect
65
a qovernment agent
The pat-down revealed
' s pocket..
The agent removed
r ark of ciqarettes from thi s por:ket Rnd rli scoverRd
it contained mari,iuana.
He souqht to ,iustifv his findinq
mlqht. r.ontain razor nladRs.
ThR r.nurt ileld that ",hen a
rat-Mown reveals a soft ob1e ct that js ohvious]v not
llJRRpOn,
th p
th ~ t
frisk shnuld he struck nfJlJJn
fj dentl" limi.ted and unreasonable."
AS
R
II nn t s"f-
66
This is a sound approach to the prohlem Rnd spnpsrs
to be the approach taken bV most r.ollrts tnd r3\! .
If thp.
nbject is soft anrl ohviouslV not a weapon, then the
-25-
scope
0
f
· k·IS 1·Iml·t,e d. • 67
th e f rls
The Supreme Court of
Cal i fornia expressed it's opinion on this sub ject as
follows:
"To permit officers to exceed th e scope of a lawful
pat-down whenever they feel a soft object might be a razor
blade concealed in a handkerchief, a 'sap', or anv other atypicAl
weapon would be to hold that possession of any object,
including a wallet, invites a plenary search of an individual's person."
68
The shape of an object discovered by a pat-down will
also reveal a great deal about the nature of the object.
Such things as coins or pens and pencils should not give
. cause for further search.
The seizure of a key chain has
. been held unjust i Fied on the grounds that there was no
indication that it
a weapon. 59
IdAS
taken in the belief that it was
The Use in evidence of a small box of pills
has a190 been denied
~n
this same basis. 70
But, evldently, no t all objects communicate t he 88me
tactile sensations to all people.
an officer frisked
B
In State v. Yuresko
71
suspect durinq a narcotics r ai d and
removed a packag e of cigarettes from his jacket porket,
jus t as in the Gonzalez case which was discussed previouslV.
The package was found t o contain marijuana.
The officer testified that the cigarettes fe lt hard
on the pat-down and he feared "that it coul d possibly have
been a knife~72
On the apparent basis of this explanation
the court, in this case, upheld the scope of the frisk.
-26The discovery of a wad of money in a suspect's no~ket
73
has also been s anctioned.
The court allowerl thiR intn
evidence on the basis 'of an RxplBnation by an offirer that
he though it "miqht be a gun covered lLii th a h Rr,,~lkerchj ef . ,,74
Even a s hot-qun sh ell which lLias revpa 18d hI.' R flRtdOllJn has heen allollied into evidence. 75 It Illas rea!'lonerl tha t
the shell felt hard and might have hp.en a IdPApnn .
The Terril dpcision
should not
~o
~lp.arl"
intpnds that a frisk
bellond the scope of a pat - rl nwn unles s this
pat-down reveal s something whjch th e officer s uspects miqht
be a ldeapon.
This tar.tUe sensation reve a I· 'I I b" the pa t-douln
must bear a reasonable res emblence to
8
Idsanon of some
Rort; ami it 19 here thst the courts have mn into dUficulties.
Some courts have been willing to t Hke 4ldicial
notice of the Fact that an Object such as a oack of
cigarettes
j8
s oft And th At its ehape be ArA no res p.m-
b] p.nr. 1'! to thF.t t of A loIl38flnn.
On th e other ha nd, ot h8T'
COllrts have relil3d hea\l111/ IlnOn the testimonl{ of the
offir.eJ' IJlhn r,nnrll.l r t. p.rI til l"" fT'l Sk.
explAin whIJ he
thou~ht
If h8 r.a n r p. Fls ona bl'l
the obj ect recovered was a
ldeapon, th8n som8 r.ollrts have 1. ndt cFltp.d a Idi 11 i nqness
to accept this.
The best reasoned authorit" seems to r ecooniz e
that some objects just do not
~onvey
an impr ession of
being a weapon, no matter what the police offic8r mal{
say.
In fact, one court has stated:
"A box of mat ches ,
-27a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded
p pers, and many other s mall items us ually carried in
an individual's pockets do not ordinaril y feel like
weapons."
76
To hold otherwise i s to allow the
~olice
unbridl ed discretion in deciding when to thoroughly
search an individual without a warrant.
3. Admissabilitv of Evidence Other Than A Weapon
n question has also arisen as to the admissability of
ev i dence produced bV an officer who believed in good faith
tha t he felt a weapon upon pat-down, but upon removal he
discovered that it was not a weapon, but was s ome other
evidence of a crime. .Terrv made it cle ar that any weapons
uncovered by a lawful frisk sre admissable in evidence, but
the case does not speak to the i s sue of other evidence
discovered while frisk1ng for weapons.
77
However,
Justice Harlan, in his concurring opinion stat ed:
"AI-
though the frisk i s constitutionally permitted only in
ord er t o protect the of Ficer, i f it is l awf ul the Sta te
is of course entitled to use any oth er contraband that
ap pears."
78
Tt would appear loqical that if the frisk was
~ e rmissab l e
under Terrv st andards, then any evidence
discove r 8d by an officer who is searchinq for weapons
in qood faith must be admissable.
Nearlv al l courts
in this country, when confronted with this question,
-28-
have arrived at the same conclusion or have·merely taken
it for granted and not even discussed th e problem.
In People v. Mosher
79
a suspect was patted
down and an object which felt like a knife was discovered in his pocket.
The police removed the ob .iect
and found it to be a wrist watch.
In holding such
evidence admissable the court. stated:
"If the offlcer
obtains contraband from the suspectls clot.hinq , the t.rjal
court, in order to justifl/ the search and t.he int.rodu ct ion of the fruits of the search in evidence,
must find that the object could have felt like an
ob.iect useable as an instrument of assault."
80
In
this instance the court would agree with Justice
Harlan and assume that iF the contraband L.lasl Au/ful,
then i t may be used as evidence in court.
Thl. s pro bl em lEI confront ed mor8 s IlUarel,! 1]\/ Pecm ] e
\/.
LF~n
81
1J/lll3rei n the court. r138soned t.hat it has 10nl'1
been held that contraband not searched for but discoverer! during a valid search mal! he 8e; zerl anr:1 .i s
adrnissable in evtdnnce.
said
Tile cour t. conclur1 8d that. it
nothinr] in Terril to suqll8st that this should not
;::l1so Flppll/ to AtO[l and frisk.
R2
It has also bRRn held tllRt i f an nfFicer heli evps
in ('joor! faith,alonr] with the presence of adequate
t.actile circurnstances,that the suspect has a wRapon
in his posses si on, hut upon r8a chinq into the pocket
-29where he believes th e weapon to be hR can feel thAt he
1l1aS mi staken, removal i s .il.J8tifi.ed and the ohject removed
·
can be use d 1.n
~ourt
. d ence aqal. ns t th
. d'1. V1.. d ua ].• 83
, e 1n
ThF!
e\l1.
will not qo so far as to subdivide the StRqPS of
Bct; on.
Oil[' 'l tafle is the discovery IW pat-dOlun of l"helt
; s helip-lled to be a uJeApOn and anothRr ; s the remollal
of the ohiect from the posses 'l ion of the suspect.
The law in this
a~ea
appears to be more or less
es tablished.
If the frisk is authorized anrl if thp nat-
riOhln
tac t; Ie sensations l.LIhi rh lead to a ref'lson-
[Jrodu~es
able helief that the
ohje~t
Felt i s a weapon , then this
nbject can be remov ed From the pnssRs s ion of th e
susn~ct
Elnd can also he used in el/ idenC8 against him, 8V8n jf it
is not a hleapon.
4. Th o Scope of the Frjsk
Another prohlem nris8s in
of
R
fri sk .
co nn e~ t1nn
Sholllrl i t hp. ] ·lmtt.nrt
person of the suspect?
The
Cou~t
hrith t hn scn nn
AXI"~lLl('l iv811'
tn t hp.
jn Te1'rv emphRsized
th a t the frisk mUAt hrl 1i rni tnrl 1n r:lr: nI'1A to "Rn 'I ntrusi on
reas onably riesiflneri to discover flUns, knives,
other hirtden instruments
officer. 1I84
Such a
fo~
~]ubs,
the BSSRUH of th8
or
noli~8
st 8 1~ ement IlJould seem to indirAtp. t hRt
th8 frisk is not limited to thp. person nl" thp 8L1Snert, Ili lt
mav cover those plae rs to which he hRs immerli ate arcess.
FI'1
Oa RS this meRn thRt the scope of thp. fris k ; s p.xtenrlerl
tn
thin~s
carried?
Some
Rutho~ities
in thi s Rrea
a~que
-30-
that rathpr th an search an
oh1e~t
which is
~arripd,
the bRst
course is to simplll mnve the ob ,iect OLit of th e r e Rch of the
suspect until the inquiry is completed.
85
Once the ob ,ipct
is out of reach, there is no longer any danger from thi s
oh1e~t
and thus no 1ustification for a search of it .
However, the courts have not ind i catRd mu ch f'Jllm[1 a thlf
with thi s rpasoninD.
flo l i ce
rF~~phlPd
In United St Rt es v. Sims
A7
th p
an a nonl/mnus CR 11 r erJO rt i nil that R m,'ln had
forced the caller to drive him to th e airport at qunpoint .
Acting on a descript ion qiv en by th e ca ller , thp pnl ic R
s t opped the mRn at the airport and immediate llf s earched
an at tac he c ase which he was carrvinll.
iustif\ ed on the qrounds thRt the case
Thi s seE'1rch Idas
mi ~ ht
contain Rn pxplo-
si ve device and merely moving it out of the suspect ' s
re8ch
I.~oll l
d not effF!cti \lely remo\le the danqer.
The court CAme \l ery c los p to Rllowtnq t he search
of
A
henrl"c2Irrlar:1 I1rt. t cle in IIJi l linms II . UnitFlrl St.Frt:~ll\-\R
but StoPJl8rJ;ust short nf
decls1nn
88
heln,.,
90
riO]
nil so.
" We do nnt III eld thp
T p rr ~1
i nflexihle in fI!1P ]jratinn as t.n 14[111 111
only to cases where the police pat thp outer clothinq of
t h e suspect.
,,89
The court thpn nnt. pd thRt it pxprpssed nn
or; n; on on the cnnsti tllti ona li tv of a sp.8r ch ins ;' Ie of
•
a ball that th e sLispect LIRS CRrrl/J nil .
CJO
In Uni tp.d States II . Rprrllhi II 91 R s PRrr:h nf thp. hrmr!hn'l
of a compan ion of an arrest ee was upheld on the nro und A th Rt
thp. arrpstpp. u9uall l / had a ltlp.n po n
RVi'li]
ah le and hj A
I.d
fp. ' s
-31-
handbag was reasonably suspect as the depository of such a
weapon.
ob~ect
Apparentlv, this court accepted this frisk of an
carried in the hand as a logical extension of Terrv.
Although the removal of a hand-carried object from
the reach of a suspect would seem to provide the best
protection for both the eafetv of the officer and the riqhts
of the individual, the cases bV no means indicate that this
is the state of the law today.
On the contrar\f, it appea r8
that the courts tend to allow the investi gatory search of
a hand carried object if sufficient fear of personal safe tv
can be shown.
92 uses t he Terry ratlona 1e t 0
St a t e v. TOlver
1
0
0
extensively expand the scope of a search.
In this case
officers entered a dwel l ing house und er an arrest
~arrant.
They had reason to beli eve that persons i n the house
might interfere wi th the arrest,so they searched the
hous e and Found stolen qood a whi ch
Ider E!
used
8S
8vi denr.r-l .
The court upheld the legality of this entire action stating:
"Co nsequently, we con cl ud e tha t,
a lthou~h
the s elf-protec-
tiv8 Bction in th e instant case went beyond the limited
stop permitted bV Terrv, the above quot ed prinCipals, upon
which the holding in Terry was bas ed (that an officer may
take necessary steps to protect himself) , are properly
extended to cover the situation where officers lawfully
executing an arrest warrant have a reasonable fear that
friends or conf ederates who are beyond the areB within the
-32-
immediat.e control of the arrestee anrl within a constitutionallll
protected dwelling, might begin shooting or take action which
otheru.lise endangers the safet" of the offj cer. 1I93
Such a broarl
interpretation of the rationale of Terril miqht verll well
extent the scope of a frisk when applied to a stop and
frisk situation.
In so far as automobiles are concerned, the scope of
a frisk has pr esented more problems.
Since manv policemen
have been shot bV persons seated in automobiles,
become an area of speci.al concern.
94
this hAS
Onl: e al]ain, it IJJoulr!
s8em that the best solution would be to separate the
suspect from the vehicle and in this Illav remove the danqer
that a weapon concealed in the vehicle might present.
But this rationale has not been accepted bV the courts.
The Supreme Court has never di T.'ectll, confronter! this firoblem
in ~ stnr rmri frisk s1 tlJation, but r.himel v. CAlHnT.'niE.., q\
s8Ar~h
inci dRnt to arrest case, mi ght readily be
to SlJch a si tlJation.
8nalo~ized
The cOllrt heIr! in Chimel that:
A ~un on B tahle or in a drawar in front of
one ldho Is AT.'J"estEld I~ a n he as danll ero lls to
the arr8stln~ offic er as one concealed in the
clothinll nf the person arrested. There is
ampleiustification, therefore, for a search
of the arrestee's persnn and the area 'within
his immediate control'--constrllinll that phrase
to mean the are8 from within which he might gain
possession of a weapon •••• 11 96
Th e s cope of this search incident to arrest was expanded in order to insure the s afeb, of An arrest.i.nC] nFficRr .
and this rat.ionale should al so be applicable to an officer
-33who has reason to fear for his safety in
sitlJation.
8
stor and frisk
This, in fact, does se8m to bR the rationale
adopted by the lower courts tn so far as automobiles are
concern ed.
The case of State v. WithersDoon
for a license infraction.
97
involverl a star
A search of the trunk of the car
was held to be illegal because it was out of reach of the
suspect and th us posed no immediate threat to thp. offi c er.
But this court did go on to clearly state that an offi cer
can examine those pUt,tions of the vehicle that are accessible to an occupant.
9S
If an officer has good reason to believe that a suspect
sitting in an automobile may be armed , t hen he can search so
much of the vehicle as miqht Seem r easonable nec8ssary tn
99
order to secure his person against possible harm.
Some
courts have limited the area of this search to that portion
of the caT in which the SUSpRct cDulri
re8~h
for
8
blsapon
without moving from the position in which he is seated.
100
And 1F the SUSPAct is tAke n Dut and away From the BIJtomohils,
then the search has been further limited to that Brea of the
vehi cle that he might be able to readily reach if he broke
away and ran back to the vehicle.
101
What the actual scope
of this frisk might be is not revealed, but it would have to
be limited to extremely accessible places such as the seat or
floorboard.
Evidently, the scope of a frisk dORS extend to an
-34automobile.
It is
limi t r ~
to that part of the automobile
which a suspect could readily reach from his location in
the vehicle.
If he is removed from the vehicle, then the
scope is further limited to on IV those areas that would
be read ily accessible to him if hR broke away and returned
for a weapon.
IV.
Conclusion
It has been four veal's since the Supreme Court first
confronted the problems of stop and frisk with its decisions
i n Terry , Sinron, and Peters.
During the interim since that
time state and federal courts have struggled to apply the
standards which the
Court established.
This has required
some degree of interpretation bV the courts, and this has not
always been consistent from jurisdiction to jurisdiction, or
even from court to court.
It is for this reasOn that it is
almdst impossibl e to back off and look at the various s tate
and federal court decisiona since Terrv and then reach a
conclusion as to the precise state of the law in stop and
fri s k t.odav.
Perhaps nOIJJ IJJould
118
t.he time foT.' the fJuprsme
Court. to step in and clarify some of the problem areas
have developed
~> i nCR
TerrI!, 9i bron , and Peters.
~~ ich
Certal nly,
there has been a V8st amount of litigation in t his are8
si nce 1968, and with the criminal dock ets as overloaded
they presently are, any clarification of stop and frisk
should provid e most welcome relief.
RS
-35FOOTNOTES
1. Snur] s, St.op Rnc1 Fri sk Rnri Arrp" r :=tnri Sp.arch-The Use and Misuse of Euphemisms, 57 J. ~ri m. L. ~ . &
P. S. 251, 252 (1966).
2. LaFf'lVe, IISt.reet Encnunb'lT'sll :=tnri thp. Cnnst.itlltion:
Terry, Sihron, Peters, and B~yonri , 67 Mich. L. Rev. 40, 43
(1968).
3. Ronaynl''!, The Ri.ght to Invp~tjfl;=Jt8 ;=Jnri NPld Ynrkl~
Stop cmri (risk LAhl, 33 Fordham L. Rev. 211, 222 (1965).
4.
14 N.Y.2d 441, 201 N.E.2d 32, 252 N.Y.S.2d 458
(1964).
5•
...l1: at.
L,46, 201 N.E.2d at 36, 252 N.Y.S. 2d at.
462, 463.
6. Id. at. 447, 20). N.E.2d at 37 , 252 N.Y.S.2d at.
463, 464'-.7. 15 N.Y.2d 65, 204 N.E. 2ri at 179, 255 N.Y.S . 2d
833 (1965).
8.
Tri. At 67, 6A, 204 N. E.2d at 179,255 1\I.Y .S.2ri
At. A?6.
9. 5chltlBrt z, St.nn ,'inri Frt sk (A CBSI'! 5 tudl/ in JlIri1 c1 a 1
Control of the PoUce), 58 J. Crim. L.C. & P .S. (1 )3 , 435
-0%7).
10. People V. Vs]entinp., 17 N.Y.2d 128, 216 N.E.2d 321,
·269 N.Y.S.2d 111 (1966).
11.
392 U.S. 1 (1968).
12. Thp. Court is quotinl] from a rrellinlls rip.cision in
an electronic evesdroppinq case. ThA Court of Appeals had
rulRd that there ~~8 no Fourth Amenriment. violAtion because
t.here was no physical entrance into the area occupied bV
deF endant. The Supreme Court reversed anri in s o doinq held
that because the Fourth Amendment rrotects people not places,
its reach cannot turn on t.he presen~e or Ahsence of R physicnl intrusion into am! qiven enclosure.1Q.. at g, quotinr]
Katz v. United States, 398 U.S. 347, 351 (1967).
13.
Id. at 17.
1!-1- • . Tri. at 21.
-3515.
L.aFave, Stree t Encounters, supra note 2, at 64.
16.
Terry v. Ohio, 392 U.S. 1, 30 (1968).
17.
Id. At 21.
18.
Id. at 27.
19.
Id. at 28.
20.
392 U.S. 40 (1958).
21.
22.
~
at 45.
LaFave, Street Encounters, supra note 2, at 49.
23. Landvnski, The Supreme Courtl ~ 5earrh for Fourth
Amendment Standards: The Problem of Stop-and-Frisk, 45
Conn. L. J. 146, 17L. (971).
2 Lf.
Peters v. New York, 392 U.S. 40, 67 0%8).
25.
459 F.2d 458 (9th Cir. 1971 ).
26.
Id. at 459.
27.
Id. at 460.
28.
i, L,8
29.
Itt. at. 624.
30.
rd. at 625 .
31.
Id. at 625.
F. 2d 622 (8th Cir. 1971).
32. Shak er Heiqhts v. Wright, 26 Ohio Misc. 51,
269 N.E.2d 143 (1971).
33.
State v. Rankin, 477 S.W.2d 72 (Mo. S.Ct. 1972).
34.
1970)
Harris v. United States , 435 F.2d 405 (D.C. Cir.
35.
328 F. Supp. 1077 (E . D. N.Y. 1971).
36.
18 Wayne L. Rev. 1173 , 1179 (1972).
37 .
1972).
United States v. Epperson, 454 F.2d 769 (4th Cir.
-3738.
448 F.2d 250 (8th Cir. 1971).
39.
Id. at 251.
40.
1971 ).
United States v. James, 452 F.2d 1375 (D.C. Cir.
41.
271 F.2d 788 (D.C. Cir. 1970).
42.
Id. at 790.
43.
66 Misc.2d 932, 323 N.Y.S.2d 134 (S.Ct. 1971).
44.
Id. at 933, 323 N.Y.S.2d at 135.
45.
1971 ).
United States v. Sims, 450 F.2d 261 (4th Cir.
46.
358 U.S. 307 (1959)
47.
Id. at 313.
48.
Terry v. Ohio, 392 U.S. 1,30 (1968).
49.
Sibron v. New York, 392 II . S. 40, 64 (968).
50. Platt, The Limjts of Stop and Frisk--Questions
Unanswered by Terrv, 10 Ariz. 1. Rev. 419, 428 (1968).
~ 1.
220 Pa. 254, 2F11 A.2d 659 (1971) •
52.
319 F. Supp. 563 (D. Conn. 197o).
53. United States
1191 (9th Cir. 1971) •
\/
.
Berrljhi 11 , 445 F.2d '1189,
54. Un i ted Statss v. Marshall , 1.140 F. 2d 195 , 197
(D.C. Cir. ] 970).
55.
325 F. Supp. 1262 (E.D. Pa. 1971).
56 .
Id. at 1264.
57. People v. Erdman, 69 Misc.2d 103, 329 N.Y.S.2d
654 (S.Ct. 1972).
58. United States v. Davis, 441 F.2d 28 (9th Cir~
1971); State v. Gannaway, 191 N.W.2d 555 (Minn. 1971) .
59.
1971) •
Lawson v. Stat e , 484 P.2d
13 ~ 7
(Okla. Crim.
Ann.
-3860. United States v. Lopez, 328 F. Supp. 1077 (E . D.N . Y.
1971); Uniterl States v. Bell, 335 F. Supp. 797 (E . D.N.Y. 1971) .
61 .
1971) •
Iinited St ates v. Lopez, 328 F. Supp. 1097 ( E. D.I\I . Y.
62.
1972).
Un t ~ed
63.
States v. Epperson, 454 F. 2d
(4th Cir.
ld. at 772.
64. Cook, The Art of
796 (1972).
Friski n_~ ,
40 Fo r dham L. Rev. 7S9,
65.
319 F. Supp. 563 (D. Conn. 1970).
66.
ld. at 565.
67.
(971).
1 b~
State v. Anonvmous, 6 Conn. Cir. 583 , 280 A.2d 816
68. People v. Col l ins, 1 Cal.3d 658, 463 P.2d 405,
8 Cal. Rptr. 179 (1970).
69.
70.
(971).
71 .
People v. Bueno, 475 P.2d 702 (S.Ct. Colo . 1970).
Uva v. State, 124 Ga. App. 486, 184 S.E.2d 200
16 Ariz. Apr . 369, 493 P.2d 536 (1972).
72. ,ld. at 371,493 P.2d At 539.
73.
SAwyer v. Craven, 325 F. Supp. 526 (S.D. Calif.
I 971).
74.
tri. At
75.
Penple v. Lee, 4A lll .2ri 272 , 269 N.E . ?d 48A (1 971) .
~?g.
76. People v. Mosher, 1 Cal.3d 379 , 461 P . 2rl 65g, A2
CAl. Rntr. 379 (1969).
77.
at 430.
78.
79.
(969) .
Platt, Limits of Stop and Frisk, s upra note 50 ,
39 2 U.S. 1, 79 (196A).
1 Cal. 3d 379, 461 P.2d 659, 82 Cal Rptr. 379
80.
Td. at 558.
81.
48 T11.2d 272, 259 N.E.2d 488 (1971).
82.
Td. at
83.
United States v. Dowling, 271 A.2d 405 (D.C. 1970).
84.
392 U.S. 1, 29
A5.
LaFave, Street Encounters, supra note 2, at 89.
1~r:J2.
(19~8).
86. Pl att , Limits of Stop and Frisk, s upra note 51,
at 430; LaFave, Street Encounters, supra note 2, at 90.
87.
450 F.2d 261 (4th Cir. 1971).
88.
287 A.2d 814 (D.C. 1972).
89.
Td. at B15.
90.
Td.
91.
445 F.2d 1189 (9th Cir. 1971).
92.
5 Wash. App. 321, LI87 f1.2d 264 (1971).
93.
~
At 324, 487 P .2rl at 26'7.
94. Bristow, Police Officer Shootings--A Tactical
Evaluation, 54 J. Crim. L.C. & P.S. 93 (1963) .
95.
395 U.S • . 752 (1969) . .
96.
Td. at 763. -
97.
460 S.W.2d 281 (S.Ct. Mo. 1970).
98.
Id. at 2B5.
99.
1971) .
Phi11ips . v.Commonwea1th,
47~ S~W~2d . 135
100. Lawson v. State, 484 e2rl 1337 (Okla .
App. 1971).
101.
Id. at 1341.
(~v.
~rim.
-40-
APPENDIX A
New York Code of Criminal Procedure
Section 18o-a
~ lBO-a.
Temporary questioninq of persons in puhlic places;
search for weapons.
1. A police officer may stop anv person abroad in a public
place whom he reasonably suspects is committing, has committed,
or is about to commit a felony or anv of the crimes sreciFied
jn s ection five hundred fiftv-two of this chn pter, and may
demand of him his name, address and an explanation of hi s
a ct ions.
2. When a police officer has stopped a person For questioning pursuant to this section and reasonablv suspects that he
is in danger of life or limb, he may search such person for
a danqerous weapon. If the police officer finds sllch a weapnn
or any other thinq the possession of which mav const i tute a
crime, hA may take and keep it until the completjon of the
questioninq, at which timQ he shall either return it, if lawfully poss esserl , or arrest such rerson.
-41APPENDIX B
Combined Council Guidelines
Section 1.B.3.b.
Suspicious circumstances:
i.
ii.
The demeanor of the sus pect.
The gait and manner of the suspect.
iii.
Anv knowledge the officRr may have of the suspect's
background or character.
iv.
Whether the suspect is carrying anything, and what
he is carrying.
v.
vi.
The manner in which the suspect is dressed, including
buldges in clothing--when considered in light of all
other factors.
The time of the day or night the suspect is observed.
vi i.
Anv overheard conversation of the suspect.
viii.
The particular atrsets and sreas involved.
Ix.
.Anv information rec8ived from third persons, whether
known or unknown.
x.
Whether the suspect is consorting with others whose
conduct is "re8sonahlv sus pect."
Ix.
The suspect's proximity to known criminal conduct.
(This listing is not meant to be all inclusive.)