A police search can be a frightening and unsettling experience, even to an innocent person fully aware of their rights. When an individual is not informed of their rights, the experience can escalate from unsettling to catastrophic. It is difficult to remain cool-headed enough to assert one’s rights in any police encounter, but in the case of persons stopped on the street and frisked, few people have a clear and detailed understanding of their rights.
In a trend spearheaded by the NYPD under former Mayors Giuliani and Bloomberg, the controversial practice of “stop-and-frisk” has become increasingly popular in recent years among police forces across the nation. The theory supporting the practice, known as broken windows policing, amounts to the belief that high-crime neighborhoods may be improved by aggressive police tactics that focus on so-called “quality of life crimes” such as loitering, vandalism, and public intoxication. The practice has generated controversy not only for being highly aggressive (often alienating police from the neighborhoods they serve), but also for disproportionately affecting racial minorities.
Search and Seizure: A General Introduction
Incriminating evidence obtained illegally may be excluded at trial. Under the 4th Amendment of the U.S. Constitution, a search is legal if it satisfies at least one of the conditions listed below (note: the following is not an exhaustive list, but a general summary):
- A valid warrant is issued by an impartial judge,
- The officer has probable cause to believe that criminal activity has taken place,
- Exigent circumstances exist such as destruction of evidence or danger to life,
- The search is incident to a lawful arrest, or
- The search involves a limited pat-down for weapons based on reasonable suspicion.
Each of the above requirements merits a full article of its own. This post focuses on the fifth requirement.
The Officer Safety Rationale and the Reasonable Suspicion Requirement
The practice of stop-and-frisk, known as a “Terry stop” was first recognized as valid by the United States Supreme Court in Terry v. Ohio, a 1968 case involving the pat-down of an attempted robbery suspect whom police observed “casing” a store. The officer in that case wrestled the suspect to the ground and patted him down, finding a gun concealed in his clothing. Although it found that the officer’s suspicions did not rise to the level of probable cause, the court upheld the search and ruled the gun admissible on the basis that the search was limited to the discovery of weapons in order to secure the officer’s safety while he investigated further. Criminal Defense Lawyers have been litigating this case ever since.
But the Terry court emphasized that the scope of these searches must be limited to the discovery of weapons. It does not give police a blank check to frisk whomever they want in search of any sort of evidence they can use against a person. The pat-down must be outside the clothing, and the officer may only use it to identify objects that could potentially be weapons. It may not be used as a pretext to require someone to empty their pockets. It may not be used as a pretext to discover drugs, cash, “suspicious bulges,” or other contraband not constituting an immediate threat to officer safety, unless it reasonably resembles (by outline or feel) a weapon.
Police sometimes stretch Terry stops too far, using them as a pretext to extend a search further and discover evidence other than weapons, or to trick suspects into “voluntarily” emptying their pockets to reveal cash or drugs. When this happens, defendants who are not aware of their rights are often charged with nonviolent misdemeanors simply because they did not know that a search was illegal or exceeded its legitimate scope. This results in prosecutions and convictions the likes of which the Terry rule was never intended to support.
Contact a California Defense Attorney
If you are arrested as a result of an illegal search, it is critical that you obtain the assistance of a competent attorney who will fight for you. Call or email Alex Ozols today. When liberty is at stake, you can’t afford to do without the best representation.
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