Stop And Frisk

The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights prohibit unreasonable searches and seizures by the government. What are we talking about when we refer to searches and seizures? Obviously when a police officer pulls over a car and looks in the trunk, that’s a seizure (of the driver) and a search (of the contents of the trunk). When a police officer executes a search warrant at a home, the resident is likely seized and the rooms in the residence are searched. But what happens if a police officer stops a pedestrian and starts asking questions. Does that count as a seizure? How about if the officer pats down the pedestrian’s clothes to make sure there are no hidden weapons? Is that a search?

Not Every Police Encounter is a Seizure

A seizure is defined as a police-initiated stop of a person, where a reasonable person would not feel free to leave. Courts look at a number of factors to determine whether an encounter with the police rises to the level of a stop in the constitutional sense. When a police officer chases a suspect, that usually constitutes a seizure. A seizure also occurs when a police officer demands that a person stand still or answer questions. However, there are many encounters between civilians and police officers that do not rise to the level of a seizure. The police are entitled to initiate a conversation with anyone they see in public. Officers are also allowed to knock on the doors of residences to speak to homeowners. In these situations, the police conduct has not becomes a seizure, because the people with whom they are interacting can refuse to talk to them and walk away. However, once the police restrict the movements of those people, the situation transforms from an “encounter” into a “seizure.” Police officers are also permitted to conduct surveillance, follow people in public places, and shine their flashlights on individuals or inside of parked cars. None of these activities constitute seizures.

When Can a Police Officer Stop and Seize a Suspect?

The Federal and State Constitutions prohibit the police from stopping and seizing people absent a good reason. So under what circumstances can a police officer order you to stop? The officer must have reasonable suspicion based on articulable facts to believe you are committing, have committed, or are about to commit a crime. This is a lower standard than probable cause, but police officers must be able to articulate reasons for believing the person they are stopping is involved in criminal activity. A cop’s hunch that something is afoot is not sufficient.

What factors contribute to an officer’s reasonable suspicion to justify a stop?

  • Suspicious Behavior – An individual who makes numerous hand-to-hand transactions with known drug users in a high-crime area might be stopped and investigated for drug dealing. A person running down the street covered in blood can be stopped and investigated for involvement in an assault.
  • Flight – If a person acts nervously around an officer and then tries to flee, an officer might reasonably conclude the person was involved in criminal behavior. Flight alone, however, is not sufficient for the police to initiate a stop. There need to be other articulable facts for the officer to conclude the suspect might have been involved in a crime.
  • Time of Day – An individual driving slowly through a mall parking lot in the middle of the day is not suspicious. However, that same individual who is driving through a mall parking lot in the middle of the night, when none of the stores are open, can be stopped by the police.
  • Area of Stop – If a person is around the scene of a recent crime, it will be much easier for the police to justify stopping him and asking him questions, particularly if there are additional facts suggesting the person was involved in the crime.

There is a legal principle called community caretaking that allows for police officers to approach and interact with civilians to ensure they are not in any danger. Such an encounter does not constitute a seizure. The most common example is when a person is sitting in a parked car on the side of the road. A police officer has the right to approach the vehicle (and even have the cruiser’s emergency lights illuminated) to have a conversation with the occupant of the car.

When are Police Officers Permitted to Conduct a Patfrisk?

Once the police stop and seize someone on a reasonable suspicion that criminal activity has occurred or is imminent, can the officer then search that person? It depends of the officer has a reasonable suspicion not only that the person is involved in criminal conduct, but also that he is armed and dangerous. If an officer reasonably fears for his own safety or the safety of the community, he can patfrisk the person, which involves using his hands to pat down the outside of the person’s clothes to feel for weapons. The officer can also pat down any bags being carried by the person to ensure the bags do not contain weapons.

What factors contribute to an officer’s reasonable belief that a suspect is armed?

  • A visible bulge in the suspect’s waistband or pockets;
  • A sudden movement of the suspect toward his pockets;
  • The officer’s knowledge that the suspect has been previously armed; or
  • Some reliable information that will allow an officer to conclude the suspect is carrying a weapon.

It is a relatively low burden to justify a patfrisk if an individual is justifiably seized. If the individual has his hands in his pockets, makes any sudden moves, is uncooperative with the investigation, or has a prior criminal record (or if a combination of these factors exits), a police officer will conduct a patfrisk and it will likely be upheld by a judge.

What Evidence Can the Police Seize During a Patfrisk?

Police officers can seize any weapons or other contraband they feel during the patfrisk if they were able to identify the weapons or contraband by the way it felt under the suspect’s clothes. This is known as the plain feel doctrine. It’s easy for officers to identify weapons such as guns and most knives. Other contraband, however, is more difficult to identify. In practice, officers usually look at all of the contents of suspects’ pockets regardless of whether the items feel like contraband. If drugs are discovered, the police will claim they were able to determine the items were drugs by the way they felt through the suspect’s clothes. This is usually untrue, and the police officer will be subject to an aggressive cross-examination at the motion to suppress hearing. It is always the Commonwealth’s burden to establish the police did not violate the suspect’s constitutional rights during a patfrisk.

In nearly every case where the police stop, seize, and frisk a person, the defense attorney will file a motion to suppress any evidence that resulted from the police conduct. If the officers acted unconstitutionally at any point, the evidence will likely be suppressed at trial. If you are being charged with a crime that resulted from your seizure by the police, you should immediately call a criminal defense attorney to explore your options.

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