Concept
The Protective Frisk
Terry stop and frisk
The Protective Frisk
A Terry encounter almost always contains two separate intrusions, and the Fourth Amendment evaluates them separately. The first is the brief detention, which gives the officer time to ask about possible criminal activity. The second is the pat-down, which protects the officer while those questions are being asked. The stop does not automatically authorize the frisk.1 The pat-down is a search in the full constitutional sense, because Terry treated a careful exploration of the outer surfaces of a person's clothing, all over the body, in an effort to find weapons as a search that the Amendment reaches.2 A frisk therefore needs a justification of its own, and the justification has to be found in what the frisk is for.
The purpose of a frisk is protection of the officer and others nearby. It is not a means of discovering evidence of crime. The limited search exists so that the officer can pursue the investigation without fear of violence, and the Court has described it as permitted without a warrant, on reasonable suspicion short of probable cause, and strictly limited to what is necessary to discover weapons that might be used to harm the officer or others.3 In Adams v. Williams the Court upheld an officer who reached directly into a suspect's waistband to retrieve a weapon after receiving specific information that a weapon was hidden there, because the intrusion served the protective aim.4
The reasoning behind each part of that description comes from the safety interest itself. The danger is immediate: a person who is armed can use the weapon the moment a question is put, so the officer has no time to step away and ask a magistrate for a warrant. That urgency is why a warrantless search on reasonable suspicion is tolerated at all. The same urgency also fixes the limit. A search allowed because it guards against a weapon has no remaining justification once the weapon question is answered, so a protective search that goes beyond what is necessary to determine whether the suspect is armed is no longer valid under Terry, and its fruits will be suppressed.5 The limit also removes a temptation. If a frisk could double as a hunt for evidence, any lawful stop of any person would become a cheap route to a general search, and officers would have a reason to make thin stops for the sake of the search that follows. Confining the frisk to weapons takes that payoff away.
The error to avoid is the assumption that the frisk follows from the stop. Students lose this issue when they treat a valid stop as carrying a frisk with it, when the officer must separately be rightly in the presence of the person and must have sufficient grounds to fear that the person is armed.6
The three subsections below follow the frisk in the order it unfolds. The first asks what the officer must reasonably believe about the person before any pat-down begins. The second addresses how far the search may go once it starts, which is ordinarily a pat-down of outer clothing, with reaching inside only when something specific justifies it. The third addresses what the officer may do when the pat-down turns up something other than a weapon, the question the Court answered in Minnesota v. Dickerson.7 The first begins with the standard that opens the door to a frisk.
Armed and Dangerous
A frisk depends on two conditions, and it helps to picture them as two boxes that must both be checked before the officer's hands touch the person's clothing. The first box is a lawful stop: the officer must already be entitled to detain the person, which on the street means reasonable suspicion that the person is committing or has committed a crime.9 The second box concerns the person's body rather than the person's conduct: the officer must reasonably suspect that the person stopped is armed and presently dangerous.10 The prior section established that a stop does not automatically authorize a frisk, and the reason is now visible. Detaining someone to ask questions is one intrusion, and running hands over that person's clothing is a second, so a justification for the first cannot be borrowed for the second. Tying the suspicion to the particular person also keeps frisking from becoming routine, since otherwise every thin stop would double as a body search.
The wording of the second box sets its level. Terry asks whether the officer's observations lead reasonably to the conclusion that the person "may be" armed and presently dangerous, and the phrase means that a substantial possibility of a weapon is enough, without the quantum of evidence that would justify an arrest for unlawfully carrying a concealed weapon.11 The test is objective, so the officer need not later prove having been in actual fear.12 Each feature has its own reason. A substantial-possibility standard fits a safety measure that must be decided in seconds, because an officer who had to be nearly certain of a weapon before guarding against it would be protected only after the danger had passed. The objective test removes a different problem: if the officer's own claimed fear controlled, the justification for any frisk could be supplied afterward by testimony nobody could check, whereas an objective test asks only whether the facts known at the time support the belief.
Where the second-box suspicion comes from varies with the case. Sometimes the nature of the crime under investigation supplies it, and on other occasions something more is required, such as a bulge in the clothing, a sudden movement toward a pocket, or knowledge that the person was armed on an earlier occasion.13 Terry v. Ohio is the model for the first route. Officer McFadden watched three men repeatedly look into a store as if casing it for a stickup, approached them, asked for their names, and patted them down when they only mumbled, finding weapons on two.14 Justice Harlan's concurrence drew out what those facts imply: when the reason for the stop is an articulable suspicion of a crime of violence, the right to frisk is immediate and automatic, because an officer who is rightfully and forcibly confronting a person suspected of a serious crime should not have to ask a question and risk that the answer is a bullet.15 The same concurrence observed that McFadden had no reason to suppose Terry was armed apart from the fact that he suspected Terry of planning a violent crime, and the frisk was upheld on that footing.16 The mechanism is practical. Crimes such as armed robbery are commonly committed with weapons, so reasonable suspicion of the crime is itself a reason to think a weapon is present, and the officer need not wait for a preliminary question to fail to clear things up before frisking.17
The second route, added facts, shows the two boxes working independently. A bulge in a pedestrian's pocket that is too thin to justify stopping the pedestrian gives a passing officer no basis for a frisk, yet the same bulge entitles the officer to frisk a person already lawfully stopped for investigation.18 The bulge is the only fact bearing on the second box in both situations, and the difference is that only the second officer has checked the first box. A bare label such as bulge also does not do the work by itself. Findings in federal litigation over New York City's stop program, for example, recorded a suspicious bulge as a stated reason for about ten percent of stops while guns turned up in a small fraction of stops overall, roughly one gun for every sixty-nine stops justified specifically by a bulge.19 Those figures are a trial court's factual findings about one program and not a rule of law, but they show why the second box calls for specific observed facts that make a weapon a substantial possibility.
The sharpest test of the second box is a case in which carrying the weapon is not itself unlawful. In Adams v. Williams a sergeant on early-morning patrol was told by a person he knew that a man seated in a nearby car had narcotics and a gun at his waist, and the sergeant reached into the car and took a loaded revolver from the waistband, in precisely the place the informant had described.20 The majority upheld the frisk, reasoning that its purpose is to let the officer pursue the investigation without fear of violence, so it may be equally necessary and reasonable whether or not carrying a concealed weapon violates state law.21 The logic is functional: a gun endangers the officer just as much when its holder has a permit, so the safety interest behind the frisk does not turn on the weapon's legal status. The dissent read Terry differently. Because Connecticut authorized carrying a gun with a permit, it reasoned, nothing the informant said gave reason to infer that the man was dangerous, and Terry requires reliable information showing that the suspect is both armed and dangerous.22 The dissent therefore treats the two words as separate demands, while the majority treats a gun on a person who is lawfully stopped as a sufficient reason for a protective pat-down. The majority's holding is the rule to apply, and the dissent marks where pressure on the standard lies, namely whether armed carries dangerous with it.
A report that someone has a gun does not relax the requirement that suspicion rest on a reliable basis. In Florida v. J.L. an anonymous caller said that a young man at a particular bus stop, wearing a plaid shirt, was carrying a gun; officers arrived, frisked J.L., and found a gun, although they had seen no firearm and he had made no threatening or unusual movement.23 Two justices of the Florida Supreme Court dissented below, urging a firearm exception to the rule against stops and frisks on bare anonymous tips because of the safety of police and public, but the Court affirmed the decision invalidating the frisk and held that an anonymous tip that a person is carrying a gun is not, without more, enough.24 The danger of a gun therefore enters the analysis only after reliable information shows that the person has one. Tip reliability receives full treatment in the informant sections of this chapter.
The same two boxes carry into traffic stops, which come later in this chapter. In Arizona v. Johnson the Court restated the structure: the stop must be lawful, and to move from stop to frisk the officer must reasonably suspect that the person stopped is armed and dangerous.25 In a car the first box is met whenever it is lawful to detain the vehicle and its occupants over a traffic violation, so the officer needs no suspicion of other crime, but the second box must still be checked for each person the officer wants to frisk.26
The shortcut that Terry's reasoning supplies for violent crimes is easy to over-apply. It fits suspicion of a crime in which weapons are likely, and it does not extend to every lawful stop. A stop for a minor, non-violent matter, with a cooperative person whose hands are empty and who gives no sign of a weapon, checks the first box and leaves the second empty.27
Scope of the Frisk
The two conditions covered in the last section allow an officer to put hands on a suspect's clothing, and the next question is how far those hands may go. The answer comes from the purpose of the frisk. Because the search exists to find weapons, it takes the form of a pat-down of the outer clothing, and the permitted intrusion is confined to what is necessary to discover weapons that might be used to harm the officer or others nearby.29 That confinement has two dimensions, one about how the search begins and one about when it must end. A frisk begins on the surface of the clothing, since a touch from outside is the smallest intrusion that can answer the only question the safety interest raises, which is whether a weapon is present. It ends when that question is answered, because nothing else the officer's hands might find is the reason the search was allowed.
Terry v. Ohio shows the sequence working as designed. Detective McFadden grabbed Terry, spun him around, patted down the outer surface of his overcoat, and felt a pistol in the left breast pocket, and only then did he reach in and take out the revolver.30 The Court stressed that McFadden did not put his hands into the men's pockets or under the outer surface of their garments until he had felt weapons, and that he then merely reached for and removed the guns.31 The order of events has a reason. A pat-down is a screening step that separates pockets holding nothing dangerous from the one holding a hard object shaped like a weapon, and only the second justifies a deeper intrusion, because only there does the safety interest outweigh the added invasion. The order also removes a temptation: an officer allowed to go straight into pockets could look for anything at all, whereas a surface touch first keeps the weapons purpose visible in the way the search is actually carried out.
In Sibron v. New York, the companion case, the officer made no attempt at an initial limited exploration for arms and instead thrust his hand into Sibron's pocket, and the Court held that he had exceeded the permissible scope of a protective search.32 The contrast that matters here is that McFadden's reach followed a pat-down that revealed a weapon, while the reach in Sibron followed no preliminary exploration at all.
The pat-down-first sequence is the ordinary course, and Adams v. Williams marks its recognized exception. The tip in that case, from an informant the sergeant knew, was taught earlier with the informant cases, so only the frisk matters here. Sgt. Connolly, told by a person he knew that a man in a nearby car had a gun at his waist, asked Williams to open the car door; Williams rolled the window down instead, and Connolly reached in and removed a fully loaded revolver from the waistband, in precisely the place the informant had described.33 The Court upheld that immediate reach, holding that an officer may reach directly into a suspect's clothing, such as a waistband, when the officer has specific information that a weapon is hidden there.34
The reason follows from what a pat-down is for. Patting the surface tells an officer whether a weapon is present and where, so an officer who already has specific information about its location has little left to learn from the preliminary step, and insisting on it would only prolong close contact with a suspect who may be armed. The immediate reach has also been explained by Williams's refusal to leave the car when asked, which made a possible weapon, in the Court's words, "an even greater threat."35 Either explanation ties the shortcut to a specific fact, and a general belief that the person may be armed supplies no such fact.
The second dimension, when the search must end, was the issue in Minnesota v. Dickerson. Officers there watched a man leave a building known for cocaine sales, saw him turn away when he spotted their squad car, stopped him, and patted him down; the pat-down revealed no weapons, but the officer took an interest in a small lump in the front pocket of the man's nylon jacket, examined it with his fingers, and decided it was crack cocaine in cellophane.36 The lower courts found that the officer never thought the lump was a weapon and concluded it was contraband only after squeezing and manipulating a pocket he already knew held no weapon, and the Court agreed that this continued exploration was unrelated to protecting anyone and amounted to the evidentiary search that Terry refuses to authorize.37
The stopping point follows from the same logic. The officer's authority to touch the clothing lasts only as long as the possibility of a weapon, so once the officer is satisfied that an object is not a weapon, the frisk should cease, and the officer may not keep feeling the object to learn whether it is otherwise incriminating.38 The officer need not be certain that an object is a weapon; the question is whether anything about its size or density shows that it is not one, and a soft object felt in a pat-down, for example, gives no ground to reach inside.39 What an officer may do when an item's incriminating character is immediately apparent from its feel is the subject of the next section, and the answer there is a narrow qualification of this limit.
The pat-down itself may cover any part of the suspect's clothing from which the suspect could retrieve a weapon during the encounter.40 The need is to find implements within reach during a brief face-to-face meeting, so the search does not extend to items so cleverly concealed that getting at them would take considerable delay and difficulty.41 The same purpose sets the outer edge of a protective search. In Michigan v. Long the Court permitted a search of a car's passenger compartment, limited to the areas where a weapon may be placed or hidden, when specific and articulable facts reasonably warrant the belief that the suspect is dangerous and may gain immediate control of weapons.42 The officers there had seen a long hunting knife on the driver's floorboard, and the risk persisted even with the suspect outside the car, because the suspect might break away or return to the vehicle when the encounter ended.43 Traffic stops, where vehicles and their occupants are routinely involved, come later in this chapter.
The mistake to avoid is treating a lawful frisk as a general search of the person. Authority to frisk carries a single target, and students lose this issue when they forget that the permitted object of the search is weapons only. A search can exceed the frisk in two ways: by beginning below the surface when nothing justifies it, as in Sibron, or by continuing after the weapons question has been answered, as in Dickerson. Either way the search is no longer valid under Terry and its fruits will be suppressed.44
Plain Feel
The last section ended with a stopping rule: once the officer is satisfied that an object is not a weapon, the frisk should cease, and the officer may not keep feeling the object to learn whether it is otherwise incriminating.47 One qualification exists, and it is narrow. Under the plain feel doctrine, an officer conducting a lawful pat-down may seize an item if its incriminating character as contraband or a weapon is immediately apparent from the object's feel.48 Weapons were already within Terry, so the doctrine's practical addition is nonthreatening contraband. In Minnesota v. Dickerson the Court answered that officers may seize such contraband detected during a protective pat-down so long as the search stays within the bounds Terry marks.49
The reason for allowing the seizure lies in what the officer has already done lawfully. Terry entitles an officer to place hands on a suspect's outer clothing to look for weapons, so an officer who feels an object during that pat-down is in a lawful position to feel it, and the Court reasoned by analogy to the plain-view doctrine for that reason.50 If the touch itself reveals that the object is contraband, taking it adds no search beyond the one Terry already allowed. The doctrine therefore rests on a lawful frisk, and an unlawful stop or an unjustified frisk leaves nothing for plain feel to attach to.
The word immediately marks where the doctrine ends. Terry authorizes the touch only to find weapons, so the officer's authority runs out when the weapons question is answered, and any further squeezing or sliding is a new search whose only aim is to find evidence. The Court has been alert to the danger that officers will enlarge a specific authorization into the equivalent of a general warrant to rummage and seize at will.51 An officer who could keep manipulating pockets until a suspicion hardened would have a standing temptation to treat every weapons pat-down as an evidence search with safety as the label. Requiring that the incriminating character be apparent from the touch alone keeps the seizure tied to the justification the officer already had.
The facts of Dickerson show the limit at work. Two officers watched a man leave a building that one of them considered a notorious crack house, saw him turn and walk the other way when he spotted their squad car, and stopped and patted him down. The pat-down revealed no weapons, but the officer took an interest in a small lump in the front pocket of the nylon jacket, examined it with his fingers, and decided it felt like crack cocaine in cellophane.52
The stop and the frisk were not in dispute, because the respondent had not challenged the finding that Terry justified them. The trial court noted that the officer made no claim to have suspected a weapon, and the state supreme court concluded that the officer identified the lump as contraband only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket," a pocket he already knew held no weapon.53 The Court agreed that this continued exploration had nothing to do with protecting the officer or anyone nearby, so it amounted to the evidentiary search that Terry refuses to authorize, and the seizure of the cocaine fell with it.54 The Court drew the comparison to Arizona v. Hicks, where officers lawfully on the premises moved stereo equipment to read its serial numbers, and probable cause to think it stolen arose only from that further movement, so plain view could not justify the seizure.55 Dickerson has the same shape: the officer was lawfully able to feel the lump because Terry permitted hands on the jacket, but the incriminating character was not immediately apparent and emerged only from a further search that no exception authorized.56
Dickerson supplies the side of the line where the seizure fails. The side where it holds can be shown by changing one fact.
The lawful stop and the lawful pat-down are the same in both situations, and the variable that moves the result is when the officer came to know what the object was. Recognition on the first touch rides on a search that was already authorized. Recognition that arrives only after the officer keeps handling an object known not to be a weapon rides on a search nobody authorized. The officer need not be certain that an object is a weapon, so the question is whether anything perceived in the first touch, such as its size or density, showed that it was not one, and any handling after that point is the forbidden exploration.57
Students lose this issue when they let the result of the search stand in for its justification. In Dickerson the object was in fact cocaine, and the seizure still failed, because the test looks to how the officer came to know what the object was, and an officer who turns out to be right about the contents still loses if the knowledge came from handling. The phrase to hold onto is immediately apparent, since recognition that depends on further manipulation is a search for evidence and Terry does not cover it.58