What is frisking?
This article refers to the second half of the term “stop and frisk.” If an officer reasonably suspects that a person is armed and dangerous, he can conduct a quick search or patdown, limited to the person’s outer clothing, for weapons. The legal authority for police officers to search someone’s person comes from the 1968 U.S. Supreme Court case Terry v. Ohio.
Limits of a frisk
The frisk usually occurs after an officer has conducted a Terry stop, which we wrote about here. However, the police cannot automatically frisk someone as the result of a Terry stop. The officer must have a specific reason to believe that the person is armed and dangerous.
When a police officer searches someone, they may pat down the outer clothing only. An officer cannot squeeze or manipulate your clothing or reach into your pockets during a frisk unless he believes he has felt a weapon. If this is the case, then the officer can reach inside clothing to see if it is a weapon.
During a frisk, if the officer can feel other evidence (such as a suspected drug container) underneath clothing, it can be seized. This is called the “plain feel” doctrine. To pass the plain feel test, the item must have an immediately apparent character or quality of being contraband. In other words, the drugs must obviously be drugs when the quick patdown is conducted. The police cannot manipulate your clothing to search for drugs. If the officer can’t tell from the frisk what the object is, he cannot explore it further.
What’s the difference between a frisk and a search incident to an arrest?
A search incident to an arrest is generally more invasive than a frisk. During a search incident to an arrest, the arresting officer may search the person being arrested and his or her immediate surroundings.
There is no probable cause requirement or reasonable suspicion requirement for a search incident to an arrest. That is, officers do not have to believe or suspect there is any contraband or evidence on the person or in his immediate surroundings in order to conduct a search incident to an arrest. The U.S. Supreme Court, in Chimel v. California (1969), justified the search incident to an arrest by the need to keep contraband and weapons out of jail, to preserve evidence, and to protect the officer.
What should I do during a stop-and-frisk?
You have the right to refuse consent to a search (although your lack of consent will not necessarily prevent an officer from searching you). If the police officer has the legal authority to perform the search, he will do so whether or not you agree. However, if he does not have the legal authority to perform a search, your consent gives him that authority. Ask the officer if you are free to leave.
If an officer frisks you, you have the right to remain silent and to tell the policeman you are exercising that right. You have the right to (calmly) leave if you are not under arrest. Finally, if the officer does arrest you, you have a right to an attorney, and you should seek a criminal defense lawyer licensed in your state.