Gun owners guide to the 4th Amendment: Stop and Frisk

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … – 4th Amendment

Since we started our discussion of the 4th Amendment with seizures, which are governed by Terry v Ohio and its progeny, it only makes sense to next move on to the topic of ‘Stop and Frisk’ which is also governed by the Terry line of cases.

But if they are based on the same material, why didn’t we just cover this material in the column on seizures?  Understanding the answer to this question is critical if one wishes to truly grasp the intricacies of Terry.  The short answer is that seizures (the “stop”) and searches (the “frisk”) are distinct activities from a 4th Amendment perspective and each requires independent justification.  A given situation may provide the officer reasonable suspicion to stop you but may not give the officer reasonable suspicion to support a frisk.

To understand this, let’s start with a brief review.  In yesterday’s column, we discussed the three types of ‘stops’ that a person may be subject to.  They are consensual encounters, Terry Stops, and detentions that amount to arrest.  Let’s look at what the requirements are to ‘frisk’ someone under each of the three types of ‘stops’.

Consensual Encounters

A consensual stop is one in which law enforcement approaches a citizen and initiates a conversation but the citizen is free to leave at any time, ending the ‘stop’, and is also free to refuse requests to be patted down or searched, preventing the ‘frisk’.

Since a consensual stop is not a seizure of the person for 4th Amendment purposes, a consensual encounter is not a “Stop and Frisk” and none of the cases prescribing boundaries to “Stop and Frisk” apply to these encounters.

Remember that!  If you give the officer permission to do a pat-down, then anything they find is admissible against you in court.  More important for the law abiding gun owner, you cannot support a claim that the officer violated your rights if you yourself consented to the ‘frisk’.

The only possible exception to this rule is the case where an officer’s conduct or expression of authority rises to the level of coercion.  Let’s look at what the case law tells us about coercion.

One of the first cases we turn to when discussing the boundaries between consent and coercion is Schneckloth v. Bustamonte.  There are four important rules from Schneckloth that continue to govern ‘consent’ searches today:

  1. Once given freely, consent obviates the need for probable cause or even reasonable suspicion.
  2. In and of itself, the validity of consent cannot be challenged based upon whether or not you knew you had the right to deny consent.
  3. You may place conditions upon your consent and even withdraw it once given.
  4. Consent may be challenged as invalid if it is “coerced, by explicit or implicit means, [or] by implied threat or covert force.”

Another important case where consent is concerned is Bumper v. North Carolina.  The rule to take away from Bumper is that, when consent is given based upon an officer claiming to have the authority to conduct the frisk in any case, consent is merely acquiescing to what the suspect thinks is lawful authority.

Since we want citizens to acquiesce to lawful authority, it would be against public policy to require them to resist every claim of lawful authority just to retain the right to challenge the validity of their consent.  Therefore, if you agree to allow a frisk based upon an officer’s claim of authority, you can still challenge the validity of the frisk.

Detentions That Amount to Arrest

We will be discussing ‘searches’ in a future article.  But here, we are discussing ‘stop’ and ‘frisk’ so I will only note that, in the case of a detention that amounts to an arrest, the right to search the body of the suspect is automatic.

Terry Stops

Now we arrive at the heart of the matter.  While suspects may consent to frisks in consensual encounters and arrestees may be searched incident to lawful arrest, Terry Stops are, in fact, the only encounter where the concept of “Stop and Frisk” is actually applicable.

A Terry Stop, named for the aforementioned case of Terry v. Ohio, is a ‘seizure’ of the person under the 4th Amendment and any accompanying ‘frisk’ is a search also protected by the 4th Amendment.  According to the holding in Terry, Terry Stops are justified when “swift action based upon on-the-spot observations of the officer on the beat is required.”

No warrant is required for a Terry Stop, nor is there a requirement for probable cause such as would be a prerequisite for obtaining a warrant.  Rather, a Terry Stop requires only “reasonable suspicion that criminal activity may be afoot.”  If the officer wishes to search or “frisk” the person he is seizing, they must also have reasonable suspicion that they “may be armed and presently dangerous” but this is not required to simply seize the person.

So, as I mentioned earlier, a given situation may give the officer reasonable suspicion to stop you but there may not be sufficient reasonable suspicion that the person is “armed and presently dangerous” and therefore a frisk is not justified by the “Stop and Frisk” exception under Terry.

An example of this might be a woman on the beach, wearing a tiny bikini and eating a candy bar, who matches the description of a person who moments ago shoplifted a candy bar from a boardwalk store.  While her match to the description coupled with her possession of a candy bar might give the officer reasonable suspicion that “criminal activity may be afoot” thereby supporting a “stop”, it would be hard to justify a claim that the officer had “reasonable and articulable suspicion” that she was “armed and presently dangerous” to justify a frisk.  However, as discussed in the previous section, should she be actually placed under arrest, then the rules change.

So … since the determining factor in a Terry Stop seems to always be “reasonable suspicion,” let’s have a look at what that means in real life.  According to the court in  Alabama v. White, reasonable suspicion is  “considerably less than proof of wrongdoing by a preponderance of the evidence.”  But what does that mean? Unfortunately, it means that law enforcement has extremely broad discretion in initiating Terry Stops. In order to understand just how ridiculously low the bar is in many district courts, you need only look at the Stop and Frisk program instituted by Mayor Bloomberg in New York.

 While this abhorrent practice has been recently modified, by their own admission, in 2011, NYPD officers conducted warrantless stop-and-frisk interrogations of over 685,724 New Yorkers, mostly minorities, 88% of which were freed without even a ticket being issued.  To put that in perspective, the NYPD did stop-and-frisk interrogations on more New Yorkers than the entire population of Boston!

So you tell me … What does reasonable suspicion mean?  I am pretty sure that in New York, it means just being a minority and walking down the street.

Open Carry as Reasonable Suspicion?

Returning to the issue from the perspective of a law-abiding gun owner, the question I am often asked is whether or not the simple act of openly carrying a properly holstered handgun gives rise to the reasonable suspicion necessary to initiate a Terry Stop.  The answer to that question varies somewhat from state to state.

In those 29 states where open carry is legal without a permit or license, the answer is an unequivocal “No!”  Since open carry is legal it cannot, absent other suspicious activity, give rise to the necessary “reasonable suspicion that crime is afoot.”

In those 14 states (soon to be 15) where open carry requires a permit or license, the answer is not as crystal clear but is still a resounding “No!”  The United States Supreme Court addressed a similar question in Delaware v. Prouse (440 U.S. 648) (1979).  In that case, the issue articulated by the court was:

[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.

Now … let’s change just a few words and we have the issue before us:

[W]hether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop a person open carrying in public, for the purpose of checking the carry permit of the open carrier, where there is neither probable cause to believe nor reasonable suspicion that the firearm is being carried contrary to the laws of the state or that either the firearm or the carrier is subject to seizure or detention in connection with the violation of any other applicable law.

So how did the court answer the question in Prouse?  They held that it is unreasonable under the Fourth Amendment to seize someone to check the status of a license except where there is at least reasonable suspicion that the person is unlicensed or otherwise subject to seizure for the violation of some other law.

This is especially important today because Oklahoma will be joining the ranks of licensed open carry states on November 1, 2012 and some Oklahoma law enforcement officials have stated that they plan to seize open carriers and demand to see their permits.  Midwest City Assistant Chief Sid Porter was reported to have said that:

If we see someone carrying a weapon in a holster, they have to have a permit on them and would be asked to show it. Anybody with a weapon on their side is considered a suspicious person.

Even law enforcement in states such as Massachusetts, which is definitely not considered a stronghold of pro-gun sentiment, has long since recognized that they cannot seize a person based solely upon the fact that the person is properly carrying a firearm.

In the December 2005 issue of The Police Chief magazine, John M. Collins, General Counsel to the Massachusetts Chiefs of Police Association published an article entitled “Chief’s Counsel: Responding to Gun Possession Reports.”  In this article, he advised officers that:

Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest, it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop.

I couldn’t have said it better myself.  I hope that Oklahoma law enforcement spends the next few months before open carry becomes available training their officers on how to properly interact with the citizens thus empowered.  If not, the courts are open every day, and 42 U.S.C. § 1988 provides attorney’s fees for those that prevail in suits brought pursuant to 42 U.S.C. § 1983.

We last turn to those 7 (soon to be 6) states in which open carry is generally not legal.  In those states, the sight of a person openly carrying a firearm outside of a hunting venue would probably give rise to the necessary “reasonable suspicion that crime is afoot.” Thankfully, that number is dropping every year and hopefully will soon be reduced to zero.

On a related note, gun rights advocate Kenn Blanchard recently asked an uncomfortable tangential question on his blog that all my readers should take the time to read.  He asked “Is Open Carry Dangerous For A Black Man?

Unfortunately, given the fact that the courts have largely looked the other way while New York trampled the rights of the minority community, there is more than a little truth to Kenn’s concerns.  We need to keep working for a society where all men and women may exercise their rights freely without fear of persecution by overzealous law enforcement.

Current Events

As a real world illustration of just about every 4th Amendment violation we have discussed,  just this month, officers in Aurora Colorado rounded up motorists en masse, handcuffed them, and held them at gunpoint while searching for a bank robber based upon what they called a “reliable tip.”

But they had no information on which to base even the weakest suspicion of individual drivers.  According to the officers themselves, ““We didn’t have a description, didn’t know race or gender or anything.”  So how did they have reasonable suspicion to detain and search these people?

“Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car.”  Oh yeah … that shotgun in your face is not coercive in the slightest.

The really ironic part of the story is that they found their bank robbery suspect.  But based upon their tactics, I am guessing that any evidence found during the search will be excluded and the suspect will go free.

Summary

Just to recap … Stop and frisk is only available when the officers have “reasonable suspicion” that “crime is afoot” and that the suspect is “presently armed and presently dangerous.”  Absent any one of these elements, a stop and frisk is not valid under the 4th Amendment.

However, officers do not need “reasonable suspicion” if you willingly throw away your rights.  Officers may engage in consensual encounters with citizens and if you consent, may stop and frisk you without any 4th Amendment protections attaching.

What should you do if asked for consent?  Know your rights, ask “Am I free to leave?”, if they say “Yes” then do so, and if detained do not speak to law enforcement without your attorney present.

If you feel that your rights are being violated, you should state your objections clearly so that there is no possibility that it could be asserted you were consenting to the encounter. Then you should comply with the officers (note that I didn’t say consent or talk) while documenting the encounter to present to your attorney.

We will discuss various voice and video recording technologies that are particularly suitable for encounters with law enforcement in a future article.  Until then, stay safe and consent to nothing!

Stay tuned for the next exciting chapter in the Gun Owners’ guide to the 4th Amendment series …

DISCLAIMER:  Nothing contained herein should be construed as legal advice nor does it give rise to an attorney-client relationship.  For legal advice, you should contact a member of your state’s Bar association.

© 2012, John Pierce. All rights reserved.


About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
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22 Responses to Gun owners guide to the 4th Amendment: Stop and Frisk

  1. Pingback: Gun owners’ guide to the 4th Amendment: Seizures | Monachus Lex

  2. Jack says:

    “If we see someone carrying a weapon in a holster, they have to have a permit on them and would be asked to show it. Anybody with a weapon on their side is considered a suspicious person.”

    My understanding is that if you do the same thing to check a driver’s license, you have violated the driver’s Fourth Amendment rights.

    This chief probably wouldn’t be playing this game for long.

  3. Jack says:

    The cop with the shotgun was just one mosquito bite away from accidentally pulling that trigger.

  4. Joel Bovaird says:

    I have been openly carrying my side arm for three years now. I have been stopped by COUNTLESS leo’s just because im carrying this way. Under Iowa law, I am required to show my permit to carry and that is it! When they ask to search or frisk me there are six simple words that always stop them. I do not consent to searches!
    Thats all I say and 9 times out of ten they bid me a good day and I am free to leave. Just sharing what works for me.

  5. saefrog says:

    However, I would argue the internet blogger’s opinion that Delaware vs. Prouse doesn’t have standing because its a case of driving which is a “privilege” and not a right along with the fact that a Terry Stop is based upon a crime and the frisk is for officer safety of a gun, thus a visible gun can be articulated that a reasonable person would believe as dangerous and the officer can check for his safety. A grey area yes, but time and time again open carriers don’t follow through to the supreme court to make Delaware vs. Prouse applicable to gun license holders as well. Definitely a good debate for the courts, however it hasn’t gotten there yet so LEO’s continue to work under the current law, which hasn’t been clear in other courts outside of Oklahoma or others that have made similar decisions. I do agree with the bloggers comments in the summary on what to do and how to handle the situation of an LEO stop.

    • Roger says:

      Well sir, your statement that driving is a “privilege” is not correct. It is a fundamental, inalienable right. The problem is, You gave up that right when you signed for a government license. You can research it if you want. You have the right to life, liberty and the pursuit of happiness.

      “Personal liberty largely consists of the Right of locomotion — to go where and when one pleases — only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s Rights, he will be protected, not only in his person, but in his safe conduct.”

      II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135

      • Jack says:

        Roger,

        Well said, friend. Nothing aggravates me more than when people say if you don’t like TSA, don’t fly… you don’t have a right to fly.

        That is simply not true.

        saefrog,

        If you are being detained, that is one thing. However, if the officer stops you and initiates a consensual conversation, he may not take your weapon. Doing so would render you “not free to leave,” and therefore detained. And, without RAS prior to that, he would have violated your Fourth Amendment rights.

        • saefrog says:

          Roger, I agree 100% with you. During a Terry Stop you don’t have the right to leave. If you study the case in depth, and not just Wikipedia, you will find the the judges gave many opinions on the case. One of which was that the Terry stop WAS a temporary detention in which you are “not free to leave”. However, they were very firm that the officer had the right to ask simple questions as to their actions, identify the person etc. But that once those suspicions are made whole, or the officers investigation was done then he must allow the person to leave at that moment without further detention.

          Now, one could argue then what is the allotted time for this detention? The courts have tried to not put time limits on Terry Stops as they understand that the totality of circumstances are different for every stop. This is a case by case issue. So, as we know a Terry stop IS a temporary detention, we should be looking at is this or that particular stop going beyond what Terry vs. Ohio said was “reasonable” for the officer to determine what is suspicious in nature. For instance, in Kansas you can open carry “unloaded” only. So if an officer did a Terry stop based solely on a 911 suspicious character call with a man with a gun (like Terry vs. Ohio) and the officer is quickly able to determine the gun is unloaded, then his probable cause is gone and he must immediately let the individual go. Any further extension of the detention (run for warrants, get a drug dog, etc etc) I would believe would be grounds for a lawsuit by violation of his/her 4th amendment rights. Clear as mud?

          • Jack says:

            “One of which was that the Terry stop WAS a temporary detention in which you are “not free to leave”.”

            Correct.. but RAS has to come before this occurs. Without RAS, you may not detain.

            “So if an officer did a Terry stop based solely on a 911 suspicious character call with a man with a gun (like Terry vs. Ohio) and the officer is quickly able to determine the gun is unloaded, then his probable cause is gone and he must immediately let the individual go.”

            Where was the probable cause to begin with? The gun, unloaded, is not illegal. Wouldn’t he have to have RAS that the person was committing a crime? Carrying the gun is not a crime.. carrying it loaded, I guess, is… so you need RAS that the gun is loaded, right? Where was that in your example?

      • saefrog says:

        Roger, you are very mistaken. Kansas, and I would bet other states, view driving as privilege. Talk to any prosecutor. This is why “most” driving violations are called “infractions” and not misdemeanors or felonies. I will point out that Texas views a simple speeding ticket as misdemeanor and you can actually ask for a Jury trial there. However, I will correct myself and say that it is a right only on private property but a privilege on public streets. A basic law class teaches this. If you break the traffic laws so many times, the city revokes that “privilege” by revoking your license forever. You can’t revoke someones constitutional rights. This is why they go around it and call it a “privilege” because driving isn’t in the Constitution anywhere. I hear ya brother, I think it should be a right. I’m just telling you what the law is and how its being taught in law school.

        • saefrog says:

          Also, I quote the author who is correct that it IS a detention “A Terry Stop, named for the aforementioned case of Terry v. Ohio, is a ‘seizure’ of the person under the 4th Amendment and any accompanying ‘frisk’ is a search also protected by the 4th Amendment. According to the holding in Terry, Terry Stops are justified when “swift action based upon on-the-spot observations of the officer on the beat is required.”

  6. John says:

    Until fines are imposed against the police departments that break the law, there will ever be law enforcement that breaks the law for its own interests “because it can.” since there are little or no punishments for our rights being violated, it will continue unabated. For us to fight these transgressions in court is prohibitively expensive for the average citizen.

  7. Pingback: Gun owners guide to the 4th Amendment: Stop and Frisk … | Texas Gun Rights

  8. John says:

    You write:

    “As a real world illustration of just about every 4th Amendment violation we have discussed, just this month, officers in Aurora Colorado rounded up motorists en masse, handcuffed them, and held them at gunpoint while searching for a bank robber based upon what they called a “reliable tip.”

    But they had no information on which to base even the weakest suspicion of individual drivers. According to the officers themselves, ““We didn’t have a description, didn’t know race or gender or anything.” So how did they have reasonable suspicion to detain and search these people?

    “Most of the adults were handcuffed, then were told what was going on and were asked for permission to search the car.” Oh yeah … that shotgun in your face is not coercive in the slightest.

    The really ironic part of the story is that they found their bank robbery suspect. But based upon their tactics, I am guessing that any evidence found during the search will be excluded and the suspect will go free.”

    Your guess would be wrong. News reports showed a number of things which the observant reader would have noticed. For instance, how did the police know to stop cars in *that* particular intersection? Why only the cars driving in one direction? Why were cars coming up to the intersection waved around? And why was that FBI agent carrying a little box with antennas poking out of it?

    The fact is the bank bag(s) had the standard radio transmitter inside, and that was enough to allow police to narrow down the location of the robber to that area. That’s enough reasonable suspicion to stop every car in that immediate area and search them, per your own arguments in your post. Bet you $5 the robber gets convicted and nothing gets thrown out.

    Now one can certainly criticize tactics…for instance, the robber *was* likely dangerous, in that he threatened bank employees with a gun…and handcuffing everyone probably did put them in danger. But poor tactics are not always illegal tactics.

    • Jack says:

      In either case, they did not have suspicion pointing to the bank robber or his vehicle in particular.

      I still think the evidence will get tossed.

      “That’s enough reasonable suspicion to stop every car in that immediate area and search them, per your own arguments in your post.”

      I don’t think so. See: Ybarra v. Illinois – 444 U.S. 85 (1979)

      • John says:

        Red herring. You don’t need reasonable suspicion pointing particularly to the bank robber. You need reasonable suspicion pointing to where the evidence is, something the police definitely had. The person involved doesn’t have to be under suspicion of wrongdoing for a search to be legal, especially under these circumstances. The 5A is about searching for evidence, after all.

        So when police are picking up a transponder signal coming from the vicinity and the signal matches that of a transponder in a stolen bank bag, the search just became reasonable. And the signal actually did include the robber’s vehicle (something you kind of gloss over in your post), so your first sentence is rebutted and your second is an unsupported opinion.

        So the bet stands. When the robber is convicted will you post that fact on your blog?

        • Jack says:

          “You don’t need reasonable suspicion pointing particularly to the bank robber. You need reasonable suspicion pointing to where the evidence is, something the police definitely had.”

          What if the evidence had pointed to the evidence being “somewhere in Aurora,” or “somewhere in Colorado?” Would searches of everyone in those locations been okay?

          “The 5A is about searching for evidence, after all.”

          I’m sure you meant 4A.

          What you’re suggesting is that you they had reasonable suspicion that the criminal/evidence would be in 1 of the 19 cars. Essentially, you are saying that with each car searched, there is a 5.26% chance that you will find the bank robber/evidence.

          Are you saying that a 5.26% chance of finding criminal activity is, in and of itself, reasonable suspicion for a search? I don’t think it is.

          It has been shown that if the police stop every car coming down the street, they will eventually find illegal drugs and get them off the street. However, even with that fact known, the Supreme Court determined that it is not reasonable to conduct a search for drugs without more specific probable cause.

          I think you are wholeheartedly wrong here. It’s not my blog, and I’m not a lawyer, but I don’t think you’ll find that conviction, at least not on evidence obtained from the car.

        • John Pierce says:

          John,

          What you are attempting to invoke here is the Carroll Doctrine. The Carroll Doctrine DOES allow an automobile to be searched without a warrant to search for evidence IF there is probable cause to believe that there is evidence IN THAT PARTICULAR AUTOMOBILE. That was not the case here.

          However, you may be right that the courts will let the evidence stand but if they do so, I suspect they will base it upon some form of hot pursuit / fleeing felon exigent circumstance rather than ruling that probable cause can sweep in all vehicles at an intersection.

          As for whether I will report it if they are convicted … of course I will. I have no dog in this fight … other than an intense desire to see the 4th Amendment not weakened further than it already has been. What about you?

          John Pierce

          • Jack says:

            John Pierce,

            Couldn’t it be argued that once the 19 cars were surrounded, there was no reasonable expectation that the suspect could flee and/or destroy evidence? He is in his car and surrounded. He definitely couldn’t flee. And, I’m not certain how he could destroy the evidence while sitting in his car, either.

            If this is the case, then it would be time to get a warrant.

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