Stop-and-Frisk in California – When are cops allowed to do it?

A stop-and-frisk is the police practice of temporarily detaining a person in a public place, without a warrant, and conducting a pat-down search of that party. Generally, police officers can stop someone if they have “reasonable suspicion” that the party was involved in some criminal activity.

During a Terry stop, police can also conduct a frisk (a pat-down search) of the detainee to look for weapons if they have a justifiable belief that the person is armed and dangerous. Not all Terry stops justify a stop-and-frisk.

If the police do frisk a person, California law places limits on the search. For example, an officer can only pat down a suspect’s outer clothing. Further, officers cannot reach under a detainee’s clothing or their pockets

The above stop-and-frisk practices are rooted in the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects people from unreasonable search and seizures by law enforcement.

If the police gather evidence via an unlawful stop-and-frisk, then the detainee has a constitutional right to try and suppress the evidence gathered. If successful, the evidence cannot be entered in a California jury trial. In addition, a judge may decide to reduce or dismiss the charges against the defendant.

Our California criminal defense attorneys will highlight the following in this article:

• 1. When can police in California temporarily detain me?
  • 1.1. Reasonable suspicion v. probable cause
• 2. When can police in California frisk me?
• 3. Do police officers ever over-step their bounds when conducting a stop-and-frisk?
• 4. What are my rights if I am the victim of an illegal stop-and-frisk?
• 5. Do I have to give my name to police in California?
• 6. Do passengers have to show ID in California?

1. When can police in California temporarily detain me?

Under California law, law enforcement officers can temporarily detain a person when they have a reasonable suspicion, based on objective facts, that the person may be involved in criminal activity.¹ This is true even if a peace officer does not have an arrest warrant or a search warrant.

This kind of temporary detention is known as a “Terry stop,” after the 1968 U.S. Supreme Court case of Terry v. Ohio. In that case, the Supreme Court held that a temporary detention based on reasonable suspicion is in fact constitutional under the Fourth Amendment.²

Example of a lawful stop and search: A person pulls a gun on a jewelry store clerk and steals a few diamond necklaces. The offender then flees the scene.

Two officers soon spot a man, a few blocks from the store, whose physical build and clothing match the clerk’s description.

Here, the police can stop the person for questioning. The clerk’s description provides the officers with a factual basis for which they can support a reasonable suspicion of criminal activity.

Example of an unlawful stop and search: An elderly man is hanging out at an upscale mall. He is dressed in shabby clothes and is unbathed.

The man goes into an expensive department store and starts trying on clothes in the store’s dressing room. He does this for some time and then returns every piece of clothing to a salesperson.

Here, if an officer observed the man, the officer could not lawfully detain the man for questioning. The man did not commit an act that would give the officer reasonable suspicion of criminal activity.

Note that the criminal activity that justifies a Terry stop can be activity that could result in either misdemeanor or felony charges.

1.1. Reasonable suspicion v. probable cause

A Terry stop is distinct from an arrest. Police may only arrest a person if they have “probable cause” to believe the party committed a crime.³

By contrast, temporary detention under Terry requires only “reasonable suspicion.” Reasonable suspicion is a lower standard than probable cause.⁴

According to Burbank criminal defense attorney Neil Shouse:

“‘Reasonable suspicion’ means something more than an individual police officer’s ‘gut feeling’ or ‘hunch.’ In order to justify a Terry stop or stop-and-frisk, a police officer must be able to point to specific, objective, and articulable facts that made their suspicion reasonable.”⁵

The following are some factors that may create a “reasonable suspicion” that someone has been involved in criminal activity, and thus may justify a Terry stop:

• a person is present in the immediate vicinity of a place where police know a crime took place,⁶
• a person attempts to run when they spot law enforcement officers nearby,⁷
• a person is of a particular race or ethnicity (but only if the police are searching for a particular suspect of the same race/ethnicity, and there are additional reasons to believe the person committed a crime),⁸
• a person is observed taking money from another person and engaging in another activity (such as removing an item from a hiding place) that suggests that they are conducting a drug or other contraband sale,⁹ and/or
• people are driving erratically, in a way that indicates the motorists may be under the influence of alcohol or drugs.¹⁰

Note, though, that courts have stated that the following factors, on their own, will not likely give rise to a reasonable suspicion that justifies a Terry stop:

• a person is in a part of town where people of their race or ethnicity do not usually go,¹¹
• a person is in a high-crime area (but is not engaging in any specific suspicious behavior),¹² and
• a person appears nervous in the presence of police.¹³

Since a Terry stop is not an arrest, police who conduct a Terry stop cannot physically restrain and cuff the suspect as they could during an arrest. But police conducting a Terry stop can, for example, block the suspect’s path and tell them to be still.

Also note that if a criminal case goes to trial, the police officer may be called to testify about what gave them “reasonable suspicion” to conduct a Terry stop in the first place.

2. When can police in California frisk me?

A “reasonable suspicion” of criminal activity justifies police stops, or a person’s temporary detention by the police.

But once police detain a person, California criminal law says that the police can only legally frisk that party if they believe the person is:

1. armed, and
2. presently dangerous.¹⁴

Moreover, peace officers can only conduct the frisk to search for dangerous weapons that the detainee could use against the officers. For example, an officer cannot conduct a frisk to look for contraband or other evidence of a crime.¹⁵

California law also places restrictions on how an officer may perform a frisk. For example, an officer can only pat down a suspect’s outer clothing. State law also says that officers cannot:

• reach under a detainee’s clothing or into their pockets,
• grope the suspect or manipulate any felt items, and
• seize and search a cell phone.

But note that under the “plain feel” doctrine, if an officer is conducting a pat-down and feels an object that the officer knows is contraband, the officer can remove or take the item. Prosecutors can then use the item as evidence against the suspect.¹⁶

Some factors that can contribute to a reasonable belief that a suspect is armed and presently dangerous include:

• a suspect is wearing baggy clothing that may conceal a weapon,¹⁷ and
• an officer smells marijuana or otherwise has reason to believe that a suspect has been using or is in possession of an illegal drug.¹⁸

Example: Two police officers spot Victor engaging in what looks like a drug transaction. Victor is wearing a sweatshirt and baggy sweatpants. He is also in a neighborhood that is known for drug sales and the presence of weapons.

Further, in the experience of police officers, drug dealers often carry weapons.

The officers temporarily detain Victor in a Terry stop and they also frisk him for weapons.

Given all the facts involved, the officers were justified in both stopping and frisking Victor. They had specific reasons to believe he might be armed and a potential risk to officer safety.

3. Do police officers ever over-step their bounds when conducting a stop-and-frisk?

Yes. There are times when law enforcement officers overstep their bounds when conducting a stop-and-frisk.

This holds true, though, when police generally question suspects and conduct investigations.

Police engage in acts of misconduct, apply excessive use of force, and use unlawful tactics in all types of criminal cases, including:

• drug cases,
• cases of domestic violence,
• theft cases, and
• cases involving violent crimes.

When it comes to Terry stops in particular, an ongoing issue is the tendency of police departments to engage in racial profiling when they conduct a stop-and-frisk. Officers typically target minorities like African-Americans and Hispanics/Latinos for these searches much more frequently than other groups.¹⁹

4. What are my rights if I am the victim of an illegal stop-and-frisk?

If a detainee is the victim of an illegal stop and/or frisk by an overzealous officer, and the police gather evidence of a crime during the act, then the victim has the right to have that evidence suppressed. This means that the evidence may not be used against the person in a criminal jury trial.²⁰

This is what is known as the “exclusionary rule” under California law.²¹

Per this rule, a criminal defense attorney can challenge any evidence from an invalid Terry stop or pat-down search by filing a Penal Code 1538.5 motion to suppress evidence. Lawyers file this motion before the start of a trial.²²

If the motion is granted, and the evidence is key to the prosecution’s case, there may be insufficient evidence left to convict the defendant. The defendant can then file a Penal Code 995 motion to dismiss asking the judge to drop the case altogether.

5. Do I have to give my name to police in California?

Unless the police are lawfully detaining you or arresting you, California law does not require you to give your name to police if asked. California has no “stop and identify” statute.

Learn more in our article, Do I have to identify myself to police in California?

6. Do passengers have to show ID in California?

During a traffic stop, vehicle passengers are not required under California law to provide police with their ID (unless the passengers themselves are being lawfully detained or arrested).

However, the driver of a vehicle must show their license to the police (if asked) during a traffic stop. Drivers who refuse to show their license face a misdemeanor charge carrying up to 6 months in jail and/or $1,000.²³

For additional help…

For legal advice on stop-and-frisk policies or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. We fight to get your charges lessened or dismissed while protecting your civil rights. We may even be able to get the charge dismissed before charges are even filed through prefiling intervention.

Our lawyers also represent clients throughout California, including those in Los Angeles, San Diego, and Southern California.

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