A stop-and-frisk is the act where the police detain a person in a public place, without a warrant, and conduct 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. They can also conduct a frisk, or pat down search, of the detainee to look for weapons if they have a justifiable belief that the person is armed and dangerous.
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 into his/her pockets
The above rules are rooted in the Fourth Amendment to the U.S. Constitution. The Fourth Amendment protects people from unreasonable “searches and seizures” by law enforcement.
If the police gather evidence via an unlawful stop-and-frisk, then the detainee has a 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?
- 2. When can police in California frisk me?
- 3. Do police officers ever over-step their bounds when conducting a Terry stop?
- 4. What are my rights if I am the victim of an illegal stop-and-frisk?
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 he/she 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 matches 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, he/she could not lawfully detain the man for questioning. The man did not commit an act that would give the officer reasonable suspicion of a criminal activity.
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
In contrast, a 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 his or her 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 he/she spots 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 he/she is 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 his/her 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
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 he/she is:
- armed, and
- 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 his/her pockets,
- grope the suspect or manipulate felt objects, 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 he/she 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 the 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 Terry stop?
Yes. There are times when law enforcement officers over-step their bounds when conducting a stop-and-frisk.
This holds true, though, when police generally question suspects and conduct investigations.
Police can engage in acts of misconduct, apply the excessive use of force, and use unlawful tactics in all types of criminal cases, including:
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 African-Americas and Hispanics 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, 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, a defendant may be able to get his/her charges reduced or even dismissed altogether.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
Our lawyers also represent clients throughout California, including those in Los Angeles, San Diego, and Southern California.
- People v. Souza (1994) 9 Cal.4th 224. See also People v. Chalak (2020) 48 Cal.App.5th Supp. 14.
- Terry v. Ohio (1968) 392 U.S. 1.
- United States v. Brignoni-Ponice (1975) 422 U.S. 873, 95 S. Ct. 2574.
- Alabama v. White (1990) 496 U.S. 325. See also Kansas v. Glover (2020) 140 S. Ct. 1183.
- Our Burbank criminal defense attorneys have conducted dozens of jury trials and have seen clients who have dealt with all manner of police misconduct, including illegal searches and unjustifiable Terry stops.
- See People v. Dolliver (1986) 181 Cal.App.3d 49.
- See Florida v. Rodriguez (1984) 469 U.S. 1.
- See United States v. Montero-Camargo (2000) 208 F.3d 1122.
- See People v. Limon (1993) 17 Cal.App.4th 524.
- See People v. Perez (1985) 175 Cal.App.3d Supp. 8.
- People v. Bower (1979) 24 Cal.3d 638.
- Illinois v. Wardlow (2000) 528 U.S 119.
- People v. Raybourn (1990) 218 Cal.App.3d 308.
- People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807. See also People v. Fews (2018) 27 Cal. App. 5th 553.
- Minnesota v. Dickerson (1993) 508 U.S. 366.
- See same.
- People v. Collier (2008) 166 Cal.App.4th 1374.
- See same.
- See, for example, Justin Peters, Yes, Mayor Bloomberg, Stop-and-Frisk Is Really, Really Racist, Slate, July 1, 2013.
- California Penal Code Section 1538.5 PC.
- See Mapp v. Ohio (1961) 367 U.S. 643.
- California Penal Code 1538.5 PC.