The law of “stop-and-frisk”—also known as “Terry stops”—in California consists of two basic rules:
- Police may temporarily detain you in a public place—even without a valid arrest warrant—if they have a “reasonable suspicion” that you have been involved in criminal activity;1 and
- Police may conduct a pat-down search (also known as a “frisk”) of your outer clothing to look for weapons, if they have a justifiable belief that you may be armed and dangerous.2
These rules have their roots in the Fourth Amendment to the U.S. Constitution, under which you have the right to be free from unreasonable “searches and seizures” by law enforcement.3
A temporary detention without an arrest warrant is considered a “seizure,” and a pat-down search for weapons is considered a “search.”4
Here are some examples of people whom police could lawfully “stop and frisk” under California’s search and seizure laws:
- Police see a teenage boy standing on a street corner. A woman approaches him and hands him something. The boy then goes to a nearby trash can, removes something, and gives it to the woman. The boy is wearing baggy clothes that could conceal a weapon.
- An armed robbery takes place at a jewelry store. Police officers spot a man whose physical build and clothing matches a description of the robber given by an eyewitness. The eyewitness also reports that the robber threatened her with a gun.
Here is an example of someone whom police might be able to stop/detain—but NOT frisk/pat down—under California stop-and-frisk laws:
- Highway patrol officers observe a woman driver stopped at a stoplight, looking at her phone and apparently texting. She then continues to text as the light turns green and she proceeds through the intersection. When the officers pull her over, she is apologetic and cooperative.
Finally, here is an example of someone it would probably be unlawful for police to frisk or detain under the law of Terry stops:
- An elderly man dressed in shabby clothes, who obviously has not bathed for a while, is hanging out in an upscale mall. He goes into an expensive department store and starts trying on clothes in their dressing room. He continues to do this for some time, returning every piece of clothing to the salesperson after he has tried it on.
What are my rights if I am the victim of an unlawful Terry stop and/or pat-down search?
An illegal stop-and-frisk is a serious civil rights violation.
If police stop and frisk you without good cause, then they may not use any evidence they obtain that way to charge you with a crime.5
Your criminal defense attorney should challenge any evidence obtained through an illegal pat-down search by filing a Penal Code 1538.5 PC motion to suppress evidence.6
In order to help you better understand when police can stop you and pat you down in California, our California criminal defense attorneys will address the following:
- 1. When can police in California temporarily detain me?
- 1.1. Reasonable suspicion vs. probable cause
- 1.2. Factors that may justify a Terry stop
- 2. When can police in California “frisk” me?
- 2.1. “Reason to believe” that you are armed and dangerous
- 2.2. The “plain feel” doctrine
- 3. Racial profiling and the politics of “stop-and-frisk”
- 4. What are my rights if I am the victim of an illegal “stop-and-frisk”?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Simply put, law enforcement officers may temporarily detain you when they have a reasonable suspicion, based in objective facts, that you may be involved in criminal activity.7
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 Court held that this kind of stop is in fact constitutional under the Fourth Amendment.8
A Terry stop is distinct from an arrest. Police may only arrest you when they have “probable cause” to believe you have committed a crime.9
In contrast, a temporary detention under Terry—possibly part of a “stop-and-frisk”—requires only “reasonable suspicion.” Reasonable suspicion can be based on
- less information, and/or
- less reliable information,
than probable cause.10
Example: Dave, a police officer, receives a telephone call from an anonymous tipster.
The tipster tells Dave that Vanessa will be leaving a particular apartment complex at a certain time, in a certain kind of car, and going to a motel. The tipster also says that Vanessa will have drugs in her car.
Sure enough, when Dave goes to the apartment complex at the time named by the tipster, he sees Vanessa leaving in the type of car described by the tipster. Dave follows Vanessa as she drives to the motel named by the tipster.
On its own, the phone call from an anonymous tipster would not have been reliable enough evidence to create “probable cause” to arrest Vanessa.
But it was sufficient to create a “reasonable suspicion” that she was involved in criminal activity—and so the police were justified in temporarily detaining her.11
There are no hard-and-fast rules for the level of evidence needed to justify a Terry stop. Instead, whether police are justified in temporarily detaining someone is decided based on the individual facts of each case.12
But according to Burbank criminal defense attorney Neil Shouse13:
“‘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 facts that made his or her suspicion reasonable.”
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:
- The person is present in the immediate vicinity of a place where police know a crime has just occurred;14
- The person attempts to run when s/he spots law enforcement officers nearby;15
- The 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 if there are additional reasons to believe that this person is that suspect;16
- The 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 s/he is conducting a drug or other contraband sale;17 and/or
- The person is driving erratically, in a way that indicates s/he may be under the influence of alcohol or drugs (this comes up frequently in cases involving DUI traffic stops).18
Example: Police are notified that an alarm has gone off in a jewelry store, indicating that a robbery is in progress. Several police officers drive toward the store.
The officers spot Nick about 10-15 feet away from the entrance to the store. Nick is carrying a large bag over his shoulder. He is walking rapidly, with a worried look on his face.
When the police turn on their siren, Nick breaks into a run and tries to escape. The police catch up to Nick and stop and frisk him.
The detention is lawful. Nick’s presence near the scene of a suspected crime, the fact that he was carrying a suspicious object, and his suspicious behavior all join together to create a “reasonable suspicion” justifying the stop-and-frisk.19
However, courts have also made it clear that certain factors probably will not give rise to reasonable suspicion justifying a stop-and-frisk—at least not by themselves. These include:
- A person is in a part of town where people of his/her race or ethnicity do not usually go;20
- A person is in a high-crime area (but is not engaging in any specific suspicious behavior);21 and
- A person appears nervous in the presence of police.22
Example: Jack is a white man. Police spot him coming out of an apartment tower in a primarily black neighborhood at night.
But the police’s initial detention of Jack was invalid, and so the gun may not be admitted into evidence. The fact that Jack was a white man in a primarily black neighborhood late at night was not enough to constitute “reasonable suspicion.”23
The “reasonable suspicion” standard discussed above justifies an individual’s temporary detention by police (the “stop” part of “stop-and-frisk”).
But more than that is required for police to perform a pat-down search of someone who is being detained (the “frisk” part of “stop-and-frisk”).24
In order to frisk you legally, police must have a reasonable basis—that is, specific facts—to believe that you are
- armed, and
- presently dangerous.25
Moreover, the purpose of the frisk must be limited to searching for weapons that may be used against the officer. S/he may not frisk you to look for contraband or other evidence of a crime.26
BUT, if the police do find evidence of a crime (other than weapons) while frisking you for weapons, they may seize that evidence—and use it to charge you with a crime.27
Some factors that can contribute to a reasonable belief that a suspect is armed and presently dangerous include:
- The suspects outnumber the police officers on the scene;28
- The suspect is wearing baggy clothing that may conceal a weapon;29 and
- The officers smell marijuana or otherwise have reason to believe that the suspects have been using or are in possession of illegal drugs.30
Example: Two police officers spot Victor engaging in what looks like a drug transaction in an area known for drug sales. They temporarily detain him in a Terry stop, and they also frisk him for weapons.
The officers don’t find any weapons when they frisk Victor—but they do find drugs and cash. He is charged with sale/transportation of narcotics.
Victor is with two friends when police stop him, which means that he and his friends outnumber the officers. The neighborhood where all this takes place is known both for drug sales and for the presence of weapons.
Also, in the experience of these police officers, drug dealers often carry weapons.
Given all these facts, the officers were justified in both stopping and frisking Victor. They had specific reasons to believe he might be armed and a danger to them.31
A Terry frisk in most cases is supposed to be limited to a pat-down search of a suspect’s outer clothing.32
So, for example, police may not
- reach into your pockets,
- reach under your outer clothing, or
- seize and search your cell phone,33
as part of a stop-and-frisk.
BUT there is a major exception to this rule, known as the “plain feel” doctrine.34
Under the “plain feel” doctrine, if—while searching for weapons—an officer feels an object that s/he knows is contraband, s/he can then remove that item from the suspect’s pocket, clothes, etc., and use it as evidence against the suspect.35
(The “plain feel” doctrine is similar to the “plain view” rule that applies to police searches of residences.36)
But in order for the “plain feel” rule to apply, it must be “readily apparent” to the officer doing the frisk that the item is contraband. S/he should be able to identify it without, say, continuing to explore it with his/her fingers, or squeezing it, to determine its identity.37
Example: A police officer drives by Wendy, who is sitting in her car looking nervous. When the officer stops and asks Wendy for ID, she is unable to produce any.
The officer does a pat-down / frisk of Wendy’s outer clothing. He feels a soft object in her pocket. Not sure what it is, he squeezes and manipulates it a little—and then he concludes it might be drugs.
The officer removes the object from Wendy’s pocket and finds that it is a small baggie of marijuana. Wendy is charged with a crime under California’s marijuana laws.
But the baggie of marijuana may not be admitted as evidence against Wendy—because the officer had no right to remove it from her pocket. Under the “plain feel” doctrine, he could only have done so if he had known right away, without further exploration, that it was contraband.38
“Stop and frisk” is more than just an arcane matter of Fourth Amendment law. In recent years, it has been a major political hot-button issue as well.
This is largely due to the tendency of police departments to engage in racial profiling when they conduct Terry stops, targeting African-Americans and Hispanics for these searches much more frequently than other groups.39
In fact, in the 2013 election for mayor of New York City, winning candidate Bill de Blasio turned the NYPD’s stop-and-frisk program—which targeted minority neighborhoods—into a major campaign issue. De Blasio ran on a pledge to end the program, which critics alleged was racist and ineffective.40
California cities have not had the same kinds of systematic problems as New York with stop-and-frisk as a form of racial profiling.
For example, in 2013, the city of Oakland decided not to put into place a program of regular stop-and-frisk searches similar to New York’s.41
But that doesn’t mean that California police don’t abuse stop-and-frisk as a policing technique. Terry stops and pat-down searches are often done without justification—and often there is a racial element at play.
If you are the victim of an illegal stop and/or frisk, then you have the right to have any evidence that the police obtained through the detention or search “suppressed.” This means that the evidence may not be used against you in your criminal jury trial.42
This is what is known as the “exclusionary rule” in California law.43
Your 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, prior to the start of your trial.44
If the motion is granted—and that evidence is key to the prosecution’s case against you—then you may be able to get the charges against you reduced, or even dismissed altogether.
Call us for help…
For questions about the law of “stop-and-frisk” / Terry stops in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada search and seizure laws, please see our page on Nevada search and seizure laws.
1 Alabama v. White (1990) 496 U.S. 325, 330. (“Reasonable suspicion [justifying a stop and frisk search] is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.”)
2 Terry v. Ohio (1968) 392 U.S. 1, 24. (“[W]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others . . . [s/he may conduct a frisk/pat-down search] to determine whether the person is in fact carrying a weapon.”)
3 U.S. Const., amend. IV. (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”)
4 Terry v. Ohio, endnote 2, above, at 19. (“In this case there can be no question, then, that Officer McFadden ‘seized’ petitioner and subjected him to a ‘search’ when he took hold of him and patted down the outer surfaces of his clothing.”)
5 See, e.g., People v. Valenzuela (1994) 28 Cal.App.4th 817, 830. (“We conclude that defendant was unlawfully detained [for a stop and frisk]. . . . All the evidence seized was obtained as a product of the unlawful detention. All the evidence seized from defendant’s car should have been suppressed.”)
6 Penal Code 1538.5 PC – Motion to . . . suppress evidence [from an illegal stop and frisk]. (“(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. . . .”)
7 People v. Souza (1994) 9 Cal.4th 224, 231. (“A [stop and frisk] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in the light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.”)
8 Terry v. Ohio, endnote 2, above.
9 United States v. Brignoni-Ponice (1975) 422 U.S. 873, 880. (“Because of the limited nature of the intrusion, stops of this sort [Terry stops/temporary detention] may be justified on facts that do not amount to the probable cause required for an arrest.”)
10 Alabama v. White, endnote 1, above.
11 Based on the facts of the same.
12 Terry v. Ohio, endnote 2, above, at 30. (“Each [stop and frisk] case of this sort will, of course, have to be decided on its own facts.”)
13 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.
14 See People v. Dolliver (1986) 181 Cal.App.3d 49, 55-56.
15 See Florida v. Rodriguez (1984) 469 U.S. 1.
16 United States v. Montero-Camargo (9th Cir. 2000) 208 F.3d 1122, 1134 n. 21. (“Nor do we preclude the use of racial or ethnic appearance as one factor relevant to reasonable suspicion [for a Terry stop or stop and frisk] or probable cause when a particular suspect has been identified as having a specific racial or ethnic appearance, be it Caucasian, African–American, Hispanic or other. We note, however, that a stop based solely on the fact that the racial or ethnic appearance of an individual matches the racial or ethnic description of a specific suspect would not be justified.”)
See also People v. McCluskey (1981) 125 Cal.App.3d 220, 226-27. (“Here, however, Deputy Olsen was justified in stopping the Cougar and detaining [through a Terry stop] its occupants based on a combination of several factors: his knowledge a robbery had recently occurred in the vicinity, his observation the suspect’s car was traveling in a direction consistent with the suspect’s *227 involvement in the robbery and his receipt of the suspect’s description which included ethnic origin, attire, sex and age. Because the stop [and frisk] was not based solely upon the suspect’s ethnic origin, the rationale of Bower is inapplicable. The fortuitious fact that one part of this sufficiently detailed, accurate description of the robber may have included a disproportionate number of persons within the community does not vitiate the reasonableness of the stop. If such commonality were to invariably impair a detention, only those with unique physical characteristics could be stopped. Obviously, such a rule makes little sense.”)
17 People v. Limon (1993) 17 Cal.App.4th 524, 532-33. (“We need not resolve this conflict in authority about the significance of merely receiving money on the street in an area known for drug sales. Here *533 there was more than an apparent exchange. Before and after the exchange defendant walked over and reached into an apparent hiding place. This conduct suggested drug sales [and justified a temporary detention].”)
18 People v. Perez (1985) 175 Cal.App.3d Supp. 8, 11-12. (“We conclude that the officer’s actions were proper and hold that pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle [in a Terry stop] on suspicion of driving under the influence where such weaving continues for a substantial distance. *12 In addition, we note that an officer is also justified in stopping a vehicle in such instance to investigate the cause of such weaving as the weaving is also indicative of possible equipment violations (i.e., faulty wheel alignment, problem in the steering mechanism or defect in the tires). The officer had the right to determine exactly what was causing the vehicle to weave.”)
19 Based on the facts of People v. Dolliver, endnote 14, above.
20 People v. Bower (1979) 24 Cal.3d 638, 644.
21 Illinois v. Wardlow (2000) 528 U.S 119, 124. (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime [which would justify a Terry stop].”)
22 People v. Raybourn (1990) 218 Cal.App.3d 308, 312. (“Mere nervous, furtive, or evasive conduct in the presence of police will not justify a [stop and frisk/temporary] detention.”)
23 Based on the facts People v. Bower, endnote 20, above.
24 People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 829. (“Yet in Terry the high court held that when an officer observes suspicious behavior short of probable cause to arrest, he may conduct a “pat-down” search for weapons only if he has reasonable grounds to believe the suspect is “armed and presently dangerous.””)
25 See same.
26 Minnesota v. Dickerson (1993) 508 U.S. 366, 373. (“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .”)
27 Same, at 373. (“The question presented today is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officers’ search stays within the bounds marked by Terry.”)
28 People v. Limon, endnote 17, above.
29 People v. Collier (2008) 166 Cal.App.4th 1374, 1378.
31 Based on the facts of People v. Limon, endnote 17, above.
32 Terry v. Ohio, endnote 2, above, at 30. (“We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search [a Terry frisk] of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”)
33 See, e.g., Riley v. California (2014) 134 S.Ct. 2473.
34 Minnesota v. Dickerson, endnote 26, above, at 375-76. (““If a police officer lawfully pats down a suspect’s outer clothing [i.e., performs a stop and frisk] and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure *376 would be justified by the same practical considerations that inhere in the plain-view context.”)
36 Horton v. California (1990) 496 U.S. 128, 136. (“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.”)
37 Minnesota v. Dickerson, endnote 26, above, at 378-79.
See also People v. Dickey (1994) 21 Cal.App.4th 952, 957. (“The United States Supreme Court has recently held that a soft object may not be retrieved by a police officer performing a patdown search [during a stop and frisk] unless its incriminating character is “immediately apparent.” (Minnesota v. Dickerson (1993) 508 U.S. __________ [124 L.Ed.2d 334, 345, 113 S.Ct. 2130].) Just as in Minnesota v. Dickerson, here the deputy manipulated the soft object before retrieving it. In his words, “… I just squeezed from the outside.” Its incriminating character was not “immediately apparent.” On this record, the retrieval of the soft object was unlawful.””)
38 Based on People v. Dickey, endnote 37, above.
39 See, e.g., Justin Peters, Yes, Mayor Bloomberg, Stop-and-Frisk Is Really, Really Racist, Slate, July 1, 2013.
40 Taylor Wofford, Did Bill de Blasio Keep His Promise to Reform Stop-and-Frisk? , Newsweek, Aug. 25, 2014.
41 Robert Gammon, Oakland Was Right on Stop-and-Frisk, East Bay Express, Aug. 14, 2013.
42 Penal Code 1538.5 PC – Motion to . . . suppress evidence [from an illegal stop and frisk], endnote 6, above.
43 Mapp v. Ohio (1961) 367 U.S. 643, 655. (“We hold that all evidence obtained by searches and seizures in violation of the Constitution [including unconstitutional Terry stops and weapons frisks] is, by that same authority, inadmissible in a state court.”)
44 Penal Code 1538.5 PC – Motion to . . . suppress evidence [from an illegal stop and frisk], endnote 6, above.