We’ve written previously about police searches and the laws surrounding
them, and you may have heard of a stop-and-frisk before in which police
pat you down in public. While they may feel the same to any regular citizen,
did you know that a search and a frisk are two completely different things
in the eyes of the law?
What exactly is a “stop and frisk”?
Stop and frisk is defined as follows: The situation in which a police officer
who is suspicious of an individual detains the person and runs his hands
lightly over the suspect’s outer garments to determine if the person
is carrying a concealed weapon. As you can see a frisk is much more limited.
Police can only pat down the outer clothing of someone unless they feel
a weapon. Then, and only then, the officer is allowed to reach in and
get the weapon. This practice is often seen as controversial since it
gives police officers the authority to stop “suspicious” people
who may commit a crime.
What’s the difference?
The principal difference between being searched and being frisked are as
follows: essentially, a search is markedly more thorough and extensive
than a frisk. Like we wrote about previously, a search and seizure allows
police officers to examine your vehicle or residence for evidence, illegal
weapons, or controlled substances. In comparison, a frisk only lets officers
pat down someone in order to detect weapons like guns or knives. In both
cases the officer is authorized to seize what illegal items they find.
Is a frisk legal?
Another legal difference to note is that search and seizure requires probable
cause under the Fourth Amendment. A stop and frisk is usually only conducted
on a basis of reasonable suspicion, which is generally considered a lower
standard than probable cause. In Terry v. Ohio (1968), the US Supreme
Court concluded that in the interest in crime prevention and the safety
of police, police officers are allowed to act before probable cause has
fully developed. Also, requiring probable cause of a police officer could
put them in danger. The Court stated that the “sole justification
of a frisk is the protection of the police officer and others nearby.”
Because of this case, stop and frisks are also known as Terry stops.
Is a frisk the same as an arrest?
Technically, not yet, though a frisk may lead to an arrest. Legally, an
arrest is a long and involved procedure in which the suspect is taken
down to the station and booked. A frisk is only a temporary interference
with someone’s autonomy. However, if a police officer finds evidence
or weapons, they can arrest the person they frisked.
What’s the controversy about?
Frisking is controversial because it can encourage profiling by police.
An example that is commonly referenced is the New York City frisking program.
While supporters say it reduces crime, opponents say it encourages racial
profiling. A former NYC police captain compares it to “casting a
wide net and seeing what you can find”. However, a study in 2009
found that only 6% of stops resulted in arrests in the span of eight city
blocks in Brooklyn.
If you or someone you know has been illegally searched or unconstitutionally frisked,
contact our Austin criminal defense
attorneys today at
Carroll Troberman, PLLC.