What's the Difference Between a Search and a Frisk?

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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.

The Difference: Search vs. Frisk

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.

Can you just walk away?

If you are innocent and have not committed a crime, you may wish to simply walk away from a police officer that has stopped to question you because you did nothing wrong. In situations in which a police officer has no reasonable suspicion, you could technically just walk away with no consequences. However, there is no way to know if a police officer has a reasonable suspicion that you have committed a crime, unless you are blatantly told. For this reason, it is best to be cooperative with a police officer who approaches you. If you truly have done nothing wrong, a police officer will figure this out when you answer his/her questions.

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.