This is going to be a multi-part series where my friend Jason answers a bunch of my legal questions. Feel free to email with any questions you might have for a future one. Also, you can find all of these with the tag AskaLawyer. Thank you Jason for your help!
Hello, my name is Jason Imler. I am an attorney in Blair County, Pennsylvania. I am a long-time reader of Josh’s blog and a friend of his for well past ten years. Josh has asked me to address some issues in the law on this blog and I am more than happy to oblige. To start out, I just want to put forth a pretty standard warning, which is, that this is not legal advice, I am not your attorney, and if you have a legal issue you should consult an attorney. IF YOU ARE IN TROUBLE, SEE AN ATTORNEY. And, yes, PUBLIC DEFENDERS ARE ATTORNEYS.
Josh has asked me to address a multitude of issues (like 8 so far); so I am going to address them one at a time over a few posts. Otherwise this would be 90 pages and I would be unemployed because this is all that I would do for a week. One of the first things he asked about was something known as “stop and frisk.” Many of you have heard this term in the recent election as a policy endorsed by Donald Trump. Stop and frisk is part of a procedure known more broadly as “investigative detention.”
So, if a police officer approaches you and stops you, what are your obligations under the law?
There are three levels of encounters with police officers, and the level of the encounter determines your rights and their right to search you. The lowest level is a “mere encounter.” A mere encounter is where a police officer interacts with you but where a reasonable person would still feel free to leave. Thus, the most important question you can ask a police officer when they speak with you is, am I free to leave? If the answer is yes then you can leave if you do not want to talk to them. (As a general rule, unless you approached the police for help, talking to them is never in your best interest.)
A mere encounter can happen without any cause at all, so long as there is not a seizure of your person. Think of this as if you were standing on a corner and an officer comes up next to you and says “Hello, what are you doing here sir?” At this point you are still free to leave and you are free to ignore him and not respond (you are NEVER obligated to respond to him or to say anything at all). A seizure occurs where you are no longer free to leave, it is a curtailment of your freedom of movement. So, this is where the officer, in the prior example would tell you not to leave or park his vehicle in your path or otherwise indicate that you are not free to go. This is also where the officer approaches you while you are walking and asks you to stop. Once you are no longer free to move, a seizure has occurred. The lowest level of seizure is the investigative detention and the highest (and third level of police encounter) is the arrest.
An investigative detention is a where an officer stops a person and they are not allowed to leave but are not under arrest. An investigative detention is permissible when a police officer has what is known as reasonable suspicion that the person they are stopping is involved in criminal activity. This is important, as the police cannot just stop you because they want to, they must have a reasonable suspicion that you are engaged in criminal activity. If they have reasonable suspicion, then they may stop you for a short period of time in order to determine if you are, in fact, involved in criminal activity. This is known in the trade as a Terry stop, so named for the U.S. Supreme Court case that set the standards for investigative detentions, Terry v. Ohio, 392 U.S. 1 (1968).
The search in a Terry stop is not a full search; however, an officer can conduct a frisk where the officer reasonably believes that the suspect is armed and dangerous. In order to conduct a frisk, the officer must “observe unusual conduct which leads him to reasonably 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.” The officer must be able to articulate, that is actually state and identify, what he saw that led him to believe that criminal activity was afoot. If he cannot do this, he cannot stop and frisk you.
Pennsylvania takes the general Terry rule a bit further. The officer in Pennsylvania must personally observe unusual and suspicious conduct that leads him to conclude that criminal activity is afoot in order to effectuate a stop. In order to conduct a frisk, the officer must also articulate a reasonable belief that the suspect is armed and dangerous. The caselaw on both what is a valid stop and what is a valid frisk is voluminous and the outcome of each case is very fact specific. If you believe you have been searched illegally, talk to an attorney. The recourse for being subject to an illegal search is for any evidence gathered from the illegal search to be excluded from any case against you.
Once a police officer can frisk you, if he feels an object that is contraband or a weapon based upon just his plain touch during the frisk, he can seize it. However, the officer must be able to immediately determine that the object is contraband upon his first touch alone. The officer may not further manipulate the object to determine what it is. A frisk must be engaged in solely for the purpose of finding weapons. An officer cannot frisk someone because they believe that the person has drugs on them or is committing any other crime without a weapon. If an officer feels an item, such as a paper bag that is closed, they cannot do a further search inside of the item without permission or a search warrant. IF THEY ASK YOU IF THEY CAN SEARCH IT, THEY ARE DOING SO BECAUSE THEY CAN’T DO IT AS IT CURRENTLY STANDS. Police don’t ask to search you to be polite, they ask because they can’t search you until you say they can unless they can get a warrant.
This is why New York’s stop and frisk policy was held to be unconstitutional. The police were frisking people without reasonable suspicion, they were simply walking up to them and conducting a frisk. Such a policy would be patently illegal in Pennsylvania and under the US Constitution, should be illegal throughout the U.S.
In closing, remember, the first question you should ask in a police encounter is “am I free to leave?” And if you aren’t free to leave, you should not answer “yes” to any request to search. The Constitution gives you that right. Remain silent and do not give any permission to conduct a search. That being said, don’t be a dick either. That’s how people get killed.