A Review of California's Stop-and-Frisk Law on Police Searches
In California, the stop-and-frisk law, commonly known as a “Terry stop,” has a couple of primary rules they must be followed by law enforcement.
These rules are based on the Fourth Amendment to the U.S. Constitution that says you have the right to be free from unreasonable searches and seizures:
- police are allowed to detain you temporarily in a public place, without a warrant, if they have reasonable suspicion you are involved in illegal activity;
- police are also allowed to conduct a basic pat-down search to search for weapons if they have a reasonable belief you are armed.
As you can see, this is a temporary detention only based on reasonable suspicion you are involved in some type of criminal conduct.
A common example includes the classic situation of police observing someone standing on a street corner of a known drug area and someone appears to exchange something with another person walking by.
He is wearing a lot of baggy clothes and police believe he could be concealing a weapon, so they decide to conduct a stop-and-frisk.
U.S. Supreme Court – 1968 Terry v. Ohio
Most of us know that police can't normally lawfully arrest someone unless they have probable cause to believe that person committed a crime.
Did you know, though, that California and federal law also prohibit police from stopping a person (short of arrest) without reasonable articulable suspicion, especially not for an unwarranted frisk? For example:
- if a person who has engaged in no suspicious activity wishes to avoid interacting with the police,
- even for a brief stop and especially for a pat-down frisk,
- then they have the right to do so, under the U.S. Supreme Court's Terry.
And if the police unlawfully force interaction in a Terry stop, discovering evidence of a crime to use against the suspect, the suspect may be able to win a dismissed charge by excluding the illegally gained incriminating evidence.
In other words, law enforcement officers can only temporarily detain you when they have a reasonable suspicion, based on facts, that you could be involved in criminal activity.
What is a Reasonable Suspicion?
The law is clear that police may stop on less than probable cause. Reasonable suspicion is enough to justify a stop.
A stop involves some degree of police coercion less than a custodial arrest, such as a simple command to stop while purposefully blocking the person's path.
But reasonable suspicion does not mean a guess or hunch. Instead, constitutional law developed under the Supreme Court's Terry standard demands that the officer is able to articulate factual observations justifying the officer's stop.
Examples of reasonable suspicion
Some common examples drawn from various state and federal cases include the following:
- furtive action concealing suspected weapons or contraband;
- standing lookout for others preparing to commit a suspected crime;
- casing a retail shop or other potential crime location;
- standing watch for and observing potential crime victims;
- the suspect's flight or evasive action attempting to elude police;
- commission of crime nearby from which the suspect may have fled;
- other witness descriptions matching the suspect;
- erratic behavior suggesting the suspect is under the influence;
- exchange of money suggesting drug crime or solicitation to prostitution; or
- exchange of items that may be drugs or other contraband.
Law enforcement obtaining a suspects incriminating statement or discovering crime evidence on the person must be able to testify to some such form of suspicious activity.
And these limits apply whether the stop is due to racial or other profiling or not. The suspect doesn't have to prove that the police treated the suspect differently because of bias.
The stop's unlawfulness is enough for the suspect's legal counsel to challenge the admissibility of incriminating evidence the officer gains in the stop.
The Plain-Feel Doctrine
The same federal and state constitutional law limits the extent to which an officer making a stop may frisk the suspect.
Just because the officer's observations justify a stop does not mean that the officer can do anything the officer wishes in searching the suspect.
On the contrary, the law limits a frisk to situations in which the officer has reason to believe that the suspect may have a weapon endangering the officer or contraband confirming the articulated suspicion. Not every stop justifies a frisk.
The same law also restricts how an officer may perform a frisk for suspected weapons or contraband, such as:
- the officer may only pat down the suspect's outer clothing;
- the officer can't reach under your clothing or into pockets; or
- grope you or manipulate felt objects, and
- the officer can't seize and search your cell phone.
However, if the officer feels an item they know is contraband (weapon), they are allowed to remove the item and use it as evidence against you.
Indeed, the plain-feel doctrine requires that the officer readily identify an object as a potential weapon or contraband from the plain feel of the pat-down, before the officer may move, manipulate, or remove the felt object for further identification.
Overzealous police officers
These restrictions place many stops and many more frisks into question as to their legitimacy.
There are situations where overzealous officers hoping by chance or guess to stumble upon evidence of:
Law enforcement officers may overstep lawful bounds. They may invade these strict rights to reasonable privacy, against overbroad stops and frisks--privacy rights that exist even when a person is moving about the public streets.
What If My Rights Were Violated During an Illegal Stop and Frisk?
Fortunately, the law provides the suspect a remedy for unlawful stops and frisks.
If officers obtained incriminating evidence from a stop and frisk that failed to meet constitutional standards, the defendant's attorney has options.
Motion to suppress evidence – PC 1538.5
Motions to suppress have a constitutional basis. The Fourth Amendment, prohibiting unreasonable search and seizure, has an exclusionary rule prohibiting the use of evidence gained in violation of those Fourth Amendment rights.
Motion to dismiss charges – PC 995
Once a court grants a motion to suppress, barring the unlawfully gained evidence, California criminal procedure then offers a motion to dismiss the charge when the remaining evidence fails to support probable cause that the defendant committed the charged crime.
Criminal Defense Lawyers for California Crimes
If you are the victim of an illegal stop and frisk, then any evidence obtained as a result of the search can't be used against you in a jury trial.
Early intervention into you case by our law firm can increase your chances to exclude evidence, avoid trial and conviction, and retain your freedom.
Through prefiling intervention, we may be able to convince the prosecutor from filing formal charges before court.
Eisner Gorin LLP is a top-ranked criminal defense law firm representing clients throughout Southern California courts, including LA County, Orange County, Ventura County, Hollywood, Riverside, and San Bernardino.
Our office is located at 1875 Century Park E #705, Los Angeles, CA 90067.
Our main office is next to the Van Nuys Superior Courthouse at 14401 Sylvan St #112 Van Nuys, CA 91401.
Contact our firm for an initial consultation at (310) 328-3776.