Can a police officer order a suspect to empty his or her pockets during a Terry stop? The New York Times reports on claims that New York officers do so regularly:
Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system
Orin Kerr, a law professor at George Washington University, has a post up at the Volokh Conspiracy that considers the propriety of such an order. I thought that it was interesting enough that I’m going to excerpt it liberally, then add a couple of comments that are specific to North Carolina law.
Here’s the extended excerpt:
First, some background. Under Terry v. Ohio and its progeny, the police can “pat down” a suspect for weapons if they have specific and articulable facts that the suspects are armed and dangerous. The cases say that this has to be a search for weapons, not drugs. If an officer feels something through clothing and he suspects that the “something” is drugs, not a gun, he can’t pull out the something and open it to look for drugs. See Minnesota v. Dickerson. In reality, officers routinely flout this limitation. They just say that they are looking for guns, and that the drugs they pulled out from the suspect’s pocket really felt like a gun, not drugs. But there is at least some scrutiny of the searches, with at least a theoretical limit on an officer’s ability to find drugs when he is supposed to be searching for weapons.
Police orders to empty pockets potentially go far beyond that power. A police order to a suspect to empty his pockets can allow an officer to do indirectly what he can’t do directly. Terry doesn’t allow the police to just reach in and empty a suspect’s pockets, exposing all of its contents to plain view. See Sibron v. New York. Rather, Terry requires officers to pat down the suspect from the outside and then only retrieve what may be a weapon. The question is, does the Fourth Amendment allow police officers to order suspects to empty their pockets in lieu of conducting the frisks directly? That is, can the officer order the suspect to do what the officer cannot himself do?
It is clear from the cases that the officer’s order still makes the emptying of the pockets a search. As Judge Sutton recently stated, “an officer may not sidestep the requirements of the Fourth Amendment by directing a suspect to ‘empty your pockets,’ then disclaim any constitutional violation on the ground that he verbally directed the suspect to act without touching or in any way searching him.” United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010). But the trickier question is whether that search is a “reasonable” search under Terry. My quick research suggests that the lower courts are divided on the question.
On one hand, the Fifth Circuit has taken the view that orders to empty pockets are permitted by Terry because they don’t seem more intrusive than a Terry frisk:
Agent Morales did not frisk defendant after he detained him; rather, he asked defendant to empty his pockets and raise his shirt. Defendant contends that Agent Morales exceeded the bounds of Terry by requesting that defendant empty his pockets and lift his shirt. The issue then is whether asking a suspect to empty his pockets and raise his shirt is more intrusive than the frisk permitted in Terry and therefore prohibited by the Fourth Amendment. “Terry does not in terms limit a weapons search to a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible.” United States v. Hill, 545 F.2d 1191, 1193 (9th Cir.1976). Thus, the raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry. Id. Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” Baker, 78 F.3d at 138. At no time during the inspection for weapons did Agent Morales touch the defendant. Non-consensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. Agent Morales’ request that defendant empty his pockets and lift his shirt was permissible under Terry.
United States v. Reyes, 349 F.3d 219 (5th Cir. 2003). Other courts have disagreed, arguing that officers lack the power to search pockets themselves and can’t circumvent that limitation by having suspects empty their pockets instead. See, e.g., State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991); State v. Bastian, 37 Kan.App.2d 156 (2007); Matter of Bernard G., 247 A.D.2d 91 (N.Y.A.D. 1 Dept. 1998). See also R.B. v. State, 975 So.2d 546 (Fla.App. 3 Dist. 2008) (“For Fourth Amendment purposes there is no constitutional difference between an order that the student empty his pockets, and the security officer’s conducting a search by reaching inside the student’s pockets.”).
Kerr concludes his post by stating that he agrees with the apparent majority position that an officer can’t routinely order a suspect to empty his or her pockets in lieu of a pat-down for weapons.
He didn’t cite any North Carolina cases, so I decided to look for some. I started by searching Westlaw for cases in which “order,” “empty,” and “pockets,” or variants thereof, appeared in the same sentence. The vast majority of cases that popped up — something like 17 out of 19 — involved defendants ordering victims to empty their pockets during a robbery, which made me suspect that North Carolina officers aren’t issuing empty-pockets commands frequently.
After a little more research, I found a case that suggests that officers probably shouldn’t start doing so. In State v. Beveridge, 112 N.C. App. 688 (1993), officers arrested a driver for DWI and ordered the defendant, a passenger, out of the vehicle. An officer “conduct[ed] a limited pat-down of the defendant to determine whether the defendant was armed.” He found no weapons, but noticed a rolled-up plastic bag in the defendant’s pocket. Suspecting that the bag contained drugs, the officer “asked the defendant to turn out his pockets.” Reviewing the ensuing criminal case, the court of appeals essentially treats the request as an order — as an aside, it could have done otherwise, see State v. McRae, 154 N.C. App. 624 (2002) (on somewhat similar facts, treating the defendant’s decision to empty his pockets as voluntary compliance with a request) — and concludes that the “continued exploration” of the defendant’s pocket after the pat-down came up empty for weapons exceeded the scope of a Terry stop. So the case generally support’s Kerr’s conclusion, though it isn’t quite on all fours because it involves an empty-pockets order after, rather than in lieu of, a pat-down. Perhaps one could argue that such an order is not inherently improper, but rather, was rendered so in Beveridge by the fact that the defendant had already been determined to be free of weapons.
In any event, my advice to officers would be to stay away from empty-pockets orders unless you have reason to believe the pocket contains a gun or have a legal justification for a complete search of the suspect.
I’ve seen a number of “turn your pockets inside out” cases and I allways approach them as a search requiring PC rather then a Terry frisk. In my opinion this makes far more sense then the 5th Circuits logic because all sorts of personal/private information or objects may be stored in a person’s pocket. Allowing officer’s to give this order grants access to private areas that they would otherwise need PC to access, where as allowing the Frisk restricts intrusion to the limited purpose of officer protection.
We should remember that, in theory, officer protection is what a Terry frisk is for; though we all know that in reality it’s used as a way to short circuit our constitutionaly protected freedom.
I have to disagree with your statement about what a Terry Frisk is all about. As a LEO, I use the Terry Frisk quite often. I do a lot of work in known drug areas and I pat people down for my safety. I sometime stand alone with these people in dark locations by myself, trying to do my job. And I pat them down. If I feel something that I believe might be something other than a weapon, I ask what it is. In most cases, they will tell me its a crack pipe, or other paraphernalia. I build up to having PC. And, most LEO do the same thing. I never thought there was a problem asking questions, like will you empty your pocket for me? Can always say “no”. Just sayin….
So what if you’re in a drug area. Your job says you look for weapons that put you in danger. Period. You are overstepping your boundaries and treading on the rights of US citizens. Let’s face it, weed charges have turned too many good people into criminals cause once you’re in the system,everything is harder. But you wouldn’t know too much about that, do you?
How scary is it when an officer asks someone to “empty”, “turn-out”, or anything of that nature in reference to pockets! First of all (and MOST importantly) officers should not ask folks to do these sorts of things themselves. It is an OFFICER SAFETY issue. A definite No-no. Any officer who does this is making a fatal mistake and it may cost him/her their life one day. If the person’s hands are already in the pockets, keep them there; if they’re out, then keep them out. I would not allow ANYONE to go into their pockets and then pull them back out–I may not like what he/she pulls out of those pockets. The best and safest way during a Terry Stop is to personally frisk the person ( easier to articulate that the officer was concerned for his/her safety). Clothing is thin enough for officers to feel through and anyone who says different is not being forthright. However, a cigarette box can contain weapons and/or drugs and should be checked throughly for both, same as anything of which the officer can not articulate or delineate the source or containment therein.
Best Terry Stop is DIY (do it yourself), officers.
Right hear you say a cigarette box can contain a weapon and/or drugs and should be searched for both. Sounds like using a Terry search when a 4th amendment search is more priper to me. Maybe you might have pulled a knife out if a cigarette box once in your life (a heavy cigarette box for sure), but it sounds like your target is drugs in the first place. Don’t insult people’s intelligence.
You cops are unreal..always an excuse for violating rights. Terry should not be used just because of the location or time or color of skin. You must have RS that a weapon might be present and not just adopt a blanket approach and frisk everyone that is unfortunate enough to live where you are fearful.
The people are so uneducated about their rights that you continually get away with actions that you have no right to expect. If you pat someone down and find no weapons, you are NOT allowed to open containers unless you have RS or PC to believe evidence will be found ; looking in a cig pack is NOT for officer safety, thqat is a lie and excuse..it is for drug arrests, plain and simple. why not search every females purse in detail every time you stop one? It MIGHT have a sewing needle at the bottom you could use as an excuse for safety!
Citizens should be educated and taught that they NEVER EVER give consent to a search, and NEVER obey any ” request” or order other than for custody or safety…citizen safety. If you told me to empty my pockets I would refuse, advise you I am giving NO consent at all, and ask if I am being detained or are free to leave. If you went into my pocket and removed a cig pack and snooped thru it looking for drugs, you would be in hot water after I made my complaints. Weapons are not normally hidden in cig packs and I have never heard of a cse where a Terry stop turned deadly for cops because they failed to search a cig pack..it is nonsense to claim officer safety when all you are doing is opening small containers without a warrant co consent…fishing expedition as usual.
In a nation of free people, the cops would not be allowed to make consent requests and unless there was an articulable and sensible reason to assume that any container on or near a person had a weapon in it…not just a hunch, not just a snooping search, but real cause. The People are sadly uninformed and easily intimidated by cops, who never want the citizen to know that he can and should refuse consent and should not answer any questions beyond ID without an attorney. Cops should be made to produce real and cogent reason for their actions, and not just be allowed to run rampant with our rights.
The intense desire to lock up anyone with any contraband is so compelling to cops that they invent and lie and cover up the facts in order to snoop without cause, and officer safety cannot be used willy nilly as an excuse to search people beyond a pat down for weapons. cops do it all the time of course, and that is why the people fear and hate the police if they have ben victimized by such tactics, and why the People should never give consent and never answer any questions other than ID without a lawyer. If we do not kep cops on a short leash, they will end up as mad dogs biting even the most innocent..it is their nature to push the limits of our rights and we must push abck elst we lose them all.
What good is a right to refuse consent or an illegal order if you do not know about it or act on it? The deck is stacked in the cops favor and that is why people comply even when not in their interests,,,intimidation, lies and coercion are the cops tools, Knowing our rights and the legal limits of cops is ours and refusing to go along with the charade is ours. Cops care NOTHING about rights, only arrests. It would suit cops to a tee if they were allowed total power and unlimited authority, and that means they can never be trusted with the limited powers they have. they beoieve the ends justify the means, and that is danger for all of us.
COPS CHEAT TO GET A ARREST. THEY HAVE NO REGUARD FOR THE LAW