The Fourth Circuit Court of Appeals, on a rehearing of a case en banc, held in United States v. Robinson, 2017 WL 280727 (Jan. 23, 2017), that an officer had the authority to conduct a frisk of a lawfully-stopped person whom the officer reasonably believed to be armed with a concealed firearm, regardless of whether the person may have been legally entitled to carry the firearm. This post discusses the ruling and its possible influence in the development of the law of frisk in North Carolina state courts. [For those who received my summary of this case as a subscriber to the criminal law listserv, this is the same summary but with the addition of an analysis and comment section at the end of this post.] Continue reading
Tag Archives: frisk
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.
Note about holiday blogging schedule: Because I am certain that all of you are planning your holidays around this blog, I thought I’d mention that I’ll continue to post daily through the holidays, except for Christmas Eve and Christmas, and New Year’s Eve and New Year’s Day.
Today’s post: The North Carolina Supreme Court recently reversed the court of appeals in State v. Morton. (The supreme court’s opinion is here, but it simply adopts a portion of the dissent in the court of appeals, which you can read here.) Morton got me thinking about the following question: if an officer is engaged in a consensual encounter with a person whom the officer has reason to suspect is armed and dangerous, may the officer frisk the person?
This has to come up all the time. For example, in Morton, two officers engaged in what both appellate courts agreed was a consensual conversation with a person they suspected of a murder. I’m changing the facts of Morton a little bit, but suppose that the officers had no reason to believe that the person was committing any crime at the time of the conversation, but that they did have reason to believe that the person was armed and dangerous. Maybe they saw a bulge at his hip suggestive of a gun, or perhaps they’d dealt with him in the past and knew him to carry a weapon. Under those facts, would the officers be permitted to frisk the person for their safety during the conversation?
Let’s start with what we know for sure. When an officer does have reasonable suspicion that a person is engaged in criminal activity, the officer may briefly detain the person — and if the officer also has reasonable suspicion that the person being detained is armed and dangerous, the officer may frisk the person for weapons. Terry v. Ohio, 392 U.S. 1 (1968). Similarly, when an officer has detained a person in connection with a traffic stop, the officer may frisk the person on reasonable suspicion that the person is armed and dangerous, even if the officer has no reason to suspect that the person is involved in criminal activity. Arizona v. Johnson, 555 U.S. ___ (2009); State v. Pulliam, 139 N.C. App. 437 (2000).
But both of the above situations involve forcible detentions. Justice Harlan, concurring in Terry, thought that was an essential requirement of frisk authority: “[T]he officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. . . . I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.” 392 U.S. at 32-33. A leading commentator agrees that officers lack the authority to conduct frisks during consensual “non-seizure field interrogation[s].” 4 Wayne R. LaFave, Search and Seizure § 9.6(a).
The case law, however, has not uniformly followed the lead of Justice Harlan and Professor LaFave. Compare, e.g., United States v. Burton, 228 F.3d 524 (4th Cir. 2000) (rejecting the government’s claim that an officer may conduct a frisk during a consensual encounter and holding that “an officer may not conduct [a] protective search for purposes of safety until he has a reasonable suspicion that supports [an] investigatory stop”), with, e.g., United States v. Ellis, 501 F.3d 958 (8th Cir. 2007) (stating that “[j]ustification for a protective pat-down based upon a fear for officer or bystander safety can arise after the commencement of either an investigative stop or a consensual encounter,” though elsewhere the court suggests that reasonable suspicion of criminal activity may be required), and United States v. Orman, 486 F.3d 1170 (9th Cir. 2007) (holding that Terry frisk was justified during consensual encounter).
I’m not aware of a North Carolina case on point. (If you are aware of one, or of a pending case that raises the issue, please let me know.) The split in authority makes me wonder if the “right” answer is more complicated than a simple yes or no. I can imagine a court drawing a distinction between encounters in which an officer is duty-bound to participate, such as witness interviews in connection with a reported crime, and encounters in which the officer is not at all obligated to participate, such as casual on-the-street interactions. Perhaps a court could reasonably find frisk authority in the former situation but not the latter.