Terry Frisk During a Consensual Encounter?

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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.

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