What Are The Requirements For a Terry Frisk?
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- Опубликовано: 30 июн 2024
- Learn how to avoid this one mistake I see officers make all the time when conducting Terry Frisks.
The Tactical In-Service is a podcast for law enforcement. As a former prosecutor, I break down training topics and case law to educate the law enforcement community.
Check out my legal courses for police officers:
policelegaltraining.com
Case Law Discussed in This Episode:
➡️ Terry v. Ohio, 392 U.S. 1 (1968) - supreme.justia.com/cases/fede...
➡️ Arizona v. Johnson, 553 U.S. 323 (2009): supreme.justia.com/cases/fede...
➡️ Ybarra v. Illinois, 444 U.S. 85 (1979): supreme.justia.com/cases/fede...
➡️ Minnesota v. Dickerson: 508 U.S. 366 (1993): supreme.justia.com/cases/fede...
Podcast available where you listen to podcasts or listen now here: www.spreaker.com/show/tactica...
Erik Scramlin is a former Chief Deputy District Attorney and current owner of Tactical Legal Solutions, LLC. Erik Scramlin provides in-depth legal training for New Mexico police officers. Courses and contact information available at policelegaltraining.com
Get a copy of the Tactical Attorney Objections and Foundations Cheat Sheet here: www.subscribepage.com/tactica...
DISCLAIMER: This is not legal advice. This content and all of Tactical Attorney's content is for informational purposes only. You should contact your attorney to obtain legal advice with respect to any particular issue. Nothing here should be construed to form an attorney client relationship of any kind.
This explanation of the law would be great if police officers and the justice system cared about the law.
I have seen hundreds of cops using “Officer Safety” as justification for a Terry frisk when they can articulate suspicions of a crime or that they may be armed, they use a general suspicion like it dark, it’s a high crime area or we had Burglaries in the area, or “We got a call” many cops say they just do it to everyone “because I want to go home tonight”
You're completely right. I also think they do this because there aren't any consequences. So what if they illegally frisk someone? It's not like anything will happen to them. Zero accountability. So why not do it. The fact is most people allow it without a fuss and the select few who don't consent, cops don't care and search anyway. Chances are the people can't afford an attorney or a lawsuit. Even if they did, it probably wouldn't go to trial. The worst that will come from it is a complaint against the officer that will get washed under the rug.
I have watched numerous 1st Amendment Auditors and see the misuse of a Terry Stop.
You really need to do a show on Auditors and the Rights of people to video Law Enforcement everywhere at all times. And to cover the exceptions to the 1st Amendment. Because I see Law Enforcement making serious mistakes about all of it.
Thanks
Thanks for the comment, I have got a lot of requests on this topic and I agree its definitely an area that police need to be educated in. A great case to look at that explains the finer points is the so called Arctic Man case, Nieves v. Bartlett. I plan to do a breakdown on this in the near future.
@@tacticalattorney Still planning to do this? I don't see it in your videos.
You need to do a video on “Right To Travel”
constitution.congress.gov/browse/essay/artIV-S2-C1-13/ALDE_00013789/%5B'travel'%5D
@deanfranklin6870 Agreed!
Agreed. RUclips auditors are typically terrible at understanding the law and they promote that misunderstanding which ultimately get more people in trouble by not understanding their actual rights as written in law and interpreted in court. Notice the term "RAS" was not used here because it is nonsense RUclips lawyer speak.
Where Terry v ohio is abuse almost 100% of the time is in traffic stops.
that is a mimis analysis
Every prosecutor's should offer such lectures to locale law enforcement on a regular basis.
Totally agree!
I looked up multiple definitions of "Furtive Movements" and tend to believe that most of the time, that phrase is greatly misused by Police Officers.
By the way, I've only recently discovered your RUclips Channel and I feel the content is invaluable to both Law Enforcement and Citizens At Large.
Thank you. The podcast is all about sharing knowledge. I'm glad it is providing some value.
You're correct. It is misused, overused, and willingly ignored by cops because they know they aren't going to be held accountable. They know guys like this prosecutor won't even dare bring charges against criminal cops.
Thank you for what you do. You do a great job at breaking things down.
Thanks! I appreciate it.
As a non LEO, I respect and appreciate law enforcement, and on the flip side I'm grateful for the constitution to which they pledged an oath to protect.
Thank you. Very well said!
You are really good at breaking things down. Thank you for what you do
Thank you, I appreciate it!
Thank you for what you do. It really helps.
Thank you for subscribing, I'm glad the breakdowns are helpful.
With 27 state legislatures agreeing on constitutional carry for their citizens Terry vs Ohio should be deleted from the common law in those states, as it is no longer a crime to carry open or concealed per the state law. There can be no pistol contraband in those states to give further reason to search and sieze. Terry is thus modified in those states giving no armed and dangerous rational. Imlo.
Here in Wyoming we all pretty much & carry handguns so the cop isn't endangered unless they're gonna abuse their position.
Thanks for confirming that #1"detaining" me for a plate found under a couch in the living room of a home I was spending the night in a bedroom at, a plate that the homeowner had already claimed and clearly stated was there before my arrival and that I knew nothing about. My detention was followed by #2 a female officer taking me from the kitchen to the bedroom alone closing the door and claiming she had to " Pat me down" and despite having watched me put my bra on, I was in the asleep when they got there. She was so extremely inappropriate with my chest area , hands under my shirt and bra feeling me all over that my immediate horrified thought was no way is she doing that in my pants so I pulled my leggings and undergarments down to my knees and said there's no weapons here as I did a quick 360 she STILL made me take off my leggings and proceeded to jam her fingers and my undergarments as far up my vagina as she possibly could as I was frozen in absolute shock and horror. Many years ago I was raped and I have been having terrible flashbacks etc ever since. I have also talked to multiple women she has done this to. BTW no one was arrested I still don't know WTF the police were even there for . Any advice?
I would recommend that you consult with a local attorney.
You do know, don't you, that this guy is an attorney FOR COPS.
Sadly too many officers forget this and rarely get anything done to discourage them. We were trained to not use buzz words like officer safety and furtive actions, had to detail what caused us to feel this way.
Right on the money. No conclusions, facts, facts, facts.
So you are a passenger in a traffic stop and you decline to ID yourself. If I understand correctly the cop can ask you step out of the vehicle (Memmes). You step out and are put into cuffs immediately and starts a pat down. He says officer safety and you say RAS is needed and you are told no and to shut up and "cooperate ". What do you do?
This is for cops refresh up apparently tutorial lol
Shut up and cooperate, then contact a civil rights attorney
I loved your Terry v Ohio video! Brilliant
Thanks I'm glad you enjoyed it.
Amazing love you & I'm also from Michigan. I'm a lawyer too. I work in law enforcement. I learned a lot!! Thank you!!!!!
Thanks for the comment. Very cool you are a Michigan attorney working in law enforcement. Send me an email or look me up on LinkedIn. I would love to learn more.
How does Terry work in MI if you have a cpl and are pulled over, you are required to state whether you are carrying or not.
Thanks for any response, and for your service guys.
Very nice explanation of a frisk vs. a search of a person.
Excellent
Please address the implications of the Terry-frisk doctrine on the _ridiculous_ practice of disarming legally armed (CCW or permitless carry) motorists or passengers without RAS of a _crime_ - rather, only of a traffic infraction or other non-criminal violation (vehicular or pedestrian stop).
A _lawfully_ armed detainee or passenger is _not_ necessarily “dangerous.” If that were true, all carriers of weapons, to include LEOs and MIL, would be considered “dangerous” while lawfully performing duties armed.
I'm a 3L in law school and am taking crim pro as an elective along with federal criminal law. I'll tell you your 20 minute videos beat the freking 6 hour readings and a 3 hour class on Terri v Ohio and the dickerson case i have to endure! My professor harps on the dissent of Justice Marshall in these cases all the time! it's such a time and energy waste. Kudos great work your channel is not just for LE but for law school students as well!
Thank you! I appreciate it and I'm glad you enjoy the content.
Most think law school is comprehensive. Law school is a business.
Most law students don't remember a lot of what a law school teaches. There is so much to learn.
After law school is where attorneys learn their craft
@@botofogo2212 That was my experience. Although, I was fortunate enough to compete on the school's mock trial team. That was an incredible experience and prepared me for the courtroom.
Good breakdown.
Thank you, very much appreciated.
Erik what case(s) are you referring to that gives officers the go-ahead on handcuffing a suspect prior to conducting a frisk?
I’ve got a couple Federal Circuit cases but nothing SCOTUS on hand
-US v Sanders, 994 Fd 200. (5th circuit 1993
-US v Bravo. 9th circuit 2002
Great question. First of all, you definitely need to be familiar with your state laws. Some state's may not allow handcuffing under their state constitutional framework. When looking at a federal analysis, we look at cases like Dickerson and even Terry. There is a fine line between arrest and investigatory detention, the courts warn about this. But we typically see in Terry frisk cases that if an officer can articulate facts that would lead a reasonable officer to believe that a suspect is armed and dangerous and the officer is doing a brief limited pat down for weapons prior to conducting the investigation, the courts have held those to be reasonable under the 4th Amendment. There was somewhat recently a 2nd circuit case that discussed the fine line between investigatory detention and de facto arrest that might provide some clarity, the case is United States v. Bekim Fiseku. Thanks again for the really good questions, I hope this helps.
Smart man thank you
when young adults go and get there leaner permits they should also receive a copy of the constitution.
I like that idea.
AFAIK, being armed, or superficial indications of being armed per se, may not an indicator of criminal activity. Because in general, (with some specific exceptions) it is lawful to be armed.
Per scotus - when the second amendment’s plain text covers an individual’s conduct, the constitution presumptively protect that conduct.
Logic dictates that no reasonable suspicion can be invoked for merely bearing an arm.
In my experience they act like they can automatically do the frisk due to “officer safety”
Edit- I thought they had to have probable cause not just merely suspicions.
Terry v Ohio requires reasonable suspicion to detain. In addition, the officer must have RS that the person is armed and dangerous. Officer safety reasons or gut feelings are not enough. PC is not required. PC is the standard required for an arrest.
The court seemed clear it only required the lesser requirement. But that suspicion must still be REASONABLE and ARTICULABLE. It would seem under those requirements that once the officer says “we don’t know what you are doing”, “your being detained until we find out what you are doing”, or “you might be {insert wild accusations here}” the officer is admitting he or she does not have a suspicion that is reasonable or articulable.
The “and dangerous” part seems to almost always be “forgotten” as does reasonable suspicion “of a crime”
A lot of people won't remove our hands from our pockets on a police officer's random order is that the LEO is not our drill instructor and is not in our chain of command.
So I was in the car with my mom and grandma and we got pulled over. My mom (mistakenly) gave them permission to search the car. When she gave consent was she also giving them consent to search me? It was a state trooper and county cop, they had no other reason to search us besides her giving consent (no weed smell or anything like that we got pulled over for a headlight that went out). The same state trooper had arrested me a few months before for a misdemeanor weed possession charge. There were no weapons involved so he had no prior experience of seeing me with any kind of weapon. They also searched everything I had, took everything out of all my pockets.
If it was a mistake, then why didn't she revoke consent?
Sir,
Is the plain touch doctrine specific to soft objects? Or are hard objects included in that? For example if i conduct a pat down on someone, and feel a hard object that i can articulate through my training and experience appears to be the same structure as lets say a methamphetamine pipe. Can that object be seized through plain touch?
Great question, generally speaking, if it's a hard object and big enough to be a weapon you can retrieve it under the Terry doctrine. If you don't think it's a weapon, and you can tell immediately upon plain touch, with no manipulation that it's a meth pipe, plain touch would apply. Of course, you will have to be able to articulate why you knew it was a meth pipe on plain touch. Hope this helps.
OMG! Are you saying a Terry Frisk may NOT extend to a body cavity search 😮 ?!?
No, I'm saying it must not.
Thank you for this, I have been looking for easy explanations for certain legal issues, as I’ve been a cop for 2 and a half years now and I keep seeing mistakes by coworkers and probably myself on the road.
Here’s my question: when I conduct a traffic stop for DWI, I’m going to be doing field sobriety, which means spending a lot of time with this person where I’m not looking at their hands. Because of how many people are armed (legally), I’ve been taught to frisk and remove any weapons from a driver before field sobriety. From a purely legal standpoint, should the person decline to be frisked, would I have the right to do so anyway? I’m in Missouri if it matters. About to go watch your other videos, thanks for making them.
I've been teaching Constitutional law for 27 years. The courts are all over the place with frisks. Best to ask for consent first. If declined what would you testify to that gives you reasonable suspicion the person is armed and dangerous. Speak to your local prosecutor to see where your local judge is on the matter. Best practice is ask for consent and if declined then be able to articulate reasonable suspicion they are armed. Hope this helps.
You could just lie like 99% of other police officers
If you we're to describe cops vs. lawyer's would it be that lawyers may be more knowledgeable about rights for an LEO encounter? And cops know some penal codes with the authority to arrest/detain people with the knowledge that there are no consequences for abusing power?
What if a worker who made a statement indicates to a officer a person MIGHT be armed? Officer seen suspect but did not notice a weapon until a worker made a statement
If a civilian is approached by an officer in a consensual encounter, is the civilian required by law to take his hands out of his pockets?
Police can frisk us anytime for officer safety and handcuff us while we are detained. The laws give them too much slack!
So what is stopping an officer from patting and saying "This soft thing feels like drugs."?
What if the officer says this and orders the person to take it out of their pocket and they refuse?
Great questions. First, because the officer is operating under an exception to the warrant requirement, the burden of proof is on the state to prove that the officer knew it was drugs upon plain touch without manipulation. Secondly, if the officer knows it's contraband upon plain touch the officer can retrieve it, without that recognition and absent another warrant exception, any orders to remove anything from the pocket would be plainly in violation of the 4th Amendment.
“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”
Chief Justice Earl Warren (Majority)
Please articulate what happens in the event that the police feels certain finds that he wrong. What happens then. Essentially, what would the recourse be then. Please explain!
I'm not 100% sure of the question, but what I think you are getting at is what happens if an officer does not find anything during the Terry Pat? As long as the officer has reasonable articulable suspicion that the person is presently armed and dangerous the Terry frisk is lawful, even if nothing is found. The same is true with investigatory detention. Even if no crime is found or there are innocent explanations for the conduct, as long as reasonable articulable suspicion of criminal activity exists, the detention is lawful.
They have at least one witness.
What does "dangerous" mean in respect to the a Terry frisk?
Great question. It's a reminder from the Court that it's not always enough just to be armed. Example, a Game and Fish Officer may stop a hunter. Just because the hunter is armed with a bird gun doesn't necessarily mean they are dangerous.
@@tacticalattorney
That would make a distinctive topic to discuss, as in the case in Florida, where is is legal to Open Carry when in the act of traveling to or practicing either Fishing or Hunting where legally allowed.
Secondly, it seems as if regular Police Officers do not have Legal Authority over those subjects and any Questioning, Detainments or Arrests must be handled by the Fish And Game Warden.
Watch the Channel;
The Armed Fisherman
for further insight into the Floridian perspective.
@@edf3725 sounds pretty interesting, I'll definitely check it out. Thanks.
@@tacticalattorneyRobinson vs USA contradicts I think. Robinson tried to say the officer didn’t have articulable facts to suspect he’s dangerous
Whats with the desicrated flag gang sign on the shelf?
No plain touch allowed in NY
Thank you for letting me know. Every state has the ability to add greater protections under its own state constitution, it is important that officers are just as familiar with their own state constitutional requirements as they are with the 4th Amendment.
I have a question? You say tip from a reliable informant? Gives a cop the right to frisk you. Right? But,Doesn’t that fall under, Torres vs bMadrid?
Torres v. Madrid expanded on the definition of a seizure. Any application of physical force by police with intent to stop that person is a seizure even if they get away. When someone is getting frisked, they are seized so the officer would need RS to stop them + reasonable suspicion they are presently armed and dangerous. A tip from a reliable confidential informant would be a factor in establishing both. Excellent question, thank you for watching and commenting. I really appreciate the engagement.
Weapons pat down not searching the pockets for drugs unless you are under arrest .
I have a odd question. Why can police seize your ID to identify you? An ID is not: A, a weapon, B, contraband C, evidence of past criminal activity ie stolen property or D, proof of an ongoing criminal conspiracy. Isn't seizing a wallet and an a ID a violation of the Fourth Amendment?
Does heresy in the form of a phone call create reasonable suspicion?
Check out the SCOTUS cases Aguilar, Spinelli and Gates.
I think you have not been complete with this analysis. In Terry, it was also required that even if a weapon is present, it must be an imminent danger to the officer or the public. For example, a folding pocket knife is not an imminent danger to the officer or the public. Therefore, a seizure of that item is not valid under Terry.
That's not entirely accurate. Terry and subsequent federal case law require only that the officer encounter a weapon or hard object. Officer's can retrieve those objects and temporarily seize them for the duration of the Terry stop.
If they give you permission?
It they give you permission i.e "consent" then you are operating under the consent exception to the warrant requirement, which is a recognized exception.
Delivery style is t o o s l o w . . .
Does this reflect the legal update in NM 2022-2023?
Nothing new to update on Terry frisks. New Mexico is pretty in-line with federal law.
Serious question, are you proud of the work you do teaching law, sounds like specifically to officers?
What you are teaching is invaluable to all citizens, not just officers! I believe there are many more citizens that could use your help fighting the corrupt officers that our government employees and protects. All three tiny little phrases that officers use to manipulate the system and legal jargon that turns a law avoiding citizen into a criminal. Example is the "pain Tisch fixture" this can be easily abused! Did your average citizen know an officer can't manipulate an object, no! If they did, is there anything that can do it an officer does, no! When you go to court price it, the officers bodycsm is pointed at your chest, not where they are feeling. Now it's your word against the officer and who is the judge (government) belive you or the officer (government)?
If you want to gain more respect by The People, take down your desecrated American Flag in your background. You can support the police, but be more creative and create your own flag. This is a sign of tyranny.
Sooo...carry a gummy bear wrapped in cellophane, then sue when the cop removes it. Got it.
Over turn Terry v Ohio. It’s unconstitutional.
Look at that desecration behind him smh
I love how you're teaching cops to be dirty with the plain touch doctrine... you know that it has nothing to do with "experience" or "manipulation" but rather the words cops use in their reports as well as court examinations. The rationale you give is so ambiguous that it could never be thoughtfully mitigated the way you claim. In essence, you are training cops to violate people's fourth amendment protections with wordplay...😔
Agree. This is why I asked above: So what is stopping an officer from patting and saying "This soft thing feels like drugs."?
Let's see if he ignores my comment like he ignored yours.
Why the blue and white FLAG???🤔
Remember when we had the 4th amendment...
"Building Reasonable Suspicion" ... what you really mean, in reality: "Here's how to make excuses to justify *anything* " ... Why don't you call your course: "Perjury 101"?
It’s funny that cops rarely use reasonable suspicion of a crime. Mostly they say “we got a call of a suspicious person” which isn’t a crime or “for officer safety” which isn’t a crime or “we don’t know what the crime is we’re detaining you to investigate what the crime is” again no crime.
How do ALL cops not understand basic case law? Oh yeah cops don’t care about knowing the law because if they learn the law then they can’t rely on qualified immunity. This makes cops little more than crossing guards with guns and the right to hurt you.
Cops hate the law and the public.
Do you seriously think these cops want to learn anything when they know they can do whatever they want.
Man I'm all for educating our police officers; but this should be part of a more intensive new hire police training program. Not info to help an incompetent officer win a case in which they possibly violated your fellow citizen's rights!
Or showing cheat codes to help an incompetent officer get away with violating a citizen's rights.
so an officer can make up whatever bs thay want and get away with it. great to no
Do police have the right to stop me on a public street , walking to the park to fly my drone, (which is in a non see thru, black in color ,case ) ?
Its summer, school is out for summer, daylight: early afternoon. I have also a ccw , and am carrying, and have wallet in rear left pocket, opposite side of the hand carrying the drone case.
And, do they have a right to order me to open the case to prove what was told to them verbally? That in fact ,it was a drone inside the case.
To bad cops disregard the law and do what they want.
Those that do, risk civil liability and criminal prosecution. Thankfully, the overwhelming majority of officers that I have worked with embrace constitutional policing and are willing to work diligently towards lawful enforcement.
@@tacticalattorney we all know there is a minimum amount of accountability for police, we investigate ourselves and found nothing wrong..
Maybe armed, the nature of the crime investigated,( robbery, assaults, rape), etc.
Be good for the citizen and officer to show the argument from the other side, not just pro-police side. Show how the citizen will use this knowledge against the police officer as well.
Not tactical attorney, tactical tyrant is more likely.You can’t sit there and tell me you have defended officers who hadn’t committed crimes or violations. If you say no, GOD SO HELP YOU, WHEN YOU GET TO THOSE PEARLY GATES. IF GOD EVEN ALLOWS YOU TO MAKE IT THERE. 🙏🏼🙏🏼🙏🏼
Hands in pockets? What about commonwealth v Hemingway cops need ras that your armed and dangerous to ask u to remove your hands from your pockets furtive movements? State v slocher furtive movements alone are not ras,, cmon lawyer
A cop's reason is "Officer Safety".
Cops do not care about the law or civil rights and they will break or violate them all day long.
Unless you have thousands of dollars to spend on attorneys, you have absolutely no rights.
In a truly "Free" society, Federal 1983 lawsuits would be "free' to the victims, and the federal government would pay for all expenses.
The people should not have to file pro se because we cannot afford or find a lawyer; just to be railroaded, lowballed and retaliated against.
Our federal government has in fact failed the people right from the start and did just the opposite...
they came up with Qualified Immunity.
We need a new amendment added to the Constitution called "The Woodchipper".
The Woodchipper would abolish all types of immunity at every level.
A special division of court systems that only deals with constitutional violations would be set up in every state.
Constitutional violations would have no statute of limitations.
Mandatory minimum criminal charges established for all civil right violations and monetary compensation for the victims would be established.
Insurance would be required for all government officials and would pay for all settlements and awards.
The Woodchipper would also require that if convicted, the criminal would never be allowed to hold a government position again, the first time.
This would make the Constitution the first thing that government officials think about... instead of the last thing they care about.
Sure, 99% of police and government officials would instantly quit, but we do not need people like that to begin with.
Government officials can do their jobs without violating rights.
This country spends more money on federal lawsuits than on national defense, or at least a close second.
Why not cut that in half and spend it on actual freedom?
At least if they quit, we do not have to pay them unemployment insurance benefits.
Do you ever worry criminals are gonna watch videos like this to help better get away with crimes?
Mostly crappy cops for verbiage. Sorry don't trust police.
I don’t, it is the right thing to do if your a good cop you should want the citizens to educated in there Constitutional Rights
Instead of yelling your violating my rights and not have clue what they are talking about.
Suspect must be black or Brown then everything is good..🤣🤣🤣
I'll give a thumbs up when the terrorist flag disappears.
Listen many cops are frisking as a form of activity for the supervisors. This is shit none you legal eagles are mentioning.
You keep citing "armed and dangerous." What if the person is legally arm but not dangerous. Or is the law-abiding citizen, by his very nature of being armed, automatically now considered dangerous? Seams overreaching.
FTPOSP.
Oh God this frisk should be illegal. It just encourages the cops to lie about the frisk. If you say or due something they don't likeThey yank you out of the car put you in cuffs bend you over the hood of their car and dig through your pockets.