Stop & Frisk: The Rest of the Story

by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: 

We have to appreciate the challenge facing our courts - that of striking an appropriate balance between granting necessary crime-fighting techniques to law enforcement while also ensuring citizens’ rights are free from unreasonable police interference. Perhaps no other legal topic evolves along that fine line in a more convoluted fashion than the guidelines for investigative detention, AKA stop & frisk.

Stop & frisk is not a straightforward principle. Traditional guidance is that two assessments of reasonable suspicion are required – one assessment for the stop itself and another, separate assessment for the frisk. Those assessments are to be based on the “totality” of circumstances, and a host of cases point out the factors that, standing alone, do not establish reasonable suspicion. Avoiding police by walking away is one such factor (but running away is a stronger basis for suspicion). On the other hand, suspicion of drug trafficking provides an “automatic” basis for suspecting presence of weapons. Then there’s the “plain feel” issue. At this point in the discussion, you can see incipient panic among recruit trainees.

But wait, there’s more. The U.S. Supreme Court used the term “armed and dangerous” in the seminal case we all know, Terry v. Ohio1. That term must envision some situations where an armed person is not dangerous - otherwise the word "dangerous" is redundant. In other words, “armed” apparently does not equal “dangerous”. Therefore, it must be possible for a person to be suspected of criminal activity and believed to be armed, but the totality of circumstances do not establish a level of danger sufficient to warrant a frisk. Although at least one case has articulated exactly that notion2, many other cases have used simply the word “armed” and omit the word “dangerous”. Or, the term “armed and may be dangerous” is used.

Perhaps a future article will discuss the potential application of the “armed but not dangerous” concept to scenarios where a citizen is openly carrying a firearm (perfectly legal in many situations) or carrying a concealed handgun with a valid permit.

Instead, this article focuses on circumstances where Virginia courts have upheld frisks conducted without a suspicion that the person being frisked was involved in criminal activity. A good perspective for peering into those muddy waters is the following case.

In Reittinger v. Commonwealth, a Rockbridge County officer stopped a vehicle having an inoperable headlight. After issuing a warning about the headlight, the officer told the driver he was “free to leave” but immediately made repeated requests for consent to search his vehicle for contraband. The driver’s only response was to step out of his vehicle. Spotting a bulge in the driver’s front pocket, the officer conducted a frisk and discovered drug paraphernalia and marijuana residue. The officer conceded that, prior to the frisk, he did not have any reason to suspect criminal activity, but he did believe the bulge could be a weapon.

Now ensues the convoluted treatment of those facts by the courts. At trial, the court denied the defense motion to suppress, ruling that the officer’s actions were an unlawful detention but that the frisk was nevertheless justified by the reasonable belief that the bulge in the pocket meant that the driver was armed and dangerous.

On defendant’s appeal, a panel of the Court of Appeals agreed that the prolongation of the stop was without reasonable suspicion of criminal activity but that the actions of the driver amounted to consent to the detention. The panel then cited several cases holding that frisks can be lawfully conducted without suspicion of criminal activity. Those cases, the Court reasoned, involved officers having “civil duties” to protect the public safety or to investigate suspected criminal activity by persons other than the person frisked. Essentially, they are situations where an officer is required to remain in contact with a subject who may be armed and cannot practicably avoid the danger by simply ending the encounter. In this case, the officer chose to extend the contact, when the action the officer should have taken if he believed the subject was armed was to terminate the encounter! Picture this – “I suspect you’re armed and dangerous, sir, but you’re free to leave, and you have a nice day”. Anyway, Reittinger’s conviction was reversed.3

With me so far? It gets better. The Commonwealth was then granted a hearing by the full Court of Appeals which in a 6-4 opinion agreed with the panel that the stop had developed into a consensual encounter lacking suspicion of criminal activity. However, the Court in discussing the cases cited by the panel, stated that the applicable test is not whether an officer is required by the circumstances to remain in contact with a possibly armed subject, but instead is whether the officer’s continued presence is lawful. The full Court, noting the dangers present during traffic stops, stated that a frisk is warranted if an officer believes a subject is “potentially dangerous” even if the stop is for a minor violation. (Again, think about that in terms of open and lawful concealed carry). The Court then reasoned that the officer in this case was indeed lawfully present and reasonably believed Reittinger was armed and dangerous when he conducted the frisk. Thus, the panel’s decision was reversed and Reittinger’s conviction was reinstated.4

The defendant then appealed to the Virginia Supreme Court, raising hopes that all would be clarified. Well, not so much. The high court essentially took a pass on the tough question and simply found that the prolonged stop lacked reasonable suspicion of criminal activity and also was without consent. Therefore, the frisk was unlawful and defendant’s conviction was again, and finally, reversed.5

So, what were the situations in those other cases cited by the Court of Appeals panel, where officers were found to have lawfully conducted frisks without suspecting criminal activity. They were:

  • Vehicle stop for city decal violation, passenger ordered out, no apparent suspicion of criminal activity. Reasonable belief that passenger was armed justified a frisk.6
  • Speeding violation, vehicle stop on an interstate bridge. Passenger stranded when driver arrested and vehicle seized. Trooper frisked passenger before “caretaker” transport off the bridge, without consent or suspicion of being armed. Frisk upheld.7
  • Subject was member of group detained when two other members were arrested for drug trafficking. Lacking suspicion of criminal activity by subject but with suspicion he was armed and dangerous, subject was frisked. Detention and frisk upheld.8

Other cases not cited by the panel, but which also involve frisks not based on suspicion of criminal activity by the person frisked, and involving execution of a search warrant at a residence, seem to uphold such frisks.9,10

What, then, do these cases suggest concerning a field officer’s tool kit? A few guidelines seem to coalesce:

  1. In situations where there are no other enforcement actions ongoing, an officer should be wary of initiating an encounter with a subject where a reasonable suspicion of criminal activity is lacking but the officer nevertheless believes the subject is armed and dangerous. It is unclear that courts, to the extent that such circumstances are feasible, would uphold a frisk for weapons.
  2. If, on the other hand, an officer is engaged in other lawful duties and encounters a subject whom the officer reasonably believes is armed and dangerous, that person may be frisked without specific factors indicating the person is engaged in criminal activity.

This line of reasoning seems to flirt with self-contradiction. Perhaps future cases will better define applicable issues in terms of 4thAmendment reasonableness and, it’s to be hoped, comprehensibility.

1 392 U.S. 1 (1968)

It appears that Virginia courts have not addressed this issue, and the best authority is still Adams v. Williams, 407 U.S. 143, 146 (1972) where SCOTUS stated:

"The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. 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, he may conduct a limited protective search for concealed weapons. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose." (emphasis added).

3 28 Va. App. 80, 502 S.E.2d 151 (1998)

4 29 Va. App. 724, 514 S.E.2d 775 (1999)

260 Va. 232, 532 S.E.2d 25 (2000)

Bethea v. Commonwealth, 245 Va. 416, 429 S.E.2d 211 (1993)

7 Moore v. Commonwealth, 25 Va. App. 277, 487 S.E.2d 864 (1997)

Welshman v. Commonwealth, 28 Va. App. 20, 502 S.E.2d 122 (1998)

Hayes v. Commonwealth, 29 Va. App. 647, 514 S.E.2d 357 (1999)

10 Helms v. Commonwealth, 10 Va. App. 368, 392 S.E.2d 496 (1990)