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May 23, 2006

When the prosecutor reads me the police report at the first pretrial, I'm always pleasantly surprised when the cops' version bears at least a vague resemblance to what my client has told me. So I'm pleasantly surprised: according to the report, the police had seen him standing near a bus stop with an open container of beer, had approached him to give him a citation, patted him down, and felt a hard cylindrical object in his pocket, which of course turned out to be a crack pipe. Oh, sure, the police didn't corroborate his claim that the bottle had been merely sitting next to him on the bench, rather than in his hand, and there was no mention of the two women who he said were there with him, one of whom had been kind enough to furnish the jacket in which the crack pipe was found. But those niggling details wouldn't be a problem. I told the prosecutor that I'd be filing a motion to suppress. He laughed at me. "The guy had an open container!" Another defense attorney at the table pointed out that the police only give a citation for an open container, but shrugged in agreement with the prosecutor's claim that that was good enough to justify a stop and frisk.

So a few weeks later, we had the hearing, and the evidence gets tossed quicker than a Taco Bell burrito after eight beers. What happened?

A lot of police officers, and not a few prosecuting and defense attorneys, believe that Terry v. Ohio means that if you can stop 'em, you can frisk 'em. Not so. The courts have rather consistently observed that each of the intrusions permitted by Terry - the stop, and the protective search for weapons - requires an independent basis: even where a reasonable suspicion of criminal activity exists, a frisk is not permitted unless the officer can point to evidence which would lead a "reasonably prudent police officer" to believe that the suspects he's encountered are armed and dangerous. For example, in State v. Scaggs, the court agreed with the trial court's assessment that while a suspicion of criminal activity arose from defendant's crouching down behind a car, there was nothing to justify a frisk for weapons.

To be sure, it's not common for the courts to split the baby and find that reasonable suspicion existed for a stop, but not for a frisk. That's due in large part to understandable deference to concerns for safety of police officers, a concern highlighted by Judge Corrigan's dissent in State v. Jones, the case I relied upon in my hearing. In Jones, the police observed the defendants flagging down cars in the proverbial "high crime area," an activity that, as every criminal defense lawyer knows, is "consistent with drug activity." The officers approached the defendants and immediately patted them down. The majority agreed that while the officers had a sufficient basis for a stop, they didn't have any basis for a frisk. 

At first blush, it appears that Judge Corrigan gets the better of the argument. He's correct in his observation that prior case law holds that, because of the frequent link between drugs and weapons, a frisk is "virtually automatic" in cases where drug activity is suspected.

On the other hand, there's some reason to question the "automatic" nature of that link; as the majority points out, the officer testified that of the couple of hundred arrests he had made for drug dealing, only "five or six" turned up weapons. What's more, it could be argued that the majority was too quick in conceding the reasonableness of the stop. The officers had seen nothing more than the defendants waving at vehicles - no cars stopping, no exchanges - and they didn't do anything upon the approach of the officers which corroborated any indication of criminal activity. While there was nothing to keep the police from engaging in a "consensual encounter," contending that the circumstances gave them sufficient grounds for a stop might arguably be a stretch. (State v. Scott gives an excellent explanation of the difference between a consensual encounter, a stop, and an arrest.) 

There's certainly a valid argument in favor of deference to the police on this score: they're the ones putting their lives on the line. On the other hand, a frisk poses a substantially greater intrusion upon privacy than even a vehicular stop. (If you don't believe me, imagine your neighbors driving by while you're sitting in your car with a police black-and-white with its lights flashing parked behind you. Now imagine your neighbors driving by while the police have you spread-eagled on your car, patting you down.) Given that a recent study of the NYPD showed that of every nine stop-and-frisks the police there made, only one resulted in an arrest, there's a serious question of whether the societal benefit of giving the police greater leeway in this regard is worth the costs.

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