What is a Frisk?
A frisk in the context of a law enforcement search is also known as a pat-down.
It is less intrusive than a full body search. The purpose of a frisk is to ensure an officer’s safety by confirming that a suspect encountered by police is not armed and dangerous.
The Cornell University of Law Legal Information Institute (LII) defines a pat-down search as one in which police pat-down a person’s outer clothing to search for concealed weapons.
When is a Police Frisk Constitutional?
Individuals are protected under the 4th Amendment of the U.S. Constitution against unlawful search and seizures. This applies to frisk searches by police.
Both State (Arizona V. Serna, 2014) and Federal Courts (Terry v. Ohio, 1968) have held that in order for a frisk to be constitutional a two prong test must be met. Police can legally frisk a person they encounter when the following factors exist:
- Police have a reasonable suspicion that a person is engaged in criminal activity; and
- Police have a reasonable belief that the person is armed and dangerous.
Reasonable suspicion must be based on facts that are individualized, objective, and can be clearly articulated. Police need more than just a hunch or a guess that a person is engaged, or about to commit a crime.
Reasonable suspicion requires less proof than probable cause, the standard that must be met in order to arrest someone.
Courts have consistently held that when determining whether or not police have reasonable suspicion of criminal activity, that totality of the circumstances surrounding the incident must be considered.
Can Police Frisk Me Because I live in a High-Crime Neighborhood?
No. Arizona police cannot frisk you on the sole basis that they encountered you in a high-crime area. More factors would need to exist to give rise to reasonable suspicion of criminal conduct, and to justify a frisk search. The factors that create reasonable suspicion should be particular to the individual and within that person’s control. The general surroundings or environment would not within your control, or particular to your conduct.
Overview of Arizona Supreme Court Opinion
The Arizona Supreme Court recently ruled on a case in which they considered factors that create reasonable suspicion needed to justify a frisk.
The case began when five police officers approached 4 men talking outside an apartment complex. The building was located in a high-crime neighborhood.
Officers went there looking for a suspect who had an outstanding arrest warrant and was believed to be selling weapons. None of the 4 men the police encountered at the apartments were the suspect that police were looking for.
Police noted that surveillance cameras were being used outside the complex.
Two police officers approached the men that were gathered there and identified themselves as police.
Police noticed that one of the men seemed nervous and when officers approached the man ran away. The other officers chased him, while the three others stayed, one of which was the defendant.
Police noted that the defendant did not appear nervous or to have a weapon. As the officers engaged the men, the defendant remained seated calmly, holding a baby on his lap.
Police then announced that they would be conducting frisk search on all three of them that remained. Before the officers began, one of the men handed over a baggie of marijuana to the police. The officers then proceeded with the pat-down searches of which no weapons were found.
During the pat-down search, the officer found marijuana in the defendant’s pocket. Subsequently, the defendant was charged with illegal possession of marijuana.
The defendant moved to suppress the evidence, arguing that the marijuana was discovered as a result of an unlawful search.
The trial court ruled that police had reasonable suspicion of a crime in progress. It reasoned that the frisk was justified based on the following facts: When police approached one man fled; Police were at that location to arrest someone with a warrant; The apartment complex was located in a high-crime neighborhood; The two officers felt outnumbered against the three men who remained.
The trial court denied the defendant’s motion to suppress, and the defendant was consequently found him guilty of illegal marijuana possession.
The Arizona Court of Appeals affirmed the conviction. In reviewing legality of the frisk, the Court considered factors police believed created reasonable suspicion, and whether or not the circumstances would reasonably compel an officer to believe the men were armed and dangerous.
The Appeals Court court found that the companion who fled might justify a protective stop and frisk, even if there was no particularized reasonable suspicion the defendant had committed a crime.
The Arizona Supreme Court granted review on appeal. It emphasized that reasonable suspicion must be based on particular, individualized, and objective facts. The prosecution agreed that there was nothing that the defendant did that created reasonable suspicion of his own involvement in a crime, or that he was armed.
The Court reasoned that the defendant didn’t react in a suspicious way to the officers as they approached the men, and he was cooperative. The Arizona Supreme Court also noted the trial court’s reliance on the 5 circumstances used as a basis in for which officers made their decision to frisk. In summary they included: The fact that one of the men fled the scene when officers approached; The initial reason they went to the apartment complex which was to find a suspect with an outstanding arrest warrant; The location of the apartment buildings which were in a high crime areas; The number of men gathered in front of the buildings compared to officers; The presence of surveillance cameras monitoring the exterior of the apartment complex.
The AZ Supreme Court agreed that there had been a showing of the presence of these circumstances. However, the Court noted that the defendant had no control of any of them. Further, the Court reasoned that there was no showing by the state that the defendant himself was engaged in a crime, or that he was armed and dangerous.
The Court explained that the facts didn’t create an individualized and particular basis for a reasonable suspicion which is necessary to justify a pat-down for weapons.
The Court did recognize the relevancy of considering the factor of a high-crime neighborhood when a person is actually suspected of criminal conduct, and of being armed and dangerous.
In conclusion, the court found that when a person is encountered in a high-crime area, it does not alone provide justification for a frisk search. The Arizona Supreme Court reversed the conviction and decisions by the lower courts.
Impact of Opinion in Arizona
Arizona Supreme Court decisions have the potential to influence future decisions because they become case law.
This is particularly true when the issues involve constitutional rights violations such as that of unlawful search and seizures.
The Arizona Supreme Court provided clarity to what factors create reasonable suspicion, and justification of a frisk search by police.
The Court concluded that police are not justified in frisking someone merely because they encounter them in a high-crime area.
The court held that reasonable suspicion exists must be based on objective, and individualized conduct by the suspect, and not by another’s actions, unless the defendant’s conduct has also raised reasonable suspicion.
If you are stopped by police in Arizona, it is unlawful for you to be subjected to a frisk simply because of their surroundings, or because of factors involving another person.
How a Criminal Defense Attorney Can Help You Resolve Your Charges in Mesa AZ
If you are charged with a marijuana crime, weapons offense, DUI or any other crime Arizona you will need an experienced criminal defense attorney to represent you.
In the case reviewed here, the defense moved to suppress evidence obtained unlawfully. When the court agrees to suppress material evidence that the prosecution plans to use against you, it often leads to a dismissal of charges.
Defenses may exist that if applied can lead to a favorable outcome and resolution of your charges.
This is just one of many types of defenses that can be used to challenge criminal or DUI charges.
The defenses used should be uniquely tailored and effectively presented as they apply to the circumstances in your case.
If retained, Mr. Novak will represent you effectively in your charges. He will evaluate the charges, and evidence to determine the best defense strategy in your case.
Early retention of a proactive criminal defense attorney will enable you to preserve your rights, and your defenses. It is the first step to gaining control over your situation and moving towards a resolution of the charges.
James Novak, of the Law Office of James Novak exclusively defends individuals charged with a crime in Maricopa County. James Novak is former Maricopa County Prosecutor, with strong litigation skill and over 20 years of experience in DUI & Criminal Law.
James Novak offers a free initial consultation for those facing active DUI or criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.
Call (480) 413-1499 or contact the Law Office of James Novak today to discuss your matter and options for defending your charges.
- A.R.S. § 13-3913 (Conditions Precedent to Issuance of Search Warrant)
- A.R.S. § 13 – 3405 (Marijuana Possession, Sales, and Transportation)
- Arizona Attorney General – Criminal Investigations
- Phoenix AZ Police Department
- Maricopa County Sheriff’s Department – FAQ
- One of the Most Important Reasons to Resolve Your Warrant
- U.S. Supreme Court Terry v. Ohio
- Cornell University Law School | Pat-down Search
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