Stop and Frisk or Just Stop?

September 29, 2015
By Hanging Out with Carl Gunn


  • Justification for a Terry stop doesn’t automatically justify a frisk for weapons during the stop.
  • A frisk for weapons requires its own different justification, namely, a reasonable suspicion that the person stopped is armed.
  • The Ninth Circuit has found the additional intrusion of a frisk unjustified in multiple cases.



Today, I thought I’d offer a little refresher on a Fourth Amendment issue that some of us may occasionally forget.  That’s a nuance of the “stop and frisk” Fourth Amendment practice which the Supreme Court upheld as constitutional in Terry v. Ohio, 392 U.S. 1 (1968).  Terry was actually the first case to recognize – at least in the criminal context – that the Fourth Amendment could allow a seizure on something less than probable cause.  What Terry recognized, of course, is that there can be a seizure short of an arrest – what we call an “investigative detention” or “Terry stop” – on mere “reasonable suspicion” of criminal activity, which is something less than the “probable cause” required for an arrest.  But see Terry, 392 U.S. at 35-39 (Douglas, J. [our hero], dissenting) (arguing that the Fourth Amendment permits no such animal).

The common reference to “stop and frisk” (emphasis added) that we hear after Terry suggests the two things – the stop of the suspect and the frisk of the suspect’s person – inexorably accompany each other.  But this overlooks an important nuance in the constitutional requirements which Terry implied and which its progeny expressly recognize – and which we need to keep in mind.  As put in United States v. Flippin, 924 F.2d 163 (9th Cir. 1991) and reiterated in United States v. Orman, 486 F.3d 1176 (9th Cir. 2007):

A stop-and-frisk under Terry constitutes two independent actions, each requiring separate justifications.  The stop must be based on a suspicion of criminal activity and the frisk on a reasonable suspicion that the person is armed.

Flippin, 924 F.2d at 165 n.2.  See also Orman, 486 F.3d at 1174 (quoting Flippin).  Or, as put alternatively in United States v. Thomas, 863 F.2d 622 (9th Cir. 1988):

A lawful frisk does not always follow from a justified stop.  Each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.  The standard for justifying a frisk is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger.

Id. at 628.  See also United States v. I.E.V., 705 F.3d 430, 434-35 (9th Cir. 2012) (quoting Thomas); Ramirez v. City of Buena Park, 560 F.3d 1012 (9th Cir. 2007) (also quoting Thomas).

These aren’t just words, moreover.  The Ninth Circuit has found frisks following otherwise justified stops improper because of a lack of reasonable suspicion the suspect was armed in a number of cases.  See, e.g., I.E.V., 705 F.3d at 439-40; Ramirez, 560 F.3d at 1022; United States v. Flatter, 456 F.3d 1154, 1158 (9th Cir. 2006); Thomas, 863 F.2d at 629-30.

So it’s not always stop and frisk.  Sometimes it’s just stop.  (And sometimes, of course, it’s not even that.)  Don’t forget this in your Fourth Amendment litigation.