Terry Frisk Requires Reasonable Suspicion of Dangerous Item

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United States v. Weaver, 2020 WL 5523210 (2nd Cir. 2020)

Three officers in an unmarked car saw Calvin Weaver walking along the street in a high-crime area. As they passed Weaver, he stared into their car. Weaver walked up to a gray sedan, got in the front passenger seat and drove away.

A short time later, the officers saw the gray sedan at an intersection. Observing a turn signal violation, the officers stopped the car. As one of the officers approached the car, he noted, “from my vantage point I can see into the cabin of the vehicle clearly, I see [Weaver] with both hands kind of pushing down on his pelvic area and squirming kinda in the seat left and right, shifting his hips.” The officer told Weaver to show his hands, which he did, and Weaver commented, “I don’t got nothin.”

The officer directed Weaver to get out of the car and to place his hands on the car for a frisk. Three times, as the officer began the frisk, Weaver “thrust his pelvic area against the rear quarter panel of the vehicle.” The officer handcuffed Weaver, pulled him away from the vehicle and conducted a pat frisk of his waist and front pockets. The officer felt a “slight small bulge” in Weaver’s front pocket. He reached into Weaver’s pocket and pulled out a white powdery substance that field tested as cocaine. Continuing the frisk, the officer felt something hard in Weaver’s groin area.

The first officer asked a second officer to frisk Weaver. The second officer also felt something hard in Weaver’s groin. He unzipped Weaver’s pants and saw that Weaver had “long john underwear on underneath [his pants] with … a button on the fly.” Unbuttoning the fly, the officer found a loaded gun inside the underwear fly.

Though this was, in my opinion, a close call for the court, the case is a good reminder that the Terry frisk doctrine requires reasonable suspicion the person is holding a weapon or some other dangerous object.

Weaver was charged with being a felon in possession of a firearm, possession of a firearm with a removed serial number and possession of cocaine. Weaver asked the trial court to suppress the evidence, arguing the officers lacked reasonable suspicion to conduct a frisk.

The “Terry frisk” doctrine is a very limited and narrow exception to the Fourth Amendment warrant requirement. An officer may conduct a pat-down frisk of a person only when the officer reasonably believes the person to be armed and presently dangerous to the officer or others. Even before the frisk, the officer must have a legitimate reason to stop the person. There is only one lawful purpose to a Terry frisk: to remove weapons that threaten the officer or others (Michigan v. Long, 463 U.S. 1032 (1983)). A Terry frisk is not intended to explore for drugs or other contraband.

The trial court denied Weaver’s motion to suppress. The court of appeals reversed. The court held that while the officer might have reason to suspect Weaver was hiding something in his pants, he had no reason to suspect the something was dangerous, as is required to conduct a Terry weapons frisk. Thus, the evidence found during the frisk must be suppressed and the conviction reversed. Though this was, in my opinion, a close call for the court, the case is a good reminder that the Terry frisk doctrine requires reasonable suspicion the person is holding a weapon or some other dangerous object.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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