From the majority's opinion:
¶ 11 Terry also addressed when police may perform a protective search, a limited patdown for weapons called a Terry frisk. Although a Terry stop and a Terry frisk are both seizures under the Fourth Amendment, these seizures have different justifications. A police officer may conduct a Terry stop if the officer has “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ “ United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30), or if the officer reasonably suspects the person detained committed a crime. See United States v. Hensley, 469 U.S. 221, 229 (1985). A Terry frisk, however, is allowed for personal safety reasons when an officer is dealing with a person the officer reasonably believes may be armed and dangerous. Terry, 392 U.S. at 24. Although a Terry frisk more often than not occurs during a Terry stop, nevertheless, the “two types of seizures are analytically distinct.” United States v. Davis, 202 F.3d 1060, 1062 (8th Cir.2000); United States v. Orman, 486 F.3d 1170, 1174 (9th Cir.2007) (Terry stop-and-frisk “constitutes two independent actions, each requiring separate justifications”) (quoting United States v. Flippin, 924 F.2d 163, 165 n.2 (9th Cir.1991))
¶ 16 That most Terry frisks are preceded by Terry stops does not make the former dependent on the latter. Consensual encounters can escalate; what begins as a benign conversation between a police officer and an individual can evolve and give rise to a reasonable suspicion that the individual is involved in criminal activity or, even if not involved in such activity, is armed and presently dangerous. We agree that the “danger to officer safety that justifies a protective search may arise after a consensual encounter or investigative stop” has begun. Davis, 202 F.3d at 1063. Thus, we also agree with the court's observation in Orman that “Terry did not cabin the use of officer safety patdowns to lawful investigatory detentions.” Orman, 486 F.3d at 1173. We therefore respectfully disagree with the conclusion reached by the panel in Ilono that in a consensual encounter, a police officer may not conduct a protective patdown of a person even if the officer has reasonable grounds to believe that person is armed and dangerous unless the officer also has reasonable suspicion the person is involved in criminal activity.5
¶ 17 The Supreme Court stated in Terry that “[t]he sole justification of the search in the present situation is the protection of the police officer and others nearby․” Terry, 392 U.S. at 29. Thus, a frisk is allowed because it serves to prevent injury. Requiring an officer to reasonably suspect criminal activity before he may protect himself would hinder the officer's ability to investigate suspicious behavior or even to assist a citizen in apparent need. Without the authority to perform a protective search, an officer in such a situation would be forced to avoid those he reasonably believes are dangerous but not necessarily engaged in criminal conduct. Of course, often an officer does not know that a person may be armed until after he has already initiated the consensual encounter. Without the authority to search a person he reasonably has come to believe is dangerous, the officer in such a situation is in a dilemma. He must then either end the encounter and walk away, requiring him to abandon his legitimate duties and expose himself to potential danger during his retreat, or he may continue the encounter in hopes of acquiring suspicion of criminal activity to justify a frisk, which places him in a dangerous situation without the ability to protect himself. The Supreme Court has cautioned that we should not “require that police officers take unnecessary risks in the performance of their duties.” Id. at 23.
The court is saying a Terry stop and a Terry pat down/frisk are two different things requiring separate justifications and the fact that an encounter is consensual doesn't present an Officer from conducting a pat down if he can justify it.
Here the Officer articulated he saw a bulge in a waistband, asked if Serna had weapons or drugs, and Serna said yes. He then did the pat down and removed the gun. They obviously articulated all the justifications for conducting the pat down otherwise the case would have gone away much earlier. It satisfied the trial court and the Appelate court with the totality of the circumstances. Now it remains to be seen whether the next court level does and how high it gets appealed.
Hey if you don't want to talk to a cop when he asks just say no and keep walking. A cop telling you to stop and one asking you to talk to him consensually are two different things.
Topic: Police "contact" apparently judicially redefined... (Read 12728 times)
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