§ 17.06 Weapons Searches: Of Persons

• Jurisdiction: North Carolina

§ 17.06 Weapons Searches: Of Persons¹⁰⁹

[A] Permissibility

Terry v. Ohio authorizes, on the basis of reasonable suspicion, two categories of police actions: a brief seizure of a person for investigatory purposes and, after a lawful seizure, a "pat down" or frisk of the individual for weapons if certain conditions are met. As for the conditions, first, the officer must reasonably suspect that the person is "armed and presently dangerous."¹¹⁰ Second, the Terry Court seemed to suggest that an officer must use the least intrusive means to protect himself: The officer must investigate first, and only frisk the suspect if "nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety."¹¹¹

In contrast, Justice Harlan argued in his concurrence in Terry that the right to conduct a weapons search of a detained suspect is immediate and automatic if the basis for the seizure is that the officer believes that violent crime is afoot. In other words, assuming that an officer was justified in seizing the suspect for investigation of a violent crime, the officer should not be required to jeopardize her safety by questioning the suspect before she conducts a weapons search.

The Supreme Court's treatment of the facts in Adams v. Williams¹¹² suggests that Justice Harlan's view has been accepted. In Williams, an officer received information that W was sitting in a parked car, carrying narcotics, with a handgun concealed at his waist. The officer confronted W, after which he seized the gun without asking W any questions that might have dispelled his concern. The Court upheld the conviction, without commenting on the language in the Terry majority.

[B] Method

[1] Pat-Down (Frisk)

Terry did not mandate a particular weapons-search procedure, although it approved the one conducted in that case. In Terry, O patted down the exterior of T's clothing. Upon feeling a weapon, O searched T's pocket and pulled out the weapon. In contrast, in Sibron v. New York,¹¹³ a companion case to Terry, the Court disapproved a search in which the officer thrust his hand into the suspect's pocket without first frisking him.

Notwithstanding Sibron, a pat-down is not always a prerequisite to a valid weapons search. Rather obviously, if a suspect whom the officer has reason to believe is armed and dangerous suddenly moves her hand into a pocket or under a piece of clothing that might contain a weapon, the officer need not jeopardize herself by conducting...