5.2.1

• Jurisdiction: Arizona

§ 5.2.1 People

1. General Rule. An officer may frisk a suspect if he has an articulable reason to fear for his safety. State v. Garcia Garcia, 169 Ariz. 530, 801 P.2d 191 (App. 1991) (Div. 2); Terry v. Ohio, 392 U.S. 1 (1968) (“Any reasonable fear for safety is enough to conduct a frisk under Terry.”). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27. The lawfulness of a frisk is determined by examining the totality of circumstances. See State v. Primous, 239 Ariz. 394, 372 P.3d 338 (App. 2016) (Div. 1) (“based on the totality of the circumstances here, that the frisk was justified and the seizure of the marijuana was lawful”). “Companionship with a suspected criminal may, in view of the totality of the circumstances, justify a protective stop and frisk even absent a particularized reasonable suspicion that the person to be searched is committing or has committed a crime.” “The focus of the inquiry becomes officer and public safety.” “In assessing potential dangerousness, the police may consider factors such as the nature of the person’s companionship with a suspected criminal, the environment, and the number of officers present.” Primous, supra.

During a consensual encounter, under Arizona law, an officer may frisk only if there is reasonable suspicion of criminal activity, in addition to a fear for safety. State v. Serna, 235 Ariz. 270, 331 P.3d 405 (2014). The Ninth Circuit, however, has ruled that officers may frisk during a consensual encounter. United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007). See “Frisking During Consensual Encounter,” infra.

“[T]o justify a frisk of a passenger during a traffic stop, ‘just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.’” Gastelum v. Hegyi (Montgomery), 237 Ariz. 211, 348 P.3d 907 (App. 2015) (Div. 1) (finding frisk of passenger during traffic stop was lawful), quoting Arizona v. Johnson, 129 S. Ct. 781 (2009) (Supreme Court ruled that an officer who makes a lawful traffic stop may frisk any occupant of the vehicle, regardless of whether there is a reasonable suspicion that the occupant is involved in criminal activity, so long as the officer has reasonable suspicion that the person is armed and dangerous). However, “when an encounter between a police officer and an individual is not based on consent, and an officer has a reasonable suspicion both that criminal activity is afoot and that the individual is armed, the officer may conduct a Terry frisk without specifically assessing the likelihood that the individual is presently dangerous.” Id.

A Terry frisk permits an officer to “conduct a carefully limited search of the outer clothing” of a person. Terry, 392 U.S. at 27, 30. During a frisk, an officer may remove an item only if it feels like a weapon, unless the “plain feel” exception applies. Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1994). See “Plain Feel,” infra.

See also Illinois v. Wardlow, 528 U.S. 119, 122 (2000) (defendant in high crime area holding opaque bag fled upon seeing police; it was lawful for police to stop defendant and immediately conduct a protective patdown for weapons; officer testified that in his experience, it was common for there to be weapons in the near vicinity of narcotics transactions); United States v. Mattarolo, 209 F.3d 1123 (9th Cir. 1999) (officer stopped a vehicle after watching it leave a closed construction site in a remote location with a crate in the back; the officer’s frisk was reasonable); In re Tiffany O., 217 Ariz. 370, 174 P.3d 282 (App. 2007) (Div. 1) (“frisk” search of juvenile’s purse was not justified under facts of that case, where mother called 911 to state that her daughter had threatened to kill herself, officer saw daughter and then seized and searched the purse, but court found that danger was removed once the officer seized the purse; the dissent would have justified the search under the community caretaking function).

2. Frisking During Consensual...