B Stop and Frisk

• Library: Illinois Decisions on Search and Seizure (2017 Ed.)

B. Stop and Frisk

1. Justification for Stop and Frisk

"Reasonable and Articulable Suspicion" that defendant is armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968) (holding that a limited search of outer clothing for weapons based on articulable suspicion that the individual is armed and dangerous to the officer or to another person, following a lawful stop based on articulable suspicion of criminality, is constitutional. It is limited in time and scope to allow the police to determine the presence of weapons and to neutralize the danger posed there. Here, at the time of the stop and frisk the police officer lacked probable cause to arrest the defendant. However, the police officer had reasonable suspicion, based upon experience and observation, that the defendant was about to commit a daytime robbery, and that the defendant was presently armed, dangerous, and posed a threat to anyone in the vicinity. In order for the initial stop to be valid there must be a reasonable and articulable suspicion that criminal activity is afoot. In addition, in order for the frisk to be constitutional, the police must reasonably suspect that their safety or the safety of others is at risk. Here, the stop of the defendant and the frisk of his overcoat, which produced the weapon were within constitutional limits).

2. Purpose of Frisk

a. A "frisk" is justified only if officer motivated by search for weapons. Sibron v. New York, 392 U.S. 40 (1968) ("frisk" of pedestrian for heroin violative of 4th Amendment).

b. A frisk is justified only if officer reasonably believes defendant is dangerous. People v. Flowers, 179 Ill. 2d 257, 688 N.E.2d 626 (1997) (even though investigatory stop of bicyclist may have been valid, frisk of individual impermissible where officer testified he had no reason to believe individual armed); People v. Conard, 213 Ill. App. 3d 1068, 572 N.E.2d 1203 (3d Dist. 1991) (although suspicious activity warranted stop of pedestrian, frisk of person where there was "little evidence" two officers were somehow endangered invalid).

3. Proper Scope of Frisk

a. Frisk of suspect's person. Terry v. Ohio, 392 U.S. 1 (1968) (suspect's outer clothing).

b. Search of articles within suspect's reach. People v. Wilson, 141 Ill. App. 3d 156, 490 N.E.2d 701 (1st Dist. 1986) (duffle bag defendant had dropped properly searched following radio message he had gun); People v. Berry, 54 Ill. App. 3d 647, 370 N.E.2d 26 (1st Dist. 1977) (search of jacket defendant had thrown to ground properly searched following report he had a gun).

c. Frisk of companions is impermissible unless reasonable suspicion of weaponry extends to companion. People v. Trice, 56 Ill. App. 3d 849, 372 N.E.2d 699 (3d Dist. 1978) (search of drug trafficking suspect's female companion's coat impermissible where companion herself not suspicious).

d. Officer neither obligated to specify offense he suspects defendant is involved in before conducting frisk nor required to orally announce status as officer, where visual recognition would identify his office. People v. Freeman, 219 Ill. App. 3d 240, 579 N.E.2d 576 (3d Dist. 1991) (where search of prowler reputed to carry gun upheld).

4. Basis for Stop and Frisk Existed

People v. Smithers, 83 Ill. 2d 430, 415 N.E.2d 327 (1980) (holding that Terry stop justified where officer, responding to call that there had been a disturbance and that there was a "man with a gun" at a local tavern, saw a man walking toward him who reversed directions and headed towards the tavern's rear exit and the bartender indicated that the man had been involved in a fracas).

People v. McGowan, 69 Ill. 2d 73, 370 N.E.2d 537 (1977) (defendant and companion, wearing dark clothing, seen by police officers in early morning hours in commercial area plagued by burglaries, that was largely deserted except for tavern that was about to close; frisk upheld where trial court made finding that basis for believing defendants were armed existed).

People v. Fox, 2014 IL App (2d) 130320, 11 N.E.3d 408 (A police dispatch was sent out given the descriptions of two individuals involved in a burglary of a local smoke shop. An officer saw two individual walking alone at night that he believed matched the description and stopped the two individuals. He asked them to place their hands on the hood of the police vehicle. As he began to search the first subject, three additional officers arrived on scene. The officer instructed one of his fellow officers to perform a search off the defendant. The search resulted in the finding of a jar on the defendant's person that contained items taken in the burglary. The defendant was then charged with burglary and other related crimes. The defendant filed a motion to quash his arrest and suppress evidence, arguing that the police's search was unreasonable because there was no basis for a belief that he presented a danger to the officers or to others. At the suppression hearing, the officer testified that he searched the defendant and the other individuals for several reasons: one suspect initially looked around as if about to flee; it was nighttime; he was outnumbered by the suspects; and that in his experience robbery suspects were typically armed. The trial court held that it was reasonable for the officer to have conducted the search and denied the defendant's motion. At a subsequent trial the defendant was found guilty of burglary and other related charges. The defendant appealed the verdict arguing that the trial court erred in denying his motion to quash his arrest and suppress evidence. HELD: The first issue is whether a valid Terry stop occurred and the defendant conceded that the initial stop was justified. However, evidence justifying a stop will not necessarily justify a search. The second issue was whether the Terry search or frisk was justified. For a Terry search to be justified an officer needs reasonable, articulable suspicion that the defendant may be armed. The State argued that the one suspect initially looking around as if to flee and the time of night justified the search. The fact that one suspect looked around as if to flee was significantly undercut by the complete compliance of both suspects throughout the stop, and was therefore not a valid reason. The time of night alone is not enough for a search, but may be one of several factors leading to a search. The fact that the suspects originally outnumbered the officer does not support a search of the defendant because three additional officers had arrived before the search of the defendant had been performed. The State relied on United States v. Snow, 656 F.3d 498 (7th Cir. 2011), which held that a search based solely on the fact that a person was suspected of burglary was sufficient. However Snow is inconsistent with Illinois law. "Nothing in the behavior of defendant or the other suspect gave rise to a reasonable suspicion that they were armed and dangerous." Thus, the search was not valid and, as such, the trial court's judgment must be reversed and the case remanded for a new trial without the illegally obtained evidence.)

People v. Boswell, 2014 IL App (1st) 122275, 10 N.E.3d 223 (A woman approached two officers standing outside their unmarked vehicle and informed that that a man was selling narcotics at a specific location and gave a description of the man. The two officers then proceeded to the specified location, an area known for narcotics, and saw a man fitting the description given by the woman. The officers then observed the man clasp hands with another person. The officers did not see an exchange of money or any other objects. Based on the information the officers received from the woman and the man's actions, the officers approached him and began a pat down of the defendant. During the pat down, the defendant admitted that he had heroin on him. The officers then recovered heroin and codeine from the defendant's person. Defendant was arrested for possession of a controlled substance. At the later motion to suppress hearing, one of the officers stated that in his experience "drugs and guns go together." The trial court held the Terry stop valid because the officers had "reliable and accurate information." Further, the Terry frisk was justified because the officers observed what they believed to be a drug transaction and then the defendant provided further probable cause through his statement. A further rehearing upheld the search. The defendant appealed contending that the trial court erred in denying his motion to suppress evidence because the police lacked reasonable suspicion to stop and frisk him. The State argued that the officers had reasonable suspicion to stop and frisk defendant, and that, after defendant admitted he had drugs on his person, they had probable cause to arrest him and search his pockets incident to arrest. The State did not claim that probable cause existed prior to defendant's admission that he was in possession of narcotics. HELD: Assuming the Terry stop was justified, the Terry frisk of the defendant was not valid. The defendant was merely standing on a public street and neither officer observed him in possession of any drugs, the defendant did not make...