Criminal law - Terry searches predicated on nothing more than reasonable suspicion that a suspect is armed and dangerous.

• Author: Cashman, David
• Position: Case note

In order to conduct a search or seizure of a person in the United States, the general rule is that law enforcement officers must first obtain a warrant. (1) the supreme Court has, however, recognized several exceptions to this rule, one of which allows an officer to conduct a limited pat-frisk of a person based on the officer's reasonable suspicion that criminal activity is afoot and the suspect is armed and dangerous--the "Terry doctrine." (2) In United States v. House, (3) the United States Court of Appeals for the Tenth Circuit had the opportunity to consider whether an officer engaged in a consensual encounter with a suspect must have reasonable suspicion that criminal activity is afoot as a prerequisite to conducting a Terry pat-frisk. (4) The majority opinion mistakenly decided not to address this issue, deciding the case instead on the grounds that the pat-frisk was unjustified because the officer lacked reasonable suspicion that the suspect was armed and dangerous. (5)

On the afternoon of November 20, 2009, Officer Aaron Daley visited a home to investigate a call concerning noises coming from a woman's basement. (6) Upon completing a brief investigation and concluding that no one had entered the woman's home, Officer Daley left the residence. (7) As he was walking to his car, he noticed the defendant, Joseph Paul House ("House"), walking on the sidewalk in the direction of the woman's home. (8) Simultaneously, Officer Daley noticed that as another patrol car approached the intersection where House was walking, House did an "immediate turnaround." (9) Suspicion aroused, Officer Daley followed and approached House at another intersection. (10)

Upon catching up to House, who was still walking on the sidewalk, Officer Daley asked, "[H]ey, can I talk to you, hey, can I ask you a few questions?" (11) House, who had been talking on his cell phone, ended his call and turned around to face Officer Daley. (12) As House turned around, Officer Daley noticed a large bulge in House's left coat pocket and the end of a folding knife protruding from his right coat pocket. (13) Officer Daley asked House if he had any weapons on his person, and House replied that he did not. (14) Officer Daley subsequently instructed House to place his hands behind his back and removed the knife from House's pocket. (15) Upon securing the knife, Officer Daley conducted a Terry frisk of House in "highly probable [areas] for weapons," ultimately removing a gun from House's other pocket. (16)

House was arrested and charged with being a felon in possession of a firearm. (17) Prior to trial, House moved to suppress the evidence of the gun, arguing that he was unlawfully detained and searched. (18) The district court denied his motion, reasoning that the encounter was consensual and the officer was therefore entitled to pat-frisk for his own safety. (19) House subsequently entered a conditional plea of guilty, and the court sentenced him to thirty-nine months imprisonment and three years supervised release for his offense. (20) House appealed the district court's ruling not to suppress the evidence of the gun, arguing that the encounter was not consensual and that Officer Daley could not lawfully frisk him because he lacked reasonable suspicion that House was engaged in criminal activity. (21) The Tenth Circuit rejected House's first point and opted not to address his second argument, but nevertheless reversed the district court's ruling because Officer Daley lacked reasonable suspicion to suspect that House was dangerous. (22)

The Fourth Amendment consists of two independent clauses--the Reasonableness Clause and the Warrant Clause. (23) Determining how the two clauses interrelate is a difficult task, and one with which the Supreme Court has struggled, because to decide the clauses' proper relationship is to decide the values and purposes of the amendment. (24) Traditionally, the Court reconciled the two clauses by indicating that the latter clause gave meaning to the former: that is, searches and seizures were reasonable when conducted pursuant to judicially authorized warrants supported by probable cause. (25) Only in extreme circumstances where exigencies made it impracticable for officers to obtain a warrant did the Court allow for warrantless searches and seizures in the name of reasonableness, and even then, the Court always required that officers have probable cause. (26) The Court's general warrant requirement supported by probable cause lent the amendment a high amount of predictability and gave greater protection to individual privacy. (27) In 1967, however, the Court laid the seeds for change in Camara v. Municipal Court, (28) holding that reasonableness, which was met when governmental need to conduct housing inspections outweighed individual privacy interests, satisfied the probable cause element of the warrant requirement. (29)

One year later in Terry v. Ohio, (30) the Supreme Court pushed the reasonableness clause further to the forefront of Fourth Amendment analysis, proclaiming that a non-emergency search and seizure did not require a warrant so long as it was reasonable. (31) The facts of Terry were rather unremarkable given the magnitude of the Court's holding: a veteran Cleveland police officer observed several men on a street corner whom he suspected to be casing a jewelry store in preparation for an attempted robbery. (32) Although the officer's suspicion did not quite rise to the level of probable cause, he felt compelled to intervene; so he stopped the men, pat-frisked each man for weapons, and recovered a pistol from the overcoat of one of the men--Terry. (33) Under the rubric of reasonableness, the Court balanced the governmental interest in crime prevention and officer safety against the individual interest in privacy, holding that an officer is constitutionally permitted to stop and frisk a defendant whom he has reasonable suspicion to believe is engaged in criminal activity and is armed and dangerous. (34) The Court's decision was a bold step in allowing greater governmental intrusion into individual privacy, yet it took care to cabin the effect of its holding by stating that the stop must be reasonable at its inception, and that the frisk must be limited to search for weapons when the suspect is reasonably believed to be armed and dangerous. (35)

The balancing test that the Court employed in Terry subsequently proved to be somewhat unwieldy for lower courts, which struggled to apply the inherently subjective analysis in ways that produced consistent, predictable results. (36) Consequently, the Court has been called upon to explicate Terry principles in a number of subsequent cases; in so doing, it has provided clarification of the requisite level of suspicion necessary to conduct the stop and the frisk as well as the proper parameters of the stop and the frisk in myriad factual circumstances. (37) Analysis of the Court's jurisprudence subsequent to Terry reflects several trends, the combined effect of which has been to give police ever more leeway in their encounters with individuals: 1) the Court has broadened the bounds of permissible Terry stops, and generally loosened the reasonable suspicion standard, making it easier for officers to detain individuals; 2) the Court has made it easier to categorize an encounter as "consensual," and therefore not subject to any Fourth Amendment regulation; and 3) the Court has generally given officers more flexibility to take measures to ensure their safety, including allowing pat-frisks in circumstances beyond the scope of those considered in Terry. (38) Although the Court has consistently broadened the applicability of Terry, and shown increased deference to promote officer safety, it has never squarely decided the constitutionality of pat-frisks in the specific context of consensual encounters between officers and citizens on the street. (39) As such, there has been a split of opinion among lower courts--some have held that reasonable suspicion of criminal conduct is a necessary prerequisite to pat-frisk, while others have ruled that pat-frisks based entirely on suspicion that a person is armed and dangerous are permissible. (40)

In United States v. House, the Tenth Circuit had the opportunity to decide an important and contentious Terry issue--whether officers may pat-frisk suspects during consensual encounters on the street in the absence of articulable suspicion of criminal activity. (41) The court declined to decide the issue, reasoning that it could decide the issue on other grounds-- namely, that the pat-frisk was unconstitutional because there was no evidence indicating that House was dangerous at the time of the frisk. (42)

The court disagreed with the government's assertion that there was Tenth Circuit precedent stating officers may pat-frisk absent suspicion that criminal activity is afoot, but indicated that because that issue was not material to its holding, it would assume (without deciding) that officers may pat-frisk based solely on safety concerns. (43)

The dissent countered that the majority mistakenly, and somewhat cavalierly, decided that House did not pose a threat at the time he was frisked. (44) The dissent noted that Officer Daley reasonably deemed House a danger to public safety, so it was forced to address the issue of whether officers may frisk suspects in the absence of reasonable suspicion of criminal activity. (45) To set up its argument, the dissent pointed out that the Supreme Court simply had not addressed the issue: although Justice Harlan's concurring opinion in Terry stated that a frisk depended upon a valid stop, Harlan's view did not "win the day." (46) Moreover, the dissent noted that while the Terry majority did treat the "stop and frisk" as essentially a single transaction, it offered different rationales for the "stop" and the "frisk"--whereas effective crime prevention and detection justified the stop, officer...