D "frisks" for Weapons
Library | Illinois Decisions on Search and Seizure (2017 Ed.) |
D. "Frisks" for Weapons
1. Justification for Frisk.
"Reasonable and articulable suspicion" that defendant is armed and dangerous. Michigan v. Long, 463 U.S. 1032 (1983) (protective search of passenger compartment of lawfully stopped motor vehicle for weapon upheld); v. Williams, 407 U.S. 143 (1972) (tip by known informant that suspect was carrying gun and narcotics justified officer's limited search of suspect in parked automobile on street).
2. Purpose of Frisk
a. A frisk is justified only if officer motivated by search for weapons. Michigan v. Long, 463 U.S. 1032 (1983) (search of passenger compartment is limited to those areas where weapon may be hidden).
b. A search for weapons is justified only if officer reasonably believes suspect is dangerous. People v. Zamora, 203 Ill. App. 3d 102, 560 N.E.2d 1053 (1st Dist. 1990) (in absence of police testimony articulating basis for reasonable suspicion that their safety in danger, police search of vehicle for weapons impermissible); People v. Kelly, 76 Ill. App. 3d 80, 394 N.E.2d 739 (5th Dist. 1979) (removal of tire iron from defendant's car impermissible where (1) defendant's conduct involved "mere passive, non-culpable" traffic offense and (2) the presence of the tire iron in the vehicle was not a crime violative of Fourth Amendment); People v. Dotson, 37 Ill. App. 3d 176, 345 N.E.2d 721 (1st Dist. 1976) (after defendant's car stopped for traffic infraction, defendant's placing of hands in pocket did not justify officer's risk given officer's statement that he did believe defendant was going to attack him).
3. Proper Scope of Frisk
a. Frisk of suspect's person. Adams v. Williams, 407 U.S. 143 (1972) (search of suspect's waistband proper); People v. Cleaves, 169 Ill. App. 3d 252, 523 N.E.2d 720 (5th Dist. 1988) (officer properly looked under clothing the defendant-bicyclist was holding to determine if weapon present); People v. Christensen, 198 Ill. App. 3d 168, 555 N.E.2d 746 (4th Dist. 1990) (officer properly removed bag from defendant's pocket to determine if weapon present; "Terry did not limit a search for weapons to a pat down search...."); People v. Salvator, 236 Ill. App. 3d 824, 602 N.E.2d 953 (4th Dist. 1992) (where during vehicle stop defendant's suspicious behavior prompted pat-down, officer's opening of cigarette flip-top box was justified because it had feeling of a hard object of substantial size").
b. Search of passenger compartment and containers. Michigan v. Long, 463 U.S. 1032 (1983) (where suspect is within or was "recent" occupant of motor vehicle, officer may search for weapons in any area of passenger compartment and containers therein where weapons could be located); People v. Froio, 198 Ill. App. 3d 116, 555 N.E.2d 770 (2d Dist. 1990) (search of plastic Tupperware bowl for weapon, which actually contained cannabis, found in passenger compartment upheld under Long); People v. Houldridge, 117 Ill. App. 3d 1059, 454 N.E.2d 769 (4th Dist. 1983) (fact that area of the passenger compartment searched is not within actual physical reach of defendants is "irrelevant" according to facts of Long).
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). Compare People v. Myers, 246 Ill. App. 3d 542, 616 N.E.2d 633 (3d Dist. 1993) (police were justified in detaining defendant for 5-7 minutes and conducting a pat-down protective search of defendant for weapons after defendant's companion was arrested for having a weapon in vehicle); People v. Assenato, 186 Ill. App. 3d 331, 542 N.E.2d 457 (2d Dist. 1989) (after stopping defendant for traffic violations, officer recognized defendant as suspect in murder investigation and reputed organized crime figure and drug dealer, officer observed defendant passing object to passenger, defendant known to carry a gun, and passenger was seen manipulating an object in her waistband; frisk upheld).
d. Ordering occupants out of car - permissible even without reasonable suspicion. Maryland v. Wilson, 519 U.S. 408 (1997) (passengers); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (driver); People v. Salvator, 236 Ill. App. 3d 824, 602 N.E.2d 953 (4th Dist. 1992) (passenger); People v. Bradi, 107 Ill. App. 3d 594, 437 N.E.2d 1285 (2d Dist. 1982) (passenger).
4. Illustrations of Where Basis for Frisk Existed
Arizona v. Johnson, 555 U.S. 323 (2009) (Three gang task force officers patrolling a neighborhood with a known gang presence pulled over the car in which the defendant was a passenger for having a suspended registration. The officer questioning the defendant noticed that he was wearing clothing consistent with gang membership and also saw a police scanner is his front pocket. The defendant provided his name, his date of birth, what community he was from, and that he had served time in prison for burglary, but did not have identification on him. The officer knew the community the defendant mentioned to also have a gang presence. The officer wanted to talk to the defendant away from the other passenger to try to gain some intelligence about what gang he might be in, so the officer asked him to get out of the car. The officer suspected that the defendant might be armed based on her observations of and interactions with the defendant, so the officer patted down the defendant. During the pat down, the officer felt a gun near the defendant's waist; the defendant began to struggle and was handcuffed and charged with possession of a weapon by a prohibited possessor. The defendant moved to suppress the evidence based on the legality of the search. The trial court denied the motion and the defendant was convicted. The Arizona Court of Appeals subsequently reversed, reasoning that, initially, defendant was lawfully seized incident to the legitimate stop of the car in which he was a passenger, but concluded the encounter evolved into a consensual conversation about his gang affiliation. Therefore, the officer had no right to effectuate a pat down even if she had reason to believe defendant was armed and dangerous. In other words, when the officer began questioning unrelated to the traffic stop in what was now a consensual encounter, the...
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