To Stop and Presume: Balancing a Per Se Right to Frisk Suspected Narcotics Traffickers on the Fourth Amendment Scales

• Author: Joshua Lewis
• Position: J.D./B.C.L., May 2005, Paul M. Hebert Law Center, Louisiana State University
• Pages: 865-880

Page 865

I Introduction

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint and interference of others, unless by clear and unquestionable authority of law."¹ Justice Horace Gray of the Supreme Court of the United States wrote these words in 1891; they reflect a vision of freedom of privacy that is not seen today. Justice Gray's expounded guardianship arguably lacked fortitude. Or perhaps his inability to foresee modern dangers which necessitate restraints on freedom of privacy caused him to explicate a vision of freedom of privacy that is now rightfully considered naive. Whatever the case, rights to freedom of privacy are now more limited, and often times these limitations are imposed by courts in the absence of clear and unquestionable authority of law.

This comment points out fundamental flaws in two cases, decided by the Louisiana Supreme Court, that endorse a per se right to frisk those reasonably suspected of narcotics trafficking.² The endorsement is predicated on Terry v. Ohio,³ but is an unconstitutional expansion of the police authority granted in that case. First, this paper discusses the constitutional analysis used to justify searches and seizures without warrants, and subsequently, searches and seizures without probable cause. Then, this paper discusses the Terry requirements and rationale in order to determine whether the holding is elastic enough to justify a per se right to frisk. Next, this paper discusses the decisions of the Louisiana Supreme Court that endorse the per se right to frisk as a justifiable extension of Terry.⁴ These cases are discussed in order to highlight the flaws in the Court's methodology when endorsing the per se right, and also to highlight the breadth of authority granted the police by a per se right to frisk. Subsequently, this paper discusses the dangers of a per se right to frisk in light of Minnesota v. Dickerson.⁵ In Dickerson, the United States Supreme Court held that police may seize non-Page 866threatening contraband discovered in a weapons frisk under a "plain feel" exception to the Fourth Amendment. Taken in combination with the "plain feel" doctrine, a per se right to frisk narcotics traffickers encourages police to conduct drug frisks rather than weapons frisks. The objective of Terry is to afford police flexibility in responding to danger; encouraging drug frisks does not advance this objective.⁶ This paper then evaluates the likelihood that the Supreme Court's decision in Richards v. Wisconsin⁷ precludes a finding that a per se right to frisk is constitutional. Finally, this paper discusses the implications of dicta found in the Supreme Court decision of Florida v. J.L.⁸ Although the Court's decision evidences a potential willingness to allow a per se right to frisk, because it is dicta, it is not controlling.

II Background

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.⁹ The amendment has spawned much debate regarding whether the two clauses of the Fourth Amendment stand alone, or whether the second Warrant Clause modifies the first Reasonableness Clause.¹⁰ The ambiguity of the Fourth Amendment raises two questions: (1) whether a warrant is required before any search and/or seizure can validly take place and (2) whether, if a warrant was not required, probable cause is necessary for a valid search and/or seizure. In the seminal case of Terry v. Ohio,¹¹ the Supreme Court of the United States answered the question of whether, under the Fourth Amendment, a police officer must always have either a warrant or probable cause to arrest someone before seizing them and subjectingPage 867 them to a limited search for weapons. The Court held that certain searches and seizures, euphemistically termed "stop and frisks," can be made upon "reasonable suspicion," which is something less than probable cause.¹²

The constitutionalization of a probable causeless search and seizure required the Supreme Court to shift fundamentally away from traditional Fourth Amendment analysis. To effect this shift, the Court replaced a bright line test with a balancing test that lower courts could use to determine the reasonableness of Fourth Amendment searches and seizures.¹³ The test weighs the government's interest in conducting a search and seizure against the privacy rights encroached upon by conducting it.¹⁴ Since Terry, the steadily declining weight of freedom of privacy has tipped the judicial scales in favor of broad police authority to "stop and frisk." The ever expanding police power to "stop and frisk" does, however, have its limits. Consequently, lower courts must take a more complex analytical approach when asked to evaluate the reasonableness of a search and seizure. After all, there is nothing more dangerous to freedom of privacy, nor more inconsistent with the Fourth Amendment, than rubber stamping any and all searches and seizures as reasonable.

III Terry v. Ohio

The analytical framework provided by the Supreme Court in Terry v. Ohio is too often misunderstood as a broad and flexible formula. While Terry obviously does expand police authority to "stop and frisk," the authority is only triggered by specific facts and circumstances. Therefore, because the Louisiana Supreme Court's per se right to frisk provides for searches and seizures in the absence of Terry's requirements, the per se right stands on unconstitutionally thin ice.

In Terry, a Cleveland Police Department detective frisked three men after stopping them in order to investigate whether they were planning an armed robbery.¹⁵ Terry was convicted of carrying aPage 868 concealed weapon.¹⁶ The Terry Court was asked to evaluate whether the "stop and frisk" violated Terry's constitutional rights under the Fourth Amendment.¹⁷ The Court emphatically rejected the notion that an investigatory stop was not a seizure, as well as the notion that a frisk was not a search, thus rejecting the notion that either act was outside of the purview of the Fourth Amendment.¹⁸ The analysis then turned to whether the seizure and subsequent search were reasonable.¹⁹ The Court formulated a reasonableness test which balanced the governmental interest served by allowing a search and seizure against the intrusion upon privacy rights of the citizen.²⁰ Using that test, the Court found that the governmental interest in general crime prevention outweighed the relatively minor intrusion upon the rights of the citizen seized in an investigatory stop.²¹ Additionally, although the Court found that a frisk was a more serious intrusion than an investigatory stop, the Court held that the intrusion was outweighed by the interest police have in ensuring their safety.²²

The Terry Court determined that a police officer may, in appropriate circumstances and in an appropriate manner, without probable cause to arrest, approach a person for purposes of investigating possibly criminal behavior.²³ The officer must, though, be able to point to specific and articulable facts which, taken together with rational inferences from those facts, lead the officer reasonably to conclude in light of his experience that criminal activity is afoot.²⁴ Furthermore, the Court concluded that when such a seizure is made, "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer."²⁵ The officer must, however, be justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others.²⁶ The Court emphasized that because the sole justification for the search is to protect police and others nearby, it must be carefully limited in scope to a search of the outer clothing designed to discover possiblyPage 869 dangerous weapons.²⁷ Lastly, the Court required that a judge evaluate whether the officer was reasonable in his belief that the person he frisked might be armed and dangerous.²⁸ The standard of review is objective, so the judge should evaluate whether the circumstances would lead a man of reasonable caution to believe that the person searched was armed and dangerous.²⁹

IV The Per Se Rule

A The Louisianian Origins of the Per Se Right to Frisk

Terry requires a police officer to have individualized suspicion that the person he is investigating is armed and dangerous before he may conduct a weapons frisk. The officer's suspicion must be based on specific and articulable facts, and must be found reasonable by a judge based on an objective standard. The structure of Terry implies that the Supreme Court intended both the stop and the frisk be evaluated on a case by case basis in order to determine the reasonableness of police conduct in light of the facts. Justice Harlan, concurring in Terry, enunciated a divergent view. Justice Harlan urged that where an investigatory stop is reasonable, the right to frisk should be immediate and automatic if the reason for that stop is "an articulable suspicion of a crime of violence."³⁰ Soon after Terry, courts following Justice Harlan's logic broke away from the case by case model. These courts began to view the association between...