Section 9.34 Protective Frisk

• Library: Criminal Practice 2012 Supp

b. (§9.34) Protective Frisk

When an individual has not been arrested but is merely detained, no automatic right to search arises. The police may frisk a person who has been stopped only when there is reason to believe, based on specific and articulable facts, that the individual is armed and dangerous or otherwise poses a threat of injury to the police. Terry v. Ohio, 392 U.S. 1, 27 (1968); State v. Preston, 861 S.W.2d 627, 631 (Mo. App. E.D. 1993); State v. Hutchinson, 796 S.W.2d 100, 104 (Mo. App. S.D. 1990). The test 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.” State v. Kovach, 839 S.W.2d 303, 313 (Mo. App. S.D. 1992). The purpose of a frisk is limited to protection of the police and third parties, and the scope of the frisk is, therefore, limited to items such as “guns, knives, clubs, or other hidden instruments for the assault of the police officer.” State v. Caudle, 884 S.W.2d 81, 84 (Mo. App. S.D. 1994) (quoting Hutchinson, 796 S.W.2d at 104).

The factual inquiry necessary to determine whether a reasonable belief exists to justify a frisk requires consideration of a combination of facts. Kovach, 839 S.W.2d at 313. In Preston, 861 S.W.2d 627, the presence of a numerically disadvantaged officer in a high-crime area confronted by a suspect thought to be under the influence of PCP was deemed sufficient. Although, because officer safety is involved, courts appear to be somewhat liberal in finding a risk of danger to the police, they have been unwilling to allow frisks when “the record is devoid of facts articulated by [the officer] as to why he believed the defendant was dangerous or might easily gain access to weapons.” Hutchinson, 796 S.W.2d at 105. Missouri court decisions have...