Know Your Rights 101 – Stop and Frisk

Written by Jon, our fellow attorney and legal expert.

The best possible scenario for all of us is to avoid contact with the police completely. Whether we’re holding something illegal or have nothing to hide at all, studies show dealing with the police is stressful and causes anxiety regardless of the situation.

Of course, we don’t always have complete control over that. Many times, the police are engaging us, and here we’re going to run down your rights if the police stop you walking on the street.

Terry v. Ohio is a 1969 U.S. Supreme Court case standing for the proposition that if law enforcement officers have a “reasonable suspicion” that you are armed, they can pat you down for weapons.

stop and friskPractically speaking, over the years the case law has developed to pretty much give cops justification for patting you down under a variety of circumstances. Reasonable suspicion has basically turned into a free-for-all, with the police getting the benefit of the doubt the majority of the time.

As per usual, a cop can just tell a judge that he was patting someone down for officer safety and anything they find will be fair game.

However, there are a few things you can do to both minimize the chance you get patted down in the first place, and then still assert your rights to let them know you are not consenting to any search of your person.

  • The courts generally give officers some leeway to stop you and ask you some questions. Many jurisdictions make it a low level crime to refuse to give the police basic information (at least under certain circumstances) such as your name, date of birth, or address. Depending on where you are at, you should be aware of that limitation. Beyond that, if the police ask you any questions it doesn’t mean you have to answer them! As always, you can assert your right to silence, and tell the officers you won’t be answering any questions. Additionally, you can tell them you want an attorney present for any questioning.
  • When you are first stopped, ask if you are under arrest or ask if you are free to leave. The police are usually given a reasonable amount of time to ask some basic questions, but in order for them to detain you they must have a reasonable suspicion that you have committed some crime. Unless you ask them if you are free to leave, most courts will consider you speaking to them completely voluntary. If the police tell you that you’re not under arrest and are free to leave, walk away. No reason to stick around to see what could go wrong.
  • If the police say you are not free to leave, do not, under any circumstances, agree to let the police search your person. Even if they say they are going to pat you down for weapons or don’t bother saying anything at all as they begin to do so, still tell them that you do not consent to a search of your person. Like most situations, you need to actually tell them that, not just stay quiet if they ask you whether its okay or not.
  • Even if you think the police have no legal or justifiable reason to stop you, ask you questions, or search your person, do not argue or resist. The courts are the place to litigate whether or not the police are violating your constitutional rights, not on the street. The best thing you can do is be polite, clear and firm about the rights you are invoking. If you do it in a straight forward and reasonable way, most officers will not give you too much grief. They deal with a lot of people, and many (or some anyway) understand and respect that you have certain rights. Again, just assert those in the right way.

As always, I understand that these points are all made in a vacuum, and many officers are not patient and polite when you tell them you won’t cooperate. Not to be redundant, but getting aggressive or angry when dealing with them typically ends up bad for one person: you.

Stay cool, continue to assert your rights, and if you’re arrested keep your mouth shut and ask for a lawyer immediately.

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