By: David Waksman
Assistant State Attorney
Miami-Dade County, FL
In Terry v.
Ohio,
which was decided by the United States Supreme
Court in 1968, the Stop and Frisk was
legalized and became a part of the lexicon of
American law enforcement. The need to protect
the nation’s police officers, as well as the
public was finally recognized.
Detective Martin
McFadden, a thirty-nine year veteran of the
Cleveland, Ohio, Police Department, assigned to
the downtown beat for thirty years, saw three
men walking back and forth in front of the same
store numerous times. He testified that he
suspected they were casing a stick-up.
The officer testified that he only patted the
men down to see whether they had weapons; he
did not put his hands beneath their outer
garments until he felt guns on two of them.
Recognizing the need to
protect the officer, the court stated:
Certainly it would be unreasonable to
require that police officers take unnecessary
risks in the performance of their duties.
American criminals have a long tradition of
armed violence, and every year in this country
many law enforcement officers are killed in the
line of duty, and thousands more are wounded.
Striking a
balance between those risks to our police
officers, with the rights of our citizens, they
went on to hold:
Our evaluation of the proper balance that
has to be struck in this type of case leads us
to conclude that there must be a narrowly drawn
authority to permit a reasonable search for
weapons for the protection of the police
officer, where he has reason to believe that he
is dealing with an armed and dangerous
individual, regardless of whether he has
probable cause to arrest the individual for a
crime. The officer need not be absolutely
certain that the individual is armed; the issue
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.
Now that we know when we can pat down a
person, how about his car --- or his house ---
or someone near him? Let’s follow the cases
and see where they take us.
In Michigan v. Long,
the court applied the principles of Terry
in the context of a vehicular roadside
encounter stating:
The search of the passenger compartment of
an automobile, limited to those areas in which
a weapon may be placed or hidden, is
permissible if the police officer possesses a
reasonable belief based on specific and
articulable facts which, taken together with
the rational inferences to be drawn from those
facts, reasonably warrant the officer in
believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.
The court in Long took that language
right out of Terry v. Ohio.
Let's see what those facts were:
Deputy Sheriffs Howell and Lewis were on patrol
in rural Barry County, Michigan, when they
observed a speeding and erratically driven car
go into a ditch shortly after midnight. When
the deputies approached the scene of the
accident, they met David Long at the rear of
the car. The driver’s door was open. He was
the only person present. Long had difficulty
responding to repeated requests to produce his
driver’s license and registration and appeared
to be ‘under the influence of something.’ As
Long started walking towards the open car door,
the deputies followed and observed a large
hunting knife on the floorboard of the driver’s
side of the car. They shined their flashlights
into the car and saw ‘something’ protruding
from under the armrest. Their intention was
‘to search for other weapons.’ At this point,
Deputy Howell entered the vehicle to examine
the armrest, and saw a pouch of marijuana on
the front seat. After Long was convicted, he
asked the U.S. Supreme Court to determine ‘the
authority of a police officer to protect
himself by conducting a Terry-type
search of the passenger compartment of a motor
vehicle during the lawful investigatory stop of
the occupant of the vehicle.’
The Supreme Court, building upon Long
and
Terry, held:
We conclude that the Fourth Amendment would permit the protective sweep
undertaken here if the searching officer
possessed a reasonable belief based on specific
and articulable facts which, taken together
with the rational inferences to be drawn from
those facts, reasonably warranted the
officer in believing that the area swept
harbored an individual posing a danger to the
officer or others.
They further explained:
A 'protective sweep' is a quick and limited
search of a premises, incident to an arrest and
conducted to protect the safety of police
officers or others. It is narrowly confined to
a cursory visual inspection of those places
in which a person might be hiding.
Since the running suit was in plain view where
the officer had a legal right to be, its
seizure was lawful.
Let’s extend this a bit. Suppose Buie was not
in his home, but arrested in the neighborhood
tavern. Who else could you
pat down
there? An earlier case,
Ybarra v. Illinois,
gives us the answer.
In March of 1976, a special agent of the
Illinois Bureau of Investigation applied for
and received a search warrant for the Aurora
Tap Tavern, in Aurora, Illinois. The warrant
was to search the tavern and the bartender, one
“Greg, a white male with blond hair, about 25
years of age,” for tin foil packets of heroin
that “Greg” was alleged to be selling in the
tavern.
On the date the warrant was issued, seven or
eight officers entered the tavern and announced
that all present would have to submit to a
‘cursory search for weapons.’ One officer
patted down 9 to 13 customers while the
remaining officers conducted the search of the
premises. Ventura Ybarra was found to have a
‘cigarette pack with … six tin foil packets of
heroin in it.’
Upon entering the tavern, the police did not
recognize Ybarra and had no reason to believe
he was committing a crime. He made no
gestures indicative of criminal conduct, and
made no movements that might suggest an attempt
to conceal contraband, and said nothing
suspicious to the officers. His hands
were empty and the police had no reason to
believe he might assault them. All the
police knew about Ybarra was that he was in a
public tavern at a time when the police
believed the bartender was selling heroin.
(Compare his actions to those of Terry and his
associates.)
The court held that, even though the police had
a search warrant to search the tavern and
Ybarra was in the tavern at that time,
neither a person’s mere presence in that
tavern, nor his closeness to the person to be
searched (Greg) gives rise to probable cause to
search that person.
There was no probable cause
particularized
to Ybarra. The court explained:
Each
patron who walked into the Aurora Tavern … was
clothed with the constitutional protection
against unreasonable search or … seizure….
Although the search warrant … gave the officers
authority to search the premises and to search
“Greg,” it gave them no authority whatever to
invade the constitutional protections possessed
individually by the tavern’s customers.
What have we learned from the line of cases
beginning with
Terry
and continued by
Long, Buie
and
Ybarra?
As dangerous as the police officer’s job is,
the courts have allowed him/her to adequately
protect themselves, if there are specific and
articulable facts which would warrant a
reasonable person in believing that the suspect
is armed or dangerous.
ABOUT THE AUTHOR
David M. Waksman, J.D., a nationally known
homicide prosecutor with vast experience in
trying violent offenders, is a former sergeant
with the NYPD and a thirty-three year
prosecutor with the Miami-Dade State Attorney’s
Office, in Florida. Mr. Waksman teaches at
the Southern Police Institute in Louisville, Ky,
and the National College of District Attorneys,
in Columbia, S.C. This article is excerpted
from his new book,
The Search and Seizure Handbook,
2/Ed. available from Prentice Hall or Pearson
Custom Publishing. It was recently cited by
the U.S. Supreme Court as a:
“(S)ource now available to teach officers
and their supervisors what is required of them
under this Court’s cases, (and) how to respect
constitutional guarantees in various
situations.… See, D. Waksman & D. Goodman,
The Search and Seizure Handbook (2d ed. 2006).”
BOOKER T. HUDSON, Jr
v.
MICHIGAN
United States Supreme
Court
June 15, 2006.