Fourth Amendment Criminal Defense in San Antonio

The Fourth Amendment protects people from unreasonable searches and seizures. The Constitution states:

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 warrant 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.

U.S. Const. amend. IV

Normally, this means police must get a warrant before they either conduct a search or seizure. However, there are exceptions to this rule. And a Terry stop-and-frisk is one of these exceptions. See Terry v. Ohio, 392 U.S. 1, 30 (1968).

As we will see below, stop-and-frisk is a powerful police tool. It allows police to conduct limited searches and seizures without probable cause. But how does a Terry stop-and-frisk work? And how does a lawful stop-and-frisk turn into an illegal search and seizure? This post will answer these questions.

What is a Terry Stop-and-Frisk?

“Stop-and-Frisk” gives police permission to briefly detain a person and search him for weapons. In particular, the stop-and-frisk procedure requires two things. First, to temporarily detain a person, the officer needs objective proof the person is engaging or about to engage in criminal activity. In other words, the officer needs reasonable suspicion that the person is committing, or about to commit a crime. See Terry, 392 U.S. at 21. This is the seizure, or the “stop” portion of the stop-and-frisk.

Second, an officer may pat down a person if the officer has reason to believe the person is armed. But the pat down comes with an important condition. Police may pat down a person, but only to search for weapons. If the officer wants to conduct a full search of the person, the officer will need probable cause. This is the search or “frisk” portion of the stop-and frisk.

Further, the Supreme Court approved of stop-and-frisk in a case called Terry v. Ohio. The facts in Terry v. Ohio will illustrate how stop-and-frisk works. More importantly, this case will show how a lawful stop-and-frisk can turn into an illegal search and seizure.

San Antonio Stop and Frisk Criminal Defense.

San Antonio Criminal Defense Attorney Genaro R. Cortez provides an overview of stop-and-frisk.

Case Brief: Terry v. Ohio, 392 U.S. 1, 4 (1968).

In Terry v. Ohio, a plain-clothed officer saw three men acting suspiciously. Specifically, the men kept walking past a store window in Cleveland, Ohio. Each time they walked by the store window, the men would stop and look inside. The men appeared to be “casing” the store. Consequently, the officer believed the men were about to commit a daytime robbery. And for similar reasons, the officer believed the men had guns.

As a result of his observations, the officer approached the men and questioned them. Then, he grabbed John W. Terry, one of the suspects, and patted him down for weapons. The officer felt a pistol in the left-breast pocket of Terry’s overcoat. Hence, the officer reached into Terry’s jacket and pulled out the gun. The gun was a .38 caliber revolver. The officer then took all three men to the police station. And prosecutors later charged Terry with carrying a concealed weapon.

At trial, Terry filed a motion to suppress the gun evidence. He argued the stop-and-frisk was an illegal search and seizure because the officer did not have probable cause to stop or frisk Terry. Thus, the court should exclude the gun evidence at trial.

The judge partly agreed with Terry. The judge found that police did not have probable cause to stop-and-frisk Terry. However, the judge upheld the stop-and-frisk because the officer had “reason to believe” the suspects were about to commit a daylight robbery. See Terry, 392 U.S. at 8. This behavior allowed the officer to stop the suspects and question them.

In addition, the judge also allowed the pat down for weapons because it protected the officer’s safety. The judge then found Terry guilty of the gun crime. And Terry appealed his case to the Supreme Court.

Supreme Court Reviews Terry v. Ohio.

Police can conduct stop-and-frisks to search suspects for weapons.  But some stop-and-frisk situations can turn into illegal searches and seizures.
Police can pat down a suspect to search for weapons if they reasonably believe the suspect is armed and dangerous. But the frisk is limited to the outer clothing of the suspect.

The Supreme Court affirmed Terry’s gun conviction. It agreed with the trial court’s reasons allowing the stop-and-frisk. But, the Supreme Court placed important limits on when and how police can conduct stop-and-frisks.

First, police need reasonable suspicion to temporarily stop a person. Second, if the officer believes the person is armed and dangerous, then the officer can conduct a frisk for weapons. In summary, if police follow these procedures, then they can conduct a stop-and-frisk. But if they don’t, then it will be an illegal search and seizure.

How to determine if a Stop-And-Frisk is legal?

Steps to determine if a Terry Stop-and-Frisk is an Illegal Search and Seizure under the Fourth Amendment.

  1. Were the police officer’s actions justified at the beginning?

    For instance, did the police officer have reasonable suspicion to stop and detain you? If not, then police committed an illegal search and seizure. If they did have reasonable suspicion to stop you, then go to the second question below.

    However, one exception applies in this situation. If the encounter was consensual, then there is no Fourth Amendment violation. Additionally, a police encounter is consensual if the citizen is free to walk away.

  2. Were the police officer’s actions reasonably related in scope to the circumstances which justified the interference in the first place?

    In other words, how did police carry out the investigation? If the officer’s actions were connected to the purpose of the stop, then their actions are legal. That is to say, there must be a legit connection between the stop and the investigation. If there is no connection, then police are conducting an illegal search and seizure.

    Finally, there is an exception to this rule too. If the person consented to a search, then there is no Fourth Amendment violation.

Illegal Searches and Seizures in San Antonio, Texas

San Antonio police officers conduct stop-and-frisks on a daily basis. In fact most of us have experienced a Terry stop at least once. For instance, traffic stops are Terry stops. That means if an officer sees you commit a traffic violation, he can pull you over and do the following:

  1. Decide if he should give you a traffic ticket;
  2. Check the driver for proof of insurance;
  3. Check the car registration;
  4. Make sure the driver’s license is valid; and
  5. Determine if the driver has outstanding warrants.

But the traffic violation alone does not give police permission to extend the traffic stop to investigate other crimes. For example, that means police cannot delay the traffic stop to search the car for drugs with a K-9 unit. If they do, then this is outside the scope of the investigation. Accordingly, any evidence found will be excluded because it was obtained from an illegal search and seizure.

San Antonio Criminal Defense

This is just one example of how a stop-and-frisk can become an illegal search and seizure. Other examples include police stops that lead to gun, drug, or money laundering charges. And in each of these cases, the suspect should ask two questions. First, why was he stopped? Second, was the police investigation connected to the purpose of the stop? In short, the answers to these questions will determine if you are the victim of an illegal search and seizure. If so, then you should file a motion to suppress the evidence in your case.

Genaro R. Cortez

San Antonio Criminal Defense Attorney

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org