Protective Searches, Pat-Downs, or Frisks?: The Proper Scope of the Permissible Intrusion to Ascertain if a Detained Person is Armed
Marquette Law Review, Vol. 82, p. 491, 1999
34 Pages Posted: 7 Mar 2010
Date Written: 1999
An external pat-down of the suspect’s clothing is a prototypical Terry frisk; it is not the sole type of limited intrusion contemplated by Terry and its progeny. The objective of a protective search is to discover weapons readily available to a suspect that may be used against the officer, not to ferret out carefully concealed items that could be accessed only with some difficulty. Reasonableness contemplates that, of a range of options available to an officer, several options may be acceptable and the mere fact that the officer has not chosen the most minimally intrusive option or engaged in a preliminary pat-down does not a fortiori invalidate the officer’s actions. In assessing whether the police officer’s protective actions are proper, three interrelated considerations limit the scope of the search. The first and most fundamental consideration is the level of assurance a police officer may obtain that the person he or she is confronting is not armed. The police may not be certain that the person is not carrying any weapon; they may be only reasonably assured that the person is not armed. Otherwise, as the second concern teaches, the intensity of the search would be the same as that for searches incident to arrest. Yet, to permit such searches defeats the purpose of Terry, which had the goal of achieving a balance between individual interests and governmental interests by limiting such searches. The third factor refers to limits on the types of weapons for which a search can be made; that is, absent information that the suspect is armed with an unusual weapon, the officer may search for only guns, knives, and other commonly used weapons. Within that framework, the proper scope of a protective search is based on the circumstances of each case, guided by the principle that the scope of the protective search must be reasonably related to its purpose.
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