please see below for the transcript of the video
Hi, I’m Richard Waring and I’m a criminal defense attorney in Charleston, SC. If you’ve been charged with a crime such as Possession of Marijuana or Cocaine, Possession with Intent to Distribute (aka PWID), Unlawful Carry of a Pistol, or some other crime, or maybe you’ve wondered in general, “can I be stopped and frisked walking down the street in South Carolina?”
Well, the answer to that question, in general, comes from case law as well as the United States Constitution. For starters, the 4th Amendment to the Constitution states that you have a right to be secure in your person (in addition to your house, papers, and effects) against unreasonable searches and seizures. In addition, the 4th Amendment holds that any warrants, which includes search warrants, can’t be issued without probable cause (and we’ll go over probable cause in another video as well). So, to begin with, you, a person walking down the street, have those protections on your back. You’ve got the right to be free from unreasonable searches and seizures, and if the police need to get a warrant to search you or your property or to seize you or arrest you, there has to be probable cause.
However, the courts have determined that there are exceptions to the warrant requirement. While there are many exceptions, the one that is most relevant for this video is the Stop and Frisk exception to the warrant requirement. Back in 1968 in a case called Terry v. Ohio, the United States Supreme Court held that “Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” This is otherwise known as a Terry frisk. The stop aspect of it arises first when the police put you in a situation where you don’t feel you are free to leave such as when they order you to stop or physically grab hold of you.
So, under the mandates of the ruling in Terry v. Ohio, a police officer can stop and frisk you without a warrant; however, they must have a reasonable suspicion that criminal activity is present and that an you are armed and dangerous before conducting a pat down or frisk of the your outer clothing area, and must otherwise be able to demonstrate why there was a risk to themselves or others. 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. Alright, so then what does reasonable suspicion mean?
The courts use a totality of the circumstances test. Based on specific and articulable facts, and not on a mere unsubstantiated suspicion or hunch, the officer has to believe he has encountered an armed and dangerous individual. It’s important to keep in mind that reasonable suspicion is a lesser burden of proof than probable cause, which is what is required in order for an arrest warrant to be issued against you (or for a search warrant to be issued). In other words, the police don’t need as much proof to stop and frisk you as they do to arrest you.
But, if you’ve been stopped for investigative purposes by the police while you’re walking down the street if they have reasonable suspicion that you’ve been engaging in illegal behavior, they also have to have reasonable suspicion supported by specific and articulable facts that you are armed and dangerous before they can actually frisk you. Without that last part, they’re not supposed to.
Now, the U.S. Supreme Court has insisted that the purpose of this limited search, or Terry frisk, is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence. In other words, this is not the time for the police to go on a fishing expedition by doing a stop and frisk on someone in the hopes that they might find drugs on them while claiming they are just looking for guns. The Terry frisk is supposed to only be conducted when the police have a reasonable suspicion, supported by specific and articulable facts, that someone has been doing something illegal (or is about to) and they may be armed and dangerous.
So, if the officer, during the course of his frisk of you, feels an object on you that is clearly not a gun, and he’s not sure whether it may or may not be drugs, he generally can’t seize that. However, if while in the process of patting you down for guns the officer feels what he plainly feels or immediately recognizes as drugs on you, he can probably take that without a warrant.
Having said that, however, the South Carolina Supreme Court has held that when an officer has reasonable suspicion that drugs are present, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a pat-down of an individual. The reason for this is that the Court deemed that there is an indisputable nexus between guns and drugs. Therefore, even though ordinarily the police need reasonable suspicion supported by specific and articulable facts that you’re armed and dangerous before they can frisk you, if they have reasonable suspicion that you’re involved with drugs or that drugs are present at that time, that otherwise gives them what they need to frisk you.
Now, I don’t want to get into too much detail on other exceptions to the warrant requirement that would apply if you’re walking down the street, but just briefly: It goes without saying that if you’ve got drugs or a gun in plain view, such as a bag of cocaine or the handle of a handgun sticking out of your pocket while you’re walking down the street, then the officer can seize that and you’ll simply be arrested on the spot and searched fully at the scene and at the jail.
Conversely, the U.S. Supreme Court has held before that merely being in a high crime area and demonstrating nervous, evasive behavior such as when a person sees police and runs is not enough alone to stop and frisk someone. Those factors can be used as considerations by the police, but they need more specific and articulable facts that support a reasonable suspicion in order to actually stop and frisk you.
In addition, your refusal to talk with the police while you’re walking down the street, without more, doesn’t rise to the level of reasonable suspicion, allowing the police to stop and frisk you. Because, in general, you don’t have to talk with the police if you don’t want to. You have a right to remain silent and that’s set in stone by the 5th Amendment, which we’ll go over in another video. Today, we are just covering a topic that mainly deals with the 4th Amendment.
So, that’s all for now on stop and frisks (aka Terry stops). I know I discussed a lot of information, but it’s important to know, in general, what the law is when it comes to stop and frisks. Because, if you get charged with Unlawful Carry of a Pistol, Possession of Cocaine or Marijuana, or Possession with Intent to Distribute (PWID), you may need to know this material.
And, if you’re in the Charleston, SC area or Lowcountry of South Carolina and need a criminal defense attorney, give me a call anytime. Having prosecuted countless crimes before becoming a criminal defense attorney, I’ve got the experience to help you figure out your case. Best of luck.
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