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Appellate Court Allows Second Pat-down Under Certain Circumstances

November 10, 2021 - Posted by Ed Esposito
​
In the recently published decision of State v. Josue A. Carrillo, Docket No. A-4889-18 (App. Div. 2021), our Appellate Division Court ruled on the lawfulness of a second Terry frisk that occurred during the same police-citizen encounter.  

As we all learned in the police academy, the landmark holding by the US Supreme Court in Terry v. Ohio allows a police officer to conduct a limited search of a suspect's person upon a showing of reasonable suspicion that the suspect is armed and dangerous.  This is often referred to as a “pat-down,” a “frisk for weapons” or a “Terry frisk” in our profession.  As a starting point, the Terry 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,... 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.” Terry v. Ohio, 392 U.S. 1, 30 (1968). 

In the current case, the Court concluded that “an officer may conduct a second pat-down when, giving weight to the unproductive first one, the circumstances preceding the second one still gives the officer reason to believe the suspect is armed and dangerous.”

The case is based on a motor vehicle stop made just before midnight by two Belleville Police Officers, Werner and Lambrugo.  The officers stopped the vehicle, which had two occupants, for speeding and "making excessive noise." As the officers approached the car, they observed the defendant through the rear passenger window “moving excessively" while seated in the front passenger seat.  Officer Lambrugo also observed an open bottle of liquor at the defendant’s feet.  The defendant was asked out of the vehicle, and believing him to be armed and dangerous, a Terry frisk was performed.  However, no weapons were found. 

The vehicle was searched next, and as an officer approached the defendant again, he lowered his hands from the vehicle where he had been instructed to place them.  This prompted the police to conduct another Terry frisk that resulted in the seizure of a firearm from the defendant’s pants.

Although a second pat-down infringes on a person's constitutional rights, to date, our courts have not specifically expressed a standard for a second pat-down.  Accordingly, “as a single search warrant does not authorize officers to conduct a second search that is not a continuation of the first, the circumstances that justified a warrantless pat-down do not necessarily justify a subsequent one.” Quoting Carrillo (Internal citations omitted).  As such, the Court concluded that “an officer, to achieve the same safety goal that motivated the first pat-down, may conduct a second one, only if the totality of circumstances then present justify it.” Ibid. (Emphasis added). 

The following statements from this Court’s decision should serve as a guide going forward with respect to the lawfulness of a second pat-down of a person by the police:
  • The proper inquiry is whether the frisk was reasonable on the facts known to the officer at the relevant moment.
  • As with the first pat-down, the ultimate inquiry is whether the officer has reason to believe the suspect is armed and dangerous.
  • An unproductive first pat-down must be given weight; but so may new facts that revive protection concerns, including the realization that the first pat-down was performed inadequately.
  • A first pat-down, properly performed, may dispel a reason to believe a suspect is armed and dangerous, rendering a second pat-down unjustified even if the suspect acts nervously or indicates he is hiding something.
  • Where reasonable suspicions and fears had dissipated after an initial protective Terry search, "officers cannot, without more, conduct another search of the suspect.
  • New facts may revive safety concerns and justify a second pat -down.
  • A second pat-down may also be justified when the first pat-down was incomplete or cursory, particularly if other factors are present.
Ibid. (Internal citations and quotations omitted).

It is important to recognize that this decision reminds us that when applying the standard set forth in Terry v. Ohio, to conduct a pat-down for weapons, it involves a "highly fact-intensive inquiry" as demonstrated by the above-mentioned analysis by this Court.  

As a reminder, in assessing a pat-down's constitutionality, courts have regularly held that it is not enough for an officer to have reason to believe a suspect hiding "something."  That “something” has to be a weapon for a pat-down to be lawful.  For example, officers may not conduct a Terry frisk because they hope they will discover drugs.  The police must have reasonable articulable suspicion that the person they are frisking is armed and dangerous. 

Under this well-settled standard set forth in Terry, an officer is permitted to pat down a citizen's outer clothing when the officer “has reason to believe that he [or she] is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." (Terry v. Ohio, 392 U.S. at 27).  “The sole justification of the [Terry frisk] . . . is the protection of the police officer and others nearby . . . it must . . . be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Ibid at 29.)




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