Stop-and-Frisk in California – When are cops allowed to do it?

A stop-and-frisk (also called a “Terry stop”) refers to a controversial practice allowing police to temporarily detain and search you in a public place without a warrant. In California, law enforcement can conduct stop-and-frisks only if they have reasonable suspicion of criminal activity.

Here are three key things to know:

1. During a Terry stop, police can conduct a pat-down search (“frisk)” to look for weapons only if they have a justifiable belief that you are armed and dangerous.
2. During frisks, the officer can pat down only your outer clothing; they cannot reach under your clothing or in your pockets unless they plainly feel contraband.
3. Racial profiling concerns have led some California cities to ban or restrict the practice.

Our California criminal defense attorneys will highlight the following in this article:

• 1. When can police in California temporarily detain me?
  • 1.1. Reasonable suspicion v. probable cause
• 2. When can police in California frisk me?
• 3. Do police officers ever over-step their bounds?
• 4. What are my rights if I am the victim of an illegal stop-and-frisk?
• 5. Do I have to give my name to police in California?
• 6. Do passengers have to show ID in California?

1. When can police in California temporarily detain me?

Under California law, law enforcement officers can temporarily detain you when they have a reasonable suspicion, based on objective facts, that you may be involved in misdemeanor or felony criminal activity.¹ This is true even if a peace officer does not have an arrest warrant or a search warrant.

Since a stop-and-frisk is not an arrest, police cannot physically restrain and cuff you; however, they can block your path and tell you to be still during the stop. Note that if a criminal case goes to trial, the police officer may be called to testify about what gave them “reasonable suspicion” to conduct a stop-and-frisk in the first place.

This kind of temporary detention is known as a “Terry stop” after the 1968 U.S. Supreme Court case of Terry v. Ohio. In that case, the Supreme Court held that a temporary detention based on reasonable suspicion is in fact constitutional under the Fourth Amendment.²

1.1. Reasonable suspicion v. probable cause

Police may only arrest you if they have probable cause to believe you committed a crime.³ By contrast, temporary detention under Terry requires only reasonable suspicion, which is a lower standard.⁴

According to Burbank criminal defense attorney Neil Shouse:

“‘Reasonable suspicion’ means something more than an individual police officer’s ‘gut feeling’ or ‘hunch.’ In order to justify a Terry stop or stop-and-frisk, a police officer must be able to point to specific, objective, and articulable facts that made their suspicion reasonable.”⁵

Examples of reasonable suspicion that may justify a Terry stop

• you are present in the immediate vicinity of a place where police know a crime took place⁶
• you try to run when you spot law enforcement officers nearby⁷
• you are of a particular race or ethnicity (but only if the police are searching for a particular suspect of the same race/ethnicity, and there are additional reasons to believe you committed a crime such as matching witness descriptions)⁸
• you are observed taking money from another person and engaging in another activity (such as removing an item from a hiding place) that suggests that you are conducting a drug or other contraband sale or soliciting prostitution⁹
• you are driving erratically in a way that indicates you may be under the influence of alcohol or drugs¹⁰
• you appear to be casing a location, standing as a lookout for other criminals, keeping watch for crime victims, or concealing weapons or contraband

Note that courts have stated that the following factors on their own will not likely give rise to a reasonable suspicion that justifies a Terry stop:

• you are in a part of town where people of your race or ethnicity do not usually go,¹¹
• you are in a high-crime area (but are not engaging in any specific suspicious behavior),¹² and
• you appear nervous in the presence of police.¹³

2. When can police in California frisk me?

Once police temporarily detain you based on a reasonable suspicion of criminal activity, they can legally frisk you only if they believe you are:

1. armed, and
2. presently dangerous.¹⁴

Moreover, peace officers can only conduct the frisk to search for dangerous weapons that you could use against the officers. For example, an officer cannot conduct a frisk to look for contraband or other evidence of a crime.¹⁵

Some factors that can contribute to a reasonable belief that you are armed and presently dangerous include:

• you are wearing baggy clothing that may conceal a weapon,¹⁶ and
• an officer smells marijuana or otherwise has reason to believe that you have been using or are in possession of an illegal drug.¹⁷

2.1. Limitations of the frisk

California law places restrictions on how an officer may perform a frisk. For example, an officer can only pat down your outer clothing. State law says that officers cannot:

• reach under your clothing or into your pockets,
• grope you or manipulate any felt items, and
• seize and search a cell phone.

2.2. The Plain Feel doctrine

Under the “plain feel” doctrine, if an officer is conducting a pat-down and feels an object that the officer knows is contraband, the officer can remove or take the item. Prosecutors can then use the item as evidence against you.¹⁸

3. Do police officers ever over-step their bounds?

Yes. We see cases all the time where law enforcement officers commit misconduct during not only stop-and-frisks but also arrests, custodial interrogations, and searches. We also see excessive use of force and other unlawful tactics in all types of criminal matters, especially:

• drug cases,
• cases of domestic violence,
• theft cases, and
• cases involving violent crimes.

When it comes to Terry stops in particular, an ongoing issue is the tendency of police departments to engage in racial profiling. Officers typically target minorities like African-Americans and Hispanics/Latinos for these searches much more frequently than other groups.¹⁹

4. What are my rights if I am the victim of an illegal stop-and-frisk?

If you are arrested following an illegal stop-and-frisk, we can file a Penal Code 1538.5 motion to suppress asking the court to disregard any incriminating evidence the police found from the illegal stop.²⁰ If the judge grants our motion, any unlawfully-obtained evidence will be excluded from your trial and cannot be used against you.²¹

Oftentimes when the judge suppresses unlawfully-obtained Terry stop evidence, prosecutors are left with too weak a case to sustain a conviction.²² At that point we can file a Penal Code 995 motion to dismiss asking the judge to drop your case altogether.

5. Do I have to give my name to police in California?

Unless the police are lawfully detaining you or arresting you, California law does not require you to give your name to police if asked. California has no “stop and identify” statute.

Learn more in our article, Do I have to identify myself to police in California?

6. Do passengers have to show ID in California?

If you are a passenger during a traffic stop, you are not required under California law to provide police with your ID (unless you yourself are being lawfully detained or arrested).

However, the driver of a vehicle must show their license to the police (if asked) during a traffic stop. Drivers who refuse to show their license face a misdemeanor charge carrying up to 6 months in jail and/or $1,000.²³

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