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Terry Frisk – Scope, “Effective” Patdown: Inconclusive Result as Supporting Further Intrusion

State v. Martin D. Triplett, 2005 WI App 255
For Triplett: Syovata Edari, SPD, Milwaukee Appellate / Milwaukee Trial

Issue: Whether the officer’s inability to perform an “effective” patdown permitted a further intrusion that led to the discovery of contraband.

Holding:

¶12      Our supreme court has not, however, addressed the scope of a permissibleTerry search where an effective patdown is impossible. The prevailing rule seems to be that an officer is entitled not just to a patdown but to an effective patdown in which he or she can reasonably ascertain whether the subject of the patdown has a weapon; where an effective patdown is not possible, the officer may take other action reasonably necessary to discover a weapon. …

¶13      We find these cases persuasive….

¶14      Applying these principals [ sic] to the facts of this case, we hold that the officer limited his degree of interference with Triplett’s person to what was reasonably necessary under the circumstances. The officer could not tell whether Triplett had any objects hidden in his waistband because of Triplett’s bulky frame and heavy clothing. In other words, the officer could not get an effective patdown. In concluding that his alternative to the patdown was reasonable, we make two observations. First, the officer testified that he shook Triplett’s waistband by his belt loops in order to loosen any possible weapons, so as to make the patdown effective. The fact that he acted with the intent to facilitate a traditional patdown supports that he only sought to discover any possible weapons. Second, we note that shaking a waistband by tugging on a belt loop confines the alternative method of looking for weapons to manipulating the outer clothing. Thus, although it may not qualify as a patdown, it is highly similar. Indeed, one might argue that it intruded less upon the sanctity of Triplett’s person than a traditional patdown. Terrynoted that in a traditional patdown, the officer must “feel with sensitive fingers every portion of the [person’s] body.” Terry, 392 U.S. at 17 & n.13 (citation omitted). The officer was not feeling Triplett’s body with “sensitive fingers” when he tugged on Triplett’s belt loops. Further, the fact that the officer touched only Triplett’s outer clothing makes this officer’s actions less intrusive than the actions approved in the foreign state cases cited above.

The trick will be to limit this holding to its facts: although “tugging on a belt loop … may not qualify as a patdown, it is highly similar”; indeed, perhaps less intrusive “than a traditional patdown.” Of course, if seen as license to go beyond Terry merely because the frisk was “inconclusive,” then the potential for mischief is great. Note, in this regard, that the court explicitly “find(s) this case very factually similar toState v. Greene, 97 P.3d 472 (Idaho Ct. App. 2004),” ¶15 (no link available; Idaho site, for whatever it’s worth, is nearly useless). As the Triplett court notes, Greene “shoved something in his pants” and then the officer “shook the back of his waistband.” The Greene court was indeed explicit on this point (“Greene transparently attempted to re-position some unknown object out of his pocket and into his waistband”). Whether Greene’s frisk was in fact very similar to Triplett’s frisk is almost beside the point, given that the court has now said that it was: the idea is therefore to limit “shaken waist” authority to instances “very factually similar” to a suspect shoving something into his or her waistband.The court goes on (¶18) to distinguish State v. Ford , 211 Wis. 2d 741, 742, 744, 750, 565 N.W.2d 286 (Ct. App. 1997) (pulling out waistband and shining flashlight into boxers exceeded Terry; distinguished on basis that officer “looked … at intimate parts of his body”); and State v. Smith , 693 A.2d 749, 754 (Md. 1997) (officer may not perform “double check” patdown; verification of 1st, non-productive frisk by tugging at waistband violated Terry). As the latter court put it: “In verifying the accuracy of this initial pat-down by a secondary, more intrusive search, however, Officer White exceeded the permissible scope of a protective frisk.” The attempt to distinguish these cases suggests, if nothing else, where the lines will be drawn. CompareU.S. v. Williams, 2006 U.S. Dist. LEXIS 26410 (genital manipulation search in public setting exceed Terry).

Note that Triplett didn’t contest police authority to frisk him. Triplett apparently stumbled into a drug investigation at a residence that may or may not have been a drug house; the opinion isn’t clear. The police did not, so far as the opinion indicates, have a warrant, which might have introduced a differentTerry calculus, see, e.g., State v. Justin Kolp, 2002 WI App 17. In any event, police suspicion “that Triplett might have come to buy drugs” coupled with his nervousness and request to use the bathroom led to the frisk (¶¶2-3). Recall the general principle that the police must reasonably believe the suspect armed and dangerous in order to perform a frisk, State v. Mohr, 2000 WI App 111, something that Triplett conceded (¶10, n. 3) and therefore isn’t an issue raised by the opinion.

Also not raised by the facts but a readily imagined permutation: what happens when the cop feels something during the frisk but can’t quite tell what it is? That, too, might be characterized as an “ineffective” or “inconclusive” frisk, and yet there is certainly authority for the idea that, precisely because “the incriminating character of the object was not immediately apparent,” proceeding further to determine its character violates TerryState v. Bey, 2005 Ohio 5842.

Another related permutation: when there are not merely “inconclusive” frisks but multiple unsuccessfulfrisks, then Terry is violated, State v. Hackett, 2007-Ohio-1868, 4/20/07 (“The rationale for a protective search, however, becomes attenuated with successive searches. See Jackson v. State (Ind. App. 2003), 785 N.E. 2d 615, 620. Police are not entitled to “unlimited bites of the apple.” U.S. v. Davis (C.A. 6, 2005), 430 F.3d 345, 357.”).

Interesting discussion on scope of Terry search, in U.S. v. Askew, DC Cir No 04-3092, 4/6/07 (“the Fourth Amendment permits police officers to reasonably maneuver a suspect’s outer clothing – such as unzipping an outer jacket so a witness can see the suspect’s clothing – when taking that step could assist a witness’s identification”; court draws heavily on principle that fingerprinting is permissible during Terry stop. See also spirited dissent: “The simple, uncontested point here is that there is no worthy precedent supporting the Government’s claim that a police officer may search a suspect’s person solely to facilitate a showup during a Terry stop.”).

 

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