Criminal Defense

The Difference Between a Police “Search” and a “Frisk”

September 13, 2023 by Madison Ferguson in Criminal Defense  Rights  
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The Difference Between a Police “Search” and a “Frisk”

The main difference between being searched and being frisked is that a search is more thorough and extensive than a frisk. A search and seizure is when the police can look in your car or house for evidence, illegal weapons, or drugs. Compared to that, a frisk allows officers to pat someone down to find weapons like guns or knives. In both situations, the officer can remove any illegal items they discover.

Another important legal distinction to keep in mind is that under the Fourth Amendment, there needs to be a reasonable basis (probable cause) to perform a search and seizure. Stop-and-frisk is usually done when there is a reasonable suspicion, which is seen as a less strict requirement than probable cause. In the Terry v. Ohio case, the US Supreme Court said that to prevent crime and keep police officers safe, they can take action even if there isn’t enough evidence. Additionally, if a police officer is required to provide probable cause, it may increase the risk to their safety. The Court said that the only reason for a frisk is to keep the police officer and others safe. Because of this case, stop-and-frisks are also called “Terry stops.”

What rights do you have when you are stopped and frisked in California?

An illegal stop and frisk, also known as a Terry stop, is a significant violation of your civil rights that you should take very seriously. First, contact your lawyer and describe the information about your situation. If the police didn’t have a valid reason to stop you initially, any evidence they found after that might not be allowed in Court.

If the police stop you because they think you may have committed a crime, you are not required to give them your identification. California is one of the states that do not have “stop and identify” laws. To know if the police have reasonable suspicion, you can ask if you are allowed to go or are being held. If the police tell you that you are being held because they suspect you of committing a crime, not providing your identification could make the detention last longer.

What if your rights are violated during an unlawful stop and frisk?

Luckily, the suspect can seek justice for unjustified stops and frisks through the law.

If cops find evidence during an illegal stop and search, the defendant’s lawyer can take specific actions. If your rights were not respected when you were stopped and searched, our lawyers could ask the Court to ignore the evidence or drop the charges.

Request to exclude evidence – PC 1538.5

The accused person’s lawyer has the option to submit a legal request to exclude that evidence using a specific California law called Penal Code Section 1538.5.

The act of suppression has its foundation in the Constitution. The Fourth Amendment says that police can’t search or take things from you in an unfair way. There is a rule called the exclusionary rule that says evidence obtained illegally can’t be used against you.

Request to drop charges – Penal Code section 995.

After a court agrees to suppress the unlawfully obtained evidence, California criminal procedure allows for a motion to dismiss the charge if the remaining evidence does not provide enough reason to believe that the defendant committed the crime they are accused of.

The determination of whether an officer’s investigation is a simple pat-down or a more intrusive search relies on the specific circumstances of the situation. Additionally, the legislation may differ slightly depending on the jurisdiction. If you possess a legal situation, it is essential to seek guidance from a seasoned criminal defense attorney who will have the competence to clarify the relevant legislation and safeguard your legal entitlements.

Controversy Around Stop and Frisk

The definition of reasonable suspicion provided by the Court was unclear, granting officers broad discretion in utilizing nearly any factor to validate a stop and frisk. The Court’s inclination to accord deference to the judgment of law enforcement officers has additionally augmented their latitude, thereby presenting a challenge for suspects to contest the legality of a stop. The transgressions above have a disproportionately adverse impact on individuals of African descent, as implicit prejudices and police departments sway law enforcement officers have deliberately singled out marginalized communities. The policy has been employed to intimidate many individuals, as many stops were conducted without valid grounds, and a disproportionate number of frisks were carried out on individuals of African American descent.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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