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Mark Morris | To frisk or not to frisk: that is the police officer’s question

American businesses complain that they are being smothered by paperwork and red tape, but you would be hard-pressed to find a more regulated line of work than police officer.

Courts are forever sniffing at how cops do their jobs, blurring once bright lines, or finding clear insights from a tossed salad of facts.

This came to mind during a review of court rulings on the issue of when police have the authority to frisk someone.

In the first case, the 8th U.S. Circuit Court of Appeals, which serves Missouri and several other states, upheld the bank robbery conviction of a Nebraska man who complained that police did not have “reasonable suspicion” to stop and talk with him and two friends less than an hour after a bank had been robbed.

The problem was police moved to frisking and arresting only after they noticed $1,942 falling out of his friend’s pants leg.

Certainly that was reasonably suspicious and something you don’t see every day. But another appeals court wrestled with more difficult facts.

The 10th federal circuit, serving Kansas and other states, threw out the conviction of a Utah man who had been convicted of being a felon in possession of a pistol.

After leaving the scene of an unfounded burglary investigation, an officer saw a pedestrian do an about-face after spotting the patrol car. Stopping to speak with the man, the officer noticed a bulge in the man’s jacket and the end of a folding knife sticking out of a pocket.

Still, the man denied that he was armed, so the officer frisked him, recovering both the knife and a .44 caliber revolver, whose serial number had been filed down.

The court found, however, that the officer did not have a reasonable belief that the suspect was both armed

and

dangerous when he decided to conduct the frisk.

“Being armed does not ineluctably equate with dangerous,” Circuit Judge Paul J. Kelly Jr. wrote.

In a sharp dissent, Senior Judge Bobby R. Baldock wrote that the court’s ruling “exposes officers to unreasonable dangers.”

“We should not second-guess (the officer’s) determination that the subject of a consensual encounter who was obviously armed with a knife, possibly armed with a handgun, and patently lying about his possession of a weapon was dangerous,” Baldock wrote.

So do police commanders just hope that their officers will act in good faith and that the courts will eventually back them up?

No, said Capt. Steve Young of the Kansas City Police Department. Young said officers receive hours of training in both the law and how to articulate their reasonable suspicions when they’re asked about them on the witness stand.

“There’s not really a list of appropriate boxes to check before you do a frisk,” Young said. “There’re too many variables in police work to list the only times it would be appropriate to conduct a frisk.”

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