A search by the police is more extensive than a frisk--but the line can be hard to draw.
A search is more extensive than a frisk. An officer conducting a full search can probe extensively for any type of contraband or evidence. A frisk allows officers only to conduct a cursory pat-down and to seize weapons (such as guns and knives), objects that feel like weapons, or objects that an officer can tell from a plain feel are contraband (Minnesota v. Dickerson, U.S. Sup. Ct. 1993).
To learn about legal justification for stops and frisks, see What is reasonable suspicion?
Examples of the Difference Between a Frisk and a Search
Example: Officer Mace pulls over a driver who resembles a person wanted for bank robbery. Officer Mace asks the driver to get out of the car, then frisks the driver. The officer feels a soft packet in the driver’s back pocket. With the packet still in the driver’s pocket, the officer pokes a finger through the packaging into the packet, rubs powder from the packet onto his finger, removes his finger, and decides from the powder’s appearance and smell that it is an illegal drug. The officer removes the packet and arrests the driver for possession of illegal drugs. The contents of the packet are not admissible in evidence. The officer had reasonable grounds for detaining the driver, but lacked probable cause to arrest the driver and conduct a full search. Therefore, all the officer could do was frisk the driver and seize either a weapon or contraband in plain feel. Because the soft packet could not reasonably have been mistaken for a weapon, and the officer had to manipulate the packet before deciding that it contained illegal drugs, the officer had no right to remove it from the driver’s pocket.
Example: Same case, except that Officer Mace testifies that, “When I frisked the driver, I felt a packet of little pebbles that felt like rock cocaine, so I seized it.” Under these circumstances the rock cocaine is admissible in evidence. The officer could tell from a plain feel that the packet contained illegal drugs, so the seizure is valid. (Note: Police officers are generally very “up” on the law of search and seizure and know what a judge needs to hear in order to uphold a particular seizure and admit the evidence in court.)
Getting Professional Help
As you can see from the examples above, whether an officer's probe is a mere frisk or a more invasive search is heavily dependent on the facts of the case. When seeking to justify an officer's actions as a frisk, a prosecutor will point to similar cases decided in your state, and attempt to place your case among the those that sided with the prosecution. You'll need to be just as familiar with those cases, and be able to argue persuasively that the officer conducted a search that was not justified under the circumstances. To do so effectively, you'll almost always need the help of an experienced criminal defense lawyer, who should be familiar with how cases involving similar facts have been resolved in your state.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
by: Sara J. Berman