Is there an implied consent to a frisk in a stop in the US?

Question

This question regards US law, and the Fourth Amendment to the US Federal Constitution.

Suppose I am walking on the sidewalk, when a police officer stops me.

He then says the following: "I will frisk you, ok?".

He has no search warrant.

If I say "no", he will not be able to frisk me, and if he does and find evidence of a crime, that evidence will be subject to the exclusionary rule, right?

If I say "yes", and he finds evidence of a crime, that evidence can be lawfully used against me in court, right?

What if I say or do nothing, and he proceeds to frisk me and find evidence of a crime? Is there an "implied consent" here?

Answer 1

If you consent, the evidence can almost certainly be used against you. Florida v. Bostick, 501 U.S. 429 (1991) ("Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search.")

If you refuse consent, it is not clear whether the evidence can be used against you, as we don't know why the officer is asking to frisk you. A stop-and-frisk must be supported by a reasonable and articulable suspicion that you have just committed or are about to commit a crime, and that you are at that moment armed and dangerous. If they reasonably suspect you have just committed a crime but do not reasonably suspect you are armed and dangerous, the police may stop you, but they may not search you.

That point is worth emphasizing because several other answers are incorrectly assuming otherwise. For one example, in Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), the police responded to a report of domestic violence. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police stopped and frisked him. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonably explain why they thought he was armed and dangerous, the court said the stop was legal, but the frisk was not:

Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect is armed and presently dangerous to the officer or to others. A lawful frisk does not always flow from a justified stop. Rather, each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.

Even then, the search is basically limited to a minimally intrusive patdown to ensure you don't have any weapons on you, and the officer is generally not permitted to actually search inside pockets or the like, though the search may escalate based on what the officer is able to feel during the patdown. Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, ... its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.")

The refusal to respond generally operates as a refusal to consent. The police are therefore free to conduct whatever search they could have conducted without your consent. If they have a reasonable, articulable suspicion that you're carrying a gun, they can probably frisk you to see if that's the case. If they have a warrant to search your pockets, they can search your pockets. If they don't have any of that, they need to keep their hands to themselves.

Answer 2

It depends on whether this is a brief stop, or an arrest. If you are under arrest (no warrant required), a basic frisking for officer safety is legal and does not require your consent. If you are briefly detained in an investigatory stop, (see Arizona v. Johnson, 555 U.S. 323)

to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous

This was a vehicular stop, not a walking-stop, but nothing in the case law surrounding investigatory stops specifically limits this rule to vehicular stops, indeed in the leading case Terry v. Ohio, defendant was on foot. For the sake of the hypothetical, I assume that it is not reasonable to suspect that you are armed and dangerous. Now turning to US v. Zavala, 541 F.3d 562, police conducted a search of an cell phone during a stop, but simply opened and inspected the phone (not asking). The court determined that there was reasonable suspicion justifying a stop, but not probable cause. Although Zavala had consented to a vehicle search, because the phone was not insider the vehicle, the court held that his consent did not reasonably extend to the cell phone (therefore, the search was illegal). The court did not find that the defendant had an obligation to actively resist or protest the search. Two tests are applied to consent, namely (1) whether consent was voluntary and (2) whether it was an independent act of free will. This plays a role in US v. Jenson, 462 F.3d 399, where defendant did resist a search of his person, having consented to a vehicle search. In other words, actual consent is required, and acquiescence to police force does not constitute "consent".

The exact response of the defendant in the hypothetical will matter quite a lot. Basically, the law generously interprets consent in favor of law enforcement, requiring that it be reasonable to believe that consent has been given. Physical actions suggesting acquiescence, or words like "Sure", "if you must", "make it quick" can reasonably be interpreted as consent. The courts have so far required there to be actual consent and have not interpreted silence / inaction to be consent.

Answer 3

In a lawful stop, the officer does not need you consent to do this. They do, however, need a reason to suspect you have or are about to commit a crime. They cannot stop you solely for the purpose of performing the frisk.

If you have been stopped and the officer has reason to believe you are armed and dangerous, they may perform a frisk. This is a particular type of search designed for the safety of the officer(s)- they pat you down looking for weapons. They may remove anything they believe to be a weapon.

A frisk is not to search for evidence. However, a potential weapon found during the frisk can be used as evidence. It doesn't have to actually be a weapon but there must be reasonable suspicion that it was- a bag of weed for example is unlikely to be mistaken for a weapon and would therefore be inadmissable.

If the stop was lawful, the frisk was necessary, and the evidence found was a weapon or was believed to be dangerous, it's admissable. Refusing to consent doesn't change that- evidence found is still admissible.

Answer 4

No, there is no implied consent, but it isn't needed in the first place. Your assumption that evidence found cannot be used against you if you say "No" is also incorrect. However, only certain things may be pulled out of your pocket during a "frisk". If it can't reasonably be considered a weapon by the officer (i.e. a baggie of marijuana) then they can't remove it from your pocket.

The deciding factor in most related court cases(re: on foot) is whether or not the stop was legitimate.

When Can a Police Officer Frisk?
In situations where an officer is concerned that the stopped individual may have the capability to injure them with a weapon, the officer is authorized to conduct a search, aka to “frisk" the individual to check.

When frisked, your outer clothing is quickly patted down to determine whether you're carrying or concealing a weapon that could be used to injure the officer.

You can only be frisked under certain circumstances, however, which include:

• Potential for an officer or bystanders to be injured
• Officer is alone, without backup
• Officers are outnumbered by a group that has been stopped
• People in the group appear agitated or are behaving strangely
• You provide evasive answers to questions
• Suspicion that you are armed
• Suspicion that you may be about to commit a crime using a weapon
• Time of day or geographic area in conjunction with other factors

Source: Legal Zoom

I highly recommend reading the entire article.

No where in the requirements is consent of the individual. The ability of a police officer to stop and frisk you is more or less unlimited, as many of the reasons a police officer may cite are purely opinion based. Cameras have improved this to some extent, but it's still more or less a blank check to frisk, as long as it's a valid stop. In most cases though, the police officer's intent is good, and their discretion is applied appropriately.

There are cases, most famously in NY(article also outlines stop and frisk as a whole), of citizen's protesting the abuse of stop and frisk, especially in minority areas.

The key point being, if an officer has made a valid stop, in almost all cases they can perform a frisk at their discretion, with or without your consent, if something in a pocket feels like a weapon, whatever is pulled out of that pocket can be used as evidence against you.

Answer 5

Your question has a bit of a problem with theory vs practice.

In theory the officer doesn’t need any reason to ask to frisk you, as long as you consent. If the officer asked your help winning a bet as to who could get the most consensual frisk in a day, and you consented that would not be a violation of your 4th amendment rights.

In practice, it’s almost certain the cops would either have a valid reason to make the request, or attempt to make up reason they think passes muster after the fact.

To answer your direct question, there is no implied consent, but in practice a lack of objection may be taken as consent in some cases and not in others. The decision should rest upon whether a reasonable person would have felt free to object and what happened prior. For instance, if you said “I don’t talk to cops without my lawyer present” that would push things one way, if the cops had asked the same question of others around you and took a no with good grace (waved them on their way) that would push things the other way.

As for whether the evidence illegally gathered would be excluded, probably, again, it would depend upon the exact circumstances and despite TV dramas, courts are not eager to exclude evidence. Also again practice vs theory, judges tend to accept cops version of events without compelling evidence otherwise, which means the good faith exception might apply.