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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?

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    Is this about a specific state? – Studoku Nov 22 '20 at 20:01
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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 dont' 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 a domestic violence incident. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police detained him for an stop and frisk. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonablly 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 may 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.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Nov 25 '20 at 2:22
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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.

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  • I disagree, an officer may frisk anyone at any valid stop, other than maybe an infinite. All that's required is the officer to believe the person has the capability to harm them with a weapon. Whether or not it's an arrest is irrelevant to the question. You provide good info/sources but aren't really answering the question. – TCooper Nov 23 '20 at 19:44
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    Did you notice the citation from Arizona v. Cooper? – user6726 Nov 23 '20 at 21:02
  • I guess I was looking at this more from a walking stop perspective, which has different precedent than a traffic stop. I would note from the source you mention: "At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity." which is the aforementioned different precedent than any other legal stop - but still, good point. I hadn't read that yet. I also wouldn't qualify that as an investigatory stop though, that's a vehicular infraction citation. – TCooper Nov 23 '20 at 21:55
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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.

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  • +1 for actually getting the main point of the question. Just added mine to reference some outside source(s) – TCooper Nov 23 '20 at 19:37
  • -1 for being very wrong. See the correct answer above. – bdb484 Nov 25 '20 at 1:37
  • @bdb484 Thanks for pointing out where I'm wrong instead of making a vague claim so I can't challenge it. Oh wait. – Studoku Nov 25 '20 at 2:05
  • @bdb484 Not that I'm interested in what you have to say; I've seen your comments on the other answers. Either I rise to the bait and defend myself you get moved to chat where I can't, or I can just ignore you. – Studoku Nov 25 '20 at 2:10
  • The biggest problem is with your final conclusion: "If the stop was lawful, so was the frisk." That is not true. For just one of literally thousands of examples of cases where the stop is lawful but the frisk is not, see Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016). – bdb484 Nov 25 '20 at 2:34
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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.

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  • This answer is wrong, and bizarrely so, given that it contradicts the source it purports to rely on. Compare "You can only be frisked under certain circumstances" with "The ability of a police officer to stop and frisk you is more or less unlimited." – bdb484 Nov 24 '20 at 2:17
  • The circumstances are so broad it is more or less unlimited in a legal stop. This is intentional for the safety of the police officers. The key is around what they can and can't use for evidence. Regardless, the consent of the person stopped is never a factor. – TCooper Nov 24 '20 at 2:40
  • Well, that's definitely wrong, but only according to all the courts in the United States. If you have case law indicating otherwise, please share. ("LegalZoom" isn't the law, btw.) – bdb484 Nov 24 '20 at 2:44
  • "In White v. State, a Texas appellate court held that despite the traffic stop occurring in the afternoon in a safe part of town, a frisk of the driver was justified because he had a tattoo that appeared to be a White Power tattoo, and he was acting very nervous." chadwestlaw.com/blog/stop-frisk-and-lone-star-state, "But in reality, police can play fast and loose with the “reasonable suspicion” requirement." shouselaw.com/ca/faqs/…. Legal zoom certainly isn't law, but is a nice concise summary 9/10 times. – TCooper Nov 24 '20 at 2:54
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    @bdb484 I think you're missing that I'm exploring the practical application of the law, not the letter of it. But okay, enjoy riding your high horse. – TCooper Nov 24 '20 at 19:26
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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.

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