Stop and Frisk in Texas: Is It Legal?
What are my constitutional rights if I’m stopped and questioned?
on January 4, 2018
Updated on February 8, 2022
“Stop and frisk” refers to a controversial type of law, also known as a stop and identify law, that is in place in multiple states throughout the country. Under the law, police officers have the right to temporarily detain an individual and pat him or her down to determine if they are carrying a weapon. Legally, this may be done only if law enforcement has a reasonable suspicion that the individual is armed and can potentially pose a threat to others.
“A lot of them in Texas involve the stop of an automobile,” says Paul F. Tu, a criminal defense attorney with Arrington, Tu & Burnett in Houston. After the initial contact by the officer and reason for the stop in the first place, “then it becomes: What reasons does the officer have to continue to detain a person? This is where reasonable suspicion comes in. It’s defined as: What reasonable, articulable fact does the officer have to continue to detain them? After that, if the officer intends to search them or frisk them, he needs to have separate reasons.”
Reasonable suspicion is not the same as probable cause. Probable cause is the evidence an officer needs to make an arrest. Reasonable suspicion is a set of circumstances that can lead a reasonable officer to believe that an individual is involved in criminal activity. This can lead to stopping the individual and potentially giving the officer probable cause for an arrest.
Determining if a Frisk was Legal
What separates a legal stop and frisk from an illegal one is whether the law enforcement officer had reasonable suspicion to stop you and pat you down. In other words, would another officer in the same situation have taken the same course of action, or did the officer who stopped you overstep the law and violate your right to privacy?
There are several circumstantial examples that have arisen since search-and-frisk was established by the 1968 case Terry v. Ohio, and officer safety is one of them. “If the officer feels unsafe—if they’re in a dark area, they can’t get backup, there are multiple people there, there are movements toward areas where guns may be held,” Tu says. “A lot of this deals with an officer’s impressions, and that’s obviously a grey area. Just because they pull over a car and there’s four black men inside doesn’t give them reason to feel unsafe.”
An officer might claim that a stop was justified because the individual was walking in a way that suggested there was a weapon in his or her waistband or pocket. Individuals can be pulled over and have their vehicles searched as well. This type of search is subject to the same laws that govern stop and frisk pat downs on foot. If the officer cannot demonstrate that he or she had reasonable suspicion that you were armed at the time of the stop, any evidence obtained during the stop may be deemed to be void (not admissible in court).
If you are stopped by an officer, you have the right to remain silent. If the officer does not have a warrant to search your vehicle or your person during a traffic stop, you have the right to refuse consent to a search. If you are not under arrest, you have the right to leave the scene; and if you are under arrest, you have the right to work with a lawyer to defend your case.
“Just because you say, ‘Go get a warrant,’ doesn’t mean they have to go get a warrant. They can find, and often do, other ways to search your car or your person. There’s a laundry list of exceptions to the rule,” Tu adds. “Follow their orders and be respectful, but you can also be assertive. If they ask to search something, you can always say no. They may find ways around it, but leave that to them—make them do their work. And if they mess up, then we can fight it later.”
Work with an experienced criminal defense lawyer to demonstrate that the stop was done in violation of your rights. This can cause certain evidence to be deemed inadmissible, which can severely impact the prosecution’s case against you. Such cases aren’t simply a case of the officer’s word against yours. Tu says factors such as the officer’s reports and personal arrest history as well as footage from body cameras, scene videos, and squad cameras also play a role. And if you documented the encounter on your own—with, say, a GoPro on the dashboard or a mobile device in your hand—that can help, too.
For more information on this area of law, see our overview of criminal law or consider reaching out to a criminal defense attorney.