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Unreasonable Frisk May Lead to Liability

Jack Ryan

In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court authorized police officers to stop and detain individuals where the officer had reasonable suspicion (some facts and circumstance but less than probable cause) to believe that the person to be stopped was involved in criminal activity. Officers were authorized to use force, short of deadly force to accomplish these stops.

The Court also authorized officers to conduct a limited pat-down of the outer-clothing of the person stopped if, and only if, the officer could also point to facts and circumstances (amounting to reasonable suspicion) that would lead a reasonable officer to believe that the person was armed with a weapon. The pat-down is limited to a search for weapons.

The latter half of Terry is often misunderstood with officers believing they can pat-down anyone they stop for “officer safety.” While this level of protection would be worthwhile, it goes beyond what was granted in Terry.

A recent lawsuit from the United States District Court (Kansas) provides an example of how liability may occur when a frisk exceeds the constitutional limitations set by Terry.

Agustonelli v. Springer, 2004 U.S. Dist. LEXIS 6545 (U.S. Dist. Kansas 4/14/2004) dealt with the frisk of Angela Agustonelli by Detective James Springer. It should be noted that the court was considering a summary judgment motion and therefore the facts were reviewed in the light most favorable to Ms. Agustonelli.

In considering the motion, the court found that Detective Springer was off-duty when he observed a subject, Johnson, he had been trying to subpoena go into Agustonelli’s liquor store. The detective had previously been given information that Agustonelli was selling drugs from the store. The detective, interested in serving the subpoena on Johnson, called his department for the subpoena.

As the detective waited he observed what he perceived to be a drug transaction between Johnson and Agustonelli. He called for a local officer. When the officer arrived, Detective Springer told the officer what he had observed and stated that he wanted to enter the store and frisk the pair.

Springer frisked Angela Agustonelli. This frisk became the issue for the court. Although Springer denied conducting the frisk in this manner, Agustonelli indicated that Springer had pulled out her sweat pants and underwear so that he could look inside her pants to see if there were any drugs.

The court assumed, without deciding, that Detective Springer had reasonable suspicion to believe that Agustonelli had a weapon. This conclusion is somewhat tenuous based on Springer’s deposition testimony where he indicated that the frisk was done simply for “officer safety, just something we do right off the bat.” There was no indication that Detective Springer articulated any facts or circumstances that led him to believe that Angela Agustonelli was armed.

The court allowed Agustonelli’s lawsuit against Detective Springer to proceed finding that if a jury believed Agustonelli’s testimony regarding the pulling out of her pants and underwear, it could be found that Springer exceeded the permissible scope of a Terry frisk. Such a finding would establish a Fourth Amendment violation


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