In the seminal case of Terry v. Ohio the Supreme Court held that their are three levels of contact between the police and civilians and for each level of contact their is a corresponding permissible level, under the Fourth Amendment, of invasive behavior. The lowest level involves a consensual encounter. In this case no force is used and any search must be agreed to by both sides. At the other extreme the police have probable cause to arrest someone. Since the police have probable cause to arrest someone they can use force to search the individual pursuant to the arrest. In the middle is what has been called a Terry search. In the Terry search the police have a reasonable suspicion that a crime has been committed or is about to be committed and that the individual is involved in the crime. In such cases they may detain the individual for a limited period of time in order to verify their suspicion. If they also have a reasonable suspicion that the person might be armed, they may frisk the individual for their own safety.

Terry searches have been quite useful to law enforcement in obtaining evidence of a crime and in arresting individuals. While individuals have a right not to answer questions during Terry searches people are either unaware of their rights or try to talk their way out of being arresting in many cases. Usually, in such case they give the officer probable cause to arrest them and the case is over.

The problem from a legal point of view is the dividing line between the three levels. Often the line is thin and police anxious to make an arrest either detain an individual without a reasonable suspicion or arrest the individual without probable cause. Of course no one wants the police to randomly detain, pat search or perform a full search without the appropriate level of of suspicion. This ends up with an illegal invasion of one’s civil rights.

Since evidence obtained as the result of an illegal detention or search is inadmissible in court the issue is frequently raised during a case and often results in appellate decisions. In a recent case that came out of Massachusetts the First Circuit Court of Appeals upheld a Terry stop and a pat search for weapons in which a gun was found on Samnang Am.

The police alleged six reasons for the stop. They were that the search was in a neighborhood known for a high crime rate, Am was a known member of a gang, Am’s criminal record, the fact that he was on probation, Am had been found with a gun before and a tip received by one of the officers that Am had been involved in a recent shooting. The court found that while the location of the search, ie in a high crime neighborhood, claimed by an opposing gang could not in and by itself provide a reasonable suspicion it could be considered in connection with the other factors. Also, the tip could not be used because there was no way to verify it. But even excluding the tip the court found that the officer had a reasonable suspicion to detain Am.

At the time of the detention Am put his hands into his pockets. This provided the police with a reasonable suspicion that he might be armed and therefore the pat search was legal. Since this led to his arrest the game was over.