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14 U. Pa. J. Const. L. Height. Scrutiny 1 (2012)

handle is hein.journals/jclon14 and id is 1 raw text is: THE MYTH OF THE TERRYFRISK Annie Fisher Both the United States and the Pennsylvania Constitutions protect against unreasonable searches and seizures.' These protections have been further honed through case law that works to define what sort of search is deemed to be unreasonable. However, as the Pennsyl- vania courts require more detailed justification for a frisk of a person, police are countering with increasingly vague and amorphous de- scriptions of suspicious behavior that work to justify an invasion of privacy. What starts as an investigation quickly devolves into a police officer going into the pockets of an otherwise law-abiding citizen on a fishing expedition that results in the officer retrieving small packets of drugs. Because the justifications given are vague and hard to chal- lenge, defendants' rights against unreasonable searches and seizures continue to erode. In Terry v. Ohio,2 the United States Supreme Court carved out a new category of inspection that fell somewhere between a mere en- counter and a search. Balancing the need for police officers to protect themselves, and the privacy rights of individuals, the Supreme Court came up with the frisk. The frisk is a limited search of the outer clothing that can be done for the protection of [the officer] and others in the area.3 In order to stop someone in the first place, Terry requires that there be a reasonable suspicion that criminal activ- ity is afoot.4 In order to then conduct a frisk of that person, the frisk may be done when the persons with whom [the officer] is dealing may be armed and presently dangerous and where nothing in the initial stages of the encounter serves to dispel [the officer's] reasona- ble fear for his own or others' safety.5 Pennsylvania adopted this same law in Commonwealth v. Hicks. It is one thing when a Terry frisk is done and a weapon is actually recovered, but in tens of thousands of misdemeanor cases in Phila- 1 U.S. CONST. amend. IV; PA. CONST. art. I, § 8. 2 392 U.S. 1 (1968). 3 Id. at 30. 4 Id. 5 Id. 6 253 A.2d 276 (Pa. 1969). 1