KS: While stop and frisk must be objectively reasonable, officer’s subjective beliefs have evidentiary relevance and are “not to be ignored”

While objective facts must support a frisk, an officer’s subjective beliefs are at least relevant evidence on how objective it is. “In short, an officer’s subjective fear or belief that a stopped person is armed and presently dangerous is not individually controlling on the question of reasonableness of a frisk. It is not indispensable, but it is not to be ignored.” State v. Bannon, 2017 Kan. LEXIS 396 (July 28, 2017):

We agree with the Utah Supreme Court that testimony about an officer’s subjective belief, if any, may be a factor to consider when applying the objective reasonableness test used for evaluating the constitutionality of a Terry frisk. This holding is consistent with this court’s earlier observation that reasonableness based on the totality of the circumstances is viewed “‘in terms as understood by those versed in the field of law enforcement.’” State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998).

“‘When evaluating these factors, we judge the officer’s conduct in light of common sense and ordinary human experience. [Citation omitted.] “Our task … is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious,” [citation omitted], but to determine whether the totality of the circumstances [justifies] the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification,” which is “considerably less than proof of wrongdoing by a preponderance of the evidence.”‘ United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 [(1989)]‘ [United States v. Mendez,] 118 F.3d [1426,] 1431 [(10th Cir. 1997)].” DeMarco, 263 Kan. at 735.

In short, an officer’s subjective fear or belief that a stopped person is armed and presently dangerous is not individually controlling on the question of reasonableness of a frisk. It is not indispensable, but it is not to be ignored.

Because the Court of Appeals panel incorrectly treated the fact that “the officers never testified they were concerned for their safety or the safety of others” as a dispositive negative determinant on the constitutionality of the Terry frisk, we reverse its decision and remand this case to the panel to apply the correct legal standard. The question under Terry’s second prong is objective: whether an officer would reasonably suspect that the person stopped is armed and presently dangerous. And any testimony on the officer’s actual subjective belief or suspicion on that point is just one factor to consider in the totality of the circumstances.

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