Police Must Have Belief that Invidual is Dangerous and Could be Armed Before they Can Perform a Terry Frisk

State of Utah v. Clay C. Lowe, 2010 UT App. 156, (Utah Court of Appeals June 17, 2010).

Officer went to Lowe’s apartment to talk to his roommate.  His roommate refused to comply with Officer’s orders to remove his hands from his pockets.  Officer helped Roommate to the ground and held Lowe at gunpoint while he searched Roommate.  While he searched Roommate, a second officer arrived on the scene and saw Lowe at gunpoint holding his hands high above his head.  The second officer immediately frisked Lowe and found a prescription bottle containing Methamphetamines.  The trial court denied Lowe’s Motion to Suppress, Lowe appealed. 

The Court of Appeals found that an officer cannot frisk simply because one is being detained, or because the officer believes the individual to possess contraband, but instead an officer must reasonably believe the individual is dangerous and the individual may immediately obtain a weapon.  In this case, Lowe complied with Officer’s requests; he kept his hands above his head, and did nothing to interfere with Roommate’s arrest.  In short, Lowe did nothing to induce a reasonable belief that he was dangerous and might obtain control of a weapon; therefore, the evidence should be suppressed.  Reversed.

Dissent Judge Thorne: Under the totality of the circumstances, it is likely that the second officer could have reasonably believed that Lowe was dangerous because Officer found Roommate to possess a knife, it was reasonable for the second officer to conclude that Lowe may also be armed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/lowe061710.pdf