Abstract
We all think we understand Terry v. Ohio. But we don’t. In fact, for decades, we’ve taken the wrong doctrinal lesson from Terry and its progeny.
Even though Terry discussed the constitutional standards surrounding “stop-and-frisks,” many of us have interpreted Terry as only permitting a “stop-and-then-a-frisk”—that is, a police officer is permitted to stop an individual on the suspicion that he is about to engage in criminal activity, and then, and only then, can that officer frisk the individual if he believes the suspect is armed and dangerous. But that’s not right. The Terry Court never said that. And after Terry, in a series of Fourth Amendment cases, the Supreme Court never endorsed that view.
In fact, the Terry Court constitutionally blessed what this Article will call “standalone frisks.” These are frisks that do not follow any investigatory stop. Indeed, the Terry Court quite literally only ruled on the constitutionality of these types of frisks; in the Court’s sixteenth footnote, it reserved judgment on the constitutionality of investigatory stops—those it would address another day. And, after Terry, the Supreme Court, time and time again, reiterated that Terry stood for the proposition that standalone frisks were constitutionally permissible. To be sure, “stop-and-then-frisks” are also constitutional. But so are standalone frisks. The doctrine allows for both types.
As an analytical matter, standalone frisks are still “stop-and-frisks.” But when a frisk happens without a preceding stop, the suspect is both seized and searched at the same time. So, unlike the more common “stop-and-then-a- frisk,” for standalone frisks, the “stop” and the “frisk” are coextensive, contemporaneous, and intertwined. This “stop-and-frisk” happens simultaneously. And it’s also predicated on only one type of information—the suspect being “armed and dangerous.”
Recognizing the constitutionality of standalone frisks matters. Indeed, the Fourth Amendment, properly understood, must then permit frisks performed during consensual encounters. If an officer develops reasonable suspicion that a suspect is armed and dangerous during a non-seizure encounter, he can perform a protective frisk.
The fact that the doctrine permits such a practice may alarm some. But the doctrine limits standalone frisks in important respects. First, doctrine still requires that officers articulate why they believed the suspect was both “armed and dangerous.” Second, the doctrine doesn’t permit officers to develop reasonable suspicion for a frisk from afar. So, officers can’t surveil a suspect, develop suspicion, approach him, and then perform a standalone frisk. Why? Well, officers are only permitted to conduct frisks when they are engaged in encounters—consensual or otherwise—with individuals. That’ s because protective frisks are for just that—protection. They keep officers safe when they are in close proximity to individuals. They are not tools of crime control. To be sure, some officers might try to manufacture consensual encounters to get close to suspects. But, in those cases, citizens can avoid standalone frisks by doing what they have always been constitutionally permitted to do: refusing to speak with police and walking away.
At bottom, this Article makes clear that standalone frisks—not just stop- and-then-frisks—are lawful under Fourth Amendment doctrine. Recognizing the permissibility of standalone frisks sets the doctrinal record straight and gives guidance to courts, officers, and citizens moving forward
Repository Citation
Elias Neibart and Bobby Levine,
Standalone Frisks,
109 Marq. L. Rev. 1553
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss4/9