(a) During a stop, an officer may:
- (1) request identification and make other inquiries as necessary to investigate the crimes or violations for which the officer has reasonable suspicion; and
- (2) conduct a frisk of a person, or a protective sweep of the passenger compartment of a vehicle, based on reasonable suspicion to believe that the person is armed and dangerous.
(b) Unless an officer receives information that supports probable cause of a crime or violation, the officer must terminate the encounter upon completion of these investigative efforts.
Comment:
a. Generally. Once an officer detains a person, the officer is permitted to take certain additional steps either to confirm or dispel the officer’s suspicions, or to ensure the officer’s safety. Some actions, such as seeking identification or asking questions, do not require any additional cause. Other actions, such as a protective frisk, require additional justification beyond the reason for the stop itself—specifically, that the officer have reasonable suspicion to believe that the individual is armed and dangerous.
The concern in both instances is that absent proper limits—including those addressed by other Sections in this Chapter—those secondary intrusions may themselves become the goal of the stop, leading to unnecessary and perhaps unnecessarily intrusive encounters between officers and the public. This Section addresses that concern in two ways. First, it makes clear that encounters must be limited in scope and duration to that which is necessary to resolve the officer’s suspicions regarding the particular offense in question, or to ensure the officer’s safety. This discourages officers from turning routine traffic and pedestrian stops into fishing expeditions on the off chance that officers may stumble on incriminating evidence of an unrelated offense. Second, it reinforces the Fourth Amendment rule that the only permissible justification for a protective frisk is an officer’s reasonable, articulable belief that the individual stopped is armed and dangerous.
b. Protective sweep of a vehicle. An officer may conduct a protective sweep of the passenger compartment of a vehicle based on reasonable suspicion that the driver or passengers are armed and dangerous. The sweep must be limited to those areas that could contain a weapon and are immediately accessible to the driver or passengers—or would be once the driver or passengers are permitted to reenter the vehicle.
c. Lawful gun possession. A number of states permit individuals to carry a concealed weapon on their persons or in their vehicle. The existence of these laws poses a number of difficult questions regarding the permissible scope of an officer’s authority to search for and secure a lawfully-possessed firearm during a stop. Chief among them is the question of whether—and under what circumstances—an officer may presume that an individual who is armed lawfully is nevertheless dangerous to the officer or others. A number of state courts and lower courts have considered this question, and have reached conflicting results. Agencies in states with conceal-carry laws should provide clear guidance to officers, consistent with both state and federal law, regarding the steps they reasonably may take to protect themselves during interactions with individuals who are armed lawfully.
Reporters’ Notes
For the most part, this Section adheres to existing U.S. Supreme Court precedent, both about what authority officers possess when they conduct stops, and what authority they do not. In particular, it allows a request for identification during a stop, Hiibel v. Sixth Judicial District, 542 U.S. 177 (2004), so long as there is reasonable suspicion for the stop in the first place. And it permits a frisk of the outer clothing of a person if the officer can articulate a threat to his or her safety or the safety of others, Terry v. Ohio, 392 U.S. 1 (1968). It similarly permits a protective sweep of the passenger compartment of a vehicle based on reasonable suspicion that the vehicle contains a weapon that would be immediately accessible to the driver or passenger. Michigan v. Long, 463 U.S. 1032 (1983). It also makes clear, consistent with Rodriguez v. United States, 135 S. Ct. 1609 (2015), that a stop may not be longer than necessary to accomplish the purpose of the stop. Finally, as Comment c acknowledges, there is an open question under existing law as to the scope of the Terry rule in states that permit individuals to carry a concealed firearm either on their person or in their vehicle. In particular, courts have divided over whether an officer may assume that an individual who is armed necessarily is also dangerous. Compare United States v. Robinson, 846 F.3d 694, 699 (4th Cir. 2017) (en banc) (“when the officer reasonably suspects that the person he has stopped is armed, the officer is warranted in the belief that his safety . . . [is] in danger . . . thus justifying a Terry frisk” (internal citations and quotation marks omitted)), United States v. Rodriguez, 739 F.3d 481, 491 (10th Cir. 2013) (same), with State v. Vandenberg, 81 P.3d 19, 22 (N.M. 2003) (“To justify a frisk for weapons, an officer must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous. . . . Any indication in previous cases that an officer need only suspect that a party is either armed or dangerous is expressly disavowed.” (emphasis in original) (internal citations omitted)), and State v. Bishop, 203 P.3d 1203, 1218 (Idaho 2009) (“weapon possession, in and of itself, does not necessarily mean that a person poses a risk of danger”). Agencies should provide clear guidance to officers on the scope of their authority when dealing with individuals who are lawfully armed—and in the absence of controlling authority from state or federal courts, should consult with local officials and community members on how best to assure officer safety while respecting the legislature’s judgment that individuals ought to be permitted to carry a weapon in public.