In State v. Russell, a unanimous Supreme Court found that police officers who stop and frisk people under the “Terry stop” principle can only look for weapons and not fish for evidence of other crimes.  The Court also ruled that an individual does not give consent to a police search by “appear[ing] not to have a problem” with it – instead the officer must ensure the consent is voluntary and that the individual knows he or she can refuse to give consent.

Here, a cop stopped and frisked an individual, found a small box that could not contain a gun and opened it anyway. The cop found a syringe filled with methamphetamine.  The Supreme Court held that the syringe could not be admitted into evidence against the defendant because a Terry stop only allows protective frisks for weapons and does not justify opening containers to see what is inside them.  The Supreme Court also rejected the alternative argument that the defendant consented to the search by appearing not to have a problem with the frisk and observed that the State failed to establish that the officer gave Miranda warnings or otherwise advised him that he could refuse consent.

Police officers in Washington have been put on notice that they do not have a free hand in seeking evidence through stop and frisk tactics.  They must limit themselves to performing a safety search for weapons unless they get either true consent for a more intrusive search or a warrant.

Justice Gonzalez wrote a thought provoking concurrence.  In this case, the police officer stated that his Terry stop was reasonable because he had previously encountered the defendant.  In that earlier encounter, the defendant had lied to the officer and said he was unarmed when, in fact, he had a gun.  Justice Gonzalez would not automatically assume that the officers previous discovery of a weapon on the defendant justified admitting any evidence gather through the following Terry stop. Instead, Justice Gonzalez would apply the “fruit of the poisonous tree” doctrine: if the only reason the police officer found the gun the first time was an illegal search, evidence found in the second Terry stop would be suppressed.

Note that Justice Gonzalez does not suggest that it would be illegal or imprudent for the officer to frisk an individual he had known to be armed.  However, an officer who chooses to frisk an individual for his own safety could not automatically admit into evidence anything he found during that search.

If Justice Gonzalez is wrong and the “fruit of the poisonous tree” doctrine does not apply to Terry stops, a police officer can perform illegal searches until he or she finds a weapon on a person.  While the officer will not be able to get a conviction on that first illegal search, the officer now has a license to perform warrantless frisk searches on that individual at will.  If any of those searches produce incriminating evidence (within the scope of a protective search), it will be used against the now-defendant, even though the only justification for that search was a previous illegal search.