Okay, you’ve been stopped by the police. Whether they tell you or not, you get the sense they are going to conduct a weapons frisk. Or patdown.
Try to pay attention how the officer does the patdown.
A US Supreme Court decision dictates the patdown must be either an actual "pat" search in which the officer's flat hand is held momentarily against a part of your body, lifted up and replaced a few inches to one side or the other, over and over again. Or, in the alternative (or in combination with), the officer's flat hand is held against your body and dragged over each body part.
Here's why I want you to try to be alert. During a patdown, an officer is not allowed to grab a hold of your pockets trying to get a three-dimensional feel of what is in the pocket. If that happens and it leads to the officer finding some kind of contraband, I need to know.
However, if your pockets are full of junk, e.g. keys, coins, a hankie, old receipts, etc., there is no way any officer can tell whether there's a weapon in there and he or she can order you to empty your pockets on the hood of his or her car or elsewhere.
On the other hand, if the officer is conducting the patdown and feels anything he or she recognizes as a weapon, the officer can reach in to get it. Needless to say, if you told the officer you were not armed and that officer finds a gun or a knife, he or she is not going to be happy and things may get a little rougher for you. (Remember a cop's number one rule!)
Obviously, cops don't like suspects with handguns but they have a particular aversion to edged or pointed weapons, for example, knives, daggers, pins, knitting needles, screwdrivers, and even ballpoint pens (yes, really – they make excellent stabbing instruments).
What if the officer feels something that he or she doesn’t think is a weapon but, based on his or her training an experience, believes is contraband or evidence?
For example, patrol officers are notified to be on the lookout for a suspect in a blue jacket who just committed a strong arm robbery of a woman’s gold chain necklaces. You happen to be running down the street in relative proximity to the crime and happen to be wearing a blue windbreaker. The officer detains you. This officer knows from his or her training and experience that robbers are often armed so has reasonable suspicion to pat you down. He or she feels something hard and loose in your pocket that sounds like metal-on-metal when touching it. Can that officer reach in to get it, or order you to take it out?
Yes. Based on the Plain Feel exception to the Fourth Amendment, a corollary of the Plain View exception, your detention and patdown were justified and the officer had probable cause to think the item in your pocket was the stolen necklaces. When he or she discovers it is just your dog’s choke chain and you were chasing after your dog that ran out of the house, that officer no longer has a reason to detain you and must send you on your way. Maybe with an apology.
(I will cover the Plain View, Plain Feel, and Plain Smell exceptions to the Fourth Amendment in more depth in a future blog post.)
Patdown of Female Suspects
The question often comes up, can a male officer patdown a female suspect he has reasonable suspicion to believe is armed and dangerous?
Some departments may have policy prohibiting such patdowns and most often, just to avoid the possibility, and hassle, of a female crook accusing him of some kind of sexual assault, male officers will ask the dispatcher to send a female officer to his location to conduct the patdown.
But remember the cop’s number one rule? Go home alive. So, trust me, if no female officer is available, the officer is going to pat you down for weapons. And if you are going to be arrested anyway, a much more intrusive search for weapons is permitted.
But admit it ladies, while we may not like the idea of being stopped in the first place, I think we can all tell the difference between a police officer conducting a legitimate weapons patdown and some perv in uniform using it as an excuse to cop a feel. Even if you can’t get his name, be sure to report the incident to the police the same or next business day.
So, remember, an officer needs reasonable suspicion that you are about to commit a crime, are in the progress of committing a crime, or have just been committed one, to legally stop/detain you. Once you are detained, the officer may also conduct a patdown for weapons if he has separate reasonable suspicion that you are armed and presently dangerous.
In future editions, watch for: Bail and Own Recognizance Release, How Long Can a Detention Last?, Types of Restraining Orders, and the Plain View Exception to the Fourth Amendment.
If you ever have any question about this or any of my other blog posts, or would like to see a post on an aspect of criminal law of particular interest to you, feel free to send it to me at RebeccaOcainLaw.com.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.