Pat down search during traffic stop-NO permission

[dfaugh]

Just got back from traffic court from my son and his friend...They had been pulled over a while ago...Expired inspection sticker (dumb) and his freind wasn't wearing his seatbelt (also dumb)...But here's the kicker, which he hadn't told me about before...The officer had my son exit the car, and do some kind of sobriety test (looked into his eyes, look at the sun...I assume was test to see if he was under the influence of any drugs...I'm still Ok with it so far (sort of)...HOWEVER, he then proceeded to "pat down" my son, WITHOUT ASKING PERMISSION FIRST...Which as near as I can tel is a serious violation of the search and seizure laws--no probable cause. (BTW my son cooperated fully---nothing to hide...had it been me however I woulda probably gone ballistic)

To wit, here's some applicable Supreme Court cases:

Florida v Bostick (501 U.S. 429 (1991) U.S. Supreme Court

Police officer’s request that bus passenger consent to search of luggage, was not a seizure under the Fourth Amendment.

The appropriate inquiry in such situation is whether a reasonable person would feel free to decline officer’s request or otherwise terminate the encounter.

B) Consent must be voluntary.

C) Consent must be obtained from a person with authority to give that consent.

D) United States v Drayton (153 L Ed 2d 242 (2002) U.S. Supreme Court

Officers do not violate the Fourth Amendment merely by approaching individuals in public places and putting questions to individuals, if they are willing to listen.

Even when officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request to consent to search their person or property, provided they do not induce cooperation by coercive means.

If a reasonable person would feel free to terminate the encounter, then he has not been seized for purposes of the Fourth Amendment.

So is this an illegal search or not?

 

[cordex]

Sounds like a Terry search.

Supremes have ruled that police can search a person for weapons without consent or warrant for officer safety.

 

[scottgun]

This was a Terry search and not a violation of your son's 4A rights. Terry searches are used to check for weapons for the officers safety.

 

[dfaugh]

RE: Terry search

Yes, I read a BUNCH of stuff about a Terry search...and didn't see where it applies...there are still a variety of requirements that must be met before a Terry search becomes reasonable....

 

[orangeninja]

Yep, sounds like a Terry frisk, however even though the officer need not have probable cause he must still have a reasonable suspicion (not such a big burden of proof) that:

1.) Criminal activity is afoot (be performing a valid investigation) and

2.) One of the suspects may be armed (possibly posing a threat to others, the officer or themselves).

Case law quotes:

"(c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22.

(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.

(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26. "

 

[dfaugh]

Oh...

And I probably should have mentioned that his friend was NOT asked to leave the car, nor was he searched..........

 

[Tory]

The FRIEND was not driving,

the FRIEND was not the owner/authorized user of the vehicle and the FRIEND was not in charge of its operation. Your son was.

Try as you might to convince yourself otherwise, there is NO corollary between the "Can I search your bags?" bus case and a Terry frisk. Terry frisks are, ostensibly, for officer safety; not a search for evidence. While there may have been no perceptible threat and it was a only a power trip for the cop, it will not be deemed a violation of his 4th Amendment rights.

 

[Joejojoba111]

Can they go in your pockets, or just pat down? I think I understand that in house searches they can only look places where what the warrant is about can fit. So if they have a warrant to search for a shotgun, they can't look in your jewelry box, because there's no way to fit a shotgun in it.

Thus if they pat you down, and there's nothing hard in the pocket, but they feel a soft bag, am I stupid to infer that they can't examine the bag - because it's not possibly a weapon?

 

[The Undertoad]

dfaugh - Nothing wrong with asking your son to leave the car. Maybe the Officer wanted to speak with him out of earshot of his friend for some reason.

I am in a Police Academy as we speak. We covered this topic today and yesterday, it is fresh in my mind. From what I have been taught, and the info you have presented, it sounds like an illegal search unless the Officer can articulate reasonable suspicion for the presence of a weapon. A pat-down simply for "officer safety" with no real reasons behind it than "well he coulda..." is a no-no.

Of course, my advice could be totally wrong. It's worth what you paid for it.

Joejojoba111 - If they feel something suspicious IN THE SAME FRISKING MOVEMENT (ie no further manipulation once it's determined the object in your pocket is not a weapon) then it's admissible as evidence.

 

[centac]

Well, it gets tricky.......normally Terry covers weapons only, so a "soft" object wouldnt be covered, unless it is contraband whose nature is immediately apparent to the officer. I cannot cite caselaw right now, but this is a narrow exception to the Terry requirement of weapons only.

Example: I have viewed and handled hundreds of crack pipes. If in the course of a Terry frisk I feel an object that my experience and training tell me is a crack pipe it may be admissable, note "may" to mean possibly, but not assuredly.

 

[publius]

Well, it gets tricky

Sounds to me like the tricky part is justifying patting the son down at all, given what we've been told. I'm hoping that what UnderToad said is accurate.

From what I have been taught, and the info you have presented, it sounds like an illegal search unless the Officer can articulate reasonable suspicion for the presence of a weapon. A pat-down simply for "officer safety" with no real reasons behind it than "well he coulda..." is a no-no.

Does that sound right, given what we have been told?

 

[publius]

And why the sobriety test, for that matter?

Hey, dfaugh, post a pic of your kid, would you? I want to see if he just inherently looks drunk and dangerous!

 

[centac]

We'll never know, cause we cannot ask the officer to articulate why he did what he did.

 

[Aguila Blanca]

Yep, sounds like a Terry frisk, however even though the officer need not have probable cause he must still have a reasonable suspicion (not such a big burden of proof) that:

Nope, you got it wrong.

You left out the key word: "articulable." In order to conduct a "Terry stop" an officer must have an articulable suspicion that a crime has been committed, is being committed, or is about to be committed. An "articulable" suspicion is different from a reasonable suspicion. For example, if I am driving down the main street of the nearby city an I observe a very young person wearing "gansta" clothing driving a brand-new BMW or Mercedes (not uncommon in these parts, by the way), I may have what I consider to be a reasonable suspicion that he bought it with drug money, but I have no articulable suspicion that he is either on his way to a buy on on his way from a buy.

The key word for a Terry stop to be legal is "articulable," and in this instance it appears that the officer was either (a) not conductiong a Terry stop, or (b) way out of line ... or, more likely, both.

 

[publius]

Maybe the picture will tell the tale...

 

[MikeIsaj]

It is unfortunate that we cannot ask the officer any questions. If your son is a minor you could ask the officer to talk to you. I would approach as a concerned parent that is hearing a story from his son and wants to make sure he's telling the whole story (he may not be). I'd be interested in knowing why he asked your son to step out of the car. I'd want to hear that he had some reason to suspect impairment, which would justify the "sobriety test" as well as the removal from the car. Otherwise it was a fishing trip, IMHO. I am also curious why he did the test first before frisking. If he suspected the presence of a weapon before the test, he should have frisked him then.

Your son is to be commended for handling himself well in this situation. As has been said before, argue your case in court, not at the curb.

 

[Coronach]

Well, the main points have already been covered:

1. Terry searches do not require consent nor probable cause to arrest, but they do require an articulable and reasonable suspicion that criminal activity involving a weapon is afoot in order to be valid.

2. We're getting one side of the story. This is not to call your son a liar, necessarily- everyone's perception (including that of the the officer involved) is inherently biased. Furthermore, your son lacks the info the cop had (was he a match for an armed robbery suspect, etc). Of course, its also possible that you got a cop that didn't know the law.

To be fair, you need to at least hear what the other side is.

Mike

 

[publius]

I am also curious why he did the test first before frisking. If he suspected the presence of a weapon before the test, he should have frisked him then.

Hadn't thought of that. Perhaps his son looked dangerous while trying not to look drunk?

 

[Jeeper]

The "reasonable suspision" standard for Terry is a very very very low burden. Any cop at any time could make up a list of things that would meet this like:

They were really nervous when they got stopped.
or
They kept figiting and looking at each other suspiciously.
or
He was really sweating and changed his answers to questions.
or
I saw a buldge in his pants.

If the search is illegal and they get some evidence then you can try and supress it. If the search was illegal and all it amounted to was harrasment you basically get nothing. The only way to challenge this is under a 1982 civil rights action. Have fun getting you $1.28.

It is a low standard and there is nothing you can do about it. It must be articuable but the officer DOES NOT have to articulate it to you.

Sorry but Terry searches for traffic stops are generally legal "for the safety of the officers".

 

[R.H. Lee]

If in the course of a Terry frisk I feel an object that my experience and training tell me is a crack pipe it may be admissable,

Admissable as evidence of what? Apparently I live in the stone age, I didn't know possession of a pipe is now illegal.

 

[Jeeper]

Admissable as evidence of what? Apparently I live in the stone age, I didn't know possession of a pipe is now illegal.

There is probably residue in it.

 

[JJohnston015]

To be fair, you need to at least hear what the other side is.

And good luck getting that.

 

[Group9]

Quote:
To be fair, you need to at least hear what the other side is.


And good luck getting that.:

Well, that is one down side to running all of the law enforcement officers off from the site.

 

[SMMAssociates]

Sounds like an HGN test. Don't ask me to spell it correctly, but when done by a skilled Officer, the Horizontal Gaze N-something-or-other test is quite good at field sobriety, and isn't particularly humiliating or opressive if the individual being tested passes (isn't "under the influence").

(Walking a straight line, for example, or the various tipitoes, touch your nose, etc., are quite obviously field sobriety tests, and some people might object, or perhaps the Officer didn't want to do it publicly for some reason. In the absence of a liquor or drug odor, for example, HGN might be the only way to spot something.)

An Officer then might decide that "something" is up, and go fishing. A Terry frisk is pretty easy to justify. Again, drug paraphernalia would be the likely search reason, although "weapons" would go on the report.

A blown registration, or other simple oddities can be a mark of more serious issues - no insurance, no valid registration or license, etc., and perhaps an indicator of other illegal activity, worth a look.

It does sound like the Officer decided that the situation was innocent, and that was that, but he was making damn sure.

I don't see any foul here....

As others have indicated, searching inside the boy's pockets is going to need some probable cause, but a lump or bag sort of thing would be really useful.

Local law may permit Juveniles to be searched with even fewer restrictions under certain circumstances - curfew issues, for example. The original post doesn't mention the kid's age.

IANAL, just an old rent-a-cop, but a good friend was a champion deuce-buster in Reno NV for a while. He can spell Nystagomous or whatever the heck it is.... ("Deuce" was slang out there for DUI.)

Regards,

 

[Joejojoba111]

Hey thanks for the good answers, good to know.

Ok, now this is honestly just curiousity, and you're in training as we speak so I'd venture a guess you're the most informed person on this board about this, so:
"If they feel something suspicious IN THE SAME FRISKING MOVEMENT (ie no further manipulation once it's determined the object in your pocket is not a weapon) then it's admissible as evidence."

Q1 - He pats your left front pocket and feels a couple grams of pot in a baggie. Can he now make a second motion and go into your pocket and take the baggie out? Or am I way off and he put his hand into your pocket to begin with?

Q2 - If you have the pot in a Frisk breathmints box, is it legitimate to look in there?

That sounds like I'm trying to get away with something, but really I just would like to know the real score, not to make trouble but just for the sake of knowing.
Thx