Do you know the boundaries of a pat-down search?
Here is a scenario. You are strolling down the block one day when a police officer pulls to the curb in front of you. He gets out of his cruiser and orders you to stop and put your hands above your head. You stop and put your hands up. He then tells you that you match the description of a man who just robbed a bank using a pistol. He let’s you know he is going to pat you down for his safety. You did not rob the bank, but you have a package of marijuana in your pocket. As he pats you down, he slides his hand over your pocket and feels the plastic baggie of weed. “What’s this?” he asks. “Can I have a look?”
You might wonder what to do.
The BEST answer:
Tell him you are unarmed and you do not consent to any searches.
The CORRECT answer:
The WRONG reactions: 1.) Lie about what it is. 2.) Tell him it’s just a bit of weed you have.
Both of the WRONG reactions are common things people do when faced with situations like this. They are both bad mistakes. Here’s why:
Do Not Lie to the Police
The first WRONG reaction is wrong because you should not lie to the police. Apart from identifying yourself as discussed in Part III of this series, there’s no law that requires you to talk to the police. Since there’s no requirement that you talk to them, there’s no reason to lie to them. If you can’t say anything without incriminating yourself then don’t say anything at all. Moreover, lying to the police or government investigators is usually a crime in itself. Many people who could have escaped punishment entirely, have ended up getting away with the original crime that they were charged with only to be punished for the separate crime of lying about it.
Do Not Talk to the Police
The second WRONG reaction is a common one because most people think that it is better to “own up” since the police officer is “going to find it anyway.” This assumption is incorrect.
When the police officer pats you down he is performing a “frisk” under the 1960s case Terry v. Ohio. That pat-down or “frisk” is limited to a search for weapons. Thus, when the police officer feels the soft baggie of pot in your pocket, he knows that it is not a weapon and thus he cannot take it out of your pocket without some separate reason for doing so. This is an example of the boundaries of a pat-down search.
The officer is asking you what the soft package is and whether he can take it out because he wants you to admit that it is pot or to give him consent to remove it from your pocket. If you do this, he will have an ironclad excuse for putting his hand in your pocket to get the drugs. Do not give him that excuse.
Admit to Nothing
Without your admission that the package is weed or your consent to put his hand in your pocket the police officer will face a tough choice: He can ignore the soft package, finish the pat-down, and send you on your way. Or he can turn to some more tenuous justification for getting the package out of your pocket without your admission or consent.
The two most common justifications used in cases like this are:
First, that the officer smelled the odor of unburned/fresh weed coming from your pocket.
Second, that when he ran his hands down the outside of your pants pocket and touched the soft plastic package, he immediately knew from feeling it that it was a baggie of pot.
Challenging this search in court if you give the officer permission to search your pocket or tell him you have weed in your pocket is impossible. Challenging the search if the officer says he smelled the weed through your pants and the plastic bag or if he says he “plainly felt” the weed through your pants and the plastic bag, is much easier.
In short, if you do not admit what you are carrying or give the officer permission to search, your case will be much better when you get to court and the officer may even decide to let you go without checking the pocket.
This is why the CORRECT answer is to say nothing.
The BEST answer, however, is to tell the officer that you are unarmed and you do not consent to any searches.
The reason this is even better than just saying silent is because this answer attempts to clarify the situation for the officer and for any future court proceeding.
That is, by truthfully telling him you are unarmed, you are telling him he should not be frisking you. You are also hopefully helping to put him at ease and minimizing the likelihood that he will feel the need to use force against you.
By telling him you do not consent to any searches, you are putting him on notice that any search he performs must have sufficient legal justification. It also let’s him know that he cannot rely on any consent from you. This may discourage the officer from searching you and it will certainly make it easier to challenge the search later in court if he does.