This is the fourth part in a series of posts about what legal obligation you have when you interact with the police and the first part of a three-part sub-series that will deal with pat-down searches.
You were walking quickly along the street with your favorite black ski mask hanging out of your back pocket and an officer ordered you to stop. You did, and now he is attempting to question you about the armed robbery of a nearby convenience store. You tell him you respectfully refuse to answer his questions without your lawyer present. After a moment he asks you to turn around against a wall so that he may pat you down.
Do You Have to Comply with a Police Search
The BEST answer: Yes, but tell him that you do not consent to be searched.
The CORRECT answer: Yes.
The WRONG reaction: Push him away and say, “If I am not under arrest you can’t search me so get your hands off of me!”
The WRONG reaction is wrong for two reasons. First, we know from prior blog posts that you are not entitled to “self-help” when dealing with the police. That is, if you think they are doing something illegal, you cannot physically stop them at that moment. Your only recourse is to go to court later and complain about it.
So you cannot and should not ever try to physically stop an officer from searching you or patting you down. Second, the Supreme Court decided in the Sixties that an officer who has “reasonable articulable suspicion” can conduct a Terry stop.
The Terry stop is a period of detention that is not quite a full arrest and is named after the case, Terry v. Ohio. In other words, if, a police officer makes observations that in his experience, lead him to believe you are either going to commit a crime or have committed a crime, he can stop you for a brief period to conduct an investigation.
If he has reason to believe that you may be armed and present a danger to him, he may conduct a limited “pat-down” for his safety. In this case, the officer stopped you because he believes you were connected to the armed robbery. Thus, since it was an “armed” robbery, he has reason to believe you are armed and dangerous. For this reason, he has a right to pat you down for his safety.
Submit to the Pat Down
The CORRECT answer is yes, you must submit to the pat-down. However, the BEST answer includes letting the officer know that you are not consenting to the search. The Terry stop and the “pat-down” are limited searches and seizures.
The Terry stop has to be short in duration and should not include transporting you to a different location or physically restraining you by handcuffs or similar devices. The “pat-down” should consist of the officer running his hands over the outside of your clothing to feel for objects which may be weapons or objects of obvious criminality.
If the officer feels such an object, he may remove it and examine it, but otherwise, the “pat-down” is limited to literally, a “pat-down.” Thus, within the scope of the “pat-down,” the officer may not open your purse, briefcase, backpack or other containers.
However, if you give consent for him to search, he can search anywhere you give consent for. If, for example, you tell him that he can go search your house, he can. He does not need a warrant or a reason – all he needs is your consent. Thus, it is best to make clear that you will cooperate with him to the extent that you are required to by law, but that you do not consent to any searches.
If you are under investigation, or have been arrested by any Columbus law enforcement agency, feel free to contact one of our experienced Columbus Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.