What is a Search? Are “Frisks” Legal? When Can Police Pat You Down?
. . .[I]t is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ – Terry v. Ohio
What is a “Seizure?”
- One’s reasonable expectation of privacy may not be impermissibly invaded
- Seizures may be proper, if they are “reasonable”
- The Fourth Amendment protects only against unreasonable searches and seizures
What is “Reasonable?”
In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.
- The test standard Courts employ is an objective one
- At the moment of the seizure (or the search), what amounts to reasonable caution, by Law Enforcement, in the belief that the action taken was appropriate?
- Good faith on the part of the arresting officer is not enough
[I]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police – Beck v. Ohio, 379 U.S. 89 (1964)
- Consideration of the nature and extent of the governmental interests involved
- General interest in crime prevention
- Officer’s specific concern for their own safety
- Citizen’s interest in their own privacy and dignity
- Extent to which the particular search in question intruded upon those interests
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime – Terry v. Ohio
Modified Transcript of “When Can Police Pat You Down?” for the Hearing Impaired
A frisk or a pat down in North Carolina is an interesting legal I guess conundrum.
Generally speaking, police officers cannot just come up to you and say, “Empty your pockets, I want to take a look and see what you have.”
There have to be reasonable grounds. There has to be a legal basis to do a pat down or a search.
Patting you down, even if it’s on the external area of your clothing, is still a search of sorts.
It’s mandated by the North Carolina general statutes of how these things take place, as well as the constitutions of North Carolina and the United States, and there’s some case law that our appellate courts have set forth.
Generally speaking, an officer can come talk to you and ask you questions.
If they believe you’re engaged in criminal activity or if they’re concerned about their safety as a law enforcement officer, or the safety of others, they may do what’s called an external pat down of your body.
If, by that external pat down, they immediately determine there’s a weapon or something of that nature, then they may be able to go in the pockets or check a waistband.
It’s complicated; it’s nuanced; it depends on the underlying factors of what’s reasonable or not reasonable.
Why would a police officer think you’d be armed or not armed?
Would there be something in a speeding ticket case that would necessitate getting you out of the car and emptying your pockets? Maybe, maybe not.
Call us. We offer a free confidential consultation.
We’ll explain your rights to you and we’ll let you know whether or not that frisk or pat down was legal, and whether or not it may be a grounds to challenge items seized as a result of that pat down.
That brings up an important legal point. Just because they patted you down doesn’t mean that a case is dismissed even if the pat down was otherwise illegal.
If they didn’t find anything there’s not a whole lot to suppress.
These issues involve more than just your rights to be left alone, your rights not to be seized or items taken as part of that seizure.
It involves a series of competing factors, both your individual rights to be left alone and that of law enforcement and society enforcing the laws.
Give us a ring. I look forward to hearing from you.
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Charlotte, NC 28208