Pat down searches – Orange County Criminal Defense

When can the police pat you down?  How far can they go?

A patdown search, sometimes called Terry search or a frisk is only authorized in certain circumstances.  If you want to see a perfect example of when it’s not supposed to happen, look at an old rerun of the TV show COPS.   Seems like every show you watch, the police would stop somebody for who knows what and next thing you know, they’re on the hood of the car with their pockets being turned inside out.

Obviously, that’s not how it’s supposed to go.

First, the police can search for anything if they have your consent.  If you’re in contact with the police at whatever level they asked if they can search you and you agree, it may be difficult to complain about the legality of the search later.  Of course, any consent must be freely given and not coerced by the police.

But what if you refuse to give consent?  When can they search you?

If you are lawfully detained by the police, that doesn’t automatically give them the right search.  Not only must they legally justify your detention, but they must also have specific facts which make them believe that you are armed with a weapon or something that could be used as a weapon against them.

If they can justify patdown search, that’s all they’re allowed to do. It’s not a full search where they can start sticking their hands in your pockets or looking in your wallet. They are authorized only to do a patdown or frisk search of your outer clothing for weapons.  That’s it.  If they have to manipulate, squeeze, or do something else to whatever they feel in your pocket to figure out what it is, it’s not a weapon search and they can’t legally seize it.

So how do you protect yourself?

First, always know which her legal status is.  The police could walk up to anyone they want to and start talking.  Unless they have legal grounds to detain you, you’re free to go.  If you have any doubt, ask them “Am I free to go?”  if they say yes and you don’t want to stick around, walk away.   If they tell you you’re not free to go, then you are detained.   During the detention, they can ask for permission to search, but you don’t have to give it.   If you give consent, our argument later that it was an illegal search may not get us very far.  Instead, if you decline the request search it puts the ball in their court and they have to justify the legality of the search.

If you are arrested, that they could do a full search for any and all containers, pockets, etc.

For more information, see:

Interacting with the police

How is evidence suppressed in court?

Joe Dane

(714) 532-3600

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