When Can the Police Pat You Down?

January 28, 2009

pat-downAs an appropriate follow up on this post from Monday about the Court of Appeals, Second Circuit’s decision a few days ago, the Supreme Court ruled on Monday about a related matter. In Arizona v. Johnson, the Supreme Court released a unanimous decision clarifying when a “pat down” for weapons is or is not in violation of the 4th Amendment prohibition against unreasonable searches and seizures.

In the case, a police officer pulled over a car for a routine traffic violation. After noticing some gang related clothing and unusual behavior by the passenger in the back seat, she began conversing with him and he revealed his gang affiliation with the Crips. She asked him to get out of the car, and fearing for her safety, she patted him down, whereupon she found a gun he was illegally possessing. Later on, this individual’s attorney moved to suppress the gun evidence, arguing that the pat down was an unreasonable search and seizure since she had no reasonable suspicion that he had or was about to engage in some criminal activity. All she had was a suspicion for her safety. The trial court allowed the evidence but the Arizona Court of Appeals said that since her suspicions were the result of a consensual conversation, the stop was no longer part of the traffic stop and that the officer therefore lost her ability to pat him down for fear of her own safety, barring a reasonable suspicion of criminal activity, which was absent in this case.

The Supreme Court reversed this Arizona Court of Appeals decision, and let the Trial Court’s decision to allow the pat down stand. They argued that “[a]n officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop’s duration.”

As Professor Orin Kerr (one of the authors of my Criminal Procedure Casebook!) emphasizes in his post at The Volokh Conspiracy, “[t]he temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.” (emphasis added).

Combined with the 2nd Circuit’s decision on Monday, in New York, as long as the police stop a car for a traffic violation, and then see something that makes them suspicious that the occupants may have a weapon, they may pat down the occupants of the car and search the car if there’s some reasonable basis to think that illegal activity has or is about to take place.

These recent developments and decisions make it even more important to get a lawyer who understands the intricacies and the new developments in criminal procedure  regarding what the police may and may not do in a traffic stop, if you get stopped for a DWI, or any other reason…

Picture courtesy of

Advertisements

3 Responses to “When Can the Police Pat You Down?”


  1. […] Understanding when the police can frisk you: Nicole Black at Sui Generis offers her take on the pros and cons of the Supreme Court decision in Arizona v. Johnson, that I commented on here. […]

  2. Jamie Says:

    Let’s not forget the other, shorter, less focused-on-case-law answer to the question of “When can the police pat you down?”…

    When they have a gun… (I don’t think it’s neccessary to add “and when you don’t)

    🙂


  3. Jamie, quite true!


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: