In part one we looked at a recruit officer that was given direction to conduct a pat/frisk search on every subject he contacted or face the wrath of a poor appraisal by his FTO. Consensual encounters and arrests were discussed as to their applicability to pat/frisk searches. Now we continue our examination of the direction given to the recruit by discussing detentions.
Detention
A detention exists when:
1) an officer asserts authority over a person in a way that a reasonably innocent person would feel compelled to submit to, and
2) the person in fact submits.1
A detention must be supported by reasonable suspicion. Reasonable suspicion can be described as a belief, based on specific facts, that:
1) something relating to crime has just happened (or is happening, or is about to happen), and
2) the person that the officer is about to detain is connected with that activity.2
Suspicion
Detentions require specific articulable facts or circumstances. Reasonable suspicion cannot be based on a mere hunch, an “educated guess” or an officer’s “sixth sense.” It is important as professionals that we understand the legal standards involved in each contact and not only apply them correctly in the field but are also able to write and give oral testimony accurately about the standards.
In a detention, the subject is not free to leave while the officer is reasonably conducting his/her business. When, however, the reason the officer made the stop has been resolved or disappears, without discovering anything providing independent suspicion for a continuing detention, the justification for the detention is over and the subject must be free to go.3
Even if an officer has reasonable suspicion to detain a subject, this in and of itself does not allow the officer to perform a non-consensual pat/frisk search for weapons.4 In a detention when an officer does not have reasonable suspicion to believe the subject is armed and dangerous, the officer may still ask for consent but the same rules apply here as when asking for a pat/frisk in a consensual encounter. If the subject says “no,” then the officer must be prepared to move on.
If the officer has reasonable suspicion to detain a subject, and reasonable suspicion to believe the subject is armed and dangerous, the officer may now conduct a pat/frisk search regardless of the subject consenting or not. Again, it is good practice to ask for consent even if the officer already has the legal right to conduct the search. Police1 Columnist Ken Wallentine writes in his book, Street legal: A guide to pre-trial criminal procedure for police, prosecutors, and defenders that some facts that have been articulated by officers that allowed them to pat/frisk search a detained subject include, but are not limited to:
• bulges in clothing that might hide a weapon
• bulky clothing worn on a warm day
• a tip from a reliable informant
• person is believed to be involved in a crime using a weapon
• single officer dealing with an aggressive suspect
• suspect is associated with a violent gang, and
• suspect’s placement of a hand into a pocket as if reaching for (or holding) a weapon
Officers would do well to articulate the circumstances that would make them want to search the subject. Such circumstances to consider and write about in their report are:
1) time of day/night
2) type of criminal activity known in the area
3) whether the subject’s actions were suspicious and possibly related to that type of activity
4) proximity or time/distance of closest cover unit
5) is officer alone or with another officer
6) how many subjects are being stopped
The more information the officer discusses in the report, the better it will be.5
Conclusion
The instructions given by the FTO in the scenario outlined in part one were unlawful and tactically unsound. A person is guaranteed the right to be free from unreasonable searches as provided by the 4th Amendment to the United States Constitution. The United States Supreme Court has ruled that an officer, absent consent, may only pat/frisk search a person if there is reasonable suspicion to detain and reasonable suspicion to believe they are armed and dangerous. If the recruit were to search everyone he contacted, this standard would not be met in the majority of non-arrest situations. The officer’s search would therefore be unreasonable and the officer would possibly be subject to a civil rights action. If the agency was aware – or should have reasonably known – that this practice was happening, the agency may also have a risk exposure to civil liability.
The instruction to search everyone out of habit, or as standard practice, instead of when lawful, was also tactically unsound. This routine ingrains bad officer safety practices and will not allow the recruit officer to grow by learning how to lawfully develop the facts that will lead him to a reasonable suspicion that the person is armed and dangerous and then conduct a thorough and systematic search for the weapon. Indeed, if he is searching for the weapon that is reasonably believed to be concealed, he will act more decisively and appropriately when the weapon is found.
In summary, the final questions that trainers and administrators should be asking themselves about the officer’s pat/frisk searches are simple.
1) Did the officer conduct the pat/frisk search without reasonable suspicion to believe the subject was armed and dangerous? (read: out of routine or only because he was told), or
2) Was the officer truly searching for a weapon based on reasonable suspicion that the subject was armed and dangerous?
If the answer is within the first question, there are legal and officer safety concerns that must be addressed within the organization.
Footnotes
1 California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151 (Hodari D. (1991) 499 U.S. 621, 626; Cartwright (1999) 72 Cal.App.4th 1362, 1367; Turner (1994) 8 Cal.4th 137, 180.)
2California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151 (Sokolow (1989) 490 U.S. 1, 7-8; Tony C. (1978) 21 Cal.3d 888, 893; Twilley (9th Cir. 2000) 222 F.3d 1092, 1095; Limon (1993) 17 Cal.App.4th 524, 532.)
3California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151
4Ken Wallentine, Street legal: A guide to pre-trial criminal procedure for police, prosecutors, and defenders
5Dr. Ron Martinelli, Ph.D., Martinelli and Associates, personal communication, May 15, 2010.
