CAN A COP PAT YOU DOWN ANYTIME FOR ANY REASON? NO!

For those of you seasoned criminals, the idea of a cop patting you down is not unusual. For the regular Joe Bloe citizen, it may come as a surprise. A cop comes up to you as you are walking down the street. He says, hey, can I talk to you for a second? First red flag! He’s not asking to be your friend and do some random community watch inquiry. He’s trying to get info from you so that he can arrest you, or arrest your buddy who’s in the bar or house you just left. So, can you say no? Actually, yes. If he doesn’t have any “reasonable suspicion” that you have committed or are about to commit a crime. However, if you are a suspect in an investigation or he has something called “reasonable suspicion” that you have committed or about to commit a crime, then he can actually detain you temporarily and even subject you to a “pat down” of your outer body.

But wait, there’s more. What does an “pat down” entail? A pat down is specifically allowed in order for a police officer to determine if the person is armed and dangerous. Think about it this way. If an officer is about to deal with an individual for longer than a brief encounter, he might want to know if he is about to get his head blown off during the few seconds that he turns away to answer a call. It is a completely logical idea to protect those individuals who are supposed to serve and protect our rights.

OK. But what exactly does that pat down allow? Can the cop grope you up and dig into every pocket in your jacket and jeans? NO! That is specifically the point of a pat down. It is to allow an officer to quicky, and with minimal invasion, determine if the person he is dealing with is armed and could potentially kill him. It is meant to be an outer body pat down for that specific reason. In fact, even if he feels something odd shaped, unless it is immediately identifiable as illegal by plain feel, it cannot be seized from the person by digging into their pockets.

Now, what about the questions he asks while patting you down? This is a big issue that is sometimes missed. Here is the cop, patting you down, and in the process he starts asking questions like this: Is there anything on you that is going to poke or stick me? Then, is there anything illegal in your pockets? Well, now we are in a whole new area of law. This is because answers to the questions asked might be illegally obtained if you are “in custody”. If you are in handcuffs during this pat down, chances are you are “in custody” and the questions are meant to “elicit an incriminating response”. That could make them inadmissible at a later trial.

With this in mind, there are two issues to consider. First, can they pat you down and what does that pat down entail? Second, while patting you down, can they ask questions and do they have to read you your Miranda warnings?

It can become tricky depending on the facts, but the bottom line is that a pat down will likely be legal if you are a suspect of a crime. And, any answers to questions by the police can be used at a later trial if obtained after giving proper Miranda Warnings once you are in custody.

These cases are extremely fact driven and you must contact an experienced criminal defense attorney to determine whether you have a defense to your case.