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  1. #1

    Default Difference Between Pat Down and Search

    My question involves criminal law for the state of: Washington

    I was pulled over in the State of Washington. It was late at night, about midnight. The officer and i were discussing whether i was sober or not, i was explaining i was not but the officer was upset with me because i called him out for the reason of the stop. The officer said he would be willing to check my eyes, then i would be free to go. Because i was tired of the encounter, i obliged and stepped out of my vehicle. Before stepping out, i informed the officer i was not consenting to a search of my person and the officer agreed. Then after i got out of my car, the officer started patting my pockets, feeling against my arms, and touching my skin. I told the officer this was the search i did not consent to, but was told it was a pat down and not a search. As a result, I filed a formal complaint, internal investigations told me it was only a pat down.

    So, what distinguishes between a legal pat down and a violation of my 4th amendment after i decline a search?

  2. #2
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    Default Re: Difference Between Pat Down and Search

    A "pat down" IS a "search" as it applies to the 4th Amendment. It requires the presence of articulable cause that a person could be armed and is for the limited purpose of the officer's safety. The legal burden for such a "search" is low, but must still be present.

    In the mind of some in law enforcement a "pat down" is not a search. Legally, this is not correct. From a practical perspective, many officers see a "search" as being an invasive procedure where they dig into pockets and possessions whereas a "pat down" is a frisk for weapons. The fact that some officers may not comprehend that a "pat down" is still governed by the 4th Amendment is a training issue.

    That being said, you took the only real step you could take when you filed a complaint. Given the minimally invasive action and the lack of any real inconveniences or harm, there's not much you can do beyond that unless you are willing to fork out a lot of money for a slim shot at a lawsuit ... and a suit without any real harm is likely doomed to failure.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

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  3. #3
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    Default Re: Difference Between Pat Down and Search

    Quote Quoting spokanedriver
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    So, what distinguishes between a legal pat down and a violation of my 4th amendment after i decline a search?
    In addition to what Carl perfectly stated, compare this case to your facts, it might explain in detail what I believe you are driving at.

    Syllabus:

    https://www.law.cornell.edu/supct/html/91-2019.ZS.html

  4. #4
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    Default Re: Difference Between Pat Down and Search

    Quote Quoting spokanedriver
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    So, what distinguishes between a legal pat down and a violation of my 4th amendment after i decline a search?
    In short, not all searches require a consent or a warrant to be valid. One of the exceptions to the requirement for either a warrant or consent to conduct a search is a limited search of your person and immediate area around you (the area you can reach) to ensure that you are not carrying anything that might be harmful to the officer, like a weapon, when the officer is engaged in a Terry stop. The Terry case established this rule, hence the name. A Terry stop is a limited detention of a person that occurs when the officer has reason to suspect that the person may have committed some offense. So limited pat down is allowed during a Terry stop without consent or a warrant to check for weapons, etc., without violating the Constitution. As cdwjava says, it is still a search, but one that is still allowed if the requirements for a Terry stop are met. A more comprehensive search would require a warrant, consent, or some other exception to the warrant requirement.

  5. #5

    Default Re: Difference Between Pat Down and Search

    Would being pulled over for no headlights on be reason enough for a Terry search? It was late in the evening, i drove about half a block in a very well lit area before noticing my lights were off and turned them on before the officers lights came on to pull me over. I guess I'm asking what does the officer need to Terry stop me? Doesn't he need to have some kind of articulable suspicion?

  6. #6
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    Default Re: Difference Between Pat Down and Search

    Quote Quoting spokanedriver
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    Would being pulled over for no headlights on be reason enough for a Terry search? It was late in the evening, i drove about half a block in a very well lit area before noticing my lights were off and turned them on before the officers lights came on to pull me over. I guess I'm asking what does the officer need to Terry stop me? Doesn't he need to have some kind of articulable suspicion?
    Seeing you drive without headlights at a time when the state statutes say you need to have the headlights on is reason enough to pull you over and investigate as it gives the officer the reasonable and articuable suspicion that you committed some offense. The same is true for any other traffic offense the officer observes. Once the officer has that, he or she is justified in making the stop and investigating. That's a Terry stop and is valid so long as the activity during the stop is reasonably related in its scope to the reason the cop stopped you in the first place. That scope can be enlarged, however, if during the Terry stop he discovers evidence of other potential offenses. As for the pat down for weapons or other dangerous items the officer is supposed to have some indication the person may indeed have something dangerous before conducting that search. Thus it is not automatic that a pat down search is justified in every Terry stop (though some cops seem not to understand that particular point). The courts look at all the circumstances of the stop to determine if the search was valid.

  7. #7

    Default Re: Difference Between Pat Down and Search

    Quote Quoting Taxing Matters
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    That scope can be enlarged, however, if during the Terry stop he discovers evidence of other potential offenses. As for the pat down for weapons or other dangerous items the officer is supposed to have some indication the person may indeed have something dangerous before conducting that search. Thus it is not automatic that a pat down search is justified in every Terry stop (though some cops seem not to understand that particular point). The courts look at all the circumstances of the stop to determine if the search was valid.
    Based on my description of the events in my previous post, does these actions give the officer the evidence to search me? I understand that there is always the case for something else, (I had a bulge on my side, shiny handle pointing out, something else) but based on the actions as I described above does that give the officer the legal authority to pat me down? I am awaiting the internal investigations report so I can see what reason the officer is able to articulate, but as of right now I recall doing nothing wrong and showed no aggressive action toward the officer and made no threats. Of course, as mentioned previously, I was not necessarily friendly to the officer but I did not make any actions or threats against.

    And if unable to articulate a reason, am I able to further my complaint?

    I do not want this officer doing this to someone else if he overstepped his boundaries. I know I felt uneasy and uncomfortable with him touching me skin on skin, even if it was only my hands. especially since I had mentioned several times that I did not consent to a search

  8. #8
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    Default Re: Difference Between Pat Down and Search

    Quote Quoting spokanedriver
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    Based on my description of the events in my previous post, does these actions give the officer the evidence to search me?
    There isn't enough detail there to make a firm conclusion. Exactly what occurred during the stop matters, including the details of what you said and did during the stop. It also matters how the cop perceived those actions. Bear in mind that how the cop interprets your actions may be different than you intended because you knew you weren't a danger to the cop, but the cop doesn't know that. If it's at all a close call I expect the department will give the benefit of the doubt to the cop given the concern over officer safety. Traffic stops are some of the most dangerous things cops do because they don't know what they are dealing with at the start of the encounter and a lot of cop deaths and injuries have occurred in traffic stops when the person stopped unexpectedly attacked the officer. Depending on the police department policies you might not learn much of what comes out of the internal investigations as personnel matters tend to be considered private employment matters. Most departments do not offer you any kind of appeal if you don't like the outcome.

  9. #9
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    Default Re: Difference Between Pat Down and Search

    Assuming for a moment that the officer jumped the gun and conducted a pat-down absent sufficient cause. What then? What would you like to see happen to him? Typically, this would be a training issue and would be addressed along that vein. Termination, days off without pay, or anything similarly draconian are simply not likely absent a pattern of similar and intentional malfeasance.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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