What Is Permissible During a Police Pat Down?
A protective search of a defendant or suspect for any weapons is an allowable privacy intrusion on the part of the police. This limited intrusion was created only to safeguard the protection of police and other parties while officers conduct their criminal investigations. The protective search (or frisk or police pat down) is now a well-established police procedure and protocol which must be followed for evidence collection.
Scope of Privacy Intrusion During a Pat Down
Despite the well settled use of the pat down, there is still controversy over the scope of such a search. Namely, do pat down laws permit a privacy intrusion by allowing authorities to search under the surface of a suspect's clothes, or do they solely allow just a frisk of the outside or exterior of the suspect's clothing?
Several key areas of inquiry and investigation help define and determine the permissible scope of a pat down or police protective search. Those areas of inquiry address the following questions:
- What level of certainty must the police obtain about whether the suspect is unarmed?
- How intensive can the privacy intrusion associated with the frisk be?
- What weapons can the police search for on the suspect's person?
Requirements and Rules for Pat Downs
For their protection, police officers are permitted to make fast surface scans and searches of a suspect's outer clothing for weapons during pat downs. Pat downs are permissible if the officer has reasonable suspicion that the suspect has a weapon. That reasonable suspicion is required to be founded on specific, articulable facts known to the officer, and not simply a hunch or gut feeling.
This type of pat down is now called a "stop and frisk" or "Terry stop" in many jurisdictions. The pat down was later applied to a slightly broader context— the temporary detention of parties in vehicles, which are often called traffic stops.
Constitutional Basis for Police Protective Searches
The constitutional origin and basis for police protective searches stems from the U.S. Supreme Court case of Terry v. Ohio (392 U.S. 1 (1968). In the Terry case, the high court first considered the issue of whether police pat downs were constitutional. That case evaluated the police practice of weapon searches on accosted persons and deemed it governed by the U.S. Constitution's Fourth Amendment protections.
The decision stood for the proposition that police protective searches were legitimate and constitutional, as it established justifications for the searches in the jurisprudence. Specifically, the supreme court held in Terry that the Fourth Amendment's bar on unreasonable searches and seizures is not violated by the police when they stop a suspect and pat down that suspect without probable cause to arrest him or her, so long as the police have a reasonable suspicion that the suspect committed, is committing, or committed an offense, and the officer has a reasonable belief that the suspect might be dangerously armed.