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September 22, 2022

Protective Searches: We Must Follow the Rules

A weapons frisk is a “search” within the Fourth Amendment definition. A frisk is one example of a reasonable protective search authorized by the Supreme Court. But since frisking a person intrudes upon that person’s liberty and privacy interests, there are constitutional limits to a police officer’s authority to conduct a non-consensual frisk. Simply alleging a blanket concern for “officer safety” will not satisfy the Fourth Amendment’s reasonableness requirement.

The rule for a non-consensual frisk is (1) the person must be lawfully detained, and (2) there must be a reasonable suspicion that the person is presently armed and constituting a threat to the officer. However, simply being lawfully detained is not enough. The officer must be able to point to specific facts and circumstances of this particular encounter that would give rise to a reasonable belief the person is armed and would be a threat to the officer during the encounter.

Occasionally, officers will say, “My safety is the number one priority; therefore, I’m going to frisk everyone I encounter.” This philosophy has serious legal consequences that need to be considered, for instance, criminal liability. It is a federal crime (18 U.S.C. §242) for a government official to “willfully” violate a person’s constitutional rights. For example, suppose an officer conducts a non-consensual frisk. Without the circumstances previously mentioned, the officer does so with the knowledge those circumstances are the legal requirements for conducting a pat-down. He knows those circumstances don’t exist. Then the officer has willfully violated that person’s Fourth Amendment right to be free from an unreasonable search. That’s a federal crime. There are state crimes as well, such as assault and battery, that may apply. In most states, frightening someone without legal authority would constitute a criminal assault and battery.

Here’s another consideration: Most states do not permit a person engaged in a crime to claim self-defense later when that person uses force to defend himself from an imminent attack. For example, suppose an officer frisks a person without legal justification. That officer willfully does so with full knowledge that he does not have the authority to frisk (i.e., the officer is committing a crime by conducting this frisk). The person resists the search and becomes assaultive to the point that the officer reasonably believes the defensive force is necessary to protect himself from imminent serious physical injury. The person is seriously injured when the officer uses that force. In most states, the officer would not have a valid claim of self-defense if he were subsequently charged with a criminal offense for the force that injured the person. The reason was that the officer committed a crime when he frisked the person.

All police officers take an oath of office, one of the statements therein being a promise not to violate a person’s constitutional rights. In other words, we promised to follow the rules. We all assume some degree of risk to our security by volunteering to serve and protect our communities. A frisk is a “threat mitigation” tool we have at our disposal. But since frisking a person involves intruding upon that person’s liberty and privacy, the constitution limits our authority to frisk someone without their consent. Some rules cover when we are allowed to frisk a person. We promised to follow those rules.