Patdown Case Analysis

Listen to this article

A question that the decision raises is whether it is limited to cases in which the officer decides before the patdown that it would be ineffective, or whether it can be extended to cases in which an officer conducts a patdown, but finds nothing.

Suppose the officer testified as follows: he conducted a patdown, including the waist area, and felt no weapons; however, because the suspect was overweight and was wearing a bulky coat, he was still suspicious that he was carrying a weapon, and had no faith in the patdown’s ability to detect it; accordingly, he grabbed the suspect’s belt loops and shook the waistband to make sure.

Unfortunately, the court’s discussion provides no guidance to answering that question.

State v. Vasquez, 807 P.2d 520 (Ariz.1991), did not even involve a patdown in the traditional sense. The suspect was cold and wanted his jacket; the officer would not give it to him without searching it for weapons first, and put his hand into the pockets of the jacket, because it was bulky, and he could not tell if a weapon was concealed in it merely from feeling it from the outside.

Reading the court of appeals’ discussion of the case, the reader assumes that the suspect was wearing the jacket, and the officer first did a patdown, felt nothing, and then reached into the pocket anyway. A trial court could easily conclude that, whenever a suspect is wearing a bulky coat during a patdown, the officer is allowed to put his hand in the pockets to look for weapons.

However, that would be reading too much into the court’s citation to Vasquez with approval. If a suspect is actually wearing the coat, Vasquez could be distinguishable.

In both State v. Hudson, 874 P.2d 160 (Wash.1994), and State v. Evans, 618 N.E.2d 162 (Ohio 1993), the officer first did a traditional patdown, felt something in pocket, but could not determine what it was, and then reached into the pocket to find out.

Thus, were an officer to patdown a suspect wearing a bulky coat, feel nothing, and then reach into the pocket to search, on the ground that the coat is too bulky to conduct an effective patdown, these two cases could be distinguished, as well.

The court’s treatment of a case cited for support by Triplett also provides little guidance. State v. Smith, 693 A.2d 749 (Md. 1997). In Smith, the officer conducted a patdown, felt nothing, and then lifted the suspect’s shirt back so that he could see the waistband. In doing so, a bag of cocaine fell to the ground. The officer stated that he pulled the shirt back to “double check.”

Holding the search unconstitutional, the four-justice majority in Smith wrote, “If a pat-down reveals no weapon-like objects, however, the risk of harm to the officer is no longer of sufficient magnitude to outweigh the individual’s competing interest in personal security, and the police officer may not further intrude upon the suspect (cites omitted).” Smith, 693 A.2d at 753.

In the case at bar, the court of appeals distinguished Smith, stating, “The officer here was not ‘double checking’ and attempting to ‘verify’ what he had learned from a previous patdown. He had not learned anything from the previous patdown, and his attempt to loosen any weapons by tugging at the waistband was designed to make a patdown effective.”

	Related Links Wisconsin Court System Related Article Court allows patdown alternative

The court thus distinguished Smith, because the facts were inapposite. At no point did the court express any disagreement with the reasoning and rule of law stated above in Smith, which drew a dissent from three of the seven justices.

By distinguishing Smith on its facts, rather than disagreeing with the rule of law, the court has encouraged officers to pull suspects’ shirts out, or shake their pants by the belt loops, before conducting the patdown If they do that, and testify that the action was taken to “facilitate” the patdown, they stand on sound legal footing; if they testify they did so after conducting a patdown, because they did not trust the effectiveness of the patdown, the court’s discussion of the Smith case may provide legal authority for suppression of any evidence discovered.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.