Law enforcement officers often believe that they have the authority to frisk or pat down just about every civilian they encounter. As the Fourth District Court of Appeals recently reminded the St. Lucie County’s Sheriff’s Department, they don’t.
Many people often simply just assume that when an officer indicates that he wants to search them, they have to simply allow it. There is a great deal of confusion on this issue, mainly because of statutes that criminalize the act of “resisting an officer without violence.” When it is common knowledge that you can be jailed for resisting law enforcement, it makes sense that people would be hesitant about telling an officer “no, you can’t search.” After all, isn’t that the most simple way to resist?
Contrast this with the constitutionally guaranteed freedom from unreasonable searches and seizures and you get a great deal of public misconception. People often tell me that they consented to a search of their home, car, or person because they did not believe that they had the right to refuse the request. This is called “mere acquiescence” to authority and is insufficient to waive your right to live free of governmental intrusion.
Pat downs and frisks that are conducted to check for weapons often lead to the discovery of drugs. In E.J. v. State, Case No. 4D-0-736, decided August 4, 2010, a juvenile was a passenger in a vehicle that was pulled over. The driver was asked out of the vehicle and searched. As an officer approached the juvenile, she immediately got out of the vehicle, put her hands on the hood, and spread her legs in anticipation of being searched just like the driver. The officer frisked her and found marijuana. She later challenged the search by claiming she never consented to the search, and by also claiming that she was not even aware that her consent was needed. The trial court held that her actions gave the officers a reasonable belief that she was consenting to a search.
The Fourth District Court of Appeals reversed, noting that the test for whether or not consent existed is not what the officers believed, but rather whether or not consent was actually given. In order for consent to be valid it must knowing, intelligent, and voluntary. In E.J.’s case, there was no evidence to show that any of those requirements were met.
Law enforcement officers deal with potentially dangerous situations every day. Ensuring people don’t have weapons that could be used to harm either the officers or other civilians is an age-old practice that many officers do automatically. In this case, their behavior was neither extreme or unusual. As the court noted in E.J. v. State, a generalized fear for officer safety is most understandable, but does not justify a frisk or search by itself.
If you are facing prosecution for an alleged criminal act, don’t face it alone. Visit my website at http://www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.
~Robert Shafer