Item: A suspect is arrested for misdemeanor marijuana charges, handcuffed behind his back and placed in the backseat of a police cruiser. He commits suicide with a concealed handgun. The officer and agency involved have to fend off allegations that they killed the suspect and planted the handgun.
Item: A subject is taken into custody for receiving stolen property while astride a café-racer motorcycle. He resists arrest. He is pepper-sprayed and handcuffed behind his back. Placed into the rear seat of a patrol SUV, he is not properly searched. Once the door closes and he is alone, he quickly moves his hands to the front of his body, wipes the OC spray off his face, and pulls a small semi-auto pistol from his front pants pocket. He shoots the driver-side rear window out and dives out through the broken window, gun in hand. He is shot and killed by officers who run over after the shot is fired.
Item: A suspect is arrested for felony warrants on weapons violations. He resists arrest and is Tasered by the arresting officers. Handcuffed behind his back he is transported to a police substation, while sitting in the backseat of the patrol vehicle, he open fires on officers. They return fire wounding him.
Item: An intoxicated subject is arrested and placed behind the driver in the patrol unit without handcuffs. As officers are drive through traffic, they hear a “thunk” as the suspect’s revolver hits the floor of the backseat. The subject picks up the handgun and has it in his hands as officers ask if he is “kicking something?” They finally stop the cruiser; the passenger officer opens the rear door with his duty pistol out and sees the suspect holding the revolver, “Gun! Gun!” he yells to his partner as he moves into the rear seat and grabs the suspect.
All of these incidents remind us that the Good Lord loves fools and cops because it is only through the Grace of God that no officers were shot or killed. But that outcome, the officers going home at the end of their shift, was based on luck and not based on a solid frisk, pat-down or search.
The Rules
We’ve all made mistakes. But we want to mitigate the effects of those mistakes by doing our best to insure that suspects are frisked and searched thoroughly.
Rule #1 – If they are under arrest, handcuff first then search.
Rule #2 – Search like your life depends on it, because it does.
Rule #3 – If your gut is telling you that the suspect has contraband on his person and you can’t find it, keep searching.
Terry Stop, Terry Frisk and Consent Searches
A Terry Stop means that you believed based on reasonable articulable suspicion that a crime: has been, is being or is about to be committed, and the person you are stopping is the one you did one of these three things. A Terry Stop does not mean that you may automatically frisk the person for weapons.
A Terry Frisk is accomplished after lawful detention “Reasonable Articulable Suspicion”:
1. The officer reasonably believes
2. that the lawfully detained person
3. is armed and/or dangerous or that the officer or another is in danger of physical injury,
4. the officer may search (pat frisk) such person for weapons or any instrument, article or substance readily capable of causing physical injury and or a sort not ordinarily carried in public places by law abiding persons.
5. If the officer finds such a weapon of instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, or which may constitute a threat to his safety,
6. the officer may take it and keep it until the completion of the questioning;
7. at completion of the questioning the officer shall either return it, if lawfully possessed, or arrest the person so questioned.
4th Amendment Seizure; Mike Brave, Esq.; LAAW Int.
A Terry Frisk is a pat-down of outer-garments for weapons. You cannot reach into pockets or check inner-garments.
Now even if you have a Terry Stop and Terry Frisk circumstances, you can and should still ask for a consent search. A simple, “Sir, do you have anything on you I need to worry about? Mind if I check?” If the suspect consents, you can go into pockets, you can unzip coats to check inner-garments. You can lift pant legs and check in socks. You can even ask if the suspect will kick his shoes off. If he consents, you can search him. This includes carried items like bags, backpacks or briefcases. *If you have Terry Frisk circumstances and he does not give consent, you can still pat him down for weapons.
If, during a Terry Frisk or consent search you feel, what you believe is contraband such as a handgun, you have just developed PC – Probable Cause. Rule #1 comes into play – Handcuff first then search or retrieve the evidence. If, you are conducting a standing frisk or consent search and you feel a weapon, I would suggest letting your partner know, “He’s got a gun,” then taking the person to a kneeling position or putting them prone, to establish more control, then cuffing them. If it turns out, on closer inspection to be an innocuous piece of property, then you don’t “un-arrest,” PC no longer exists to warrant an arrest.
In this Terry Stop / Terry Frisk or Field Interview (FI) situation you feel that your safety is at risk, you may handcuff for your protection. This does not mean you can handcuff everyone you FI. The Courts have determined that you cannot handcuff or pat-down everyone based on officer safety. *Note – Consult your police legal advisor or city prosecutor for specific advice.
The Process
Whether you use a version of fingers interlaced behind the head or behind the back, never use a prop search such as the suspect propping his hands on the roof, hood or trunk of the patrol car. When a suspect places his hands on something, he now has four points of balance versus your two points. You must establish and maintain control of the subject during the search.
The Terry Frisk for weapons is not as detailed as a search incident to arrest or based on consent. Regardless, you should ask the subject prior to searching, “Do you have anything sharp or anything on your person I need to worry about?” Many times suspects will admit to knives, razorblades or syringes.
Always look where you are frisking or feeling. If you don’t, you may cut or stab yourself on an otherwise visible threat such as a pocket knife, razorblade or needle.
Grab and Twist – You want to grab the material and twist it or “crumble” it so that you can find straight-line weapons or contraband such as icepicks or crack pipes.
Overlap the search side to side. Remember that if you feel contraband inside the clothing, i.e. a bag of dope in the crack of the buttocks, you must follow your state law and agency policy in order to retrieve it. It most jurisdictions this would equate to a strip search. It can be don, but a supervisor may need to authorize and sign off on the search prior. Once again, check with your policy manual and legal advisor.
Read his Body Language
During your search or frisk, “feel” the tenseness in his body and read his body language such as a “body curl” where he attempts to bend over contraband to hide it. Also, pay attention to weight shifts and attempts to regain balance. These shifts and stance changes may indicate the preparation to escape or attack.
Summation
Remember that police officer lives hang in the balance of searches and that sloppy searches really do kill cops. Develop a systematic method to pat-down, frisk or search suspicious persons and those under arrest and search like your life and the lives of other officer’s hangs in the balance, because it does.
Oftentimes the things we do the most are given the least attention. Frisking and searching is one of those basics that we must master and apply due diligence – to keep us and other officers alive.
Links:
Drunk Suspect with Revolver
https://www.youtube.com/watch?v=MC4oTQKEbT0
Suspect in backseat attempts escape
http://www.youtube.com/watch?v=aCkAnHTL5Ys
Suspect engages in backset shoots at officers
Kevin Davis | Tactical Survival Contributor
Kevin R. Davis retired from the Akron Police Department after 31 years with a total of 39 years in law enforcement. Kevin was a street patrol officer, narcotics detective, full-time use of force, suspect control, and firearms instructor, and detective assigned to the Body Worn Camera Unit. Kevin is the author of Use of Force Investigations: A Manual for Law Enforcement, and is an active consultant and expert witness on use of force incidents. Kevin's website is https://kd-forcetraining.com/
