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On TV you often see a police officer come up to an individual and pat he or she down. TV land which is far from reality, is just that, fiction. Sadly, many citizens, feel that the police are just free to pat down someone and its ok.
Both the federal and Michigan Constitution protect against the police for doing a search without a warrant. Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 LEd 2d 576 (1967). Similarly, seizures must be circumscribed “in area and duration ” 110 SCt 2301.
A police officer may briefly stop and frisk someone Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968) But it can be done only for “reasonable inquiries” aimed at confirming or dispelling his suspicions. Id. at 392 US at 30. More importantly “when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” Id. at 24.
Police can do a search of a citizen if they have reasonable and articulable suspicion that a citizen has contraband on them. To meet this portion of the law, when determining the reasonableness of the stop and frisk under the first prong of the test, “…due weight must be given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” [emphasis added} Terry, supra, at 392 US at 27. As the Court stated in Sibron v New York, 392 US 40, 73; 88 S Ct 1889, 1907; 20 L Ed 2d 917 (1968), “[t]here must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended.”
So friends, the police cannot just search you because they have a hunch that you are carrying a weapon or contraband. It must be based on your individual actions and circumstances. For example, walking in a high crime area or even attending a concert where drugs are used or sold does not permit the police to stop and frisk you. There must be more.
Another tip is this. Let’s say the police are patting you down because they suspect you are carrying drugs. No drugs are found. Arguably the search must stop. Let’s say they feel what is later determined to be a large amount of money. Money stolen from a store up the street. This invokes the plain feel doctrine devised in Minnesota v Dickerson, 508 US 366; 113 S Ct 2130; 124 L Ed 2d 334 (1993) and applied in Michigan under People v Champion, 452 Mich 92; 549 NW2d 849 (1996). It requires that (1) the police officer was lawfully searching your person and (2) from the touch of the item, the police officer
knew the object was contraband. In the hypothetical given, money is presumed to be innocent and therefore would fail on the plain feel doctrine.
Michael L. Steinberg is a dedicated criminal defense lawyer, who regularly litigates illegal searches and seizures along with other violations of your rights guaranteed under state and federal constitutional and statutory law. Mike actually answers his phone and is personally on top of his cases.
DON’T BE SOLD OUT, LET MIKE FIGHT FOR YOUR RIGHTS