Arrest, Search, Seizure, Warrant Legal Searches
- Thread Starter theco805
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It really depends on what the situation is. The "pat down" or "Terry search" is a search the police officer is permitted to perform to find possible weapons that could endanger him. He is permitted to perform the search in any reasonable way that would ensure his safety. The Supreme Court actually has broadened the permissible range of search over the years, adapting it to certain circumstances. In the original case of Terry it was just a "pat down" of the outer clothing that was permitted, but since it is easy to hide guns under that clothing, police officers are allowed to take a closer look, for example inside boots, waistbands etc.
The court said in Terry v. Ohio : Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts.
And that is the point: each case has to be decided on the circumstances. So, if there are circumstances making it likely that a suspect might have hidden a weapon that could endanger the officer in this given situation in her bra etc., a search of the bra, butt, etc. would be permissible. Otherwise it would not be permissible.
Isn't that a typical lawyer's answer
But there also are limits. Another court for example said this: "State v. Crook (don't you just love that name), 485 N.W.2d 726 (Minn.App.1992)(no basis for looking into defendant's cap, as it is "reasonable to conclude that a weapon such as a razor blade hidden in the cap would not present harm or danger to a police officer armed with a gun"). It must be remembered that the limited search permitted by Terry is to find weapons "for the assault of the police officer," not merely to find weapons; thus there is no reason to cover every square inch of the suspect's body. The need is only to find implements which could readily be grasped by the suspect during the brief face-to-face encounter, not to uncover items which are cleverly concealed and which could be brought out only with considerable delay and difficulty. In no circumstance is it a search whose purpose is to discover evidence."
Lately the topic has come up with airport security searches. There are no court cases yet, but since the weapons airport screeners are looking for are not only guns but also plastic explosives etc. it could well be that courts will find very intimate pat downs permited in this situation.
Of course it usually is good sense and departmental procedure only to have female officers conduct this kind of search on a female suspect.
And of course, once you talk about a search in connection with an arrest, there are different rules!
The court said in Terry v. Ohio : Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts.
And that is the point: each case has to be decided on the circumstances. So, if there are circumstances making it likely that a suspect might have hidden a weapon that could endanger the officer in this given situation in her bra etc., a search of the bra, butt, etc. would be permissible. Otherwise it would not be permissible.
Isn't that a typical lawyer's answer
But there also are limits. Another court for example said this: "State v. Crook (don't you just love that name), 485 N.W.2d 726 (Minn.App.1992)(no basis for looking into defendant's cap, as it is "reasonable to conclude that a weapon such as a razor blade hidden in the cap would not present harm or danger to a police officer armed with a gun"). It must be remembered that the limited search permitted by Terry is to find weapons "for the assault of the police officer," not merely to find weapons; thus there is no reason to cover every square inch of the suspect's body. The need is only to find implements which could readily be grasped by the suspect during the brief face-to-face encounter, not to uncover items which are cleverly concealed and which could be brought out only with considerable delay and difficulty. In no circumstance is it a search whose purpose is to discover evidence."
Lately the topic has come up with airport security searches. There are no court cases yet, but since the weapons airport screeners are looking for are not only guns but also plastic explosives etc. it could well be that courts will find very intimate pat downs permited in this situation.
Of course it usually is good sense and departmental procedure only to have female officers conduct this kind of search on a female suspect.
And of course, once you talk about a search in connection with an arrest, there are different rules!
that is even more complicated, because once it is done on private property by private security it depends on what kind of consent has been implied or expressly given. Theoretically a private property owner could tell you: if you want to enter my property you have to consent to a strip search. You are free to consent or decline with the consequence of not being admitted.
But that should be clear before the search is actually in progress. You always can keep in mind that you never have to consent to anybody touching you or searching you who is not a police officer or similar in a clearly defined situation where they are allowed to do that. Private security can only touch you and search you when you consent. If you don't and they do it, they commit a tort. May be they also commit a criminal offense. Of course, they can always refuse you admittance or whatever else it is you want from them.
Constitutional provisions, however, protect you only against government searches.
Now, how far can a private guard go when searching? This also depends on the circumstances and common sense and the law. First of all, it depends on what they are searching for. The police may only search for weapons that could endanger the officer, if it is a Terry search. A private property owner can adopt a totally different policy, he can say I search for drugs because I don't want any on my property. Drugs are not as easy to find as guns. The search will be more intrusive. Remember again, you must consent.
A private security guard who conducts a search that is too intrusive or borders on sexual assault of course gets himself into hot water, as does the person who employs him. The question here would be, what consent, if any, have you given. Since none of them usually make you sign a consent form detailing the consent, the courts would look at the situation and ask themselves: what is reasonable.
If for example the idea is to prevent firearms from being brought into a concert hall and a guard is touching every woman on her breasts and trying to sneak a finger under the bra, this guy is way way out of line. No court would agree that by getting in line to get admitted to the concert all those women consented to such a search.
On the other hand, let us assume you want to visit an inmate in an institution. They might have a good reason to search for drugs. There the policy might well be to conduct very intimate searches, especially if they can show that drugs being imported into the institution are a big problem.
Well, I guess you get where I am going. It depends on the circumstances. But in any case of private citizens conducting searches you don't have to give consent at all.
But that should be clear before the search is actually in progress. You always can keep in mind that you never have to consent to anybody touching you or searching you who is not a police officer or similar in a clearly defined situation where they are allowed to do that. Private security can only touch you and search you when you consent. If you don't and they do it, they commit a tort. May be they also commit a criminal offense. Of course, they can always refuse you admittance or whatever else it is you want from them.
Constitutional provisions, however, protect you only against government searches.
Now, how far can a private guard go when searching? This also depends on the circumstances and common sense and the law. First of all, it depends on what they are searching for. The police may only search for weapons that could endanger the officer, if it is a Terry search. A private property owner can adopt a totally different policy, he can say I search for drugs because I don't want any on my property. Drugs are not as easy to find as guns. The search will be more intrusive. Remember again, you must consent.
A private security guard who conducts a search that is too intrusive or borders on sexual assault of course gets himself into hot water, as does the person who employs him. The question here would be, what consent, if any, have you given. Since none of them usually make you sign a consent form detailing the consent, the courts would look at the situation and ask themselves: what is reasonable.
If for example the idea is to prevent firearms from being brought into a concert hall and a guard is touching every woman on her breasts and trying to sneak a finger under the bra, this guy is way way out of line. No court would agree that by getting in line to get admitted to the concert all those women consented to such a search.
On the other hand, let us assume you want to visit an inmate in an institution. They might have a good reason to search for drugs. There the policy might well be to conduct very intimate searches, especially if they can show that drugs being imported into the institution are a big problem.
Well, I guess you get where I am going. It depends on the circumstances. But in any case of private citizens conducting searches you don't have to give consent at all.
Barbara_Newman
New Member
Search bras
I recently was searched around bra area at airport. Because they can use the hand,albeit the BACK of the hand, I was touched nevertheless. I would like to file a law suit targeting the Transportation Security Agency. Does anyone have any suggestions where I might go?
I recently was searched around bra area at airport. Because they can use the hand,albeit the BACK of the hand, I was touched nevertheless. I would like to file a law suit targeting the Transportation Security Agency. Does anyone have any suggestions where I might go?
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