By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in Arizona. If the jacket is thick enough that you cannot feel a weapon through it, can you remove it or reach underneath? And is an unlocked purse or backpack fair game?
Can you remove a jacket to frisk someone for weapons?
Hello everyone, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing the roadside chat.
All right, this question has to do with Terry pat downs. So the officer says, look, I have a question. The officer is in Arizona by the way, but the rules will be the same. Say you stopped somebody lawfully and have met all the elements of Terry, meaning they’re armed and dangerous. Would it be reasonable to remove someone’s jacket and/or reach underneath the jacket to frisk a person for weapons if you can articulate a basis, of course, as in the jacket is thick and you wouldn’t be able to feel for a weapon otherwise? Another related question, would it also be reasonable to frisk a purse or backpack that was not locked?
Okay, so let’s go through this.
Is it armed and dangerous, or armed or dangerous?
So first of all, let’s make sure that we know the ground rules. When we put hands on people, when the government actually puts hands on people, it has to be justified. That’s a pat down, and we have to justify it under Terry, which is armed and dangerous. Do we think that this person presents a risk to our safety while we investigate whatever, traffic stop, auto burglary, domestic violence?
Now it’s armed and dangerous, but as you, if you’ve been following me for a while, sometimes I say armed or dangerous, because I think we get to the same place. Here’s what I mean. Armed people during a detention are generally considered dangerous. So if you have a person stopped even for a minor crime and they have a gun on their hip, generally speaking the courts, there are exceptions, but the courts will overwhelmingly allow you to disarm that person while you conduct business. So armed people are generally considered dangerous, armed and dangerous, and dangerous people are often considered armed.
So that’s really what we’re talking about here with these cases. You don’t almost ever see cases where the courts are up in arms about disarming armed people, taking the knife out of their pocket and putting it somewhere safe while we conduct business.
What actually makes someone dangerous enough to frisk?
But what we need to talk about is, why do we consider that person a danger to us? Why are they a danger? What are you going to look for? How about their violent criminal history? How about high crime area? How about the crime they’re suspected of involves some kind of violence, or it’s associated violence, for example drug dealing and so forth? How about their gait, the way that they walk, their gait is in line with carrying concealed, they’re bladed off from people, maybe they do those security feels where they kind of pat their waist area every so often to make sure the gun is still there?
But the one thing I don’t want to see, okay guys, I don’t want to see, I patted the person down because it’s a high crime area and they have a criminal history. I see it all the time. But here’s the problem. That is not reasonable suspicion that they’re armed and dangerous. Just because they have had a prior history with the law, and even if they’ve been to prison, and a lot of these people do live in high crime areas, that is their lot in life. They got a crappy criminal history, they’re probably not the ones that have a master’s degree in science, and they’re not living in the nice neighborhoods, they’re probably living in poor areas.
But when we go to court and we say high crime plus criminal history, what we’re saying is, your honor, every time police contact these people, I don’t care if they’re jaywalking, we’re patting these people down. They can never outlive their past.
Indulge me for a second though. There is a man in Las Vegas named Jon Ponder, and he’s been to prison, he’s a three time convicted felon, former gang member, drug seller and so forth. But Jon has formed this organization called Hope for Prisoners, and he’s helped almost 5,000 people go from incarceration to a productive lifestyle.
The reason I bring him up is because if you stopped Mr. Ponder, he’s oftentimes in a high crime area, because he’s trying to help people get off the streets and so forth, and he has a violent criminal history. But you ain’t patting him down. You know why though? Because he’s going to be 10-2, he’s going to be respectful, he’s not going to be hiding his hands, he’s not going to be giving you a bunch of hassle about why’d you stop him, he’s going to go with the program, and he’s not going to be displaying signs of danger.
But here’s my point. You often know more than what you put in reports. So that’s the first thing.
What is peeling the onion?
So, armed and dangerous. The second thing is that there are not a lot of cases on unorthodox pat downs where you’re kind of going underneath clothes and so forth. Generally we know that Terry says on the outside of the clothing. However, I do want to say that it is possible that you may have a situation where you are going to have to be a little unorthodox in order to be safe, and I call this peeling the onion. Sometimes you’re going to have to peel the onion.
So there is an Eighth Circuit case from 2021 that gets at this. Essentially a sergeant asked the suspect to open her blankets, because she was considered armed and dangerous, and as she turned around to do so, facing away from the officers, this is when the sergeant asked her to turn towards him. She complied, but she bent toward it.
Now let’s go back to our officer who asked about this heavy coat. Here’s what I’m going to tell you. If you have a person that you believe is armed and dangerous, we talked about that, and you get past that hurdle, and they are all bundled up, they look like, you remember, it wasn’t Ralphie, it was his brother in A Christmas Story, and he was all bundled up with the clothes and like fell down and was rolling over and stuff? Sometimes you have homeless people or transients that are dressed like this, and you’re going to be like, Anthony, your honor, I can’t effectively determine if he’s armed and dangerous, because every time I pat him down it just feels like pillows, I don’t actually get to the body where the weapon’s going to be.
Then I say peel the onion. Go to the next level of clothing and see if you can take care of business that way, and you do it to the point where you can effectively be safe.
What do you have to put in the report?
But here’s a couple pointers for you. Number one, you better articulate this. This better be in your report. If you are pulling a person’s jacket back like this sergeant did, and you’re going to that next layer, you need to explain to the court that you cannot effectively pat this person down due to their heavy coat, multi layers and so forth.
And number two, if you have this articulation, let’s err on the side of everybody’s safety. It’s not just your safety, my friend, it’s also the suspect’s safety, because last time I checked, when people are armed and dangerous and they pull out guns, it results oftentimes in lead poisoning. So it’s safety for everybody.
And we can argue a lot of stuff in court, that’s why lawyers get paid the big bucks, because your prosecutor should be arguing that you did the right thing under the circumstances. And the Fourth Amendment only prohibits one type of search or seizure. What type is that? You’re right, it’s the unreasonable sort of seizure. So does this sound reasonable? If you can’t effectively pat somebody down because of the multi layers of clothing, that you peel the onion, you just do it to the next level until you can find out whether they’re armed and dangerous? The answer is yes, and use that Eighth Circuit case to back your play.
Can you open a purse or a backpack during a frisk?
Now the cop also talks about backpacks. So backpacks are also permissible to pat down if you need to. Sometimes courts will want to know, well why can’t you just pull this backpack away from them and put it in your car or something like that? Well, don’t forget that they’re just being detained, and if they are armed and dangerous and you’re going to give this backpack or purse back to them at the end of the stop, they now become armed and dangerous again, which is not really reasonable in my book. But some courts will ask that question, so be prepared to give an answer.
So what you want to do with backpacks is pat them down from the outside first if it’s feasible. Some backpacks are semi rigid and they’re just not conducive to actually feeling them like soft clothing. Maybe a JanSport yes, but a Louis Vuitton purse kind of like semi hard, you’re not going to really be able to feel if there’s a weapon in there or not. So you are allowed if necessary to open them up, to unzip them, and to take a cursory view of the items in there to see if there’s a weapon.
Now, we are not looking for drugs. No. We’re not looking for stolen credit cards, unless you have PC and you have a recognized exception. We are looking for weapons. And if you want to play the game of, your honor, they could also have razor blades, that’s why I’m looking into the coin purse, if you want to play that game and you have no reason to believe they actually have razor blades on them, then good luck to you. I personally don’t play that game. I’m not really worried about razor blades at this point, unless I have reason to believe they have a razor blade and it can be a danger to me. I’m looking for guns, I’m looking for real knives, fighting knives and so forth. That’s what I’m looking for. But I would not play too many games with this, otherwise it’s going to look insincere and the court may think you’re playing fast and loose with the Fourth Amendment.
The case we’re going to use here, there’s actually a couple cases here. Let’s just use United States versus Hernandez-Mendez, Fourth Circuit 2010. The court said, it should also be noted the distinction of a pat down of clothing and a pat down of a purse is not meaningful in this particular context. At the time that she was detained, Hernandez-Mendez was wearing a tank top shirt and shorts and was carrying a purse. Given her clothing there were few places that she could conceal a weapon other than her purse, making it objectively reasonable to frisk her purse in addition to her person.
Okay, so there’s that case, and there are several others that uphold this.
The short version
- Armed people during a detention are generally considered dangerous, and dangerous people are often considered armed.
- High crime area plus criminal history is not reasonable suspicion that somebody is armed and dangerous. I see that articulation all the time.
- Look at violent history, the crime suspected, gait consistent with carrying concealed, security feels at the waistband.
- Jon Ponder is the reason the shortcut fails. Same high crime area, same record, and you would never pat him down.
- You often know more than what you put in reports.
- Terry says outside the clothing, and there are not a lot of cases on unorthodox pat downs.
- If the coat is so heavy the pat down just feels like pillows, peel the onion. Go to the next layer until you can effectively be safe.
- Articulate it. The report has to say you could not effectively pat this person down due to the heavy coat and the layers.
- Err on the side of everybody’s safety, the suspect’s included.
- Purses and backpacks get patted from the outside first when feasible, and opened if a semi rigid bag defeats the pat.
- We are looking for weapons. Not drugs, not stolen credit cards.
- Do not play the razor blade game with no reason to believe there is one. It looks insincere.
All right, so what are our takeaways? Number one, I gave you a little diatribe about what it means to be armed and dangerous. Please make sure you’re articulating this stuff correctly. Number two, if it’s needed for your safety and you cannot effectively pat a person down from the outside due to their heavy clothing or whatever, then I believe it is lawful to peel the onion, to go to the next layer and see if you can do it there, until a point where you can effectively do it. But articulate it. As far as purses, you can open them up if necessary to disarm people if they are armed and dangerous. It just makes sense. It would be kind of crazy that the person could have a gun in their purse and it’s untouchable, but the gun in their waistband can be seized.
I hope this helps. If you like what I’m doing here, you know what to do. If you have a question for me or any of my other instructors, reach out to us at Blue to Gold, you should see that in the description below.
Until next time, my friends, you stay safe.
Related from Blue to Gold
- Purses, Bags and Backpacks
- What Factors Can Help to Justify a Vehicle Frisk for Weapons?
- Can You Pat Down a Drug Dealer for Weapons?
This article is an edited transcript of Roadside Chat Ep #631. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
