Ep 8 -Detainments, Frisks, Searches & Canine Searches

Title: Detainments and Searches

 Let’s get this out of the way first: Disclaimer: I am not a lawyer, and the information shared on this podcast is for entertainment and informational purposes only. All statements and views expressed are my personal opinions and should not be considered legal advice. Always consult a qualified legal professional for guidance on legal matters.

 Welcome back to Real Talk – Behind the Badge.  I’m Tim, a retired police Sergeant and I’m talking to you from South Carolina.  This is my eighth podcast, and you can watch each one at RealTalkBehindtheBadge.com, on Facebook or on YouTube.  Today, I’m going to talk to you about detainments and searches.  I want to address some items I’ve been watching on YouTube that deserve some scrutiny.  So, let’s get going…

 Body Cameras:  First off, All Officers SHOULD wear a body camera and have it on whenever approaching a civilian.  This is for the officer’s protection and the civilian’s protection.  I can’t count the number of officers that have been falsely accused of a crime and the camera absolved them of all wrong-doing, but remember, that can go both ways.

 Detainment:

For a law enforcement officer to detain a person, specific legal requirements must be met under the Fourth Amendment, which protects against unreasonable seizures and a detainment IS a seizure! The standards primarily stem from Terry v. Ohio (1968) for brief investigative detentions, often called "Terry stops."

The officer must have reasonable suspicion that the person is involved in, has committed, or is about to commit a crime. This requires specific, articulable facts based on objective observations, not just a hunch or gut feeling.  I can’t count the number of detentions where the officer justifies a detention on just plain “suspicion” without a specified crime.  That is NOT lawful.

The detention must be brief and limited to investigating the suspected criminal activity. The officer can ask questions, check identification, or verify information to confirm or dispel their suspicion.  The stop must not extend beyond what’s reasonably necessary unless new facts justify further detention or escalation to an arrest.

A detention must occur in a public place or where the officer has a legal right to be like during a traffic stop, a pedestrian encounter, or responding to a reported crime.  If the detention occurs in a home, additional requirements (like a warrant or exigent circumstances) may apply.

The stop must be brief (typically minutes, not hours), though courts don’t set a strict time limit. Unreasonable delays can violate the Fourth Amendment

In United States v. Jones (10th Cir. 2012), a stop extended beyond 14 minutes for unrelated questioning was deemed unreasonable without new suspicion.

Officer pat-downs…

For a law enforcement officer to conduct a pat-down (also called a "frisk") of a citizen in the United States, specific legal requirements must be met. The standards also stem from the landmark case Terry v. Ohio (1968). Here’s a breakdown of what’s needed:

Reasonable Suspicion:

The officer must have reasonable articulable suspicion of a crime that is about to be committed or has been committed that the individual is involved in criminal activity or poses a threat to safety. This is a lower standard than probable cause but requires specific, articulable facts (not just a hunch).  An officer may NOT pull up to a person without the facts I just articulated and pat them down just for “Officer safety”.

Safety Concern:

The pat-down is limited to a search for weapons that could endanger the officer or others. It’s not a full search for evidence unless further justification (like probable cause) exists.

The officer must reasonably believe the person is armed and presently dangerous and must be able to articulate this..  99 times out of a hundred videos I’ve watched, the officers had NO reasonable articulable suspicion the person had a weapon on them, they said they just wanted to be sure, which is NOT the standard.  Whether this is due to poor training or just intimidation, I don’t know, but I believe most of the time they’re just trying to show who’s in charge, and this is very poor policing.

The frisk must be confined to a pat-down of outer clothing to feel for weapons. If the officer feels something that is immediately apparent as contraband (under the "plain feel" doctrine), they may seize it, but they cannot manipulate objects to identify them unless they suspect a weapon.

The pat-down typically occurs during a lawful investigative stop (a Terry stop), where the officer has reasonable articulable suspicion of a crime to detain the person briefly. The stop itself must be justified before a frisk can occur.

Consent: If the citizen voluntarily consents to the pat-down, the officer doesn’t need reasonable suspicion, but consent must be clear and uncoerced.

Scope Limits: If the officer exceeds the pat-down’s purpose (e.g., searching pockets without justification), it may violate the Fourth Amendment, potentially making any evidence inadmissible in court.

Documentation: This is Important!!  States and departments should have a law and policies that Officers must document the reasons for each “stop and frisk” and it MUST be enforced!  No more frisking for intimidation tactics!  This should especially be enforced in jurisdictions with policies to address concerns about racial profiling or overuse.  Supervisory review should be standard for each stop and frisk.

Personal searches

A full personal search, where a law enforcement officer thoroughly searches a person’s body, clothing, and belongings (beyond a limited pat-down or frisk), requires stricter legal standards under the Fourth Amendment.

The officer must have probable cause to believe the person has committed a crime or is in possession of evidence, contraband, or items related to criminal activity. Probable cause is a higher standard than reasonable suspicion and must be based on specific, objective facts.

Here, I have observed many officers going into the pockets of detained persons just to get their identification.  This is a search and is NOT justified unless probable cause is present.  Any officer who violates this requirement must be taken to task with training and/or punishment.

WHEN YOU MAY SEARCH

1. Warrant (Preferred, with Exceptions):
• The safest way is to obtain a search warrant issued by a judge and is generally required, specifying the person to be searched and the items sought, based on probable cause.
• Exceptions
• Search Incident to Arrest: If the person is lawfully arrested (based on probable cause), officers can conduct a full search of their person and immediate surroundings to ensure safety and preserve evidence.
• Consent: Of course, If the person voluntarily consents to the search, no warrant or probable cause is needed, but consent must be clear, informed, and uncoerced.
• Exigent Circumstances: Urgent situations (e.g., immediate danger, risk of evidence destruction) may justify a warrantless search.
• Plain View/Feel: If contraband or evidence is immediately apparent during a lawful stop or pat-down, it can justify a broader search.

The search must occur during a lawful encounter, such as a traffic stop, investigative detention (Terry stop), or arrest. The officer’s initial reason for detaining the person must be legally justified.

Documentation: Again, This is Important!!  States and departments SHOULD have a law and policies that Officers must document the reasons for each search and it MUST be enforced!  No more searching as an intimidation tactic!  Supervisory review should be standard for every search.  This should especially be enforced in jurisdictions with policies to address concerns about racial profiling or overuse.  Cities and states will continue to pay out large sums of cash to those who have been violated if this is not accomplished.

Vehicle searches

In the United States, a law enforcement officer can search a vehicle under specific circumstances, The rules balance public safety, law enforcement needs, and individual privacy rights.

Requirement: Officers must have probable cause, not suspicion, to believe the vehicle contains evidence of a crime, contraband, or fruits of criminal activity.  Probable cause requires specific, objective facts, not just a hunch or suspicion.

Scope: The search can extend to any part of the vehicle where the suspected items could be, including the trunk, glove compartment, or containers (Carroll v. United States, 1925).

Warrant: Usually, no search warrant is needed due to the automobile exception (Carroll v. United States), which recognizes vehicles’ mobility and reduced privacy expectations compared to homes.

If a person in the vehicle is lawfully arrested (based on probable cause), officers can search the vehicle’s passenger compartment (including containers) to ensure officer safety or prevent evidence destruction but is Limited to the area within the arrestee’s immediate control (e.g., seats, center console) and only if:

The arrestee is unsecured and could access the vehicle, or Officers reasonably believe the vehicle contains evidence related to the crime of arrest.  If the arrestee is in handcuffs, there is no reason to search for officer safety.

If an officer, while lawfully present (e.g., during a traffic stop), sees evidence or contraband in plain view inside the vehicle, they can seize it and potentially justify a broader search (Coolidge v. New Hampshire, 1971).

In urgent situations where there’s no time to get a warrant, officers can search if there’s probable cause and immediate action is needed to prevent evidence destruction, protect public safety, or pursue a fleeing suspect

During a Terry stop, if officers have reasonable suspicion that a person in the vehicle is armed and dangerous, they can conduct a limited frisk of the passenger compartment for weapons but is Restricted to areas where weapons could be hidden and only for officer safety, not evidence.

Passengers can be detained during a stop if there’s reasonable suspicion, and their belongings may be searched under the same conditions as the driver’s.

 

Canine searches.

A law enforcement officer can conduct a canine on a vehicle, person, or property under specific circumstances.  The rules depend on the context—most commonly vehicles during traffic stops, and that is what we’re going to talk about… when can a canine search can be conducted, based on key legal precedents.

1. Vehicles During a Lawful Traffic Stop

A canine sniff of a vehicle’s exterior is not a search under the Fourth Amendment, so officers don’t need probable cause or reasonable suspicion to conduct it, provided the sniff doesn’t extend the stop’s duration (Illinois v. Caballes, 2005).  Again, In United States v. Jones (10th Cir. 2012), a stop extended beyond 14 minutes for unrelated questioning was deemed unreasonable without new suspicion.  The same would apply for canine searches without probable cause.

Conditions:

The traffic stop must be lawful (e.g., for speeding or a broken taillight).

The sniff must occur within the time reasonably required to complete the stop’s purpose (e.g., issuing a ticket or checking a license). Extending the stop beyond this without reasonable suspicion of criminal activity violates the Fourth Amendment (Rodriguez v. United States, 2015).  And again, In United States v. Jones (10th Cir. 2012), a stop extended beyond 14 minutes for unrelated questioning was deemed unreasonable without new suspicion.  The same would apply for canine searches without probable cause.

Scope: The dog sniffs the exterior of the vehicle. If the dog alerts to drugs or other contraband, this provides probable cause for a full vehicle search under the automobile exception, without a warrant.

If officers have reasonable suspicion or probable cause that a vehicle, person, or property contains contraband they can deploy a canine to confirm or dispel their suspicion.

Luggage or Packages: In public places like airports or bus stations, a sniff requires no suspicion if it’s minimally intrusive (United States v. Place, 1983).

Persons: Sniffing a person directly and may require reasonable suspicion or consent, as it’s more intrusive.

If a person is lawfully arrested or a vehicle is impounded, a canine sniff may be conducted as part of a broader search or inventory process.

Search Incident to Arrest: If the vehicle is searchable under Arizona v. Gant (2009) for evidence related to the arrest, a canine can be used to locate contraband.

• Dog Reliability: For a canine alert to establish probable cause, the dog must be properly trained and certified. Courts may scrutinize the dog’s accuracy if challenged (Florida v. Harris, 2013).

Duration: For traffic stops, a canine sniff must not unreasonably prolong the stop unless there’s reasonable suspicion. Rodriguez v. United States (2015): In a traffic stop case, the Court ruled that extending a stop beyond its original purpose (like issuing a ticket) without new reasonable suspicion violates the Fourth Amendment. A 7-8 minute extension for a dog sniff was deemed unreasonable absent additional justification.

Although a court has stated that a canine search outside a vehicle is NOT a search under the Fourth Amendment, it should NOT be used unless there is reasonable suspicion.  I believe Canine officers must document each search, with the officer’s name who requested the search, why the search was requested, and the result of the search.  Officers who continuously request searches that continuously result in no results should be denied canine searches without a superior officer’s consent.  A superior officer must also agree with and document the officer’s reasonable suspicion.  This will also cut down on officers who say they smell an odor of marijuana just as a pretense for a search.

I also believe that it would also be reasonable and good public relations for a canine handler to inform the person whose vehicle is being sniffed of how the dog will react of it alerts on the vehicle.  The person should also be allowed to view and video the search from a safe distance. This will help alleviate a person’s suspicion that the handler is “just saying” that the dog alerted.