Do You Mind If I Pat You Down Real Quick? The Forgotten Requirements of a Protective Pat Down

“Do you have anything that is going to stick me, poke me, or hurt me?  Do you mind if I pat you down real quick just to make sure?”  This is a routine line used by almost every law enforcement officer during any interaction with a citizen, especially during any sort of traffic stop where a driver is asked to exit the vehicle.  Most people acquiesce to this sort of suspicionless violation into their bodily integrity without knowing full-well what they are getting into.

A “pat down” by law enforcement is better explained as a police officer running his or her hands over every part of your body, albeit on the exterior of your clothing.  That is right, asking to “pat you down” is an officer requesting permission to rub their hands along the outside of every part of your clothing.  This involves a hand up and down the inseam of your legs and across your buttocks.  For females, it may even involve a tactile examination of the underwire of your bra.  For this reason the United States Supreme Court has recognized: “it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’  It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”  Terry v. Ohio, 392 U.S. 1, 16-17 (1968).

Almost everyone allows law enforcement to subject them to this search.  Why?  Why have we become expectant to tolerate such indignities at the hands of law enforcement?  Would you let a stranger do this to you at a social event?  Would you even let an acquaintance or friend do this to you on a sidewalk?  Would you let your employer do this to you as you clocked in at work?  Do you demand your teenagers submit to such an intrusion when they role into the house after curfew?  Why then would anyone allow a law enforcement officer to do this?

Quite possibly it is because as a society we feel obligated to allow law enforcement to do with us as we please.  We are raised to be respectful and cooperative with law enforcement.  We place “back the blue” stickers on vehicles and understandably want to support law enforcement in the performance of a very difficult job.  Law enforcement is a beyond difficult profession no doubt.  Law enforcement officers deserve to be respected and supported.  Does respect and support require us to abandon our constitutional rights thought?  Can’t we respect and support while also demanding that our personal freedoms be respected as well?

A citizen is NEVER required to consent to an officer searching their person, vehicle, home, or anywhere else that they have an expectation of privacy in.  This includes being subjected to a “pat down.”  That is right, a motorist has a right to say “no.”  The law established by the United States Supreme Court in Terry v. Ohio requires that a police officer meet two separate requirements before they can pat a person down without their permission.  First, there must be a reasonable and articulable suspicion that the individual is armed.  Second, there must be a reasonable and articulable basis to believe that the individual is a danger to the officer or others.  Without BOTH conditions being met, a “protective pat down” without a person’s permission is illegal.  Thus, the only reason law enforcement is allowed to engage in this behavior is because we say we “don’t mind.”

You may have nothing to hide from law enforcement.  You fully respect and support the important role that law enforcement plays within our community.  Those can all be true but fact still remains, law enforcement has no right to intrude on a citizen’s bodily integrity without the required suspicion that they are armed and dangerous.  Law enforcement appears to have either forgotten or has chosen to ignore the caution of the United States Supreme Court that pat downs of citizens should “not undertaken lightly.”  That all being the case, they will continue to engage in this practice as long as we all allow them to.

Instead of acquiescing to law enforcement putting their hands all over you, try this.

Officer:  Do you mind if I pat you down real quick?

You:  Yes, yes I do mind.

Officer:  Stands in silence with a confused look.

You:  Am I an custody?

Officer:  No.

You:  Do you believe I am armed?

Officer:  No.

You:  Do you believe I am a threat to you?

Officer: No.

You: Do you believe I have anything illegal on my person?

Officer:  No.

You:  Then no, no you cannot rub your hands all over my body.  I will treat you with respect, please treat me with the same respect.

Report back how law enforcement responds.  Remember, you also have the right record your interactions or even follow up your interaction with law enforcement by requesting a copy of the squad car or body-worn camera recordings of the incident.  The only way to protect our rights is to exercise our rights.  “This will be the best security for maintaining our liberties. A nation of well-informed men, who have been taught to know and prize the rights which God has given them, cannot be enslaved.” – Benjamin Franklin