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When Police Pat-Downs Violate Your Rights

Posted on in Criminal Law

When Police Pat-Downs Violate Your RightsThe police practice of frisking or pat-downs is controversial because of its invasiveness and connection to racial profiling. The Fourth Amendment to the U.S. Constitution protects people against illegal searches and seizures, which includes searching on a person’s body. In order to frisk a person, the officer must have a warrant to search for a specific item or reasonably believe that the suspect is armed and dangerous. Police have used the “armed and dangerous” exception to perform what they call “protective pat-downs” on people without establishing probable cause that they committed a crime. Evidence found during an unreasonable pat-down can be dismissed from a criminal case.

Police Encounters

There are three types of encounters that a police officer has with a member of the public:

  • They can arrest an individual when there is probable cause that the person is committing a crime.
  • They can briefly investigate a person that they reasonably suspect of committing a crime.
  • They can have a consensual encounter with a member of the public in which the individual voluntarily talks with the officer.

It can be difficult to differentiate between a consensual encounter and an investigatory stop. During a consensual encounter, the member of the public should feel like they can leave the encounter at any time, but the officer is often the one who initiates the encounter and presses the individual to answer questions. 

Protective Pat-Down

When an officer fears for their safety during a consensual encounter, they can order a civilian to submit to a protective pat-down to search for a weapon. If the officer finds a weapon, they may arrest the individual if they are not licensed or allowed to possess a weapon. However, their fear must be reasonable, and the officer must be in a situation where they cannot avoid the person. Because of the concealed carry law in Illinois, the officer cannot search a person during a consensual encounter simply because they suspect that they have a weapon. They must reasonably believe that the person intends to use the weapon. When an officer accuses a person of supposedly suspicious behavior during the encounter, the person can reasonably explain that they were nervous because the officer suddenly started talking to them.

Contact a Crystal Lake, Illinois, Criminal Defense Lawyer

If a police officer frisks you during an encounter, it is important to remember the details leading up to the frisking. The officer may have violated your constitutional rights if they did not have cause to search you. A McHenry County criminal defense attorney at Botto Gilbert Lancaster, PC, will work to dismiss evidence from an illegal search. To schedule a free consultation, call 815-338-3838.

Source:

https://courts.illinois.gov/Opinions/AppellateCourt/2019/1stDistrict/1171635.pdf

Illinois State Bar Association State Bar of Wisconsin Crystal Lake Chamber of Commerce Illinois Trial Lawyers Association McHenry County Bar Association
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