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How Far is Too Far When Frisking a Suspect?

Posted on Jul 08, 2010

Police officers frisking a suspect as part of an arrest is something  with which we are all familiar.  There is even a famous picture of former New Jersey Governor Christie Whitman frisking someone.  This is for the purpose of determining whether the suspect is armed, before taking him or her into custody, and it is also referred to as a "pat down" search or a "search incident to arrest."  However, on June 30, 2010, the New Jersey Supreme Court handed down a ruling that dealt with how far a police officer can go in a search such as this.  In effect, they said that it is called a "pat-down" search for a reason.

The court held, in the case of State v. Privott , that the fact that the police have a legitimate basis to frisk a criminal suspect for weapons does not provide the officers with the right to go further than patting him down.  In this case, they lifted the suspect's clothing for the purpose of recovering evidence.  The court observed that,

"In assessing the scope of the search by the officer, the evidence is clear that defendant was cooperative at all times. When stopped, defendant placed his hands against a fence as instructed by the officer. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat-down search of defendant's outer clothing. That did not occur. Rather, the police officer lifted defendant's tee-shirt to expose defendant's stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant's pants. That maneuver exceeded the scope of the patdown search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned."

In saying this, the court recognized that this kind of search is done for the safety of the officers, and not as an excuse to look for any other evidence.  So I guess when it comes to pat-down searched in New Jersey, it's touch but don't look!