Searching a wallet

[Sloop John D]

I see you've gone to the dave33 school of law.

This is wrong. A search is not permitted. What you are referring to (probably) is a frisk. A frisk and a search are two very different things.

A Terry stop is a stop and frisk. I thought I mentioned this but I apologize if I left it out.

Edit: You may find this case relevant: http://law.justia.com/cases/california/cal4th/9/224.html

The state of California allows for a Terry stop (or a stop and frisk) with reasonable suspicion.

I have also been unable to find a case that allows for a full search with probable cause.

 

[tranquility]

A Terry stop is a stop and frisk. I thought I mentioned this but I apologize if I left it out.

Edit: You may find this case relevant: http://law.justia.com/cases/california/cal4th/9/224.html

The state of California allows for a Terry stop (or a stop and frisk) with reasonable suspicion.

I have also been unable to find a case that allows for a full search with probable cause.

You're missing the fact there is an exigency due to the ability of a person to leave the area.

People v. Coleman 229 Cal.App.3rd 321 [1991] (Having to do specifically with a search for contraband.)
People v. Rios (1956) 46 Cal.2nd 297 [1956] (Extremely attenuated "probable cause" from a person admitting to injecting drugs weeks ago.)

If there is probable cause to arrest, it makes no difference as to if the search or the arrest is first.

Rawlings v. Kentucky 448 U.S. 98 [1980]
People v. Avila 58 Cal.App.4th 1069 [1997]


Say the police think a guy has just done a drug deal. As they approach, he pops something in his mouth. Can they grab him by the neck to keep him from swallowing? Can they spray him with pepper spray to keep him from swallowing? And, for the big kahuna question, say they have an articulable reason why they feel a pat down for weapons (aka reasonable suspicion) is appropriate. They do the pat down/frisk and feel something that is not a weapon. But, because of the officer's training and experience and other observations the officer now believes he has probable cause to believe it is contraband. Can he pull out the item? Can he do the search? (Hint: in all questions, in CA the answer is yes.)

Warrant edit:
It's good it is this way too. We do want the police to ferret out crime and, if a warrant is required, the police will just set up a rubber stamp process as some states do with DUI forced blood draws.
http://www.youtube.com/watch?v=dPTbgMjUXhE

 

[Sloop John D]

Thanks for the cases. Those were exactly what I was looking for.

I think it's possible under these circumstances to argue that if the police were looking for drugs, they shouldn't have been going through the cards in the wallet as it is unlikely drugs would be found in the card holders. However, in light of the cases tranquility has provided, I think the best chance would be to argue there was no probable cause in the first place.

 

[dave33]

Once again you've demonstrated no/incorrect knowledge of the law, so your query would be more appropriately directed towards yourself.

Reasonable suspicion does not give a police officer a reason to conduct a search. Period.

Well, I like most people live in the real world, in the real world the police will conduct a search and if something is found p.c will be well articulated.
A search will be conducted. period.

 

[CdwJava]

As a note, a "frisk" IS a search and must be based on articulable probable cause - even though the P.C. is most often on the side of the officer's safety. It is nether automatically permitted nor lawful under just any circumstance. The search of a wallet is generally going to exceed the parameters of a Terry search (for weapons). As clarified by Dickerson and Limon (and other cases) the officer must reasonably suspect that the person to be searched is armed. That is not to say the officer did not have probable cause, but he may well have to defend his actions before a court.

 

[tranquility]

As a note, a "frisk" IS a search and must be based on articulable probable cause - even though the P.C. is most often on the side of the officer's safety. It is nether automatically permitted nor lawful under just any circumstance. The search of a wallet is generally going to exceed the parameters of a Terry search (for weapons). As clarified by Dickerson and Limon (and other cases) the officer must reasonably suspect that the person to be searched is armed. That is not to say the officer did not have probable cause, but he may well have to defend his actions before a court.

A "frisk" is a limited search based on articulable facts establishing a “reasonable” or “rational” suspicion that the person may be armed. It is for officer safety. A good way to blow a frisk (aka pat down) is to say you patted him down for weapons and contraband or were just following procedure. Terry is codified in CA with P.C. § 833.5.

People v. Brisendine 13 Cal.3rd 528 (1975) limits the frisk to the outer clothing. (Except when the clothing (or purse, etc.) is so resistant as to prevent feeling a possible weapon underneath.)

While People v. Garcia 145 Cal.App.4th 782 (2006) would not allow a patdown for identification as a frisk on less than probable cause is allowed only for the purpose of discovering offensive weapons (And, only if there is a reason to believe the person had such a weapon.), there are a number of earlier cases allowing a limited search of the vehicle or of the person if the suspect is detained and denies having identification. In the vehicle, because he is supposed to. Of the person if the individualized facts indicate he might. (Such as the officer seeing the suspect has a wallet in his pocket.)

 

[CdwJava]

Yes, but it is still a search under the 4th Amendment so we teach officers that it IS a search and requires more than merely the same reasonable suspicion required for a detention. You must be able to reasonably articulate why you believe he might be armed. It may be a diminished level of probable cause akin to that applicable to juveniles in school in many instances, but ity still requires a great burden than merely the possibility that he might be ... maybe.

 

[tranquility]

Yes, but it is still a search under the 4th Amendment so we teach officers that it IS a search and requires more than merely the same reasonable suspicion required for a detention. You must be able to reasonably articulate why you believe he might be armed. It may be a diminished level of probable cause akin to that applicable to juveniles in school in many instances, but ity still requires a great burden than merely the possibility that he might be ... maybe.

Yes, there must be a "reason to believe" he might be armed. (People v. Lopez 119 Cal.App.4th 132 [2004])

That reason might have factors such as the nature of the crime the person is suspected of (Robbery, yes. DUI, no.), if there is a corroborated tip, and, as in all 4th amendment issues, the totality of the circumstances.

 

[CdwJava]

Yes, there must be a "reason to believe" he might be armed. (People v. Lopez 119 Cal.App.4th 132 [2004])

That reason might have factors such as the nature of the crime the person is suspected of (Robbery, yes. DUI, no.), if there is a corroborated tip, and, as in all 4th amendment issues, the totality of the circumstances.

It is frustrating to hear some officers mention that no probable cause is necessary for a frisk. Sadly, even officers misinterpret this lower burden to mean that they can conduct a pat-down even without articulable cause to believe the person might be armed. I try to make certain that trainees understand that it is not a given, and why I encourage our FTOs to ask trainees WHY they do what they do (be it a search, a cite an arts, or a warning, etc.).

 

[Shannongiles16]

I got patted down for being suspected of hitting a street sign with a vehicle. I didn't hit the sign but I had assisted the person that did. I didn't notice at the time that the sign had been damaged. I had always assumed that Terry stops were legal even without reasonable suspicion.