Know Your Rights: The Pat Down

Published May 1, 2007

By Nicole Vincent-Roller

When it comes to getting from point A to point B in an automobile with small amounts of recreational pot in tow, I’ve more than once heard the following theory espoused: “I don’t stash it in the car, I keep it on me. My pocket is more secure than my vehicle.”

This seemingly reasonable theory is couched in the assurances given to us by the Bill of Rights. It is true that among the promises of the Fourth Amendment is the right to freedom from unlawful search and seizure. Unfortunately, the word “unlawful” makes way for all manner of feels that cops can cop.

There are essentially three exceptions to the Fourth Amendment that allow a police officer to give you the most perfunctory rub-down of your life. First, if you have already been arrested, for whatever reason, the police have the right to fully search your person.

Second, there is the officer safety exception. In the state of Vermont, if, in the course of your interaction with the police, the officer has any reason to believe you’re engaged in criminal activity and armed and dangerous, the officer may pat you down for weapons. If the cop comes across an object that feels suspicious like a weapon, they can ask you to produce it in order to be sure of their own safety—replying, “I’m just happy to see you” at this juncture is inadvisable.

However, the Supreme Court case Minnesota v. Dickerson expressly states that the purpose of this limited search is not to discover a crime—so if you’re getting frisked, the third and most important exception to the Fourth Amendment is that of consent.

As always, in situations like this people tend to assume that by complying with the police in every possible way they are currying favor, when in fact they are often simply throwing their rights out the window.

If you consent to a search up front, you’ve obviously already waived your rights. However, if you haven’t consented to a full search but are being legally patted down under the officer safety provision, there will be points along the way in which you can still protect yourself.

If the cop is patting you down and comes across something interesting (small, roundish lumps inside a ziploc bag, for instance) but certainly not threatening, the officer will ask you a question. Whether it’s, “Is that dope?” (remember, laughing at police officers when they use the word “dope” is never a good idea) or, “Whatcha’ got in there?” the question will have absolutely nothing to do with their safety. So stand firm, and reply, “It’s clearly not a weapon.”

As always, The Water Tower neither encourages nor condones illegal behavior. But if you’re already engaged in brain-cell-killing activities, there’s no reason not to be a bit smarter about it.

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