Search Warrant Exceptions: (5) Protective Weapons Search

The protective weapons search warrant exception is a relatively limited exception that permits police officers to pat-down the outer clothing of a person if they have reasonable suspicion that the person is armed and dangerous.

Here, as in previous exceptions, the court weighs the legitimacy of the officer’s perception that the individual is armed and dangerous by using the reasonable person standard: would a person of reasonable caution, having the facts available to the officer at the time of the search, believe the action taken was appropriate?

If a police officer conducts a lawful stop and develops reasonable suspicion that an individual is armed and dangerous, the officer can pat-down the outer clothing of that individual, looking only for weapons. If what the officer believes to be a weapon is felt, the officer can seize the item. The officer can also open closed containers, like a fanny pack, if the officer can articulate that what was felt inside was consistent with the feel of a weapon. 

Here again, officers can rely on their training and experience in making armed and dangerous determinations. They can rely on circumstances like, but not limited to (1) the individual’s appearance and actions; (2) prior knowledge of the individual; (3) the location of the stop and the time of day; and (4) the purpose for the stop to justify their conclusions.

The challenge for defense attorney’s is to overcome the officer’s training and experience and to make the court question whether the officer truly had reason to believe the person was armed and dangerous. In the changing social environment, it may be appropriate to argue that the officer’s professional conclusions, informed by trauma, fear, and unconscious bias, are unreasonable under the reasonable person standard. 

As always, these circumstances require acute analysis of the facts and circumstances at the time of the incident. My job at Peter Butte, Esq. PLLC is to rely on my training and experience not only as an attorney, but also formerly as a police officer, to protect the rights of my clients. I know and understand both sides of the issue: the police officer’s perceptions and the constitutional rights of defendants. I use my unique experience and knowledge to benefit my clients every day.

Happy Friday.