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By Jill K. Sanders, Esq.

You’ve been pulled over by a police officer. It’s just for a traffic violation – your taillight is out, you moved out of a lane without signaling, or some other minor infraction. Yet the cop wants to do a pat-down of your body. He says it’s for his safety.

What would you do? What are your rights in this situation? One New York appellate court recently weighed in on the issue.

The Constitutional Law on Pat-Down Searches

To search your home, an officer usually needs a warrant. However, this isn’t always so for searches of your person and vehicle during a traffic stop. Under certain circumstances, a police officer can search you or your car during without a warrant.

Such a warrantless pat-down or vehicle search can only happen if there is a reasonable suspicion that an occupant poses a threat to the officer’s safety. Usually, this is based on an occupant acting suspiciously. For example, putting your hands near your waist or under a seat can lead to the assumption you are reaching for a weapon.

If an officer asks to search you or your car, you have the right to refuse consent. If the officer begins searching without asking, you can indicate that you’re not consenting to the search. In this day and age, many officers are wearing body cams and may be recording you. Saying on camera that you don’t consent may be important if an officer discovers something illegal on your body or in your car.

Tips for Traffic Stops and Pat-Down Searches

We’ve previously blogged about what to do in various types of police encounters. Here are some additional tips specific for traffic stops.

• When pulled over for a routine traffic stop, there is usually no cause for the officer to search you or your car.
• You do not have to consent to a search of yourself or your car.
• Police can search you or your car without a warrant if they have probable cause to do so.
• If there is probable cause, you can be held for a drug dog can search your car.
• If he has reasonable cause to believe you have a weapon, an officer can do a pat-down search weapons.
• The cop could also search the places in your car where you might be able to reach for a weapon if you’re acting suspiciously. This usually does not include the trunk.
• An officer may ask you to perform a breath test if there is reason to believe you drove while intoxicated.

The most important tip is this: How you act matters. Use your words and actions to show you aren’t a safety risk to the police officer. After pulling over safely, turn off your car’s engine. Roll down your windows, and put the lights on inside your car. Keep your hands on the steering wheel. If asked for documents, tell the officer where they are before reaching for them. Be polite, even if you’re frustrated or feel the officer is being unfair or is wrong.

Case Study on an Unconstitutional Pat-Down Search

In People v. Robert Santy, Jr., Robert was pulled over for a traffic infraction. The officer observed him in a state of partial undress, and Robert’s affect was “flat.” The officer considered this to be “non-compliant and erratic behavior” and then engaged in a pat-down search of Robert’s body. There, he found a quantity of crack cocaine.

On appeal, the appellate court found that this search violated Robert’s constitutional rights. The pat-down was unlawful, as Robert had not engaged in any concerning or suspicious behavior. Simply having a “flat” affect and being partially undressed were not sufficient to raise the cop’s suspicions that Robert was concealing a weapon. As such, the conviction was reversed and the crack cocaine was deemed suppressed – i.e., it could not be used against him in further proceedings.

References:

• New York Civil Liberties Union, “What to do if you’re stopped by the police.” Available at: https://www.nyclu.org/en/know-your-rights/what-do-if-youre-stopped-police (last accessed Oct. 12, 2021).
• Buffalo Police Department, “What to Do When Stopped by the Police.” Available at: https://www.bpdny.org/163/What-to-Do-When-Stopped-by-the-Police (last accessed Oct. 12, 2021).
• People v. Robert Santy, Jr., 2021 NY Slip Op. 05439 (4th Dept. 2021). Available at: https://nycourts.gov/reporter/3dseries/2021/2021_05439.htm (last accessed Oct. 12, 2021).