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Join the conversation! There are now 15 comments on “Police vs Privacy pg 48
  1. If the frisking is based solely on the suspicion of a weapon, then it is technically a violation of the second amendment. The constitution did not consider the safety of law enforcement officers a priority. This who thing sound very vague and open to abuse.

    • Whoops, I missed this comment when it was first posted. Sorry, Shirou, but both of your assertions are incorrect.

      It is not a violation of the Second Amendment. And considerations like safety can override constitutional rights. Also, police might break the rule, but the rule itself is not vague.

      The Second Amendment doesn’t apply here because it’s only concerned with whether the State can violate your individual right to POSSESS a weapon. The issue here is whether a state actor (the cop) can violate your PRIVACY, and to what extent.

      Both of these rights can be limited — just as any other fundamental right — when the State has a really really good reason, and the infringement is really really limited. For example, the First Amendment protects your freedom of speech, but the government can still prohibit you from calling in bomb threats or divulging military secrets. And the Second Amendment protects your right to possess a weapon, but the State can still outlaw bazookas and prohibit felons from having a gun. And the Fourth Amendment has been held to require a warrant for the police to search your home, but they can still bust in if they think someone’s in danger inside.

      Regardless, the Fourth Amendment only prohibits “unreasonable” searches and seizures. And it has been held that a limited pat-down for weapons — just like a protective sweep during a warrant — is “reasonable” for Fourth Amendment purposes. If a cop has a legitimate concern for his own safety and the safety of others, then it’s reasonable to let him make sure you don’t have a weapon you might use during the encounter.

    • You have the right to own a (legal) weapon, but you *don’t* have the right to have direct access to it outside of specific circumstances (shooting range, hunting area, your home, with a concealed weapons permit), none of which include during a detention or arrest.

      • Also, a search for weapons is often done only to separate the suspect from the weapon for the duration of the stop. Once the stop is complete and it has been determined that the person is in lawful possession of the weapon, it will usually be returned to them.

  2. AJ McLeod says

    Unfortunately, your comment here in the cartoon is slightly wrong, though it’s very common for people to get it wrong. The Supreme Court in Terry v. Ohio stated that a frisk for weapons is two-pronged in that the officer not only must have reasonable articulable suspicion that you are armed, but they also must have reasonable articulable suspicion that you could be a danger to yourself or others. Mere “officer safety” is not enough to trigger the exception to a non-consensual search. The cops, of course, will TELL you that it’s for officer safety just to get you to consent to the search. So — moral of the story — NEVER CONSENT TO A SEARCH. Let the officer make the wrong move.

  3. WJS says

    Why did the officer take the guy’s wallet during a frisk for weapons?

    • A wallet can have a weapon in it. You can buy knives that fold up into a credit card size that will fit in a wallet perfectly. A cop making a thorough search for weapons could reasonably look in the wallet.

      Besides, even if he didn’t open the wallet, if he was looking in his pockets for a weapon he might have seen “Marlene’s Wallet” printed on the outside of it.

      • That doesn’t really fly with me. First, as covered later, frisking is done externally, to check for weapon-like or unexpected objects, not by peeking into pockets. Second, if you’re gonna use a folding weapon from a wallet, you’re gonna have to do it at casual speed, so as not to hint that you’re doing something unusual, and the officer would probably insist on removing the wallet for you and eyeballing it for such weapons before giving it back to you to do whatever you were going to do. There’s no requirement that you identify yourself (unless you’re driving or doing something else requiring licensing or age restriction), so perhaps he agreed voluntarily to a request to show ID.

  4. WJS says

    Also, don’t we hear later that they don’t need to tell you why they’ve stopped you? Wouldn’t that make it very hard to know if they’re holding you for an unreasonable length of time?

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