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August 02, 2010
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Ed Flosi Taking Training to the Next Level
with Ed Flosi

A recruit's conundrum: Who's right?

When an FTO's lessons and academy instruction are at odds on matters like pat/frisk searchs, the officers involved and the agency iteslf could be culpable

Editor's Note: We're pleased to introduce Sgt. Ed Flosi of the San Jose (Calif.) Police Department as our newest addition to the always growing PoliceOne roster of writers. Ed is a supervisor in SJPD's Training Unit, teaching use-of-force and arrest control/defensive tactics for the academy and in-service training, and for PoliceOne will provide occasional articles on topics important to FTOs and academy trainers alike. We first discovered Ed through his contributions to the P1 First Person series of member-written essays. If you think you've got something to contribute to PoliceOne we encourage you to send us an email with a short essay for consideration.

Recruit officer Michaels has just graduated from the police academy. He leaves the police station his first night on patrol with Field Training Officer Jones eager and excited to begin his new journey. Along the route to their beat, FTO Jones tells Recruit Michaels that he is expected, as standard procedure, to pat/frisk search everyone he stops or he will not receive a satisfactory rating in officer safety. When Recruit Michaels questions this direction, FTO Jones reiterates the order and tells him, “There are no exceptions to this. When you stop someone you will conduct a pat/frisk search for weapons.”

In this scenario, the recruit is faced with a conundrum. He just went through the academy where the laws of arrest/search and seizure instructor clearly taught the legal requirements for a pat/frisk search and this new information is not consistent with his academy instruction. Confused, Recruit Michaels tells FTO Jones about what he learned in the academy. FTO Jones quickly discounts the academy lesson proclaiming, “This is the way we do it on the street.”

The FTO might also offer such wisdom as, “I would rather be tried by twelve than carried by six,” or instruct the recruit that it is permissible to search every person an officer stops under the umbrella of officer safety purposes.

As a current academy instructor and prior FTO, I become more frustrated every time a recruit comes to me with this scenario because the FTO’s instruction is both legally and tactically unsound.

Legal Concerns
A pat/frisk search is a search conducted of the outer clothing of a subject for weapons only. Absent consent, it must be supported by specific objective facts that would make a reasonable officer feel in danger because the subject is armed or may be armed. It cannot be based on a subjective fear or an overreaching statement of “officer safety,” nor can it be based on the idea of the search being standard procedure.

As a review, there are three types of law enforcement contacts

1) consensual
2) detention
3) arrest

Each level of contact has different legal standards and authorizes (or directs) law enforcement officials to conduct business in specific manners.

Arrest
After an arrest supported by probable cause, a search incident to arrest is proper and the scope of the search is much wider so the discussion about pat/frisk searching is not relevant. An officer is allowed to conduct a search, including a search of any containers, incident to any kind of lawful custodial arrest, from murder to outstanding traffic warrants1. As a matter of practice, it is always a good idea to also gain consent to search even though there is probable cause to arrest and search the person just in case the probable cause is found to be insufficient at a later time.

Consensual
Although an officer does not need any specific reason to consensually contact a subject, the subject being contacted must feel that they are: (1) free to leave at any time, and (2) free not to cooperate with the officer2. In other words, the contact is completely voluntary on the part of the subject being contacted. In a consensual contact an officer may ask for consent to search the subject for weapons. The manner in which the consent is sought – giving orders, demanding answers, displaying a weapon, using a harsh tone, telling him to stop doing X or to move to some other location – might indeed turn the encounter into a de facto detention or arrest3. Absent consent, even a limited search for weapons is not legal unless the officer has specific facts or information making it reasonable for him/her to suspect that the person may be armed and dangerous4.

Dr. Ron Martinelli, police practices expert, gives officers the following advice regarding consensual encounters:

Once an officer relays to the citizen by word or actions (voice inflection, phrases, hand on weapon, menacing demeanor, etc.) and gives the citizen a feeling that (1) the citizen is not free to go about their business and (2) they must comply with the officer's directions, commands, or orders; then there is no longer a consensual encounter - you now have a detention subject to 4th Amendment guidelines5.

An officer may ask to pat/frisk a person during a consensual encounter, but may not conduct the search without the subject’s consent. The officer must be prepared to hear the word “no” when asking for consent to conduct a pat/frisk search for weapons. If the subject says “no,” the officer must also be prepared to accept that answer and move on with the investigation. The mere fact that a person asserts their Constitutional rights does not now equate to reasonable suspicion. In other words, the officer cannot use the subject’s answer to now apply the faulty logic of “the guy must be hiding a gun because otherwise he would have allowed me to search him.”

In part two, I will continue to examine this situation by defining a detention and when an officer is allowed to conduct a pat/frisk search regardless of consent. We will then come to a conclusion as to the lawfulness and tactical soundness of the direction given to the recruit.


1California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151 (Robinson (1973) 414 U.S. 218; Gustafson (1973) 414 U.S. 260.)
2California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151 (Mendenhall (1980) 446 U.S. 544, 554; Bennett (1998) 68 Cal.App.4th 396, 402; Rodriguez (1993) 21 Cal.App.4th 232, 238)
3California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151 (Manuel G. (1997) 16 Cal.4th 805, 821; Terrell (1999) 69 Cal.App.4th 1246, 1254; Miles (1987) 196 Cal.App.3d 612, 616-617.)
4California Peace Officer’s Legal Sourcebook, Electronic Edition, Revision 151 (Terry (1968) 392 U.S. 1)
5Dr. Ron Martinelli, Ph.D., Martinelli and Associates, personal communication, May 15, 2010.


About the author

Ed Flosi is a retired police sergeant in San Jose (Calif.). He has been in law enforcement for more than 27 years. Ed has a unique combination of academic background and practical real world experience including patrol, special operations and investigations. Ed was the lead instructor for use-of-force training, as well as defense and arrest tactics for the San Jose Police Department. He has been retained in several cases to provide testimony in cases when an officer was alleged to have used excessive force. He has assisted the California Commission on Peace Officer Standards and Training (POST) in providing expertise on several occasions related to use-of-force training. He has a Master of Science degree from California State University Long Beach and holds an Adult Learning Teaching Credential from the State of California. He teaches in the Administration of Justice Department at West Valley College.  He is currently the Principle Instructor for PROELIA Defense and Arrest Tactics.

Contact Ed Flosi.





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