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
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.
As a review, there are three types of law enforcement contacts
Each level of contact has different legal standards and authorizes (or directs) law enforcement officials to conduct business in specific manners.
Dr. Ron Martinelli, police practices expert, gives officers the following advice regarding consensual encounters:
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.)
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