I. Pat Downs

During an Investigatory Stop

An officer coming in contact with a citizen may frisk or pat down that person for weapons to ensure personal safety only when circumstances give the officer justification for believing the individual may be armed and dangerous.¹ The test for justification of the search is whether a reasonably prudent officer in the circumstances would be warranted in the belief that his or her safety or that of others was in danger.² A pat down conducted to determine whether the suspect possesses drugs or other evidence is not valid.³ Nor is a pat down based on the general concern for officer safety inherent in any encounter between an officer and an unknown individual.⁴

New Mexico courts have stated that the officer must have articulable facts of potential danger in order to conduct a pat down.⁵ Those facts may include a description of the behavior and appearance of the individual.⁶ Such description should include “specific behaviors and changes in [the d]efendant’s demeanor and attitude that explain why [the officer] believed that [the d]efendant might be armed and dangerous,” such as the failure to make eye contact, shaking hands, increasing nervousness during the encounter, and an aggressive demeanor when addressing the officer.⁷ Also, an officer will be justified in conducting a weapons pat down when the officer has reasonable suspicion that the person has committed or is committing an “‘inherently dangerous crime.’”⁸ The types of inherently dangerous crimes invoking an officer’s privilege to frisk include burglary, robbery, rape, assault with weapons and dealing in large narcotics transactions.⁹ They do not include possession of small amounts of marijuana.¹⁰

A pat down permits an officer to pat down the outer clothing of the person to feel for weapons.¹¹ A protective search of this kind may be found unreasonable when it extends beyond ensuring that the person is not armed.¹² In conducting a pat down, the officer may not place his hands in the person’s pockets or under the outer surface of the person’s clothing until the officer feels weapons, and then the officer may only reach for and remove the weapon.¹³

During Protective Custody

When a police officer takes a person into protective custody and intends to transport the person in his police vehicle, the officer can pat down the person for weapons, even if he is not suspected of committing an inherently dangerous crime. A protective search cannot extend beyond what is reasonably necessary to determine if the person may be armed or possess a dangerous weapon.

For example, police officers or public service officers are authorized by statute to make a protective search of an intoxicated person who is taken into protective custody, prior to transporting him to a residence, health care facility, or jail.¹⁴ Also, when an officer is going to transport a juvenile who has violated curfew, the officer may pat down the juvenile for weapons.¹⁵

What May Be Seized During A Pat Down

Clearly, if the officer feels an item that he reasonably suspects is a weapon, he can remove that item. However, a pat down search for weapons may not be expanded into a search for evidence of a crime absent probable cause.¹⁶

If the officer remains uncertain whether the object is a weapon, he may be entitled to remove it, if the officer can articulate a reason for believing the object could be a weapon.¹⁷ The officer may not, however, reach into a pocket if the object is soft.¹⁸ If the object is hard, then the question is whether its size or density is such that it might be a weapon. The officer does not necessarily have to discern the outline of a gun or other weapon, especially if the suspect is wearing heavy clothing.¹⁹ Our courts have ruled that several coins wrapped in tissue paper were not of such a size or density to provide a reasonable basis for the officer to intrude into the suspect’s pockets.²⁰

New Mexico courts have provided some guidelines for determining whether seizure of items other than weapons is justified during a pat down. For example, an officer may remove an object observed in plain view during the pat down, if it is apparent to the officer, based on the officer’s training and experience, that the object is contraband or evidence of a crime.²¹ If the officer feels objects other than weapons that are not immediately identifiable, he cannot seize those items during the pat down. On the other hand, if the officer feels an object that he can immediately identify as contraband without any manipulation of the item, and the circumstances surrounding the pat down would support the officer’s reasons, then the seizure may be justified.²²

In determining whether such a seizure is justified, the court will look at the officer’s ability to state specific justifications for seizing the item, as well as the surrounding circumstances that might support the officer’s reasons for identifying the item as contraband. As an example, the officer states that he felt a vial in the person’s pocket that, without any manipulation of the vial, he immediately recognized as the type of vial that is commonly used to hold drugs. In addition, the person is unusually nervous under the circumstances of a roadside stop for not wearing his seatbelt, and his nervousness increases when the officer asks whether he has any needles in his pockets so that he won’t be pricked during a pat down for weapons.

Under those facts, the court will likely recognize that the officer had probable cause to seize the vial.²³ On the other hand, if the officer and the detainee were standing in a drugstore, and the detainee showed no signs of nervousness, the surrounding circumstances would likely not justify seizure of the vial.

If the officer feels items that are not clearly identifiable as contraband, then he must complete the pat down without seizing the items. However, after the pat down is completed, the officer may then try to obtain consent from the individual to allow him to seize or see items, or he may try to develop probable cause to seize the items through further questioning. The officer must be careful not to ask to see the items in such a manner that the individual might interpret the request as a directive. For example, if the officer asks the person to please empty his pockets, that may be viewed as a directive, rather than a request, particularly in a situation in which the person is not free to leave.²⁴

ENDNOTES

1 Terry v. Ohio, 392 U.S. 1, 27 (1968); See also In re Josue T., 1999-NMCA-115, ¶ 23, 128 N.M. 56, 989 P.2d 431. Importantly, New Mexico courts require objective facts indicating that the suspect is both armed and dangerous, not either armed or dangerous. State v. Vandenberg, 2003-NMSC-030, ¶ 22, 134 N.M. 566, 81 P.3d 19. Thus the presence of a rifle and a pocket knife is not sufficient to justify a pat down without additional facts that would make a reasonably prudent officer believe the suspect was dangerous (likely to use the weapons during the stop). State v. Pierce, 2003-NMCA-117, ¶ 13, 134 N.M. 388, 77 P.3d 292.

2 Vandenberg, 2003-NMSC-030, ¶ 23.

3 Pierce, 2003-NMCA-117, ¶ 14.

4 State v. Boblick, 2004-NMCA-078, ¶ 13, 135 N.M. 754, 93 P.3d 775.

5 State v. Haddenham, 1990-NMCA-048, ¶ 23, 110 N.M. 149, 793 P.2d 279.

6 State v. Chapman, 1999-NMCA-106, ¶ 15, 127 N.M. 721, 986 P.2d 1122; State v. Madsen, 2000-NMCA-050, ¶ 21, 129 N.M. 251, 5 P.3d 573.

7 Chapman, ¶¶ 2, 15. A suspect’s response to the officer’s initial approach may also justify a pat down, such as when the suspect ignores the officer’s demands to stop, refuses to show his hands, and keeps one hand hidden in his shirt. Madsen, ¶ 21.

8 Vandenberg, 2003-NMSC-030, ¶ 22; State v. Barragan, 2001-NMCA-086, ¶ 12, 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110; State v. Arredando, 1997-NMCA-081, ¶ 16, 123 N.M. 628, 944 P.2d 276, overruled on other grounds by State v. Steinzig, 1999-NMCA-107, ¶ 29, 127 N.M. 752, 987 P.2d 409.

9 State v. Cobbs, 1985-NMCA-105, ¶ 35, 103 N.M. 623, 711 P.2d 900.

10 State v. Eskridge, 1997-NMCA-106, ¶ 26, 124 N.M. 227.

11 State v. Paul T., 1999-NMSC-037, ¶ 17, 128 N.M. 360, 993 P.2d 74.

12 State v. Ingram, 1998-NMCA-177, ¶ 7, 126 N.M. 426, 970 P.2d 1151.

13 Id. ¶ 7; Terry, 392 U.S. at 29-30. Our Supreme Court has held that an “underclothing search” during a search incident to arrest requires reasonable suspicion that the arrestee is concealing a weapon or contraband. State v. Williams, 2011-NMSC-026, ¶ 14, 149 N.M. 729, 255 P.3d 307. Assuming the same standard applies when an officer reaches under clothing or into pockets during a pat down, the reasonable suspicion standard is supplied by the requirement that the officer reasonably believe that the item felt during the pat down is a weapon.

14 NMSA 1978, § 43-2-19 (1973); State v. Blakely, 1993-NMCA-053, ¶ 9, 115 N.M. 466, 853 P.2d 168.

15 Paul T., 1999-NMSC-037, ¶ 16.

16 State v. Flores, 1996-NMCA-059, ¶ 17, 122 N.M. 84, 920 P.2d 1038.

17 State v. Almanzar, 2012-NMCA-111, ¶ 14, 288 P.3d 238, rev’d on other grounds, 2014-NMSC-001, 316 P.3d 183; Barragan, 2001-NMCA-086, ¶ 15.

18 Paul T., 1999-NMSC-037, ¶ 19.

19 Id.

20 Id.

21 State v. Ochoa, 2004-NMSC-023, ¶ 13, 135 N.M. 781, 93 P.3d 1286.

22 State v. Johnson, 2010-NMCA-045, ¶ 24, 148 N.M. 237, 233 P.3d 371.

23 See Chapman, 1999-NMCA-106, ¶¶ 2-3.

24 Ingram, 1998-NMCA-177, ¶ 8.