You are walking through the park late one night. The park is closed. An officer spots you and yells at you to stop. You do. He tells you that you are in the park after hours and he wants to give you a “pat-down” for his safety. He orders you to put your hands behind your head and spread your legs.
You might wonder whether you have to comply.
Can You Refuse an Illegal Police Search
The BEST answer: Do as he asks but calmly tell him you are not carrying any weapons and mean him no harm. Tell him also that you do not consent to be searched.
The CORRECT answer: Legally, no. Practically, yes.
The WRONG reaction: Tell him, “Fine, I’ll leave the park then.” And walk away.
This situation is similar to that encountered in Part IV except this time, the officer does not have the right to pat you down. A recent Supreme Court case, Arizona v. Johnson, made clear that an officer who stops someone for a crime is not automatically entitled to pat them down. That is, the officer in this case was entitled to stop you because you were trespassing in the park, a minor crime. But he would only be entitled to pat you down if he had reason to believe you were armed and dangerous. Unlike the situation in Part IV, where the officer thought you had committed armed robbery, being in the park after dark is not a violent or particularly serious crime. Thus, the officer has no reason to suspect you are armed or dangerous and so, he is not legally entitled to pat you down.
Not only is the officer not legally entitled to pat you down, but in Ohio you only obstruct official business if you perform an “affirmative act” of obstruction like running away. You do not commit a crime if you simply passively refuse to spread your legs or raise your arms. Thus, in theory, you could ignore the officer’s command to spread your legs and put your hands behind your head without breaking the law in that respect. However, that would be a dangerous and unwise thing to do. If the officer really believes you are armed (even if he is wrong), he may choose to react with force when you refuse raise your hands or spread your legs. He would be wrong to do so, but that will be cold comfort to you if you end up tasered, clubbed, or shot. Thus, though you would be legally entitled to refuse, you should spread your legs and put your hands behind your head as the officer asks.
This is the point where the BEST answer differs from the CORRECT answer. You can’t stop the officer from patting you down if he decides he is going to do it, even if he is not legally allowed to. But you can tell him that you do not consent. If you repeatedly and calmly let an officer know you do not consent it will do several good things for you. First, it will make it much easier to challenge the illegal search at a later proceeding if the officer knew that he was searching without your consent. Second, it may make the officer stop and think about whether he really has the right to pat you down in the first place and he may decide not to. Any time you demonstrate that you understand your rights and you intend to exercise them, you discourage the officer from interacting with you further. That is, if you make clear that you will not answer questions and that you will not consent to searches, an officer is likely to give up on the hope of getting information out of you without appropriate legal justification and he may let you go.
As we know from prior parts in the series, WRONG reaction is wrong because the officer in this situation has “seized” you. He may not have actually physically touched you or restrained you in any way. But when he told you to stop and you did, legally speaking, you were seized. That means you cannot leave without the officer’s permission. If you do, you will be obstructing official business which is a misdemeanor.
If you are under investigation, or have been arrested by any Columbus law enforcement agency, feel free to contact one of our experienced Columbus Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.