“She said don’t hand me no lines and keep your hands to yourself”
-Georgia Satellites from “Keep Your Hands to Yourself

It was a fun song about tension between a man and a woman and their respective agendas. The man wanted….well, what guys often want. But the woman insisted they had to be married before the serious smooching started. Absent what she considered an appropriate context, it was “Keep your hands to yourself.”

This concept easily translates to search and seizure cases. The line is also a great one to remember when approached by the police. I often get cases after concerts at SPAC which involve searches of a person. It usually goes like this…

The State Park Police approach a person, demand to know what is their pockets (they will refuse to play the riddle game, no matter how much of a Tolkien fan you are). They then either stick their hands in or order the person to empty their pockets. Outside the right context, this is illegal.

The controlling case in NY State is People v. De Bour, 40 NY2d 210 (1976). The Court of Appeals outlined 4 levels of police intrusion and what is required for each:

1) Request for information —— An objective, credible reason is needed for this request (“hunches” don’t count). If there is no indication of criminal activity, the questioned person does not have to speak with the police and can walk away.

2) Common law right of inquiry —— Founded suspicion criminal activity is afoot and the person being question may have something to do with it.

3) Detainer of person, including frisk —— Reasonable suspicion a crime has been or will be committed and the person being frisked may pose a danger to the officer.

4) Arrest ——Probable cause to believe the person committed a crime.

Level 3 — the “frisk”, is too often misapplied and done improperly. It is supposed to be only a patting down of the person’s clothing from the outside with the flat of the hand. The police need a good reason to believe you might be danger to them. The idea is to feel for any hard objects which could be a weapon. If this sort of object is detected, the police can extend the search by taking the object out for inspection. If the “pat down” does not such an object, the search should go no further than the external pats.

Cases at concerts often skip past levels 1 & 2 and go right to 3. The pat downs turn into hands-in-the-pocket searches even though no potential weapon is detected. Inspired by the feel of a soft pack of cigarettes or the crunch of a baggie, police often go in for the grab. The contraband is found and the arrest is made. The truth is many people keep things besides cigarettes in those packages, but this does not justify a more intrusive search. This point is critical because unless the contraband is found fair and square, it cannot be admitted in court.

It is difficult to stand up to authority figures, especially when you are young. Knowing your rights and respectfully asserting them are key. You do have the right to walk away from officers acting upon “hunches” or profiling (age based or racial). If you are asked to empty your pockets, politely decline. If you agree, you are consenting to a search even though it is your hand hauling out the contents of your own pocket. Unless the officer truly has a basis to fear danger, you should not be subject to even the pat down.

You can’t physically resist a search or an arrest, even if they are illegal. Doing so is a formula for disaster. But you can establish the fact you denied consent for the search and registered your verbal protest. If you are caught with contraband, the illegality of the search will render the evidence useless to the prosecution. A case founded upon an illegal search should be dismissed.

So if you haven’t given the officers a reason to suspect a crime has (or will) be committed, or to believe you pose a danger to them, and if they ask to search your person anyway, remember the lady from the song. Find a way to politely say, “Keep your hands to yourself” (the magic word “please” can only help).

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