Search and The Law
A search of persons and “their” property is often necessary and the law is clear on this yet this is often where use of force begins or is unnecessarily employed.
Law enforcement agencies do a bang up job of teaching the academics related to their needs so I will address the area of civilian guidelines for this often controversial subject. I will focus on “weapons searches" and “consent searches"
Civilian search and seizure without law enforcement involvement is legally admissible because the charter protects against state and police action only.
Note: If it can be ruled that the action is conducted by a person or persons who are at the time considered “agents of the state” then police rules apply, not civilian rules.
The subject/giver of consent must be aware of their right to refuse consent, of the consequences of giving consent, that they can change their mind at any time and they must know the extent of his or her jeopardy. They must know what investigation any seized items are to be used for.
Tricked consent is no consent. Trickery has no place in a consent search. You should document, tape record or video tape the consent!
Recommended Format for Obtaining Consent
“I wish to search your person for weapons/evidence of an offense.”
“You must understand that you have the right to withhold that consent.”
“You have the right to withdraw your consent at any time.”
“If you consent I will immediately search your person, baggage, etc. and any evidence found will be seized and used as evidence in a court of law.”
“You must understand that you are a (suspect, accused) in the investigation into the offense of (state offense)” (Applicable only in some loss prevention situations. Even then, I advise that any search for other than weapons be done by police when they arrive.)
Read person their rights to counsel from your notebook. Ask them, “Do you understand your rights as I have explained them to you?” Record their answer and have them sign your notebook and have another officer sign your notebook as a witness.
Note: Civilians, most of the time will be dealing with non-consent searches for weapons only. Exceptions would be baggage checks, wanding, etc. as a requirement before entry to property. In some instances, loss prevention personnell might recover stolen property but again, I advise that any search be for weapons only. Everything else should be noted and left for the police.
Search Incident to Arrest
A "weapons search" is lawful and reasonable if linked to an arrest. Civilians can search the person and immediate surrounding area ordinarily for weapons only. You are not obligated to suspend this type of search until a person has spoken to legal counsel. Following an arrest, the arresting person is responsible, under law, for the safety of themselves, the subject, the public, and the prevention of escape. If your arrested subject were to hurt someone with a weapon you had failed to find in a search, it would be bad enough. If you had failed to do a search you'll be figuring out how much you'll have to pay to settle the lawsuit out of court. Not a good spot to be in. So, if you make an arrest I strongly advise you check carefully for weapons.
If you've placed the arrested subject in handcuffs you need only complete "a cursory search of the area of reach". This can be extremely helpful if your arrested party happens to be of the opposite gender, especially if you're male and they are female.
Cross gender searches should always be on camera if at all possible, at the very least have a credible witness. When the female subject is handcuffed behind her back there is absolutely no reason for you to be checking around in her chest area.
These guidelines are to help you stay within the law when you must complete a search of a person or their property. Legal searches are a fact of life, even for civilian authorities. Despite what some people might try to tell you.