Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Nevada. A friend let someone park an RV on his property to make repairs, the guest never left, and now it is a civil standby that is turning into a trespass. The RV owner comes out agitated, throwing his jacket on the ground, and the officers pat him down.
Hey guys, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold, bringing the roadside chat.
This one’s actually coming from Spokane airport. This is actually my home base. I’m flying to St. Louis to go to the ILEETA conference. So, welcome to beautiful Spokane airport. And that is a joke. Apparently they are going to be doing a new terminal, which would be kind of nice.
What happened on this civil standby?
So here’s the question. We have an officer in Nevada and he says, all right, so we got a civil standby.
The basic situation is that we have a person who is allowed to bring their RV onto a friend’s property. You already know that’s going to be the first problem. You never, ever, ever, ever allow anybody with an RV to stay on your property. That’s as bad as inviting Cousin Eddie for Christmas.
And so they invite them over. They stay too long. They’re not leaving. They were there just to repair the RV and so forth. And the point is, now they’re not leaving.
Okay, so the cops arrive. They’re like, civil standby, hey, can you help me get this guy off my property? Kind of a civil standby and trespassing issue.
While in there, our suspect here, the RV owner, he’s really agitated. He comes out. He’s flailing his arms around. He’s taking off his jacket, he’s throwing it on the ground. And the cops are like, wait a minute, this guy’s about to attack us. So they pat him down. They don’t find any weapons on him, and they kind of go from there.
Now the question is, with those very brief circumstances, were the cops allowed to pat this person down?
Can you pat someone down when it is not your detention?
The answer is going to be yes.
Basically, I know this is unorthodox, because it’s not your detention. You’re just there trying to investigate a civil issue. But the way I want you to look at this is, hey, are you lawfully present? Yes. Are you investigating something? Yes.
If those are your two factors, generally speaking, the courts are going to allow you to be safe.
We obviously know we don’t pat down witnesses just to pat them down, even though in our high crime area, we have a case on that.
What does Arizona v. Johnson tell us about patting down someone who has done nothing?
But we also have cases like Arizona v. Johnson, which talked about patting down passengers. Now generally passengers have not committed any crime. The only thing they’ve done in life that’s wrong is they choose friends who are bad drivers. But the Supreme Court there said that we can pat down a passenger if they are armed and dangerous.
We also have a case, and I forget the name of the case, where a cop was investigating some crime. They got into a house consensually. They then thought they were going to be attacked. They did a protective sweep. They found something in plain view. The court upheld it because, look, lawfully present, engaged in your lawful duties. If you have specific reasons about why you’re in danger, you’re allowed to be safe here.
Clearly we have that issue. The guy’s thrown down his jacket. He’s agitated. It’s armed and dangerous. So we want to look at the facts.
Is a crime happening right in front of you?
But the other thing is, the other way I look at some of these issues is, well, you may have a crime now. You may have an imminent battery. Is it reasonable to believe that this person could be committing a battery?
And so that’s kind of the way I look at it too. And I think that the answer is yes. So I kind of want you to think about that.
I hope this helps. I mean, really, you guys are doing a great job out there. I know it’s very confusing about what you’re doing. These videos are really about having a conversation about what cops are doing. This is what I would do out there. Obviously you have your own legal advisor and so forth.
The short version
- “You never, ever, ever, ever allow anybody with an RV to stay on your property. That’s as bad as inviting Cousin Eddie for Christmas.”
- The two questions that do the work: “Are you lawfully present? Yes. Are you investigating something? Yes.”
- “If those are your two factors, generally speaking, the courts are going to allow you to be safe.”
- “We don’t pat down witnesses just to pat them down.”
- Arizona v. Johnson on passengers: they have committed no crime, “the only thing they’ve done in life that’s wrong is they choose friends who are bad drivers,” and you can still frisk if they are armed and dangerous.
- Lawfully present, engaged in lawful duties, specific reasons you are in danger. “You’re allowed to be safe here.”
- The second angle: “You may have an imminent battery.”
- “This is what I would do out there. Obviously you have your own legal advisor.”
Related from Blue to Gold
- Can Police Be Sued for Kicking In a Door During a Civil Standby?
- Can You Pat Down a Drug Dealer for Weapons?
- Detention for Criminal Trespass
This article is an edited transcript of Roadside Chat EP#822. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
