Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Texas who had just come out of outlaw motorcycle gang training. The instructor there was teaching that a one-percenter patch plus Michigan v. Long lets you frisk the rider and search the bike, consent or no consent. The officer wanted to know whether that is really what the case says.
Hey guys, Anthony Bandiero here, attorney, senior legal instructor, bringing a roadside chat from an officer in Texas. This officer asks, basically, can we automatically pat down suspected gang members?
To give you a little context here, the officer is talking about attending some outlaw motorcycle gang training. They get a lot of Bandidos in the area, and the instructor is basically saying, hey look, if you are dealing with a one-percenter, Michigan v. Long, which is a U.S. Supreme Court case about frisking vehicles, allows you to essentially conduct a frisk of that motorcycle for weapons.
What they teach is this: the officer will first ask for consent to search the motorcycle. If they say no, then they get them off the bike and they search it anyway, because it’s known that gang members can easily access the saddlebag and potentially grab a weapon.
Now the question is, does Michigan v. Long really hold that suspected gang members can essentially be automatically patted down, just with that fact alone?
What did Michigan v. Long actually decide?
Certainly Michigan v. Long doesn’t. It’s not that fact pattern.
That case involved a drunk driver who crashed into a ditch, and the officer saw him trying to go back to the car, and there’s a knife in the map pocket in the door. The door’s open. They got Long back, and another partner looked for and seized the knife, and looked for more weapons in the immediate area, and found narcotics in the center console.
The Supreme Court upheld it, because the logic was, hey look, he was trying to go back to the vehicle. It’s a fluid situation. He’s intoxicated. There was only one weapon in there, there could potentially be another weapon in there. And that frisk of the vehicle was upheld.
But it certainly didn’t talk about anything about gang members.
Are there automatic searches under the Fourth Amendment?
Now all I can tell you is what I teach. I don’t teach automatics. There’s really no automatics out there. There’s no free lunch when it comes to the Fourth Amendment. You’re going to have to work for it a little bit.
You’re going to go to court and explain that simply having a one-percent patch, that’s one factor. It’s a very important factor. But what else do you got there? We’re going to have to have something more.
And usually there’s going to be something more. So that’s the good news.
What does a court want to see besides gang membership?
Here are some cases that kind of illustrate what I’m talking about.
Here’s a case out of Kansas from 2009. At the time the officer conducted the pat down, he knew the following facts about the suspect. He was in a database as a documented gang member. He was with a known gang member who was on supervised release from prison and had been involved in a prior stop involving drugs within the last two weeks. He had just come from a gas station where several arrests had been made recently for drug activity. The officer also articulated that he knew that drug dealers involved in gangs often had weapons to protect the drugs and the money. Their self-help. They’re like their own little police department.
Considering all these facts, the court upheld it.
But do you see what’s going on there? It’s not just saying, your honor, the person is a one-percenter, therefore I conducted a vehicle sweep, or a pat down. We need something more than that in my book. But you’re going to have it, usually.
Let’s go for another case. This one is out of the Tenth Circuit in 2018. Police officers conducted a traffic stop at a busy intersection. They believed they had reasonable suspicion that the passenger was armed and dangerous, and patted him down for weapons. Why? Because they knew from a database search that he was recently arrested in connection with a weapons possession, he had previously been a suspect in another weapons case, and he was listed as a gang member.
See my point? There’s usually something more going on.
How do you articulate a gang-related frisk in your report?
Now, you’re the ones who are going to have to make these decisions out there. I can’t make them for you. But from a legal point of view, I just need cops to articulate why they’re doing what they’re doing.
I have a class called Bulletproof Report Writing, and essentially what the class is all about is getting you guys to articulate more. The facts are there. In 99 percent of these cases the facts are there, these things are going on, but we don’t find them out until we go to a suppression hearing and we pull the facts out like we’re pulling teeth. When in my book, we could have just documented those things in the report and not had the suppression hearing, probably, to begin with. Because the officer would have been like, yeah, look, these are all the reasons why I did a frisk and I patted this person down. Not simply being a one-percenter, even though that probably is the most important fact.
But there’s something else. What about his attitude? What about how long did he take to pull over? Who is he associating with? What is his prior history? Is he favoring one side? All these things. There’s probably more there.
All right, but again, you make the decision out there. It’s your safety. I can’t make that decision for you. We can only fight about these things in court. But I want you to be physically and legally safe.
The short version
- Michigan v. Long is a vehicle frisk case about a drunk driver moving back toward a car with a visible knife. “It certainly didn’t talk about anything about gang members.”
- “I don’t teach automatics. There’s really no automatics out there. There’s no free lunch when it comes to the Fourth Amendment.”
- A one-percent patch “is one factor. It’s a very important factor. But what else do you got there?”
- In the cases that get upheld, there is always a stack: documented gang membership plus recent weapons arrests, plus known associates, plus location, plus officer knowledge that gang drug dealers carry.
- “We don’t find them out until we go to a suppression hearing and we pull the facts out like we’re pulling teeth.”
- Attitude, delay in pulling over, associates, prior history, favoring one side. “There’s probably more there.”
- “It’s your safety. I can’t make that decision for you. But I want you to be physically and legally safe.”
Related from Blue to Gold
- Can You Pat Down a Drug Dealer for Weapons?
- What Factors Can Help to Justify a Vehicle Frisk for Weapons?
- Armed and Therefore Dangerous: Rethinking Terry in Light of Bruen & Rahimi
This article is an edited transcript of Roadside Chat Ep. #136. 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.
