This is the fifth article in a series on the particulars of citizen’s arrests, including when, why and how these arrests are appropriately applied. Start with the first article in this series. This article series is not intended as legal advice. Readers should consult a licensed attorney with any specific questions or concerns on the subject matter.
In the previous article, we looked at nuances of the citizen’s arrest process, including what happens after the person is actually detained. Now we’ll examine other related concerns such as how an arresting person might conduct protective weapons pat-downs for safety purposes.
In a Pat-Down of an Arrested Person, the Details Matter
A common concern among arresting persons is that the individual being detained might have a weapon and attempt to use it as some point. In order to mitigate this danger, weapons pat-downs are generally permissible. But again, the details matter a lot.
First, a pat-down is different from a search. If you’re patting down an arrested person pursuant to a weapons check (i.e., for safety), you are not going into that person’s pockets. You are staying outside the person’s clothing, and you are patting him down using the backs of your hands so as to avoid accusations of inappropriate touching.
You’re also going to do this pat-down in front of a video camera if possible, so that there is a documented record of your specific methods and contact. And you are, of course, going to avoid touching near the individual’s private parts.
In addition, you are not going to look for weapons inside a purse or bag that the individual may be carrying. Why? Because you can simply put the bag somewhere in the room that is visible but out of reach of the detainee. That way, even if there is a weapon, it is no longer a threat to you because the person can’t get to it, so the point is moot. Again, weapons checks are strictly for safety — nothing more.
Occasionally, during a weapons pat-down, you may feel something that you suspect is a weapon. If your suspicion is reasonable, then generally you may remove it from the person’s possession during the time of the detention.
But a good practice is to first ask the individual what the item is. She may say that it isn’t a weapon, and ultimately, you may not believe her and end up removing it anyway. But if you ask and she confirms that it is a weapon, at least you know what you’re dealing with, and you have her disclosure on record in the recording.
Sometimes you may suspect that something is a weapon and in fact it is not. In this case, you would simply put the item back where you found it. As long as your original suspicions about what you thought the item was were reasonable, you probably won’t be liable for an illegal search. It’s when you have no business thinking the item is a weapon in the first place that you can get into trouble.
But remember: If you don’t have a good-faith reason to believe it is a weapon, you may not remove it. Again, protective pat-downs are only for safety’s sake. Sometimes during a pat-down we might feel something that we think could be evidence of a crime. It could be associated with the crime that spurred the arrest in the first place, such as merchandise the detainee put into her pocket in an attempt to shoplift. Or it could be something that is completely unrelated to the arrest, such as drug paraphernalia that you had no reason to know the detained person had on them at the time you arrested them.
Either way, if it’s not a weapon, LEAVE IT ALONE. Think about it: You’ve detained the person so she is not going anywhere and neither is whatever is in her pockets. That means it will still be there when law enforcement arrives. When the police get to the scene, you can tell them what you think you felt. They can then go about conducting a search if they determine that one is warranted.
It’s Okay for Arrested Persons to Make Phone Calls
Have you ever seen a police television show where someone is arrested and then he gets one phone call from jail? Good, now forget all about that. Remember, you are not the police.
If the arrested person wants to make a phone call, let him make the call. If he wants two phone calls, let him make two. As far as you’re concerned, he can call whomever he wants as many times as he wants. We’re not booking and arraigning him. We are simply holding him until the police arrive.
In the meantime, we should treat him with respect and aim to make him as comfortable as the circumstances will allow. There is no harm in phone calls.
It’s Usually Okay for the Arrested Person to Use the Bathroom, Too
Bathroom breaks can be a little trickier, depending on the circumstances. But generally, we should allow a detained person to use the bathroom whenever it’s possible to do so safely.
Bathroom requests are different from phone calls because in theory, a person doesn’t even need to use his hands to make a call. However, a trip to the bathroom obviously requires the use of one’s own hands. So a very real question in some circumstances becomes whether or not handcuffs or other restraining devices that might have been used to detain an individual can be removed without a significant safety risk.
This is when cooler heads should prevail and you should aim to cooperate with the detained person if he cooperates with you. But it all depends on the circumstances.
Another legitimate concern with permitting bathroom use is obviously the potential destruction of evidence. And this really happens. For example, suppose a customer is arrested in a jewelry store pursuant to reasonable suspicion that she put a watch in her pocket and was attempting to steal it. If the suspicion is correct, then there is a watch in her pocket. It’s a watch we cannot touch or remove pursuant to prohibitions on searches and seizures, but a watch nonetheless that could potentially be flushed down a toilet by someone looking to evade a criminal conviction.
And of course, if you do decide to permit a bathroom break, you are not going to stand over the individual and monitor him. At a minimum, we would afford him the privacy of a stall. But that is enough privacy to destroy evidence, so we need to think about these factors in such situations.
Err on the Side of Humanity and Civility
To be clear, you should always err on the side of humanity and civility, and try to allow bathroom breaks wherever it’s safe to do so. But such scenarios are not without their complications, and unfortunately there are no clear-cut blanket rules for handling them.
In the next part of this series, we’ll address what happens in a citizen’s arrest after law enforcement arrives and how best to prepare your business for the possibility of having to effect a citizen’s arrest someday.
About the Authors
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
Dr. Chuck Russo is the Program Director of Criminal Justice at American Public University. He began his career in law enforcement in 1987 in Central Florida and was involved all areas of patrol, training, special operations and investigations before retiring from law enforcement in 2013. Dr. Russo continues to design and instruct courses, as well as act as a consultant for education, government and industry throughout the world. His recent research and presentations focus on emerging technology and law enforcement applications, post-traumatic stress, nongovernment intelligence actors, and online learning.