November 11, 2010 | Posted in Criminal Defense

_By Tim George
ErieDUI Lawyer & Criminal Defense Attorney_

Lately, it seems that when police stop an Erie motorist on suspicion of DUI, they do something that creates a question for the courts to answer. Here's what it is: When police tell a driver to exit the car, they "pat-down" or perform a "Terry" frisk on the driver as a matter of routine. When asked about the search (which sometimes leads to the discovery of a marijuana pipe or other illegal stuff) the police often reply, "We routinely do this for officer safety." The problem is our courts have held for some time that this explanation, without more, does not justify such a pat-down search.

Here's what courts in Pennsylvania have said about this topic:

If, during the course of a valid motor vehicle stop, a police officer notices unusual and suspicious conduct on the part of the driver which leads him to believe that the driver "may be armed and dangerous", the officer may conduct a pat-down of the driver's outer clothing for weapons. In order to establish the suspicion necessary to perfom such a search, the police must "articulate specific facts" from which he could "reasonably infer" that the driver was armed and dangerous. (citations omitted).

While the law of search and seizure is constantly evolving, its focus remains on often difficult balance between protecting the rights of citizens to be free from unreasonable searches and protecting the safety of our police officers to make limited intrusions on motorists while investigating crime. What is clear is that when there are no "specific facts" that would cause an officer to believe that the driver is "armed and dangerous" he may not search the motorist. If he does, anything found on the driver, according to the courts, cannot be used against him at trial. This is exactly what a judge ruled in one of our recent success sto