How Far Can the Police Go During a Pat-Down?

By: John Guidry

If you’re even half awake, you’ve noticed all the fuss about the intrusive TSA pat-downs in airports. Well, the government fondling its citizens doesn’t end there.

Some people don’t like to be touched (especially movie stars, mentally ill patients, etc.), but pat-downs are often pitched as a “necessary evil” for safety. But the question for the day is: how far can the government go?

I know this question has been keeping you up at night, so let’s dig right into a real-life example in which an appeals court was forced to step in and draw the line.

Was evidence taken from your pockets during a “pat-down”?

If it wasn’t a weapon, the search might be illegal. Call John today at (407) 423-1117.

The Legal Breakdown: Santiago v. State

The case is Santiago v. State, 84 So. 3d 455 (Fla. 4th DCA 2012).

• The Stop: Santiago was stopped by police behind a home near a recent burglary. He was extremely nervous.
• The Pat-Down: Confronted by armed officers, Santiago agreed to a pat-down. The officer noticed several large objects in his pant legs and bumps in his back pocket.
• The Seizure: The officer testified that he knew these items were not weapons. Despite this, he reached into Santiago’s pants and removed a camera, two iPods, a watch, and some cash.
• The Charge: These items were stolen, and Santiago was convicted of burglary and grand theft.

The Ruling: First, did the officers have the right to stop him? The appeals court said yes (based on factors we don’t have time to cover today).

But was the pat-down and subsequent seizure legal? No.

1. The “Armed and Dangerous” Requirement Pat-downs are permissible only when police believe a suspect is armed with a dangerous weapon. While nervousness and bulges can justify a pat-down in some cases, the officer must actually believe those bulges are weapons. In Santiago, there was no testimony that the officer believed Santiago was armed.

2. The Scope of the Frisk Even if the pat-down was allowed, a “stop and frisk” may not extend beyond a pat-down of outer clothing unless the officer concludes the suspect has a weapon.

• The “Plain Feel” Doctrine: Officers cannot manipulate objects or fish around in your pockets. Since the officer admitted he knew the iPods and camera were not weapons, he had no right to reach in and take them.

John’s Takeaways

The court’s decision in Santiago is beautiful because it puts the brakes on aggressive cops who claim with a straight face that an iPod “feels like a weapon.”

• “Acquiescence” is Not Consent: The court noted that Santiago’s agreement to the search wasn’t voluntary—it was just “acquiescence to a show of police authority.” Just because you didn’t fight back against armed officers doesn’t mean you legally consented.
• The “Plain Feel” Limit: Police often use a pat-down as an excuse to search for drugs or stolen goods. If they feel something soft (like a baggie) or rectangular (like a phone) and know it isn’t a gun, they generally cannot pull it out without a warrant.
• Suspicion isn’t Proof: In this case, the officers didn’t even know what was stolen from the house yet. They were just fishing.

Don’t Let Them Empty Your Pockets

If an officer reached into your pockets during a “weapons frisk” and pulled out drugs or evidence that clearly wasn’t a weapon, that evidence should be suppressed.

Call me at (407) 423-1117. Let’s draw the line in court.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.