Is a Cop Obligated to Expressly Advise You That You Have the Right to Refuse a Pat Down Body Search ?

In Commonwealth v. Cleckley, 558 Pa. 517, 525, 738 A.2d 427, 431 (1999), a police officer informed the appellant that someone had accused him of selling drugs. The officer then asked the appellant, without using pressure or force, if he could "pat him down," to which the appellant immediately responded in the affirmative, stating that he did not possess any drugs. However, the appellant "visibly possessed in his left hand a change purse which the officer took and unzipped. Inside the purse was some crack cocaine and ninety-eight dollars ($ 98.00)." Id. at 520, 738 A.2d at 428. The appellant filed a motion to suppress the cocaine, arguing that police should be required to expressly advise him that he had the right to refuse a police search. The appellant acknowledged that the U.S. Supreme Court, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), had previously determined that the Fourth Amendment test for voluntariness did not include a waiver analysis; however, he claimed that the enhanced privacy rights recognized under Article I, Section 8, required adoption of such a "constitutional waiver" standard because, "by consenting to a warrantless search, one is waiving the right to be free from a warrantless search." Cleckley, 558 Pa. at 521, 738 A.2d at 429. Thus, the appellant argued that, under an independent state analysis, the test of "voluntariness" should also include a finding that the subject of the search "knowingly and intelligently waived his or her right to refuse to consent." Id. In Schneckloth, the Court held that where the subject of the search is not in custody and the state purports that the search was consensual, the Fourth and Fourteenth Amendments dictate that, to be valid, the consent be voluntarily given and not the product of coercion or duress. Significantly, the Court held that a consent search is valid if it meets the test of 'voluntariness.' That test involves consideration of whether the confession was the product of an essentially free and unconstrained choice. According to the Court, 'voluntariness' is a question of fact to be determined from the totality of the circumstances and, while knowledge of the right to refuse consent is a factor to consider in determining whether consent to search was voluntarily and knowingly given, it is not dispositive. In so holding, the Court reasoned that such a requirement would not only be impractical but it would also hamper legitimate police investigation. Two competing concerns - the legitimate need for consent searches and the assurance that the subject of the search not be coerced - dictated the Court's decision. Id. at 521-22, 738 A.2d at 430.