Concealed weapon

[DERGLOCKINMEISTER]

There are a number of lawyers available to help you in virtually all parts of Oregon . It would seem that there is an argument regarding reasonable cause to search based on empty casings only , however that would hinge on the conversation that actually took place. Definitely consult an attorney - say nothing more to anyone connected to the case until you do. You may have to shop for an affordable price , but it will be worth the time and effort .

 

[MGD 45]

I'm sorry, but I just because I see a few empty brass shells on the floorboard of a car or hell, even live rounds for that matter, doesn't give me the right to "search" the car without consent of the owner/operator. I can ask to search, or search only if I can justify the belief that a weapon is present & I'm in danger........but I don't live in the OP's state....

 

[shenandoah]

Don't borrow anybodys' car unless you know what's in it...ASK, and then CHECK...I was driving my bosses truck when I got a phone call, "Hey is my Glock under the seat?" It sure was, luckily so was his safe, I put the Glock in the safe and spun the lock.

 

[mljdeckard]

My training agrees with jscott. I can see how a cop might articulate to a judge that based on seeing ammunition on the passenger seat, he decided it was reasonable to search the lungeable part of the car to ensure his own safety. This would include the glovebox and under the front seats, the areas where the driver might reasonably reach. It would NOT include the trunk, for example. The defense might argue that RIFLE ammunition does not indicate the presence of a concealable weapon at all, because rifles are not as easily concealable as pistols. It depends on if the judge agrees that there is a difference between 'ammunition' and 'PISTOL ammunition". Most judges aren't as gun-tech literate as we are.

 

[devildog32713]

Having empty shells in your vehicle is NOT cause to search

+1 on this, people in my area would be searched DAILY if this was the probable reason for search...

I agree with practially everyone else, talk to a qualified atornney, if the story is true as you told it, that cop was 100% wrong in what he did, you can't detain someone for having empty brass on the passenger seat.

 

[mljdeckard]

But I could see a judge agreeing with a cop that LOOSE ammo lying on the passenger seat is a reasonable indicator of a gun within reach of the driver.

 

[fatelk]

I agree with you all regarding a lawyer. I believe this is what they are doing, and it sounds like they are on the right track, and I'm not going to comment on the particulars any further, as it's really not my business. I'll let you all know how it turns out, if they OK it.

For all of you telling me to get a lawyer; I'm pretty sure I don't need one myself, as I've never had legal problems in my life (OK, one speeding ticket 15 years ago).

I have to say, I have never heard of a vehicle "frisk". I'm not doubting you, jscott, but it just doesn't sound right to me. I understand you to mean that it's a search of a limited area of the vehicle, but still a search. It sounds to me like a way of justifying a search with little or no probable cause.

I simply cannot understand how it can be legal to handcuff someone, lock them in a patrol car, and "frisk" their vehicle, all based only on the fact that there are some empty '06 shells on the seat and their might be a gun in the car somewhere. This freaks me out a little if true. I would expect this sort of reaction in DC or communist China, but not here. I do tend to be a little naieve though.

Don't get me wrong; I fully understand the risks LEOs face every day. A good friend of mine (deputy sheriff) was killed in the line of duty seven years ago by a drugged out freak with a gun in his car. I generally am a pretty strong supporter of law enforcement, but this just doesn't seem right.

 

[mljdeckard]

A vehicle has a different level of privacy than a home because it is mobile. A police officer has a demonstrable need to ensure his safety, the law gives them latitude to search ONLY to ensure their safety when there is REASONABLE SUSPICION that there is a weapon in the vehicle. The test for reasonable suspicion is lower than for probable cause.

Like I said before, the police here are stretching 'reasonable suspicion' because of the fact it was ammunition for a large rifle on the seat, and not for an easily concealable pistol. The police are wedging in by exploiting the likelihood that a judge won't know the difference between loose -06 ammo and say, loose 9mm ammo. 30-06 ammo on the seat does not indicate that there is a gun in the glovebox. If I were the cop, I would say in my report that I saw 'loose cartridges' on the passenger seat, and based on this I decided to search the vehicle to ensure my safety. I'm going to say that the average judge might not know the difference.

There is a reasonable grounds to challenge the search based on the fact that a cop should know full well that 30-06 shells are not grounds to search for a handgun. But this involves an appeal, expert witnesses, and now your (his) lawyer's bill is a LOT more than $5k.

 

[wishin]

Stop and frisk.

Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (i.e., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband).[21]

 

[Crusader103]

I have to say, I have never heard of a vehicle "frisk". I'm not doubting you, jscott, but it just doesn't sound right to me. I understand you to mean that it's a search of a limited area of the vehicle, but still a search. It sounds to me like a way of justifying a search with little or no probable cause... I simply cannot understand how it can be legal to handcuff someone, lock them in a patrol car, and "frisk" their vehicle

fatelk,

Hey guys, I'm not saying that I like the idea even though it has worked to my personal advantage as a police officer. I am saying that as a police officer of 10 years and a recognized court expert in such cases, that this is the case. Scary to the general public on some level, sure, I can see that.

A frisk of a vehicle is not a search though. Maybe in the minds of those here or a driver in a similar circumstance but not as far as the law is concerned. It is similar to a Terry Stop and the subsequent pat-down that the officer is allowed to perform with reasonable suspicion alone, not probable cause. Again, I didn't create the protocol. I'm just outlining it.

Honestly, I have performed such frisks of vehicles hundreds of times with great success in very liberal Seattle. Some on here would say that rifle shells alone wouldn't indicate a concealable weapon. I would agree with that. What would you say (anyone here that wants to respond) if I told you that I have performed many frisks of vehicles based solely upon the "furtive movements" of a driver or occupant at the time I turned my lights on behind them? Say, they reach around in their car for no apparent reason.... hiding dope, hiding a gun, or just reaching for their wallet. I don't know why they were reaching around but the law allowed me to find out if I could articulate a reason for doing so based upon my personal safety, yes, absent probable cause. I didn't have to see shells, a holster, or anything. That would have just been padding for my report.

That appears to be what occurred in this situation and it is up to the officer to demonstrate that. That is not difficult to do based upon the presence of shells, regardless of caliber.

As far as handcuffing someone and putting them in a patrol car prior to conducting the frisk, that actually is a touchy subject. Absent a very articulable reason I would be reluctant to do so based upon its appearance of a custodial arrest. It is possible to handcuff someone and place them in the back of a locked patrol car without them being under arrest but the officer is riding a fine line there. Their actions could be deemed by a court to be custodial in nature even if their intent was not. Were I the officer and going to frisk a vehicle for safety reasons, I would first attempt to have another officer stand with them a safe distance away from the vehicle rather than placing them into restraints. That is technique though; not mandatory.

wishin, thanks for the posting of the Terry Stop info. This is very much in line with what I am referring to. While Terry was originally based upon the stop of a person, such as one who appears to be outside a convenience store casing it for a potential robbery, its reach has been extended to vehicles as well.

 

[mljdeckard]

A LOT of cops abuse Terry v Ohio. They are either incorrectly trained (or let themselves believe) that it is a blanket protection to search anyone (and their car) that they want to 'for their safety'. Many cops take the stand and testify that they searched for their safety, but when asked what it was that gave them reasonable suspicion that their safety was in danger, they either don't remember, or say something like; "I routinely search suspects and their vehicles for my safety." This is flat wrong, but a lot of them get away with it often enough that there is no reason for them to stop. This is why you want a GOOD lawyer.

If a cop searches under Terry, they must be able to say, "Based on ________; I felt that I was in danger so I patted down the suspect and searched the lungeable area of his vehicle to ensure that there were no weapons present." They are ONLY allowed to search to protect their safety. For example, if they frisk for weapons and find a soft packet of an illegal substance, the packet is inadmissable because it didn't feel like a weapon.

To use Terry, you MUST fill in the blank. You can't say; "I always do this" or "My police intuition tipped me off" or "My spidey senses were tingling" or "Something didn't feel right". You must say something that a reasonable person would believe is an indicator that there was a weapon present. "He kept checking his waistband" or "There was gun-related material in the vehicle" usually works. To say "He kept looking furtively at the glovebox" is iffy. It indicates suspicious behavior, but not a weapon.

 

[scoutsabout]

You gotta love it when honest folks get charged with "potential commission of some future crime they have not yet committed."

There are no dangerous weapons -- only dangerous people. A weapons possession charge is, in my opinion, fundementally unjust. The aim of such charges is to convict a person of criminal intent, though no crime has been committed and no plan to commit a crime can be proven.

I hope that we see the sorting out of our Second Amendment in our lifetime. I have a dream that one day all American citizens will be unquestionably protected by our Constitution -- that our government will no longer have the unjust authority to persecute our sons and daughters for the victimless crimes that they have not committed, nor plan to commit.

There are people who want to outlaw knives next.

Then what? Harsh language? Criminal intent, baby -- lock 'em up!

I believe fundementally that merely possessing a gun, in America, is not a crime. Maybe some day our legal system will figure this out. Maybe there will be some Constitutional justice after all... someday... maybe. If you aren't hurting anyone by doing whatever it is you're doing... you have not committed a crime. No harm no foul -- it's what our Constitution, laws, morals and ethics are all derived from. If you want to sue somebody in civil court, you've got to show damages.

Hostile intent is not criminal. Being somewhere, minding your own business, harming no one and causing no damages what so ever, with some innocuous "thing" in your car, is not criminal. These things are lumped together and treated like crimes through a process of inferrence, labeled as crimes, prosecuted as crimes and take a damaging toll on law-abiding citizens... even though no crimes have been committed against any other citizen. That damaging toll, by fudemental definition, should be in and of itself... a crime.

"Give me liberty of give me death," it was once said, but now it comes down to "don't enjoy your liberties in an unfasionable way, even if you're not infringing on anyone else's liberties, or you will be convicted of a crime."

Tyranny is a crime against humanity.

As for a "Terry Search" ... it seems reasonable that an officer who is suspicious of criminal activity being afoot, or who is reasonably concerned for his/her safety or the safety of others, should be justified in performing a "frisk" of THE INDIVIDUAL... not the individual's car. The officer should remove the driver from the car, frisk him/her, then continue the contact with all due brevity and strict adherence to the purpose of the initial stop.

Be polite, but...

DO NOT answer any non-obligatory questions. DO NOT consent to any searches. DO NOT encourage a person in any position to abuse their authority -- take all suspicious matters up their chain of command immediately. If all these things fail, then retain the services of a qualified lawyer.

We don't have to "fight the man" per se, but we must not let "the man" accidentally crush us underfoot. That being said, we should always endeavor to understand which battles are small enough to win but large enough to matter -- and bear in mind that LEO's, judges, juries, politicians and government officials are all "just people" too. Wounding someone's pride can stack the cards against you. Like minded people back each other's moves, so it's good to keep things friendly when dealing with authority figures. They have more powerful friends than we do.

 

[Cosmoline]

These "my friend..." legal advice threads are worse than useless.

Unless you can cite the EXACT STATUTE in question and provide PRECISE DETAILS, any suggestions you get here are totally useless. Vague, useless hearsay in, vague useless hearsay out.

 

[Dave in PA]

Your friend doesn't want and won't be able to afford (in the future) a misdemeanor conviction on his record. Get a good lawyer, preferably one familiar with gun cases. He should be able to have the charges dissmissed.

 

[mljdeckard]

scoutsabout-

If a police officer searches and secures a weapon to protect his safety, it is ONLY for that purpose, to protect his safety. NOT to charge the possessor with a crime. In MY state, it is not a crime to have a gun in the glovebox, as long as the driver is a person allowed to possess a gun.

 

[fatelk]

jscott, thank you for the excellent info. I did not know this.
As I said, I am actually quite sympathetic to officer safety issues. There are a lot of bad folks out there; more than most of us law-abiding folks living in our safe little world realize, I'm sure. It would just be a terrible shame if a good, hard working young guy with absolutely no criminal record or intent got his life messed up because of something like this. I hope that the authorities have the common sense to realize that justice would not be served by prosecuting him.

These "my friend..." legal advice threads are worse than useless.

Cosmoline, I agree with you, but I tried to make clear that I wasn't looking for advice, just info. There has been a lot of enlightening info supplied here. I deleted most of my original post because any further details are between him and his lawyer. I would actually be glad if a moderator would just delete this whole thread.

Also, by saying "my friend", are you implying that I'm making it up? I can't help but feel a tiny bit offended...

 

[NMPOPS]

"Terry" does not give you the right to frisk a car for your safety. The search was illegal but I agree, he needs a lawyer not us internet attorneys.

 

[Bobarino]

jscott & mljdeckard, simply put, you're dead wrong. the cop here had absolutely no probable cause and no right to remove the drive and search or even "frisk" the car. i know full well that your respective departments and training officers tell you that you can do this or that, violate this right or that one under the guise of "officer safety". however, there is NO right to "officer safety" and in my state at least, there is no mention of this catch all right to abuse "officer safety" even mentioned anywhere in the laws of the state.

"officer safety" DOES NOT trump Constitutionally protected rights. period. your "officer safety" may be some sort of department policy but the people that tell you that it's ok to violate someone's 4th Amendment rights are doing you no favors. if someone decides to press an issue such as in the case in this thread, you personally may be held civilly liable for damages.

speaking for myself, i would pursue it as far as i possibly could. if that meant getting the cop fired and going after the cop and the department in a civil suit then so be it.

it still blows me away the way that cops are trained these days with no regard for the Constitution whatsoever. the Constitution is THE law. as a law enforcement officer, it's your responsibility to enforce it above all else. that means protecting the rights of anyone you come in contact with. i question whether or not new officers are even required to read the Constitution and the Bill of Rights. simply maddening.

Bobby

 

[Skykomish]

Honestly, I have performed such frisks of vehicles hundreds of times with great success in very liberal Seattle.

Well then you are breaking the law and caselaw of WA State along with the better protections of the WA Constitution Article 1 Section 7 than the 4th amendment.

Your actions make your department and cops in general look like pondscum. And YOU ARE

Bobarino, I totally agree with you.

Sky

 

[j4justice]

Been in Texas for three years now, and have had a CHL for one year. As with the poor economy, and because of the local affluence, crime is rising in my area.
Texas code says, in a vehicle, a weapon cannot be in plain view. So does not mean the pistol has to be entirley hidden, such as under the seat, in a console, or glove box?
I have a holster set up on the drivers side of the truck's console...so it's not that conspicuous.
Any advise????

 

[bdickens]

Yeah, I can read. What was the probable cause for the search?

 

[Crusader103]

Private message received from Skykomish:

If what you wrote is true, that you conduct warrantless searches without RAS or PC then you are the scum of police officers. What department do you work for? I happen to live in Seattle. You give Seattle cops a bad name.

I've been called worse by better. Why are you angry at the messengers? Myself and mljdeckard are simply outlining what the law currently says. You have the right to work to change our laws but as they stand right now what has been described by he and I are right and lawful.

Skykomish wrote:

Your actions make your department and cops in general look like pondscum. And YOU ARE

I think I have said both in this forum and in others that I can understand why someone may not like the idea of a frisk but let's not attack the messenger. What I have written is upheld throughout the United States. Federal rulings affect every state which is just one reason that cases such as Terry vs. Ohio reach nationwide.

Yes, I have used the frisk of persons and vehicles time after time. It's in accordance with law and consistent with law enforcement prescribed practices. I've been a police officer in three states for just as many agencies from the northern border to the southern. The standard is the same everywhere.

Bobarino wrote:

the cop here had absolutely no probable cause and no right to remove the drive and search or even "frisk" the car.

if someone decides to press an issue such as in the case in this thread, you personally may be held civilly liable for damages.

You're right, he did not have probable cause. A frisk does not require probable cause. It requires reasonable suspicion.

As far as being personally liable, a police officer is not personally liable if their actions are consistent with the law. Like it or not, a frisk of a vehicle is legal.


Hey everyone, I understand the animosity from the viewpoint of a law abiding citizen feeling that their rights are being infringed upon. That however is not the case when a police officer conducts such a frisk. I have not and would not condone such a frisk as an excuse to conduct a baseless search. As mljdeckard pointed out, it is very narrow in scope. Of the many many times that I have employed the frisk I would have to say that my suspicion proved true at least 95% of the time. I did not, nor would it be justifiable, to stop and frisk someone because I felt like it. Therefore, if you are truly a law abiding citizen it is unlikely (not unheard of) that you will ever be subjected to a Terry Stop or frisk.

Saying that a Terry Stop is illegal because of the 4th amendment is akin to saying that all gun laws are illegal because the 2nd amendment clearly states "shall not be infringed." On a very basic level you could argue that there should be no gun laws, period. In fact, I'm not saying that I would necessarily disagree with that. However, as it currently stands most gun laws are deemed constitutional and so is the stop that has been described. Anyone with the means to challenge them may do so but until they succeed.....

By the way, I am not trying to perpetuate the original posting in this thread. It has evolved into a better understanding of the law as it pertains to searches/frisks and how they may apply to the armed public. For that, I think that the thread is worthwhile and hope that many of you have a better understanding because of it.

Also Skykomish, sorry for the words I IM'd you back in response to your personal message to me. I just don't think that the High Road is a place for namecalling.

 

[Bobarino]

Myself and mljdeckard are simply outlining what the law currently says.

jscott, once again, you're dead wrong. since you insist that these "vehicle frisks" are legal, i'd like you to now back up your assertions by citing the specific law(s) that prove you right. i can cite all kinds of law and case law that prove you wrong starting with st John v Alamagordo where the offending officers were not allowed to hide behind Qualified Immunity and were found liable. i can also point you to a case here in WA where an offending officer has a lien on his house from a plaintiff as the civil case winds it's way through the courts. cops can be, and will be held individually responsible for their actions. if you don't think so, just keep up the way you're doing things. just hope you don't do it to me.

i see you completely discounted my assertions that's it's your job, first and foremost, to uphold the Constitution and the individual rights it enshrines. would you care to tell us why you think it's ok for you to violate it? i'd love to hear this. really.

in the mean time, please cite the laws to which you are referring that allow you to violate citizens' rights as you please.

Bobby

hey, i think i found you!

Scott Jr,J

Police Dept

Pol Sgt-Patrl

hire date 1/6/87

salary $73,453.97

salary w/ OT $76,346.27

meals $1,842.30

uniform $550.00

benefits cost $19,850.03

it also appears that you attended the Multi-Agency Summit on Mardi-Gras Violence in 2001. an i right Jim?

 

[Crusader103]

Bobarino wrote:

hey, I think I found you!

Scott Jr,J

Police Dept

Pol Sgt-Patrl

hire date 1/6/87

salary $73,453.97

salary w/ OT $76,346.27

meals $1,842.30

uniform $550.00

benefits cost $19,850.03

Good try, you almost got it, except that's not me. I was almost out of elementary school when that officer was hired.

However, any moderator want to chime in on attempting to post another member's personal identifying information on the forum?

By the way, I never said that an officer cannot be held personally liable for actions performed while on duty or off. I simply said that they cannot be found liable if their actions are consisent with the law. You're going to have a little more difficult time finding a case to cite where that is the case.

Keep up the good work on your failed attempt to be subversive. I have attempted to provide some useful information on this thread but apparently it hasn't worked out and the thread deteriorated. I will try to ignore the personal attacks. Forgive me if I don't post on this thread anymore.

Don't make it too difficult on yourselves guys. If you want to know who I am I think my website address has been pretty obvious all along. Here's a hint: Look down.

 

[Bobarino]

there was nothing personally identifying. wrong guy anyway. besides the fact that these are public records. it's available to anyone. still waiting for you to cite the laws you say support your opinion....

Bobby