Interesting call from a student...

[Greg528iT]

Actually, you STILL have a choice on whether to fly or not.

Exactly.. I am meetin a buddy in Vegas next month.. he's driving, I'm flying.

 

[Havegunjoe]

A Terry Search is for the immediate safety of the officer. In-other-words he can search your person if he thinks you may have a weapon on you. I would argue that a locked car poses no danger to the officer. I have never heard of anyone carry a handcuff key and a cop being shot by someone was because he didn’t restrain the person properly. I didn’t mention it but he was placed in the back of a squad while they searched his truck.

 

[zxcvbob]

I would argue that a locked car poses no danger to the officer.

I think maybe the lame excuse for searching the vehicle when the driver is handcuffed (and therefore cannot access anything) is when they release him at the end of the ordeal and he goes back to the vehicle he could retrieve a weapon.

 

[NavyLCDR]

You guys arguing the search of the vehicle might want to look at Arizona v. Grant. The search of the car was illegal.

http://www.patc.com/weeklyarticles/az_v_gant_vehicle_search_final.shtml

Key Question: Can officer conduct a search of a vehicle incident to arrest after an arrestee has been secured in handcuffs and placed in a locked police vehicle?

The Court went on to hold that: a search incident to arrest in a vehicle is only authorized “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”

The Court held: “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

Sorry, but a search of the vehicle for "officer safety" AFTER the subject is in handcuffs is illegal, according to the US Supreme Court decision in Arizona v. Grant.

In the case of the OP, the search was also illegal because they had the subject in custody, they had the vehicle in custody, and without fear of evidence being destroyed or tampered with, they would require a search warrant to search for evidence of the crime of threatening with a firearm.

 

[Davek1977]

THANK YOU NavyLT....I thought that was the case!!! I feel vindicated! I KNEW i had read that ruling at one point......

 

[NickEllis]

And during the short period that I was a judge...

BAM.... pocket cowboys.

 

[avs11054]

http://criminal.lawyers.com/traffic-violations/Unlawful-Vehicle-Searches-and-Seizures.html

http://blogs.laweekly.com/informer/2010/07/burbank_officers_shot.php

http://www.click2houston.com/news/14445413/detail.html

http://zovalente.wordpress.com/2011/02/24/chicago-police-officer-shot-by-suspect-in-handcuffs/

The first link is to an article on lawyer.com that discusses illegal search and seizure. At one point in bold letters it states that an officer may frisk a car even if the car is unoccupied. I've been unable to find any case law about frisking a car that says when an officer can and can't frisk a car, but in my law classes about search an seizure, a frisk is still legal if the suspect is outside the car. Now that havegunjoe states his student was placed in the back of the police car, I think it's iffy at best if the search/frisk was legal.

The next three links are articles about officers who were shot by people who were already in handcuffs.

AZ vs Gant deals with people who have already been arrested. In the OP's scenario, it seems his student was detained, and not under arrest, as there was no PC to arrest him.

 

[NavyLCDR]

In the OP's scenario, it seems his student was detained, and not under arrest, as there was no PC to arrest him.

Which means there was even less reason for a warrant less search of the vehicle.

The police were looking for the gun which the other driver said he saw. They were looking for evidence of a crime. In order to search for evidence of a crime, police must obtain consent to search or a search warrant, unless an immediate need exists to obtain the evidence before it is destroyed or tampered with. With the OP in handcuffs, there was no way he could destroy or tamper with any evidence of the crime, therefore a warrant or consent to search would be required.

If the OP refused to give consent, they could simply detain him until they attempted to obtain a search warrant based on the testimony of the other driver.

Also, BTW, a traffic stop IS an arrest. The person is arrested long enough for the officer to issue the citation, which is a promise to appear in court, or pay a fine in lieu of appearance. But it is still an arrest.

Example:
http://apps.leg.wa.gov/rcw/default.aspx?cite=46.64.015

RCW 46.64.015
Citation and notice to appear in court — Issuance — Contents — Arrest — Detention.


Whenever any person is arrested for any violation of the traffic laws or regulations which is punishable as a misdemeanor or by imposition of a fine, the arresting officer may serve upon him or her a traffic citation and notice to appear in court. Such citation and notice shall conform to the requirements of RCW 46.64.010, and in addition, shall include spaces for the name and address of the person arrested, the license number of the vehicle involved, the driver's license number of such person, if any, the offense or violation charged, and the time and place where such person shall appear in court. Such spaces shall be filled with the appropriate information by the arresting officer. An officer may not serve or issue any traffic citation or notice for any offense or violation except either when the offense or violation is committed in his or her presence or when a person may be arrested pursuant to RCW 10.31.100, as now or hereafter amended. The detention arising from an arrest under this section may not be for a period of time longer than is reasonably necessary to issue and serve a citation and notice, except that the time limitation does not apply under any of the following circumstances:

(1) Where the arresting officer has probable cause to believe that the arrested person has committed any of the offenses enumerated in RCW 10.31.100(3);

(2) When the arrested person is a nonresident and is being detained for a hearing under RCW 46.64.035.

Next time you get a traffic ticket, read it. There will be a space there for "arresting officer".

 

[avs11054]

There are multiple exceptions to search warrants when it comes to vehicles though. One of which is a frisk of the vehicle if the officer has reasonable suspicion to believe the occupant of the vehicle might be armed, he can search the area accessible to the person he believes to be armed. As stated in the link provided, there is no need for the person to still be in the car to frisk the car.

And a traffic stop is a seizure. It is not an arrest. If a traffic stop were an arrest, while the officer may or may not be justified in searching the car, the officer would be completely justified searching the driver of the vehicle "incident to arrest," as that is one of the exceptions to the search warrant requirement to searching people. And this is definitely not the case on every traffic stop.