Derby FALs
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Pat down search during traffic stop-NO permission
- Thread starter dfaugh
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Double Naught Spy
Sus Venator
dfaugh, as the story went, the son was given a sobriety test and frisked, but the passenger was not taken from the car and frisked. Okay.
There seems to be a lot of relevant information missing here. Where did this incident take place? At what time of day or not? And, just what did your son do to draw attention to himself that might have indicated that he was intoxicated or that he might be carring concealed weapons?
No doubt your son will say he did absolutely nothing wrong. That may or may not be accurate, regardless of what he believes.
In watching COPS, it is amazing to see how many folks make claims that they didn't do anything wrong even though they were being videotaped and even after being told that they were videotaped. No doubt some folks are just trying to deny the claims, but some actually seem to really believe that their actions were completely different than what was on the tape.
There seems to be a lot of relevant information missing here. Where did this incident take place? At what time of day or not? And, just what did your son do to draw attention to himself that might have indicated that he was intoxicated or that he might be carring concealed weapons?
No doubt your son will say he did absolutely nothing wrong. That may or may not be accurate, regardless of what he believes.
In watching COPS, it is amazing to see how many folks make claims that they didn't do anything wrong even though they were being videotaped and even after being told that they were videotaped. No doubt some folks are just trying to deny the claims, but some actually seem to really believe that their actions were completely different than what was on the tape.
Uh...not quite.
No, I mean you need to hear the other side specifically in order to determine if the actions of the officer were reasonable. I mean, this is just common sense. If you have to determine who is right and who is wrong in nearly any circumstance, you need to get both sides of the story.
Mike
RevDisk
Member
Well, he could have followed the course of action I did the last time military police wanted to frisk me. I started stripping. MP's, by the way, are harsh critics. They claimed I had no rhythm and needed to work on my flexability. 
But I did make two bucks off the incident. So, I suppose it turned out for the best.
Also, is it appropriate to ask for flowers and/or chocolate before the frisking?
Okey, seriously, the officer in question may or may not have had enough cause to conduct a Terry. It's hard to say, dfaugh. If possible, try to contact the officer in question and ask.
Question. If an officer wishes to conduct a Terry, and the person being frisked is legally CCW'ing, what's the story? Obviously the person already has a weapon on their person, and the point of the Terry frisk is officer safety. Can they Terry frisk the person completely anyways even if the CCW'er notifies the cop they're carrying legally?
But I did make two bucks off the incident. So, I suppose it turned out for the best.
Also, is it appropriate to ask for flowers and/or chocolate before the frisking?
Okey, seriously, the officer in question may or may not have had enough cause to conduct a Terry. It's hard to say, dfaugh. If possible, try to contact the officer in question and ask.
Question. If an officer wishes to conduct a Terry, and the person being frisked is legally CCW'ing, what's the story? Obviously the person already has a weapon on their person, and the point of the Terry frisk is officer safety. Can they Terry frisk the person completely anyways even if the CCW'er notifies the cop they're carrying legally?
dfaugh, welcome to the Brave New World. cordex is absolutely right.
This shouldn't be so surprising. Officer safety frisks happen all the time. As long as the officer has articulable suspicion, anything goes. (RS is a non-standard, because it's so weak that any cop can manufacture it later to please a judge... that's not saying most cops do, simply that they can.) An officer safety frisk is entirely at the officer's discretion.
The driver is always going to get picked on more, because the driver has to follow more laws - he must not be intoxicated, and he must have a DL (and therefore must identify himself to the officer, unlike passengers in many states).
The current state of affairs is unfortunate and contravenes the 4th (+15th) amendment, but it is what it is. Unless you can control every aspect of your body language and speech to come across as an ordinary joe when you're really upset and/or nervous, chances increase with every nervous tick and wrinkle in your brow that you'll get yanked out of the car, searched "for officer safety," and/or subjected to whatever else the cop thinks he can get away with. For most police officers in urban centers, the job is about reducing crime, not protecting people's rights.
I suspect that an officer wouldn't bother with a terry frisk once he verifies your CHL, but you might run into some jackboot who takes offense that you'd want to arm yourself legally. A LEO can take your gun away for the duration of the terry stop, so I don't see why he couldn't legally frisk you as well.
So, if you're asking whether a CHL restores your 4th amendment rights, I'd say no, but it certainly makes it more probable that the officer will respect them and leave you alone, particularly if you announce your CHL status upon first contact.
This shouldn't be so surprising. Officer safety frisks happen all the time. As long as the officer has articulable suspicion, anything goes. (RS is a non-standard, because it's so weak that any cop can manufacture it later to please a judge... that's not saying most cops do, simply that they can.) An officer safety frisk is entirely at the officer's discretion.
The driver is always going to get picked on more, because the driver has to follow more laws - he must not be intoxicated, and he must have a DL (and therefore must identify himself to the officer, unlike passengers in many states).
The current state of affairs is unfortunate and contravenes the 4th (+15th) amendment, but it is what it is. Unless you can control every aspect of your body language and speech to come across as an ordinary joe when you're really upset and/or nervous, chances increase with every nervous tick and wrinkle in your brow that you'll get yanked out of the car, searched "for officer safety," and/or subjected to whatever else the cop thinks he can get away with. For most police officers in urban centers, the job is about reducing crime, not protecting people's rights.
If you've gotten to the point where the officer's going to frisk you, and your state requires immediate disclosure of CHL status to LEOs, you're in trouble. Regardless, if the frisk starts and you still haven't told the officer that you're carrying, things are going turn bad when he finds it, if he finds it. But he might not: the safety frisks I've been subjected to would not have revealed a smartcarry or ankle holster.Revdisk said:
I suspect that an officer wouldn't bother with a terry frisk once he verifies your CHL, but you might run into some jackboot who takes offense that you'd want to arm yourself legally. A LEO can take your gun away for the duration of the terry stop, so I don't see why he couldn't legally frisk you as well.
So, if you're asking whether a CHL restores your 4th amendment rights, I'd say no, but it certainly makes it more probable that the officer will respect them and leave you alone, particularly if you announce your CHL status upon first contact.
"Q1 - He pats your left front pocket and feels a couple grams of pot in a baggie. Can he now make a second motion and go into your pocket and take the baggie out? Or am I way off and he put his hand into your pocket to begin with?
Q2 - If you have the pot in a Frisk breathmints box, is it legitimate to look in there?"
It is really difficult to say that something is "legal" or not because each search and seizure is evaluated on its own merits and totality of circumstances. Only on your second question am I reasonably certain that the answer is no, but their may be circumstances when a judge may allow it - unlikely, but possible. Personally, I wouldnt mess with it during a Terry patdown , though Altoid tins are very popular around these part for carrying drug kits. Now if the person is arrested it is a different story and the box gets opened.
Typically frisks are restricted to the exterior of clothing, though a good fisk will result in exterior clothing, such as coats, being opened so that the exterior of interior clothing can be checked.
Q2 - If you have the pot in a Frisk breathmints box, is it legitimate to look in there?"
It is really difficult to say that something is "legal" or not because each search and seizure is evaluated on its own merits and totality of circumstances. Only on your second question am I reasonably certain that the answer is no, but their may be circumstances when a judge may allow it - unlikely, but possible. Personally, I wouldnt mess with it during a Terry patdown , though Altoid tins are very popular around these part for carrying drug kits. Now if the person is arrested it is a different story and the box gets opened.
Typically frisks are restricted to the exterior of clothing, though a good fisk will result in exterior clothing, such as coats, being opened so that the exterior of interior clothing can be checked.
Coronach's first post nailed the legal standard and centac alluded to an additional nuance. The nuance is that the justification for a stop is separate and independent from the justification for the pat down. In other words, the legal justification for the stop is not the same justification for the pat down. The justification for the pat down is reasonable suspicion to believe that a weapon may be present.
Second, the search pursuant to Terry is limited to a pat down of outer clothing only, and you can't get into someone's pocket unless the pat down reveals an object that could be a weapon or which is immediately recognizable without further manipulation to be contraband. It is much less of a search than a search incident to a warrant or search incident to arrest.
We don't have enough facts to decide this one.
Second, the search pursuant to Terry is limited to a pat down of outer clothing only, and you can't get into someone's pocket unless the pat down reveals an object that could be a weapon or which is immediately recognizable without further manipulation to be contraband. It is much less of a search than a search incident to a warrant or search incident to arrest.
We don't have enough facts to decide this one.
Aguila Blanca
Member
Sorry, I beg to differ.
The courts have been extremely clear that Terry stops are justified on the basis of an articulable suspicion of CRIMINAL ACTIVITY. A traffic stop by its very nature does not involve any suspicion of criminal activity.
There may be circumstances which arise during the course of a traffic stop when something causes an officer to decide that a pat-down is necessary for officer safety, but that would not magically transform the traffic stop into a Terry stop. A traffic stop is not a Terry stop, because there is no articulable suspicion that a crime has been committed or is about to be committed.
And there is no such thing, BTW, as a "Terry search." The term is "Terry stop," and that's what it refers to. It's a stop conducted to investigate suspected criminal activity, conducted under guidelines arisiing out of the Terry case.
Traffic stops are usually based upon probable cause, not mere reasonable suspicion, because the officer has observed a violation. However, Terry applies to stops made without PC so long as the traffic violation under investigation is a criminal violation in the particular jurisdiction. Courts generally analyze both categories of stops in the nature of Terry stops because of the limited duration of the detention and the fact that citations are issued and the violator released.
A reading of the Terry case will demonstrate that a pat down search definitely was covered. There most assuredly is a concept of a Terry search.
A reading of the Terry case will demonstrate that a pat down search definitely was covered. There most assuredly is a concept of a Terry search.
Have any on the LEO's here had a Terry search overturned in court? My friend ho is a Fed public Defender says that it is really tough.
Another thing is that the LEO can also do a Terry Frisk of the car.
Most stops might in actuality have PC but you dont need it to stop someone. All you need is reasonable suspicion. You also dont have to do a Terry Frisk in conjunction with anything else. You can do them of someone walking down the street with reasonable suspicion.
Another thing is that the LEO can also do a Terry Frisk of the car.
Most stops might in actuality have PC but you dont need it to stop someone. All you need is reasonable suspicion. You also dont have to do a Terry Frisk in conjunction with anything else. You can do them of someone walking down the street with reasonable suspicion.
Well, that's not called a Terry frisk, though. It also has it's own limitations and rules.
As to Terry pats overturned in court? I've never had one, but I always articulate mine really well. If you try to blow smoke up a judge's butt, believe me, he'll take offense. More likely, the prosecutor will just drop the case to avoid wasting everyone's time. Then you're open to the lawsuit. So, if you're thinking about just making up a "once upon a time in the ghetto" story, don't.
Mike
As to Terry pats overturned in court? I've never had one, but I always articulate mine really well. If you try to blow smoke up a judge's butt, believe me, he'll take offense. More likely, the prosecutor will just drop the case to avoid wasting everyone's time. Then you're open to the lawsuit. So, if you're thinking about just making up a "once upon a time in the ghetto" story, don't.
Mike
wmenorr67
Member
It is a good thing that he didn't have a coffee can in the car. 
CAS700850
Member
Funny this all comes up now, because I have a Suppression Hearing set for Friday involving a Terry-type pat-down for officer safety.
A Terry pat-down, as has been described above, is a pat-down based upon reasonable, articulable suspicion of criminal activity, or reasonable, articulable suspicion that a subject may be armed. Don't know what the officer would say in the original facts that maay or may not justify such a pat-down of the boy.
An officer safety pat-down is slightly different, and arises out of the facts of the situation. In my case for Friday, an officer investigating a car crash offers a ride to the passenger, but indicates he needs to pat-down for officer safety first. Since the subject is getting into the cruiser, there is a legitimate concern for teh safety of the officer, in knowing whether the subject was armed or not.
These pat-downs (Terry and officer safety) are over-the-clothes pat-downs, meaning outside pockets. As centac said, if an object is felt, and its nature as contraband is readily apparent, the "plain feel" doctrine allows an officer to go into the pocket and recover the item. The idea is that a trained officer can identify the nature of the item by a permitted touch, thus establishing a quasi-probable cause situation. In my experience, it occurs primarily with baggies of crack cocaine, crack/meth pipes (drug paraphernalia), etc.
I have seen a Terry pat-down thrown out, where an officer was clearly not concerned about weapons/his safety and performed a pat-down on a teenage driver on a turn signal violation, daylight hours, within viewing distance of the police station.
As for the breath mint tins, there is no way of saying that the tin does or does not contain drugs absent a canine sniff or an actual search. Doubtful that either will happen.
A Terry pat-down, as has been described above, is a pat-down based upon reasonable, articulable suspicion of criminal activity, or reasonable, articulable suspicion that a subject may be armed. Don't know what the officer would say in the original facts that maay or may not justify such a pat-down of the boy.
An officer safety pat-down is slightly different, and arises out of the facts of the situation. In my case for Friday, an officer investigating a car crash offers a ride to the passenger, but indicates he needs to pat-down for officer safety first. Since the subject is getting into the cruiser, there is a legitimate concern for teh safety of the officer, in knowing whether the subject was armed or not.
These pat-downs (Terry and officer safety) are over-the-clothes pat-downs, meaning outside pockets. As centac said, if an object is felt, and its nature as contraband is readily apparent, the "plain feel" doctrine allows an officer to go into the pocket and recover the item. The idea is that a trained officer can identify the nature of the item by a permitted touch, thus establishing a quasi-probable cause situation. In my experience, it occurs primarily with baggies of crack cocaine, crack/meth pipes (drug paraphernalia), etc.
I have seen a Terry pat-down thrown out, where an officer was clearly not concerned about weapons/his safety and performed a pat-down on a teenage driver on a turn signal violation, daylight hours, within viewing distance of the police station.
As for the breath mint tins, there is no way of saying that the tin does or does not contain drugs absent a canine sniff or an actual search. Doubtful that either will happen.
That is incorrect. Absent consent, you can’t get to the pat down unless you have the right to stop first, which requires its own justification. Take a look at Florida v. J.L. decided by the U.S. Supreme Court in 2000. In that case, the stop was bad and the seizure of the illegally carried firearm was suppressed as a result of the bad stop. (It has prophetic language about mass threats that we will see in the future.)
I can’t cite a case off the top of my head where the stop was ruled good but the search bad, but there are cases out there. In addition, some never get to the suppression hearing because the DA refuses the case, or the case is a lower court decision that never gets reported in a case book. CAS700850 gives a good example of one you’ll never read in a case book.
CAS, I view your officer safety pat down as more of a consent pat down—"I will give you a ride if you let me pat you down first." At least in the jurisdictions in which I have knowledge, I cannot recall seeing separate authority for a pat down outside the course of a Terry stop or another recognized exception to the warrant requirement (e.g. consent, exigent circumstances). I would be interested in learning the outcome of your suppression hearing and the rationale articulated.
Well, I've calmed down a bit since last night
Went over it with my son (and his friind) and here's the correct chronology:
Officer stops him, initially because passenger not wearing seatbelt(dumb)
Asks for license registration, etc. Officers computer not working so he can't verify info...Can't check for "wants and warrants"...
Asks him(son,driver) to step out of car, and proceeds with "pat down" (without asking permission) ...feels object in pants pocket, asks what it is, son replies "cell phone"...Officer reaches in pocket, removes cell, continues with pat down...(This cell is one of the new ones, very small...no way to mistake it for a gun,but could be anything I suppose.)
Officer then proceeds with sobriety/drug test...
Both "kids" said the officer was very interested in looking in the car, but didn't do anything resembling a search, nor did he ask to.
Officer then checks Registration sticker, notices that inpection sticker is expired...Officer has him drive to Sherriff's station (1/4 mile away)and wait while he goes inside to check information (This I find a bit humorous).
Comes out, give him ticket for expired inspection, and one to his friend for no seatbelt, lets them go on their way.
Son is 20, this happened in broad daylight(well, 7 pm, still bright here) near a busy intersection in residential/commercial neighborhood, only about a mile and a half from (my) home, which is pretty much rural area.
I just feel that the officer turned a simple traffic stop into a fishing expedition, for no good reason...As far as my son acting nervous, yeah, he probably was, when asked to step out of the car, not really knowing at the time what he was even being stopped for...Been driving myself for 35 years, been stopped a few times, but never asked to leave the car....
I'm trying, and failing to articulate my problem with this... I guess, that had he asked permission (which my son would've given) for the pat down, that might be OK...And,that I really don't see where it was the least bit justified for a simple traffic stop.....
Went over it with my son (and his friind) and here's the correct chronology:
Officer stops him, initially because passenger not wearing seatbelt(dumb)
Asks for license registration, etc. Officers computer not working so he can't verify info...Can't check for "wants and warrants"...
Asks him(son,driver) to step out of car, and proceeds with "pat down" (without asking permission) ...feels object in pants pocket, asks what it is, son replies "cell phone"...Officer reaches in pocket, removes cell, continues with pat down...(This cell is one of the new ones, very small...no way to mistake it for a gun,but could be anything I suppose.)
Officer then proceeds with sobriety/drug test...
Both "kids" said the officer was very interested in looking in the car, but didn't do anything resembling a search, nor did he ask to.
Officer then checks Registration sticker, notices that inpection sticker is expired...Officer has him drive to Sherriff's station (1/4 mile away)and wait while he goes inside to check information (This I find a bit humorous).
Comes out, give him ticket for expired inspection, and one to his friend for no seatbelt, lets them go on their way.
Son is 20, this happened in broad daylight(well, 7 pm, still bright here) near a busy intersection in residential/commercial neighborhood, only about a mile and a half from (my) home, which is pretty much rural area.
I just feel that the officer turned a simple traffic stop into a fishing expedition, for no good reason...As far as my son acting nervous, yeah, he probably was, when asked to step out of the car, not really knowing at the time what he was even being stopped for...Been driving myself for 35 years, been stopped a few times, but never asked to leave the car....
I'm trying, and failing to articulate my problem with this... I guess, that had he asked permission (which my son would've given) for the pat down, that might be OK...And,that I really don't see where it was the least bit justified for a simple traffic stop.....
MikeIsaj
Member
Sounds to me like a fishing trip. Not saying it's right but, it does happen because they are so many times, successful.
I'd question the stop from the point where the officer has him get out of the car. The follow me to the police station certainly sounds silly and I would think goes over the line of reasonable detention. That sounds like "Gee our computer is down so I'm going to arrest you until we determine you are not a criminal." He had authority to stop and deal with the seatbelt violation. Absent any other reasonable suspicion of criminal activity, the stop is over.
The bottom line here is that your son is an adult and can pursue this as a complaint if he chooses to. Unfortunatly you have no standing in the issue and need to step back and advise your son, then let him decide what to do. I know from experience how hard that is to do.
I'd question the stop from the point where the officer has him get out of the car. The follow me to the police station certainly sounds silly and I would think goes over the line of reasonable detention. That sounds like "Gee our computer is down so I'm going to arrest you until we determine you are not a criminal." He had authority to stop and deal with the seatbelt violation. Absent any other reasonable suspicion of criminal activity, the stop is over.
The bottom line here is that your son is an adult and can pursue this as a complaint if he chooses to. Unfortunatly you have no standing in the issue and need to step back and advise your son, then let him decide what to do. I know from experience how hard that is to do.
I am sorry that I didnt type what I meant. Terry is a "stop and frisk" doctrine. That was actually what Terry himself was complaining about in the case. Terry was basically casing a place to rob and then was stopped by an officer who did a pat down and found a illegally concealed gun. In Terry the facts that lead to both the stop and the frisk were the same.
Florida vs. JL was about an anonomous tip about a kid having a gun. There was no reliability to the tip which gave them no reasonable suspicion to search. It wasnt like a normal traffic stop since the police went looking for the kid. In a normal traffic stop the officer is the one who has the suspicion, it doesnt come from another. That case didnt say the criteria for the stop and frisk must be different.
Which part? Terry protection frisks DO cover cars.
The entire protection line/ stop and frisk/ reasonable suspiscion are all Terry based.
Those civil rights claims are very hard and dont really result in anything monetarily.
Actually, having him follow the cop to the station was a break. With the expired registration the car could've been towed and impounded pending current registration. Or you coulda taken it home on a rollback, on your dime of course. If the cop was serious about searching the car he would've done this and conducted an inventory search. Your kid got lucky
I dont see any problem but then according to most here I'm a jbt.
I dont see any problem but then according to most here I'm a jbt.
Hkmp5sd
Member
I was stopped for speeding by two motorcycle cops a few years back and after informing them I had a CCW and was armed, one cop took my license & handgun and the other cop then frisked me. Of couse, he found three knives stashed in various pockets, which they also took. They never asked anything about searching the car and after everything was verified legal, they gave my stuff back and sent me on my way. They never commented on civilians having CCWs and/or carrying weapons. About the only thing that interested them was they had never seen the .40 S&W baby Glock (27) and were checking it out.
Joejojoba111
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No man that's good info, good thread, just all around good imo. We all make mistakes in traffic, good to hear about some guidlines and rules.
Derby FALs
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MikeIsaj
Member
Are we trying to get rich quick, punish the municipality or solve a problem. The squeeky wheel gets the grease. I don't call my local government on poor behavior or performance because I want money. I do so because I want them to respect my rights. I do so because as a taxpayer and citizen, they work for me and every once in a while we need to remind them of that. It's called civic responsibility, it is the duty of every citizen, whether it will be profitable or not.
It depends on the route you want to take. If you want to file a complaint or a lawsuit. Complaints a lot of times dont amount to much. My comment was more directed at the lawsuit side. unless you want to pay hourly for an attorney, most arent going to take a civil rights case like this on a contingency since the result is little money.
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