"Step Out Of The Car, Please."

[LiENUS]

Any use of force is capable of killing you, shot, tazed, hit in the face (this qualifies as deadly force where I'm from). In our DT class at the prison I use to work at they told us a story regarding use of force. An offender was being noisy and disruptive in a courtroom so the judge instructed the officers in charge of him to take him outside and "shut him up". They took him outside and struck him in the common peroneal nerve multiple times. This is not typically considered to be deadly force however they struck him one too many times and he ended up dieing. Was the use of force justified? Maybe not but the courts ended up deciding it in fact was, was it excessive? maybe but the courts decided that given the offenders behavior in court and that it was not typically deadly force that it was not excessive. There is a lot a police officer can do that is justified and not excessive that could easily kill you even if nothing is wrong with you health wise. The officer may not even intend to but you'll be just as dead and your family (as well as him and his family believe it or not) will be upset over your death. So moral of the story its probably not a good idea to get out of the car without the officer telling you to. A well experienced officer you'll be ok, you might get a gun pulled on you or backup may show up but you'll be ok. A new officer or one who isn't so good at his job.... you might not be so ok.

 

[General Geoff]

A well experienced officer you'll be ok, you might get a gun pulled on you or backup may show up but you'll be ok

Since when is threat of deadly force justified because a person stepped out of a car?

 

[henschman]

I've been asked to step out of the car many times, usually because a gun is visible in the car.

It normally goes like this... the officer says, "is that a gun?" I say, "a yes." He says "please step out slowly and keep your hands where I can see them." I do so, and am either handcuffed ("for my safety and his") or told to stand with my hands on the trunk. Sometimes they call for backup... I've had 5 cars come to one of these stops before. The cop then gets into the car, secures the gun (and sometimes rifles around in the interior of the car), clears the gun, and radios the serial number back to base, where somebody checks the NCIC database for stolen guns (and who knows, maybe they put it into a database or god knows what else). When the check comes back OK, they usually put the gun in my trunk and let me go, usually without a ticket for whatever traffic offense they pulled me over for.

I've gone along with this in the past when it has happened, before I knew anything about search and seizure law (it was mostly when I was in my teens or early 20s)... but next time it happens, I might just tell them that I do not consent to any search or seizure, and if they persist, tell them that they will be getting sued if they go any further... then sue them if they go through with it.

I don't think they have any legal justification to seize a gun when there is no probable cause it is being stored illegally, during a normal traffic stop.

Under the motor vehicle exigency exception to the warrant requirement, they have to have probable cause a crime has been committed. For a Terry search, they need reasonable suspicion, based on specific and articulable facts, that the suspect is both ARMED and DANGEROUS. That gets them a pat-down of the person, and a search of the interior passenger compartment in anywhere a weapon might be, and any weapons found can be removed and secured.

I will give them the "armed" part, but for just an average traffic stop, they would ordinarily have no reason to suspect that I am "dangerous." The suspicion has to be based on specific and articulable facts.

I am a lawyer, but I don't do criminal law... I'm just going on what I remember from law school and Bar Bri. If I am missing anything, please let me know. However, I do sue people for a living, and I guarantee you, there is nothing I would enjoy more than suing the government and the police, so I kind of hope this does happen again soon to me.

Whatever the law and the supreme court have to say about it, I consider this type of search and seizure to be a major infringement on my liberty and privacy... I really bristle at people writing down my serial numbers. I also don't like the idea of an armed man insisting on the authority to disarm me for the duration of our contact. I guess I just don't like anybody initiating force against me when I am presenting no threat to them (aside from the fact that I wasn't breaking any laws in any of these situations by being in possession of the weapon in question).

My view on the 4th Amendment is that NO search is Constitutional unless it is supported by a warrant, or by consent. All the different "exigency" exceptions have been expanded way too far, like just about every other judicially-invented loophole that allows for expanded governmental power. Some of this stuff really pisses me off, like these sobriety checkpoints where they stop people without any suspicion whatsoever and demand papers, and demand you submit to a breathilyzer, and if you refuse, there is a judge on site that issues an order for you to have a needle forcibly shoved up your arm and a blood sample withdrawn.

This type of stuff makes me want to go Second Amendment on some folks.

 

[LiENUS]

Since when is threat of deadly force justified because a person stepped out of a car?

If the officer perceives you stepping out of the car then it's not justification for deadly force. If however he perceives you getting out of the car with a firearm in your hand (oops it was your car keys) it is justification for deadly force. Deadly force is based upon his perception not necessarily what actually happened. He could potentially shoot you dead on the side of the road and be justified because you got out of the car and fiddled with your car keys looking for the right one to lock your door. Now IANAL and this is for correctional officers in the state of Louisiana. Do the police in your state have the same use of force guidelines as correctional officers in Louisiana? I have no idea. I don't even know if the state police have the same guidelines as we did. I do however know I was trained to justify my use of force based on my perception of the danger involved. This can include objects in the subjects hands, size discrepancy known history of the subject in question even my own experience level. Any of a number of things you may or may not be aware of will be going through his mind and you have no idea what he may feel is justified or not. A rookie officer may very well be justified in pulling a gun on you while the veteran officer wouldn't be. Traffic stops can be very dangerous, I heard once that more warrants are closed out in traffic stops than anywhere else. So you should expect the officer's perception of danger to be higher than you might expect.

 

[NavyLCDR]

Unfortunately, henschman, the courts have ruled that police have every right to frisk and disarm you, including remove readily accessible firearms from vehicles, during any stop that is a justified stop to begin with. So, you can certainly refuse to consent to remove the firearm from your vehicle or from your person, which (if you were stopped for a ligitimate reason) will result in them using force to frisk you and remove the gun from the vehicle, if needed. Since the Supreme Court has already ruled that during a justified stop the officers have the right to do this (for the purpose of officer safety, of course), your threats of suing them are empty and meaningless. Now, being handcuffed may present a different cause of action, I am not sure about the legalities of that.

NOW, running the serial number of the gun to check if it is stolen or not is a completely different subject altogether. Presumeably the serial number was not in plain sight before they retrieved the gun, there is no indication the gun is stolen, therefore running the serial number, in my humble, non-lawyer opinion, is an unjustified search.

The whole purpose for retrieving the gun was for officer safety - running the serial number of the gun, without RAS that it is stolen, does nothing to further the cause of officer safety and is unrelated to the original purpose of the stop.

 

[LiENUS]

NavyLT I think that falls under the typical Terry stop stuff. If during the course of a Terry stop the officer finds a bag of marijuana in your pockets then they get to arrest you for it. This gets hairy because I don't believe they can just reach in to retrieve the bag of marijuana if that's all they felt and it was easily identifiable without removing it as not being a weapon. But if they feel a knife in your pocket, reach in to remove it and in the process a bag of marijuana falls out then the find is good. Of course IANAL and I am not nor have I ever been a police officer. I was a corrections officer. If I wanted to search someone I searched them, no PC, RS or warrant needed.

 

[KBintheSLC]

The sad truth is that if a cop really wants to search your car, but has no legitimate legal grounds to do so, they can just make up a lie, such as "I smelled marijuana", and there isn't much you can do about it. You could try to sue later on, but good luck with that.

The us vs. them mentality generates some very creative techniques.

 

[NavyLCDR]

NavyLT I think that falls under the typical Terry stop stuff. If during the course of a Terry stop the officer finds a bag of marijuana in your pockets then they get to arrest you for it. This gets hairy because I don't believe they can just reach in to retrieve the bag of marijuana if that's all they felt and it was easily identifiable without removing it as not being a weapon. But if they feel a knife in your pocket, reach in to remove it and in the process a bag of marijuana falls out then the find is good. Of course IANAL and I am not nor have I ever been a police officer. I was a corrections officer. If I wanted to search someone I searched them, no PC, RS or warrant needed.

They get to confiscate the marijuana. But that's the extent of their legal action. Applying this to the search of a serial number of a gun during a routine traffic stop - IF the search revealed that gun was stolen, they would be able to confiscate the gun. That's all. They could not prosecute you for possessing the stolen gun.

Minnesota v. Dickerson, US Supreme Court:

http://www.oyez.org/cases/1990-1999/1992/1992_91_2019?sort=ideology

Facts of the Case:
On November 9, 1989, while exiting an apartment building with a history of cocaine trafficking, Timothy Dickerson spotted police officers and turned to walk in the opposite direction. In response, the officers commanded Dickerson to stop and proceeded to frisk him. An officer discovered a lump in Dickerson's jacket pocket, and, upon further tactile investigation, formed the belief that it was cocaine. The officer reached into Dickerson's pocket and confirmed that the lump was in fact a small bag of cocaine. Consequently, Dickerson was charged with possession of a controlled substance. He requested that the cocaine be excluded from evidence, but the trial court denied his request and he was found guilty. Minnesota Court of Appeals reversed, and the State Supreme Court affirmed the appellate court's decision.

Question:
When a police officer detects contraband through his or her sense of touch during a protective patdown search, does the Fourth Amendment permit its seizure and subsequent introduction into evidence? Was the police officer who frisked Dickerson adhering to the Fourth Amendment when he formed the belief, through his sense of touch, that the lump in Dickerson's jacket pocket was cocaine?

Conclusion:
Yes and No. In a unanimous opinion authored by Justice Byron R. White, the Court recalled that a police officer may seize contraband when it is in plain sight, and "its incriminating character is immediately apparent". It held that instances in which an officer uses the sense of sight to discover illegal goods are analogous to those involving the sense of touch. The Court also reasoned that the tactile detection of contraband during a lawful pat-down search does not constitute any further invasion of privacy, therefore warrantless seizure was permissible. The Court also concluded that the police officer frisking Dickerson stepped outside the boundaries outlined in Terry v. Ohio which requires a protective pat-down search to involve only what is necessary for the detection of weapons. In fact the officer was already aware that Dickerson's jacket pocket did not contain a weapon, when he detected the cocaine through further tactile investigation.

Decisions

Decision: 9 votes for Minnesota, 0 vote(s) against
Legal provision: Amendment 4: Fourth Amendment

and the US Supreme Court affirmed the Minnesota State Supreme Court's decision:

http://scholar.google.com/scholar_c...ckerson&hl=en&as_sdt=100000000000002&as_vis=1

Confiscation - allowed. Arrest - not allowed. Conviction - not allowed. Because the cocaine was found during a frisk for officer safety only. The same would apply to the serial number of a gun, I would think. The serial number of the gun was obtained during a search for officer safety only.

 

[Sergeant Sabre]

NavyLT, the case you sited says that "further tactile investigation" the officers determined the item was cocaine. That is key. In order to seize evidence during a Terry frisk under what has come to be known as the "plain feel" doctrine, an object felt by an officer must be immediately recognizable as evidence. The courts have held that if any manipulation of the object is required, this exceeds the scope of a Terry frisk. The quote you posted explains this in the "Conclusion" section.

As an example, if I was patting somebody down and felt something that I immediately recognized as a crack pipe, I can then exceed the scope of a Terry frisk and seize the item. If I felt something that aroused suspicion, then felt of it some more, manipulating it with my fingers before concluding that the item was evidence, that exceeds the scope of a Terry frisk and the evidence would not be admissible.

If during a Terry frisk I found a handgun, it certainly could be seized. Finding weapons is the very purpose of a Terry frisk and their seizure is unquestionably permissible. In the absence of a permit to conceal such weapon (in Michigan), the discovery of the handgun would be a crime if it were concealed. Now having probable cause that a crime was occurring and that my subject committed it a custodial arrest may be made. Upon making a custodial arrest a full search of the subject's person and "wingspan of control" may be carried out subsequent to arrest. Reading and file checking the serial number of the handgun would certainly be permissible in such a search.

That's why the above evidence was excluded in the case you posted. It is, in fact, very possible that evidence other than weapons found during a Terry frisk could be admitted as evidence in circumstances other than you posted.

Also, a Terry frisk is not for "officer safety". There is no "officer safety" exception to the search warrant rule. The case you cited doesn't give details as to why the officer performed a Terry frisk of the defendant.

The us vs. them mentality generates some very creative techniques.

In my experience as an officer I encounter the "us vs. them" mentality much, MUCH more frequently among "them" (citizens) than I do "us" (officers). This applies to the tenth power on internet gun boards.

 

[oneounceload]

You should have more than enough time to get out of the car and lock the door behind you before the officer approaches. T

you really get outa the car when pulled over? before the cop can get to your car? or just read about it? how has it worked out ? in your experience only

"Back in the day".............that is exactly what I did........and I walked to my rear bumper and stood there quietly so the cop could see he wasn't walking up on any surprises. I turned to the side so he could watch as I pulled my wallet out of my back pocket.........that was done in GA, TX, CO, and NV


Now, I use a radar detector...........

 

[aryfrosty]

Yep, step out of the car, take the keys with you, and lock the door.

ACLU recommends if the officer ask you why you locked it you simply say "habit" and nothing else.

And 99.9% of the time none of us here have anything to hide or anything to fear from a search, but I'm just a stickler about that whole "rights" thing I guess.

I agree with your sentiment but heartily disagree with your reference to the ACLU. They are not our friends and I have seen enough evidence of that in my life that the sight of their initials makes me nauseous.

 

[NavyLCDR]

Also, a Terry frisk is not for "officer safety".

Respectfully, Sargeant, I would suggest that you go back to Search and Seizures 101 and attempt to remain awake during the class this time.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZS.html

and that the officer, for his own protection, had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime.

5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [p3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27.

(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.

(b) The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30.

Sargeant, if a Terry Frisk is not for officer safety, then exactly what is it for?

 

[Sergeant Sabre]

I should clarify, as long as you shut your mouth with the demeaning comments, mkay? Putting "respectfully" before a snide comment doesn't make it respectful.

It isn't solely for officer safety. That is, I can't just pat somebody down for just that reason. In fact, your cites above explain it well. A person can be patted down if there is a reasonable, articulable suspicion that they are armed and dangerous. And yes, removing a weapon from an armed and dangerous person is for the purpose of officer safety, and public safety.

 

[XxWINxX94]

Interesting thread.

I still wonder alot about the what ifs...

What if you are told to exit the vehicle, then after you are out you lock your doors on your car. Say the cop notices this, wouldn't that give him MORE probable cause or suspiscion, the fact that YOU don't want him in your car?

Just a thought.

 

[Deanimator]

In my experience as an officer I encounter the "us vs. them" mentality much, MUCH more frequently among "them" (citizens) than I do "us" (officers). This applies to the tenth power on internet gun boards.

By my observation and experience, the "us vs. them" attitude has been created largely by law enforcement. I'm from Chicago. When you see the things that the Chicago PD has done over the years, up to and and including homicide, you'd have to be in a coma to still trust them. The same goes for other big city police departments, such as New Orleans and Philadelphia. Not so much for other departments.

If the police want citizens to have a higher opinion of them, they need to conduct themselves in a fashion which warrants it. They also need to act appropriately when other LEOs fail to do so. All too often, neither of those things happen.

Are all LEOs criminals? No.
Can I tell which ones are at a glance? No.

It is manifestly in my best interest to not waive ANY right for the "convenience" of the police or as a "courtesy". The benefits of doing so are so infinitesimally small, and the potential for danger so catastrophic, that to do so is the equivalent of an LEO leaving his gun, vest and radio in the trunk on a 3:00am traffic stop on a deserted street.

My policy is to obey the law, nothing more, nothing less. It is also my policy to demand nothing less from any LEO.

 

[LiENUS]

NavyLT I will say this. Different departments in different states do have different training methods and requirements. The Terry Stop was afaik originally intended as a method of insuring officer safety. However in many areas the courts have allowed it as a means of gathering evidence in a somewhat limited subset. Many departments now train to use it as a means of gathering evidence more so than ensuring officer safety. I have a friend in the New York City PD. They are required to do so many Terry stops per time period (unofficially of course, officially quotas don't exist) they are expressly told the purpose of these stops is to gather evidence. It is an abuse of the Terry stop precedent and should not be happening however it does happen and is happening. But I'm certain there are other departments that limit their officers a lot more and instruct them to act only in their own safety during a Terry stop and not to treat it as a method of gathering evidence. Perhaps even within the NYPD they have a policy like this for other officers not doing what my friend does.

 

[NavyLCDR]

And you wonder where this "us versus them" mentality comes from?

For those interested in the real US Supreme Court decision regarding warantless vehicle searches, I would suggest you read Arizona v. Grant:
http://www.supremecourt.gov/opinions/08pdf/07-542.pdf

and is summarized:

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. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgmentof the State Supreme Court is affirmed.

The limits of a Terry Frisk are clearly defined in Terry v. Ohio quoted above and is limited to the checking for weapons for the safety of officers and others.

It should be very obvious from the posts by Sargeant Sabre and LiENUS that there are police officers and departments who will clearly go beyond the scope of warrantless searches for officer safety and turn these into searches for evidence of anything they can pin on you. Remember, the police officers' job is NOT to protect or serve. Their job is to investigate crime. In fact, the US Supreme has ruled that there is no duty to protect incumbent upon a police officer.

A general rule of thumb is this: If a cop asks you if they can search somewhere, they are not doing it to be courteous. They are asking for your consent because they know that they cannot obtain a warrant to search what they are really looking for and they know that unless you consent, whatever they find as evidence will not stand up in court. If they truly believe that they are conducting a legal search without a warrant, they will order you to comply, not ask.

Deanimator's post #65 is spot on. I couldn't have said it better, although I suppose I just tried.

 

[TexasRifleman]

Some good points in here but we're drifting away from firearm legal issues pretty quickly.

Good information though, thanks everyone.