Traffic stop turns into much more...questions.

[nekwah]

I agree that they shouldnt have done that to you. But if you think about all the wierdos and creeps they can catch if they can search a car because the creep can stuff his weapon under the seat fast. To bad that after seeing your permits and such, they should have known.

 

[Coronach]

Where did this happen, FL? I am not up on caselaw or statutory law specific to FL, but let's assume that the same general rules apply there as they do here. From reading the OP, I cannot see where the cops were out of line, unless I am misunderstanding what was said. Consider:

1. The OP admits to speeding. That is the officer's PC for the stop.

2. The stop is conducted and the OP admits to smelling of alcohol, which gives the officer a reason to have him step from the vehicle, in order to further investigate whether or not the OP was intoxicated. Regardless, Pennsylvania v Mimms grants the officer the authority to remove the driver of the vehicle during the course of a traffic stop, regardless of the OVI/DUI/DWI angle.

3. Once the other officer arrives, he sees the ASP, which is immediately recognizable as a weapon, and which the OP stated was in plain view in the vehicle. Michigan v Long allows a warrantless, limited search of the passenger compartment of the vehicle if the officer has reasonable suspicion to believe that there is a weapon in the car. Well, this officer saw a weapon in the car, so that gives him the authority to search any place that might contain further weapons and could be accessed by the driver once he is released back into the motor vehicle.

4. The subsequent protective sweep (the search authorized by Michigan v Long) yields the handgun.

The OP is subsequently found to have committed no crime, and is released with no charges filed against him. Assuming that the officers were polite and professional (which the OP says they were), I can't see much to complain about here. There may be Florida-specific laws or court decisions that limit the scope of the officers' authority, though. I am only going by federal caselaw.

Mike

 

[Treo]

e sees the ASP, which is immediately recognizable as a weapon, and which the OP stated was in plain view in the vehicle.

Did you read the part of the OP where gotime said the ASP WASN'T visible till the cop opened his door?

 

[Coronach]

I read that part, but it is not clear whether or not the ASP was seen, and then the door was opened, or if the ASP was only seen after the door was opened. I'm aware of the timeline of "cop opens door and says 'what is this?'", but it is not clear whether or not he saw the ASP prior to opening the door, and just opened the door to retrieve it.

Mike

ETA If you look down into the car from a standing position alongside of it, you can probably see the whole way to the floorboard. Try it and see. It's not clear, however, if you can do that in a WRX. I just assumed that the OP meant it was in plain view from the exterior. Also, the door was opened when the OP stepped out. Believe me, if the cop knows what he is doing, he is doing a quick scan of that area for things that are otherwise concealed when the door is closed when the driver or passenger steps out. It is a prime space to put a gun, or other weapon (like an ASP...hmmm). When I pull someone out, the first thing I do once I look them over is glance at the floorboard and the area between the door sill and the seat.

 

[Treo]

Wasn't aware you were an officer.
Would you care to comment on the validity of Akado's & my advice to the O.P.?

 

[divemedic]

I read that part, but it is not clear whether or not the ASP was seen, and then the door was opened, or if the ASP was only seen after the door was opened. I'm aware of the timeline of "cop opens door and says 'what is this?'", but it is not clear whether or not he saw the ASP prior to opening the door, and just opened the door to retrieve it.

The OP is in Florida. Since he has a CCW, it is not illegal to have an ASP in the car next to you. The comment that carrying while drinking in Florida is illegal ( as made by the LEO) is incorrect.

 

[Coronach]

The OP is in Florida. Since he has a CCW, it is not illegal to have an ASP in the car next to you.

The OP states that the CCW permit was provided after the pistol was located, which was after the ASP was located. Unless I'm misreading the OP or he is otherwise unclear, knowing that the OP had a CCW permit when the officer looked into the car and saw the ASP would have required telepathy, or some other form of advance knowledge. Cops are often good, but we're not that good.

Furthermore, the case law (which is not FL-specific) does not state that a protective sweep is invalid if the weapon is carried pursuant to a permit. The sweep is not a search for contraband weapons, it is a search for weapons. What is done with the weapon afterward depends upon its legality.In this instance, the weapon was legal, it was returned, and the subject was released without charges.

The comment that carrying while drinking in Florida is illegal ( as made by the LEO) is incorrect.

I'm not a FL LEO and I have no knowledge of how FL-specific caselaw works, but the ASP would certainly fall under the common-sense definition of a weapon. I agree that, reading the statutes provided only, the bit about having a gun while intoxicated seems to be incorrect. Regardless, the OP was already being detained for the possibility of DUI/DWI/OVI, so at worst an already-legal detention was made slightly longer while the cops figured out that what he was doing was legal.

Mike

 

[ACBMWM3]

arguments aside, from reading it about 4 times over now it seems the officer did NOT know that the ASp was in the vehicle until he opened the door and did a search. Since he was not told by the "suspect" he could do a search then the officer broke the law by openign the door and searching the vehicle.

 

[gotime242]

You are correct sir. The asp is 100% NOT visible when the door is closed, and he was too far away to see it when i stepped out and thus didnt.

My ccw permit was presented after the fact of the asp because to be honest it caught me off-guard. While i was back by the patrol car, i saw him open the door, thats when i said "Sir, i didnt say it was ok to search my car." Then about 2 seconds later he saw the asp, continued to seach my car and i presented them with my ccw and told him of the pistol.

 

[Coronach]

OK, going with that, then, the protective sweep would be invalid, unless they have some other articulable reason to think there were weapons in the car, or other reason to search.

Since you were not charged with anything, there are no arrest documents that would state what the reasonable suspicion or PC would be. I would suggest calling the PD and asking.

Mike

 

[Robert]

around here they have flashlights with sniffers to detect alcohol

For real? Got a link to something we can see? Seems a bit mall ninja to me...

 

[JDoe]

For real? Got a link to something we can see? Seems a bit mall ninja to me...

Here ya go http://www.pasintl.biz/pasiv.html

$695.00 plus shipping

Product Description
The P.A.S. IV Alcohol Screening System combines: a) high-intensity, super-beam flashlight technology with b) a dynamic sampling system and c) a miniature alcohol sensor. It “sniffs” ambient air, the breath, open containers, or enclosed spaces for the presence of alcohol. The P.A.S. functions as a non-intrusive “extension of the operator’s nose.

The P.A.S. is a hand-held, rapid alcohol detection instrument using a platinum electrochemical fuel cell sensor of high alcohol specificity, accuracy and stability. Designed for law enforcement, industry, corrections, transportation agencies, and educational facilities. The operator-controlled sampling system guarantees accurate detection of alcohol, and is especially suited for quick subsequent measurements.

The P.A.S. is used to check alcohol presence/absence with or without a subject’s direct participation. When used without the subject’s direct participation it is known as passive sampling, as opposed to active testing where the subject blows directly into a mouthpiece or the intake port. The P.A.S. can also be used to detect open containers of alcoholic beverages, or to detect low, ambient levels of alcohol in enclosed spaces such as vehicles, jail cells, or classrooms. Includes: Carrying Case AC Adapter Auto Adapter Recharging System Rechargeable Battery Instruction Manual Twelve-Month Warranty on parts & labor Two-year warranty on fuel cell

 

[cassandrasdaddy]

thanks for the link

instant probable cause especially if you claim to have had nothin to drink. once word of the flashlights got out some guys hold their breath funny to watch but not near as funny as the occasional hero of the revolution who refuses to roll his window down or otherwise participate in the checkpoint/rights violation. shame they don't get any heroes that pass the breathalyzer

 

[209]

dive medic asked :

209- only in a car? So it is not illegal to possess, unless it is in your car?

Again, this is CT law.

CGS 29-38 is "Weapons in a Vehicle"

CGS 53-206: Carrying of Dangerous Weapons Prohibited. This law pertains to carrying a dangerous weapon upon your person. My interpertation of that statute pertains to carrying it somewhere other than on your property. Police baton is one of the listed prohibited items in that statute also. There are exceptions in that statute also. It's another unclassified felony.

Owning a baton and having it in your house? As far as I know, you can own and possess any type of baton in your home or on your property. Of course, it depends what you do with it. I can probably think of a few things that may cause a person to have a problem with a baton. Life is often stranger than fiction and people do strange things.