This looks like an instant win for anyone who gets creative. Some sheet metal with a gun outline and a refusal to search sounds like an instant win with the help of any sharp attorney.
Illegal stop and search based on that scanner's reading.
I'm thinking that any appellate court presented with such a scenario is going to look at two points.
First, whether the scanner was constitional. For example, under the so-called special needs exception to the warrant clause. I'm betting there is an even chance a court would say the scanner is constitutional. Also, don't place your eggs on the federal decision against forward-looking infra-red (FLIR). That decision was aimed at using FLIR on a home (to detect heat from marijuana grow operations) where courts consider 4A protections strongest, not walking down the street or driving a car.
If the court finds the scanner constitutional, the next question is whether the scanner image presents RAS of a crime--illegally carrying a concealed handgun. The court wouldn't even have to reach probable cause, just RAS. Here is why I say that. If the court decides the scanner image creates RAS, then
Terry kicks in, authorizing a non-consensual stop. And, since the item in question is a weapon, the court would say a patdown for officer safety is justified. Don't bother to argue with me that
Terry requires reasonable suspicion the detainee is both armed
and dangerous. You and I know what
Terry says. But, I have never seen a court bother with that distinction after
Terry.
It wouldn't matter whether the scanned object was
actually a gun; just that it was reasonable for the cop to suspect a gun based on the scanner image. Heck, I wouldn't be surprised if the court made the same determination for an object scanned at a funny angle that only
suggested it might be a gun. Same for a too-long knife where blade length is restricted.
Courts have a real knack for siding with police and government; my money says there's a good chance a court would side with police.
I've been speaking of jurisdictions where licensed concealed carry is almost non-existent. For example, NYC, Maryland, Illinois. It might play out differently in a place like AZ or VA where licensed CCW is a lot more common. Instead of RAS for a crime, a court might find justification for a police demand to see a CCW license. But, then again, maybe not. Wasn't it Georgia or something where a federal court said a CCW license provided an exception to the state prohibition on CCW, meaning the cop had RAS of a CCW offense, justifying a Terry Stop even if the person was licensed to carry concealed?
