imported post
Now, as to my previous post.... A police officer may establish RAS that a violation of NRS 484.305 has occurred if he observes the motorist fail to properly signal his lane change. He wouldn't necessarily have RAS to perform the stop if he didn't have a clear view of the motorist's signal lamps. However, other factors might come into play, such as witnessing other motorists brake abruptly upon the change of lane.
Such observation may lead the officer to conclude the motorist failed to signal even though he couldn't see the lamp himself. This might then also form the basis for a lawful stop in which he may conduct an investigation.
In much the same way, once the detainment has begun, he must form separate RAS that the suspect is armed and dangerous. In my original cites, I posted case law in which the officer must establish this RAS prior to conducting a frisk. And although a frisk was not required in the case of OP, it is definitely a relevant cite.
The RAS required for a frisk is two-fold. To conduct the frisk, the officer must first reasonably suspect that the person is armed. This alone is not enough for the officer to frisk. He must then also reasonably suspect that the person is dangerous. The frisk to determine whether he is armed is only allowed if the officer is also authorized to confiscate any weapons discovered by the frisk. Both conditions must be met.
In the case of OP, I realize no frisk was needed to discover the OC weapon, but again the case law presented is relevant, BECAUSE although the officer needn't form any suspicion the OP is armed (he can clearly see), he must still form reasonable suspicion the OP is dangerous. Remember, the case-law presented requires both conditions to be met before a frisk and/or subsequent confiscation is made. In the same way, any confiscation of an OC weapon must meet the same scrutiny as if the officer had frisked him.
This is all fact based on cited law and case law. I know you claim the case law is not case on point because it's not IDENTICAL, but I would really appreciate you considering the points presented before declaring them irrelevant because they only match OP's incident 90%. Frisk and seizure are both violations of the 4th amendment. They are however PERMITTED violations of the 4th amendment in circumstances decided by the court and case law. Since they're both violations of the 4th, each is also, by itself, a violation of the 4th, which requires lawful authority. The case law describes the sole exception authorized for one or the other or both.
My argument is that the officer did NOT have sufficient RAS to warrant the confiscation. This is based on my opinion, which I explained before, but will again. If the officer reasonably suspected the OP to be dangerous, why did he take his word that the OC gun was the only gun in his possession? If he had RAS to confiscate the OC weapon, he also had RAS to frisk him. But since he did not frisk to determine the presence of any other weapons, my conclusion is that the officer did not really reasonably suspect the OP to be dangerous. Because if he DID have RAS, I find it hard to believe that he would have not have frisked a known armed individual that he believed to be dangerous.
This opinion is also based on the fact that sometimes while OC I also carry a backup weapon concealed, and I think there are many others who also do the same. This is an example of me explaining how a situation unrelated to OP's incident helped me to arrive at a certain conclusion. The fact that I sometimes conceal a backup weapon is NOT irrelevant to the case just because OP was not carrying one. It is entirely relevant, because if the case were to go to court, a judge would have to decide whether the officer's actions were justified by lawful authority (RAS) or whether they were not. If I were arguing the case, I would argue that an individual who is OC can reasonably be assumed is also CC a backup weapon, and that not checking for one demonstrates the officer was not of the mindset that OP was dangerous, and thus he had not developed RAS of such.
I honestly enjoy debating opinions back and forth and discussing laws and their application, but it's been difficult because while I present my opinions and back them up with the cases and laws that I used to form my opinions, you attack the very core of my opinion-forming capabilities and declare the facts I present to be irrelevant and wrong. I don't mind being called out when I make a mistake, and I will own up to it. I know the last two paragraphs above are entirely based on opinion, substantiated by facts, and I don't mind if you disagree, and rather enjoy considering other positions, especially those contrary to my own. But I don't want to argue. I'm not wrong because you disagree with me. We might debate whether the officer had RAS and speculate as to what conditions might meet this requirement, but arguing back and forth that the officer doesn't need RAS despite clearly cited case law is not my idea of an intellectual or enjoyable discussion. No, you're not here for my pleasure, I get that, but there's no need to fight unnecessarily either.
