silo
Regular Member
I'd say that I did not consent to anything; rather, I was following his command to exit my vehicle.
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Traffic Stop Situation
- Thread starter silo
- Start date
I'd say that I did not consent to anything; rather, I was following his command to exit my vehicle.
Ok I know you are really lazy, but here is a clue for you, take a real close look at my first post in the thread. Read it REAL SLOW so perhaps you can understand what it says which is very clear.
I said I was not sure I agreed, I said I was trying to quote a case from memory, I said the case was based upon IL law not MO, I said you could google it if you wanted more info.
You got your nose all bent out of shape, well not really you but Citizen did because I called you lazy and he thinks you are a lawyer. I went ahead and looked up the case I had already stated was IL law that is VERY similar in nature, the one I had recalled but some of my details in my post were indeed inaccurate. I did as you requested and "cite" the case, the part I have read in the past for your review.
My self importance is whatever it is and I can assure you your opinion on it has about as much impact on me as a gnat's fart does on a hurricane. If you consider this a fight then all I can offer is you must be weak in mind and spirit as this has been nothing but you whining because I said I was not sure I agree that there is any violation though I think it should be and I called you lazy for not bothering to find the information I provided as a case in IL. It is almost as if your whacked out because the case actually does exist.
Sorry but I am not going to kneel to the gunslinger god or feel like I got my "ass kicked" all I have seen happen is some lazy guy on the internet who might or might not be a lawyer start playing grammar police which is almost always a sure sign of weakness on internet forums and was unimpressive the first time.
Now since it seems really super important to you, you win. I am still unsure that I agree the search was illegal or a violation of his rights, I am very sure that nothing will come about from it and no civil action is worthy of anyone's time, I still do not think it should happen but it did, I still know of a case in PRIL that is similar that makes me think twice about the whole situation, I am fully aware that has little to no impact on MO law, and I still know your mad cause I said you were too lazy to look it up, we shall all live right through it and within your own mind this seems to be some "internet ass kicking" so be it. Buzz off, you win.
Citizen
Founder's Club Member
No offense, but I've read Terry entirely perhaps 10 times, and been through various parts of it perhaps a couple dozen more.
Nowhere that I can remember does Terry broadly authorize searching a person or his car based on mere reasonable suspicion. This would have almost turned the 4th Amendment on its head and widely eliminated the probable cause aspect of the warrant clause because traffic stops are one of the most frequent encounters between citizens and police.
1. Please quote the exact section of the case that says the cop can search upon reasonable suspicion of a crime. Unless you are referring specifically and only to weapon searches and seizures for the safety of officers and people nearby, in which case, please clarify since the weapon/officer safety angle was not expressed in your post.
2. Nowhere does Terry, or any other case I've read, require the cop to articulate his reasonable suspicion to the detainee, as expressed in the sentence from your post:
"Legally, he MUST articulate a reasonable suspicion of a specific CRIME if he wishes to perform a search of you or your vehicle against your will."
Please quote the passage from Terry that requires the cop to tell his reasonable suspicion to the detainee, at any point, whether to justify the seizure of the person, or to justify a weapon search.
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cshoff
Regular Member
While I've never read a case that found that a LEO must articulate his/her reasonable suspicions to the detainee on the side of the road, that still doesn't exempt said officer from the RAS requirement. A officer MUST be able to articulate his/her "reasonable" suspicion(s), at the very least, in his/her report (if he/she would like the case to have any chance at being successfully prosecuted), and once again, in front of a judge when he/she takes the witness stand. RAS and Probable Cause are both defined by legal standards that must be met if a LEO is to use one or the other as justification for a search/seizure of person(s) or property.
True, the lack of RAS or PC hasn't stopped numerous officers from conducting unlawful searches, but I think a lot of the blame for those violations falls on the shoulders of citizens who have sat idly by during/after these events take place rather than pursuing legal justice for the violations of their rights.
Citizen
Founder's Club Member
I understand; but lets stick directly to the point on this one.
PeterArthur made a post that is very misleading in my opinion and I want to ensure it gets cleared up for the sake of any new readers. The fastest way to sort this out is to get the exact passages cited, quoted, and linked back to the internet copy of the authority or source. Since Peter made the assertions, the ball is in his court.
cshoff
Regular Member
Fine with me, but also keep in mind, there is nothing at all wrong with a detainee respectfully requesting that the officer provide him/her with RAS or PC. While the officer may not be lawfully obligated to comply with the request, I've seen video of several stops where the request alone was enough to discourage the officer from going any further.
ALOTAGLOCK
Regular Member
Okay just reread Terry since it is the basis of the verbal fist fight. There is a nice little spot in the original post that everyone is overlooking, which gave the officer the articulable reasonable suspicion. He disclosed that the firearm was not just in his car, but right next to him in the center console. Using the basic rules of firearm safety, treat all guns as if they are loaded, the officer merely used the knowledge at hand to determine that there was an articulable threat of a loaded weapon in reaching distance of the driver.
I would say that makes this a slam dunk on not being illegal.
I would say that makes this a slam dunk on not being illegal.
peterarthur
Regular Member
Sorry, I am NOT a lawyer as I have stated in a many posts, and it is true that the LEO does not need to make the articulation at the time of the search. I should have phrased it as he must HAVE an ARS. I should have said, "He MUST articulate it TO ME". I would still not allow the search unless he COULD articulate it to me, or he could arrest me. Certainly, I am not complying with an order like that unless he can tell me why. If he can't, he can tell me I am under arrest. At that point I would comply under objection.
Do your own research, I am not your legal gofer. I mentioned Terry. I have read Terry many times and I THINK one of the main points of Terry is that reasonable suspicion IS a legitimate cause for search. That's just my opinion from reading it. You disagree, I don't care. I am not going to find a "passage" to quote because my opinion comes from reading the whole thing. I could copy and paste it here but that would be pointless. If my opinion is wrong, you explain why by quoting case law. The problem with citing passages is that it removes the CONTEXT of the whole case. This is the same thing cult leaders do when they start religions. They quote a line from the Bible and then form an entire belief system from that. Take Terry as a whole. If you disagree after reading the whole thing, well that's fine. I respond to law enforcement based on my understanding. It has yet to fail me. I refused 3 searches in California and nothing bad ever happened. I got searched once anyway because my car matched an actual police call about suspicious activity. I consider the search legal, I reviewed the police call later to verify the cop had not lied. I didn't like it but it was reasonable.
But since you seem unable to google the terry text here is a link. Comes up on first page of google on terry vs ohio
http://supreme.justia.com/us/392/1/case.html
Is that all you wanted? No wonder America is failing, no one can do anything for themselves. I have no interest in debating the merits of the case.
Any bets as to whether anyone reading this post has or will read the whole case? Unlike MOST people, I read entire documents before I express an opinion. That includes the Constitution, the Bible, and Terry. MOST people DON'T, yet dare to have an opinion. No wonder we can't agree on much of anything
So if you are just looking to tear someone's post down because I expressed an opinion not based on a specific passage of text, but rather a whole document, knock yourself out. I believe I met the forum rule requirement by mentioning Terry in the first place.
cshoff
Regular Member
How does a lawfully possessed gun, being carried in a perfectly lawful manner, equate to Reasonable Articulable Suspicion that a crime has been committed, or that the person is a danger to the officer?
It certainly seems a bit of a stretch; a legally armed citizen discloses the fact that he is a CCW endorsement holder and that he is legally armed, all the while being very cooperative with the officer. Where does the "reasonable suspicion" come from? Seems to me that a "reasonable" person wouldn't find this behavior suspicious at all. The mere presence of a firearm is not, in and of itself, RAS of a threat to the officer or RAS that a crime has been committed. Had the OP been acting suspicious in some other way, then I could see where RAS would come into play.
Gunslinger
Regular Member
Means the same, either way, but RAS is the term used in case law. Technically, it is articulatable--meaning it 'could' be stated to the level of the common man's understanding, as opposed to 'articulated,' meaning it was in fact stated to the individual involved in the detainment.
Gunslinger
Regular Member
You're right, for the first time in the thread, I do. End of discussion. Go work on your grammar.
SavageOne
Regular Member
peterarthur and LMTD
I am sure you are aware of the basic forum rules. Here is rule #5
(5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.
This means if YOU cite a case(even by saying something like"some case in another state I can't remember now") then YOU are the person who needs to cite the specifics of that case.
Others are not "lazy" or asking you to be their "legal gofers" when they ask you to cite the case law you are referring to, they are asking you to simply follow the rules and cite it or not to cite if you can't show it.
While you may be correct peter that one the reasons America is failing now is that people won't do things for themselves, it is possible another is the fact some don't seem to want to follow rules when it inconveniences them.
I am sure you are aware of the basic forum rules. Here is rule #5
(5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.
This means if YOU cite a case(even by saying something like"some case in another state I can't remember now") then YOU are the person who needs to cite the specifics of that case.
Others are not "lazy" or asking you to be their "legal gofers" when they ask you to cite the case law you are referring to, they are asking you to simply follow the rules and cite it or not to cite if you can't show it.
While you may be correct peter that one the reasons America is failing now is that people won't do things for themselves, it is possible another is the fact some don't seem to want to follow rules when it inconveniences them.
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Gunslinger
Regular Member
This is not a Terry case. It is an officer safety case. Terry requires RAS--which as Citizen notes does not have to be stated to the detainee, of a crime having been or about to be committed. The cop had no RAS--OP was legally seized of the firearm under MO law. No crime had or was about to be committed; the cop took the gun under the pretense of officer safety, specious, but arguable. Further to Terry, the cop can only search in such areas where a gun could be concealed, with RAS, not every single nook and cranny of the vehicle--no more than he can take the detainee's wallet and look in it. A search warrant--or arrest--both requiring probable cause, is required for anything more in depth. There is a Terry quote from a case (that I can't recall the citation) to the effect that looking in a cigar box is legit; looking in a cigarette pack is not.
This is possibly totally unimportant to the discussion IMHO.
Terry from a point of perspective is what differentiates the difference between "approaching" and "detaining".
A police officer may approach any person any place the police officer may legally be and ask a person a question, they are indeed citizens who may converse with others. The however may not detain or question a citizen under the color of authority without cause. I know more comes along with this and I make no claim to being a legal scholar, but a lot of what is at the root of Terry is just about that simple, an officer may not detain or question you for no reason.
The OP violated the law, a traffic infraction, the officer is totally within his authority to now detain him, no ifs ands or buts. This is a turning point and the rules change a LOT at that instant. Some folks have asked in this thread "does one have to assert their right not to be searched?" Well while I am quite compelled to say no myself, SCOTUS just ruled earlier this year that one does have to assert the right to remain silent by indeed breaking that silence and communicating that you indeed are asserting that right. I think it is BS but SCOTUS does not agree and simply remaining silent is not enough, they said you have to communicate it so perhaps one does indeed have to assert that they wish not to be searched.
Now since the detainment is legal for a simple traffic infraction can an officer "frisk" for personal safety of the officer? I am not real sure either way myself and I am absolutely sure that several things would change any answer someone gave, in other words it is likely a case by case situation if the traffic infraction does NOT immediately allow it. For the reading impaired I SAID IF !
The reason I say this is because I decided to approach this from a different angle, the police officers angle. I found some interesting stuff that I will share with everyone in my next posting because it does indicate the officer did nothing wrong if he followed procedures
Despite the strong opinions from the out of state "cite cite cite" crowd, I actually found the standing orders for officers in the field. They are from the police chiefs association, they are available in their full context, however, they are indeed not for this application they are for profiling issues.
The most interesting part : C. Frisks
1. An officer may frisk any person who has been stopped when the officer reasonably suspects that the person is carrying a concealed weapon or dangerous instrument. The frisk may be conducted immediately upon making the stop or at any time during the stop whenever a reasonable suspicion to frisk develops. During traffic stops the officer may frisk both the driver and any passengers if the above conditions are met.
2. Reasonable suspicion for a valid frisk is more than a vague hunch and less than probable cause. If a reasonably prudent officer, under the circumstances, would believe the officer's safety or that of other persons in the vicinity is in danger, because a particular person might be carrying a weapon or dangerous instrument, a frisk is justified.
Now under that it says:d. The officer may also frisk or secure any areas within the detained person's immediate reach, if the officer reasonably suspects that such areas might contain a weapon or dangerous instrument.
6. When an officer conducting a frisk, feels an object which the officer reasonably believes is a weapon or dangerous instrument or may contain such an item, the officer may reach into the area and remove the object.
a. Weapons or dangerous instruments - Determine if the person's possession of the instrument is licensed or otherwise legal, or if it is unlawful. If the instrument is legally possessed it should be secured away from the person's location for the duration of the detention. If a weapon, dangerous instrument, contraband or seizable items are discovered by the officer and the possession is unlawful, then appropriate search and/or arrest procedures should be followed.
No reason to make another post here is the "cite" and the information above was snipped from about the middle, I would post a link directly to the middle for the chronically lazy, however I am not versed in how to do so myself so you will most likely have to use your mouse! Ironic humor is great fun, kick my internet ass again would you please?
http://www.aele.org/mopol.html
SavageOne
Regular Member
LMTD
I think you would be right if the officer had not removed the OP from his vehicle. If you will look at my post earlier(#7). this is pretty much the scenario described. Once the officer removed the OP from the vehicle the center console was no longer in reach, so it should have been off limits to a search. The officer would have been fine on a frisk of the OP but not the vehicle.
I think you would be right if the officer had not removed the OP from his vehicle. If you will look at my post earlier(#7). this is pretty much the scenario described. Once the officer removed the OP from the vehicle the center console was no longer in reach, so it should have been off limits to a search. The officer would have been fine on a frisk of the OP but not the vehicle.
cshoff
Regular Member
Actually, I find it totally important to the post I replied to. The person who made the post implied that, since the OP disclosed the fact that he had a legally possessed firearm, that disclosure alone "gave the officer the articulable reasonable suspicion" to perform a search.
Under Terry, disclosing you have a weapon after you have been stopped for a traffic violation would definitely give the officer legal authority to perform a frisk of you and your immediate area, but only if he reasonably believed that you presented a danger to him or another. Whether or not this officer had a legitimate concern that his safety was in jeopardy is highly debatable. The way the OP described the events, it certainly doesn't sound like he felt he was in any danger. Heck, the OP wasn't even in the vehicle near the gun at the time the LEO came to seize it.
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Well I am not sure I agree with that at all.
The officer is not going to reach in through the window and try and get the firearm, the op is in the vehicle, the officer asked him to exit so he COULD get the firearm. There was a news report about an officer just getting out of the hospital yesterday after he tried to get the keys out of a drunks ignition and was severely injured when the drunk drug him several hundred yards before crashing.
That whole link is kind of interesting as it pretty well defines what an officer is supposed to do during a traffic stop and while it is not case law, I doubt that the chiefs would have something publicly accessible that blatantly violated folks rights, but then again dumber stuff has happened.
The reason I said that hoff, is because the suspicion of having a weapon authorizes a "frisk" and I am not sure that the second element of "danger" is required Since the OP told the officer the weapon was there, that was all he needed to secure the weapon for the detainment period.
It was a while back, but the OP was NOT separated from the weapon, the officer returned to the vehicle and askd him if he had a gun, he said yes, the officer asked where,, he told the officer, he asked him to get out, entered only the area the weapon was said to have been, secured it.
From the op "When he got back to my car, he asked if I had my firearm with me. I said yes. He asked where it was, and I said the center console. He had me step out of the vehicle and he went into my car and rooted through the console til he found it"
mFonz77
Regular Member
Ding ding ding! It is no more of a threat than a vehicle that is running but in park. A flick of the wrist and the approaching officer is roadkill. What measures are taken against this during a standard traffic stop? None besides hauling *ss if the reverse lights turn on.
ETA: I would just like to throw out there that this is exactly the type of situation where a pocket recorder (I use my iPhone) comes in handy. Thank the Lord we do not live in California where UOC'ers have one as part of their "standard" carry rig, but I find them to be extremely helpful all the same.
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ALOTAGLOCK
Regular Member
It relates to the officer safety portion, not the crime being commited. He willing disclosed that a loaded firearm was within reach. Argo the officer had reason to believe that the person had ease of acess to use weapon. He then removed the weapon, thus elminating it from the equation. Simple. No need to over think it in anyway.