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Right to remain silent, vs illegal to lie to an officer

Gunslinger

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Not contradicting anybody; just adding to the discussion generally.

You have to take into account how things will play out on the ground. The "law" is one thing. How it may or may not be applied to your situation by the cop in front of you or the judge later is something else.

Courts are finding all kinds of wiggle-room holes through which to squeeze some of the damnedest pro-government decisions. Take this into account when planning your tactics. For example, (I'm just making this up) answering some questions, but then suddenly refusing to answer whether there is a gun is something I'll bet a number of courts would allow as reasonable suspicion of a gun--not RAS of the crime of carrying a gun illegally, but reasonable suspicion of a gun for officer safety. Just let the cop tell the judge that he also saw you move your hand, or that your eyes shifted toward the floorboard, or whatever he wants to make up to give it that little additional factor, and I'll bet that in a number of courts a gun search for officer safety is suddenly found "reasonable."

It seems as if in some courts, if the judges can find wiggle-room in the law, they will give it to the police. Especially on officer safety issues.

Also, realize that if a cop even gets the barest inkling of an idea there may be a gun and he is the tiniest bit concerned about his safety, there is a good chance you or your car are going to get searched. The cop isn't going to spend any time thinking about case law once he genuinely suspects--correctly or incorrectly--that there might be a gun. Case law and your rights be damned. We have heard as much from cops on this forum. I am not trying to discuss whether it is proper or legal. I am pointing out the cop's mindset. To hell with the law--get out of the car, now! Keep your hands where I can see them!

You can keep tabs a little bit on what the courts are letting police get away with in regards to the 4th Amendment with this handy little blog by an attorney: www.fourthamendment.com

"Officer safety" is the new 'for the good of the race.' All it's missing is the armbands. Terry only allows visual search of readily viewable car's interior. It still takes PC for a full search or it's fruit of the poison tree. Officer safety is not PC.
 

Citizen

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"Officer safety" is the new 'for the good of the race.' All it's missing is the armbands. Terry only allows visual search of readily viewable car's interior. It still takes PC for a full search or it's fruit of the poison tree. Officer safety is not PC.

I'm sure Gunslinger already knows the info below. I'm posting it for other readers who may not know it and may get an incorrect impression filling in things Gunslinger didn't say.

The court case that lets cops search and seize for guns during a car stop is broader than Terry. The main car stop case that I know of is Pennsylvania vs Mimms.

In Terry the court required four things before a cop could search someone for a gun during a foot encounter: 1) reasonable suspicion of a crime 2) reasonable suspicion the person is armed 3) reasonable suspicion the person is dangerous and 4) nothing in the opening moments of the encounter serves to dispel the officer's concern for his safety.

In PA vs Mimms (1977) the court went further and basically said any reasonable suspicion of a gun was good enough to search for and seize a gun. No need for reasonable suspicion the person was dangerous. According to Mimms, the mere presence of a gun equates to dangerousness. The court said in relevant part:

...There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by Terry v. Ohio... In that case, we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case -- whether
"the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate -- there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed, and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down." (emphasis added by Citizen)

Notice that the presence of the gun = dangerousness in Mimms, where under the earlier Terry decision, dangerousness was a separate factor and the officer was required to look over the circumstances and judge if anything served to dispel his concern for his safety.

Do not take too far Gunslinger's comment about probable cause for a full search of the car. While the cop cannot search the entire car--trunk, engine compartment, wheel wells, fuel tank--for a gun merely on the pretext of officer safety. He can order you out of the car (Mimms says so), search you (Mimms says so); and I'm betting the cop can search any part of the passenger compartment where you could stash a weapon and you can reach.

So, back to the thread topic--silence. I'm still betting that answering some questions, but suddenly getting evasive or silent when asked about a gun or weapon is enough for some cops, and I'm betting some courts would go along with him on it, especially if he spices up the story by saying you looked toward the floorboards or moved your hand to your side or something.

Terry vs Ohio: See the last paragraph for the four elements needed to search for and seize a weapon during a foot encounter. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html

PA vs Mimms: http://supreme.justia.com/us/434/106/case.html
 
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Gunslinger

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Citizen: "Do not take too far Gunslinger's comment about probable cause for a full search of the car. While the cop cannot search the entire car--trunk, engine compartment, wheel wells, fuel tank--for a gun merely on the pretext of officer safety. He can order you out of the car (Mimms says so), search you (Mimms says so); and I'm betting the cop can search any part of the passenger compartment where you could stash a weapon and you can reach."

The pretext of searching for weapons which could "reasonably" be available to the driver to do great bodily harm ("Officer safety"--"We must take the guns from the people to make the streets safe for the SS." A. Hitler) to the cop has been held to limit the scope and range of the Terry search. Under the back seat is not permitted; trunk is not permitted; locked compartments not permitted. The glove box is a point of contention, although initially was proscribed in Terry, if locked, not permitted, open--up for interpretation. Inside of briefcase, backpack, etc not permitted. The rationale behind Terry was to memorialize what could be done with less than probable cause. For ANY portion of the search to be legal, the cop has to be able to articulate in a manner that would be understood by the reasonable man, his reason. Otherwise, it remains an unlawful search. And his reason must indicate a crime was or is likely to be committed--and that would include him getting blown away. Just because the cop has no balls is not a justifiable reason for a Terry stop. But I have no doubt it applies in the vast majority of the cases.

Citizen cites Mimms. Keep in mind, Mimms resulted in an arrest for a crime. This is not pertinent to an ordinary Terry stop. RAS could (and was) shown in Mimms, so it met the standards. Vacant searches under Terry are subject to review for 4A violation. Mimms does not apply, imo. While it may seem to expand the scope of Terry, the instant case will be determined by demonstrable RAS. Officer safety is BS as far as I'm concerned in 99% of the cases it's cited, but in this case fits the 1% exception.
 
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Citizen

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(last post)

Thanks for the clarification. I knew much, but not all. My problem was I couldn't cite the cases. You wouldn't happen to have them handy, would you? The ones that limit the car searches for officer safety? The only one I have is a VA state case that isn't all that applicable.
 

Nevada carrier

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and I'm betting the cop can search any part of the passenger compartment where you could stash a weapon and you can reach."

Okay, Concealed on someones person is one thing and is a crime to do so without a permit. but lets say an illegal search nets a police officer a firearm. Lets also say it was stashed inside a compartment in the center console. We're in the Nevada forum here so for Nevada at least, So what. It's only illegally concealed if it is concealed on your person. A police officer finding a firearm stashed any ware but on your person is not a crime.

I personally believe that unless we get some special interest jerk like Bob Irwin on the Nevada assembly (yes, he's running) who makes his living selling CCW training courses, We'll very likely have Constitutional carry just as Arizona does.
 

Gunslinger

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Thanks for the clarification. I knew much, but not all. My problem was I couldn't cite the cases. You wouldn't happen to have them handy, would you? The ones that limit the car searches for officer safety? The only one I have is a VA state case that isn't all that applicable.

Let me see what I can find next week. Terry was a landmark decision in many respects and worth really understanding. The bottom line instant finding was "visual" not indepth search of the car for weapons and RAS for doing any of it.
 

timf343

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Do not take too far Gunslinger's comment about probable cause for a full search of the car. While the cop cannot search the entire car--trunk, engine compartment, wheel wells, fuel tank--for a gun merely on the pretext of officer safety. He can order you out of the car (Mimms says so), search you (Mimms says so); and I'm betting the cop can search any part of the passenger compartment where you could stash a weapon and you can reach.

IMO, it would be a far stretch, once ordered out of the car, to then search the car. If the pretext is officer safety, once you're out of the car, the passenger compartment of the vehicle is no longer readily accessible, and therefore there is no further reason to conduct the search under that excuse.

Also, it is imperative that you read US vs Ubiles. Since you are interpreting Mimms (1977) to supercede Terry (1968) in certain regards, you need to read US vs Ubiles (2000) in which the precedent was set that the gun itself is not RAS. To quote, "nor does a mere allegation that a suspect possesses a firearm, as dangerous as firearms may be, justify an officer in stopping a suspect absent the reasonable suspicion required by Terry".

I believe however you are misreading Mimms. While the case allows officers to order a detained suspect to exit a vehicle, the standards of Terry still apply. A suspect must be reasonable considered both armed AND dangerous to conduct a pat down, OR visible evidence of a crime, such as a crack pipe sticking out of your pocket. I am taking liberty here by assuming that in Pennsylvania, in 1977, it was illegal to carry a concealed weapon. It looks like Pennsylvania didn't become a "shall issue" CCW state until 1989, so seeing a "bulge" in the waistband of a suspect was visible evidence of the crime of concealing.

So to the point posted above by Gunslinger, while the officer may be able to order you out of a car, and, arguably, search for a weapon, the case in Mimms is related to a specific crime - concealing a gun. It is not illegal in Nevada in 2010, and so IMO, the specific case law (related to the gun) doesn't apply here.
 
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Nevada carrier

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IMO, it would be a far stretch, once ordered out of the car, to then search the car. If the pretext is officer safety, once you're out of the car, the passenger compartment of the vehicle is no longer readily accessible, and therefore there is no further reason to conduct the search under that excuse.

Also, it is imperative that you read US vs Ubiles. Since you are interpreting Mimms (1977) to supercede Terry (1968) in certain regards, you need to read US vs Ubiles (2000) in which the precedent was set that the gun itself is not RAS. To quote, "nor does a mere allegation that a suspect possesses a firearm, as dangerous as firearms may be, justify an officer in stopping a suspect absent the reasonable suspicion required by Terry".

I believe however you are misreading Mimms. While the case allows officers to order a detained suspect to exit a vehicle, the standards of Terry still apply. A suspect must be reasonable considered both armed AND dangerous to conduct a pat down, OR visible evidence of a crime, such as a crack pipe sticking out of your pocket. I am taking liberty here by assuming that in Pennsylvania, in 1977, it was illegal to carry a concealed weapon. It looks like Pennsylvania didn't become a "shall issue" CCW state until 1989, so seeing a "bulge" in the waistband of a suspect was visible evidence of the crime of concealing.

So to the point posted above by Gunslinger, while the officer may be able to order you out of a car, and, arguably, search for a weapon, the case in Mimms is related to a specific crime - concealing a gun. It is not illegal in Nevada in 2010, and so IMO, the specific case law (related to the gun) doesn't apply here.

I suggest that once you are told to exit the vehicle that you roll up your windows and lock the door as you exit. That was if the Officer wants to search your car he must seize your keys to do so. This would put the police to a much more difficult fourth amendment test to pass while on the stand. there are videos on flexyourrights.org that demonstrates what your should do in these situations.
 

paul@paul-fisher.com

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I suggest that once you are told to exit the vehicle that you roll up your windows and lock the door as you exit. That was if the Officer wants to search your car he must seize your keys to do so. This would put the police to a much more difficult fourth amendment test to pass while on the stand. there are videos on flexyourrights.org that demonstrates what your should do in these situations.

A person in Milwaukee just had that done. She legally OC'ed in a church, the parishioners called LEO to see if it was legal, 6 squad cars show up as she is driving out, do felony stop, she locks car and puts keys in pocket, LEO takes keys, searches car and discovers loaded gun in case (illegal in WI). Person arrested, charges referred to DA. DA doesn't file charges admitting no RAS let alone PC. Possible lawsuit with DA memo being lead piece of evidence.
http://forum.opencarry.org/forums/showthread.php?77706-Journal-Sentinal-Brookfield-police-stop-car-to-seize-legally-carried-gun
 

Citizen

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SNIP (Replying to Gunslinger) My problem was I couldn't cite the cases.

Stumbled across one this evening. Its on Google Scholar, which is handy because many of the internal citations to other cases are hyperlinks to those opinions.

Michigan vs Long

http://scholar.google.ca/scholar_case?case=4292797909531857390&q=Michigan+v.+long&hl=en&as_sdt=2002

The dissent is especially instructive for freedom-minded souls.

Also, to give credit where it is due, I came across it on a blog I check frequently: http://www.fourthamendment.com/blog/
 
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Gunslinger

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Stumbled across one this evening. Its on Google Scholar, which is handy because many of the internal citations to other cases are hyperlinks to those opinions.

Michigan vs Long

http://scholar.google.ca/scholar_case?case=4292797909531857390&q=Michigan+v.+long&hl=en&as_sdt=2002

The dissent is especially instructive for freedom-minded souls.

Also, to give credit where it is due, I came across it on a blog I check frequently: http://www.fourthamendment.com/blog/

Here are a few to keep you busy.

Johnson v. United States, 333 U.S. 10, 14 (1948); McDonald v. United States, 335 U.S. 451, 453 (1948); Camara v. Municipal Court, 387 U.S. 523, 528 -29 (1967); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 -53, 355 (1977).

Coolidge v. New Hampshire, 403 U.S. 443, 454 -55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 -53, 358 (1977).

Jones v. United States, 357 U.S. 493, 499 (1958).

McDonald v. United States, 335 U.S. 451, 456 (1948). In general, with regard to exceptions to the warrant clause, conduct must be tested by the reasonableness standard enunciated by the first clause of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968), and the Court's development of its privacy expectation tests, supra, pp.1206-09, substantially changed the content of that standard.

United States v. Watson, 423 U.S. 411 (1976). See supra, p.1209.

Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10, 16 -17 (1948); Sibron v. New York, 392 U.S. 40, 62 - 63 (1968).

''The police may not arrest upon mere suspicion but only on 'probable cause.''' Mallory v. United States, 354 U.S. 449, 454 (1957).
 

Gunslinger

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One more recent interpretation:


Georgia appeals court limits "pat-down" searches and "safety frisks"

The Court of Appeals recently reaffirmed the long standing rule that an officer who conducts a traffic stop must have a particularized suspicion that an occupant of the vehicle poses a safety threat before the occupant can be patted-down. The Court went on to hold that this rule holds true even if the officer intends to search the vehicle.

In Molina v. State, a Gwinnett County case, an officer conducted a traffic stop of a pickup truck after noticing a broken tail light. Upon being asked by the officer, the driver consented to a search of the truck. The driver and the passenger, Molina, were then asked to step out of the truck. A backup officer conducted a “Terry pat-down” of Molina to search for weapons. During the pat-down, the officer felt “a large brick-like substance or material or object in his front waistband.” Unsure as to whether the brick was a weapon or drugs, the officer pulled the brick out and discovered that it was a kilo of cocaine. Molina was then charged for trafficking in cocaine.

At the suppression hearing, the officer testified on direct that prior to the pat-down Molina was breathing heavily and that the artery in his neck was pounding rapidly. The officer also stated: “Other than that. . . [he] was pretty normal.” On cross, the officer stated that he patted-down Molina immediately after he exited the truck. The officer also stated, “Every time we have a consent to search and we get someone out of a vehicle, I always pat them down for weapons.” The officer explained: “While I’m going to be tucked inside somebody’s car I want to know if while they’re standing out there they’re armed.” Molina lost the suppression hearing, and following a bench trial, he was sentenced to the minimum 25 years in prison and a $1 million fine.

On appeal, the Court of Appeals reasoned that, “If the officer has a particularized basis for his suspicion the defendant might be armed or dangerous, he may frisk a suspect.” Quoting Terry v. Ohio, the Court went on to state that, “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” The Court determined that the officer only observed signs of nervousness, and that under Georgia law, nervousness is insufficient to establish reasonable suspicion.

The State argued that searching a vehicle while the occupant waits outside is enough of a risk to warrant a pat-down. The Court disagreed: “It is not sufficient to say the situation itself poses a danger to the officer and therefore he is justified in frisking a vehicle’s occupant. As many courts have observed, traffic stops are inherently risky. . . but a pat-down must still be based on information specific to the person frisked and not to some general policy.” As a result, the Court of Appeals reversed the trial court’s denial of the motion to suppress.
 

timf343

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On appeal, the Court of Appeals reasoned that, “If the officer has a particularized basis for his suspicion the defendant might be armed or dangerous, he may frisk a suspect.” Quoting Terry v. Ohio, the Court went on to state that, “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” The Court determined that the officer only observed signs of nervousness, and that under Georgia law, nervousness is insufficient to establish reasonable suspicion.
(emphasis added)

I think this is still not what we're looking for. "armed or dangerous" is not the same as "armed and dangerous". Based on this reasoning of the court, I would conclude that "armed", by itself, would be sufficient to warrant a pat-down in Georgia, so Open Carry would mean an officer may legally believe "his safety...was in danger".
 

Gunslinger

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(emphasis added)

I think this is still not what we're looking for. "armed or dangerous" is not the same as "armed and dangerous". Based on this reasoning of the court, I would conclude that "armed", by itself, would be sufficient to warrant a pat-down in Georgia, so Open Carry would mean an officer may legally believe "his safety...was in danger".

I agree the 'or' seemed out of place in a decision that said the cop did not have the right to frisk pursuant to a traffic stop failing more AS than 'nervousness.' However, the decision as written clearly states he does not--at least in that court's jurisdiction. Some of the other citations I posted give more precise wording, but the GA case was on point, use of the conjunction notwithstanding.
 
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