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?
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