In this case, it's peculiar that the officer went immediately from a traffic detention to an "order out". Was there anything to indicate Banditti was presently dangerous to the officer's safety? Having a license to be armed does not make one, by necessity, presently dangerous.
The following was posted by me in another thread asking about Terry stops. Please take note that, for now, at least, sidewalk detentions (Terry) are not the same as traffic violation detentions or subsequent "order outs" (Mimms):
expvideo is correct in that, generally, you can't jump from a detention to a frisk and seizure without something more. The frisk may only commence upon a reasonable belief that the person is “(1) armed and (2) presently dangerous.” (emphasis added.) See United States v. Cortez, 449 U.S. 411 (1981). True that the “reach and seizure” into a specific area of the suspect’s garments may occur after a frisk, I.e., “a limited patdown based upon plain feel”, confirms that a weapon is there. See Minnesota v. Dickerson, 508 U.S. 366 (1993). But the “limited patdown-plain feel-frisk” and subsequent “reach/seizure” cannot be justified before the officer reasonably can explain that the “stopped and detained” suspect was both (1) armed and (2) presently dangerous. Note that the “reach” also may occur, without a preliminary frisk, when an officer is given “specific information regarding hidden weapons” in an area where it is prohibited. See Adams v. Williams, 407 U.S. 143 (1972).
Remember also that the circumstances of the “stop and detention” under Terry are justified, dependent upon (1) the purpose of the stop, (2) the reasonableness of the time in effectuating the purpose of such stop and (3) the reasonableness of the means of investigation. See U.S. v. Sharpe 470 U.S. 675 (1985). Thus, for now, the police are not entitled to stop, detain, frisk, and seize items (and people) from the public at large, while the latter is going about their business in public, without a good ‘reason‘.
The automobile detention stop (without arrest) and searches proceeding from an auto stop are informed by, but not necessarily analyzed under, the Terry rules. See, generally, Michigan v. Long 463 U.S. 1032 (1983); Pennsylvania v. Mimms, 434 U.S. 106 (1978); Maryland v. Wilson, 519 U.S. 408 (1997). Terry applies to a “stop”, for example, on a public sidewalk. If an officer orders a driver and/or passengers out of the car under Mimms, he then may proceed under Terry. You cannot go from traffic stop to Terry “frisk”, without something more. Arizona v. Johnson, argued recently in front of the SCOTUS, will have an effect on all of the foregoing.
Don’t draw too many conclusions from what you read here. All of the Fourth Amendment analysis occurs after the fact of an arrest and indictment, pursuant to pretrial hearing on a motion to suppress evidence which is discovered, seized, and intended for use in a criminal trial. Maybe section 1983 litigation for the illegal detention leading to arrest (being physically restrained), and illegal seizure, considering Banditti was lawfully armed, but without more, could not then be considered "presently dangerous".
Note: I am not a lawyer. But I did stay at a Holiday Inn Express …. J
