Federal court: Police can frisk anyone at stops, even those with carry permits

[Aim1]

Thoughts.......



http://www.guns.com/2017/01/26/fede...nyone-at-stops-even-those-with-carry-permits/

Federal court: Police can frisk anyone at stops, even those with carry permits

1/26/17| by Chris Eger

A panel of the U.S. 4th Circuit Court of Appeals on Monday decided 12-4 that an officer is justified in searching a person if they suspect the individual has a weapon, even if that person may be legally armed.

The 58-page ruling sides with a lower court decision in the case of Shaquille Montel Robinson, who was stopped and searched by police in West Virginia for not wearing a seatbelt and found with a gun in his pocket. Robinson, a felon, had sought to have the evidence that he was armed suppressed, arguing the gun was found through an illegal search that violated his Fourth Amendment rights, citing that as far as the officers knew he could have had a permit and been legally armed.

 

[Tommygunn]

Why would carry permit holders be exempt from searches ---- assuming the search was justifiable in other ways. I have had a couple of contacts with police (none involving being searched) and I have always been forthright about carrying when I was.

 

[Speedo66]

The whole idea of a search before arrest is to insure the officer's safety while he's conducting an investigation to see if an arrest is warranted. I certainly don't know all the facts in this case, but if the officer feels threatened, the fact that you have a permit would not preclude him from removing your weapon and searching you to see if you have another secreted on your person.

 

[Old Dog]

Nothing really new here. This case changes absolutely nothing.

Anyway, I've never known any cops who routinely pat-search people pulled over for traffic violations and I've also never worked with anyone who would frisk a subject unless he/she had a pretty good idea that the subject was likely engaged in some time of illegal activity (usually drug-related), already committed a crime, or was otherwise viewed as a potential threat to the officer ...

Law-abiding citizens and garden-variety speeders along with those who don't understand how to use turn signals need not worry. But if it's 2:30 a.m., you're in an area known for drug-dealing or other nefarious activity, you're driving with your lights off, blow a stoplight and your car reeks of weed or spilled malt liquor ... yeah, you're gonna get searched.

 

[Zoogster]

Why would carry permit holders be exempt from searches

First I want to say that it is crazy that someone without a carry permit who is a felon was able to set this precedent.
Someone that could not legally have a gun argued they might have been a carry permit holder and got this ruling.

Why exempt?
Not exempt, but potentially outside the scope of a Terry Frisk when clearly armed and it is established they are armed.

A person's pockets were considered private without probable cause or a warrant. A frisk was established in Terry v Ohio as an exemption to this so that an officer could briefly pat someone down to see if they had a weapon, because it was considered such a safety concern.
Well over the decades this allowance evolved into police in many parts of the nation frisking people to find drugs, the primary thing they find in a person's pockets they can arrest them over, and often what they expect to find in certain neighborhoods or on people in certain areas.
So police became accustomed to being able to pat anyone down to see if something obvious was present they could be arrested over, and came to rely on that as one of the tools available to them. Using it well beyond the intended scope of the bare minimum violation of a person's privacy for the sake of officer safety.
Well why they were doing it was rarely questioned, because everyone knew they would simply claim it was a Terry Frisk for weapons to create legal justification.
Basically police came to rely on reasonable suspicion letting them briefly search and giving them confidence to state they had probable cause from that or other evidence if they think they feel something like drug paraphernalia or drugs during the frisk.

Then came people legally carrying guns around. If someone is open carrying a gun, or tells the officer they are in fact carrying a concealed firearm, then the justification of searching them to see if they pose a lethal threat to the officer doesn't hold as much weight.
Yes they clearly do pose a potential lethal threat to the officer and do in fact have a lethal weapon, no need to pat them down to determine that.
It makes it much clearer they are doing an exploratory search for other wrong doing rather than to see if the person has a dangerous weapon because it is already established they are armed with a dangerous weapon. A Terry Frisk was authorized in spite of it being a violation of a person's privacy for safety purposes, not general exploration. General exploration is against the 4th Amendment.
But it has become such a basic tool of law enforcement that I am not surprised courts would move to protect it. And an argument could be made they might have other deadly weapons the officer should know about even if they have a gun on them. In reality though you know finding weapons is not the real motivation if a cop knows you have a loaded gun on you and chooses to pat you down anyways while leaving you armed with that firearm. They are looking for other wrong doing, which is not what the Terry Frisk is about.
In spite of that I would still prefer it to them securing my firearm, because removing a loaded gun from my holster or pocket poses a risk to me that patting me down does not. That muzzle is going to be pointing at my body, being removed by someone that may not have familiarity with that gun, can make a mistake, and is more concerned with their safety than my own.
In fact just thinking about it has me double thinking carrying something without an external safety but a relatively light trigger, such as a Glock, which I otherwise find to be a fine firearm. At least a safety reduces the chance of them discharging the weapon while they nervously remove it.

 

[fpgt72]

Welcome to the world.

 

[DMK]

There's a lot of hyperbole in that article, or at least in the title.

First of all, the guy was a felon so he did not have a carry permit and could not legally even own a gun.

The cop was also informed by a tip that a drug dealer was armed with a gun in the area.

So the cop asks the guy if he has a weapon and the guys facial expression changes to an "oh crap look". That validates to the cop that something is wrong there. Anyone with any sense would have done the same thing in this cop's position.


Now in my state, my CCL is tied to my driver's licence. The cop knows I can legally carry before he even approaches my car. I also have a duty to inform (which I don't agree with since he already has that information available if he's a legit LEO, and if he's not I've now informed a criminal that I'm armed).

 

[Stevenvalleyky]

Ok, quick question. Say an officer pulls me over, gets me out of the car and asked to search while I am carrying. Can I ask him to let me remove my weapon and set it on top of my car while he stands behind me for his safety? Im not too keen on someone pulling my pistol out of the holster nervously and shooting me as stated above. Obviously, I would be facing my car with the officer behind me. Im sure they wouldnt be happy with that, but I wouldn't be happy getting accidentally shot by some nervous, rookie cop.

 

[DMK]

Can I ask him to let me remove my weapon and set it on top of my car while he stands behind me for his safety?

You can ask, but don't bet that he will allow you to. And make damn sure you follow his instructions carefully.

I've seen some of the training these guys go through. There are a lot of graphic stories and images of cops getting shot while making arrests or traffic stops. In the role playing they do, the situations often turn bad quickly. Officer safety is drilled in to them endlessly.

A smart cop will be hyper-vigilant (for good reason of course). A rookie might be nervous and on a hair trigger for anything that looks like it might turn against him.

 

[HoosierQ]

What a difference a week makes!

 

[Stevenvalleyky]

You can ask, but don't bet that he will allow you to. And make damn sure you follow his instructions carefully.

I've seen some of the training these guys go through. There are a lot of graphic stories and images of cops getting shot while making arrests or traffic stops. Officer safety is drilled in to them endlessly.

A smart cop will be hyper-vigilant (for good reason of course). A rookie might be nervous and on a hair trigger for anything that looks like it might turn against him.

Thats exactly what I am afraid of. I worked as a corrections officer for a few years in a minimum security private prison. The state built a brand new jail and closed the private prison. The new jail offered me a job but after a couple weeks I decided it wasnt for me. Carrying a gun and having someone throw a cup of urine in my face did not go well together. From this experience, I've seen all kinds of stuff. From police officers beating a guy to death while bringing him into the jail to other corrections officers teaming up to beat an inmate senseless to officers getting attacked and losing their weapon in the lobby at the jail.
I dont want ANY mistakes. Have no desire to be shot if I get pulled over for speeding. I dont make it a habit of breaking laws but since my job now is based off me getting from customer to customer quickly, I do have a bad habit of exceeding the speed limit. This has never been a problem before as when I have been pukked over, they ask if I am armed as soon as I roll my window down. I state that I am and have never been searched. Guess it was more a hypothetical question. DMK , because of my experience, I would definitely follow directions carefully.

 

[badkarmamib]

Thats exactly what I am afraid of. I worked as a corrections officer for a few years in a minimum security private prison. The state built a brand new jail and closed the private prison. The new jail offered me a job but after a couple weeks I decided it wasnt for me. Carrying a gun and having someone throw a cup of urine in my face did not go well together. From this experience, I've seen all kinds of stuff. From police officers beating a guy to death while bringing him into the jail to other corrections officers teaming up to beat an inmate senseless to officers getting attacked and losing their weapon in the lobby at the jail.
I dont want ANY mistakes. Have no desire to be shot if I get pulled over for speeding. I dont make it a habit of breaking laws but since my job now is based off me getting from customer to customer quickly, I do have a bad habit of exceeding the speed limit. This has never been a problem before as when I have been pukked over, they ask if I am armed as soon as I roll my window down. I state that I am and have never been searched. Guess it was more a hypothetical question. DMK , because of my experience, I would definitely follow directions carefully.

Both hands always in view, "I will comply, I am licensed to carry (don't use "I have a gun" ), and am carrying (location), how do you want me to proceed?"

 

[Stevenvalleyky]

Both hands always in view, "I will comply, I am licensed to carry (don't use "I have a gun" ), and am carrying (location), how do you want me to proceed?"

Good advice. I had never even thought much of the possibility of being pulled from the car and searched while carrying. This thread made me think about it, which is definitely a good thing.

 

[Dog Soldier]

Wyoming is a "Constitutional" carry state. A citizen may carry concealed or open without a Wyoming CCW. When stopped for a traffic violation you are not required to inform the officer that you are armed. The officer can not ask you if you are armed.
If you have a Wyoming Concealed Carry Permit it will come up with your driver's licenses.

 

[DMK]

Both hands always in view, "I will comply, I am licensed to carry (don't use "I have a gun" ), and am carrying (location), how do you want me to proceed?"

Exactly. Don't ever mention the words gun, weapon, pistol, rifle, etc. Those are trigger for trouble words in their training. Just say "I have a carry permit, how would you like me to proceed?"

A lot of guys get their egos all wrapped up in this, but you have to look at it from the cop's point of view. Most of those guys just want to go home to their wives and kids with no extra holes, just like you. Like it or not, if you've gotten pulled over, you're a suspect. At first only suspected of speeding or some minor traffic infraction, but from the cop's point of view that simple beginning has led to felony arrests, or mortal combat many times in history.

What would you want to see if you were pulling you over and had to do that roadside interview with a stranger?

 

[old lady new shooter]

First I want to say that it is crazy that someone without a carry permit who is a felon was able to set this precedent.
Someone that could not legally have a gun argued they might have been a carry permit holder and got this ruling.

Why exempt?
Not exempt, but potentially outside the scope of a Terry Frisk when clearly armed and it is established they are armed.

A person's pockets were considered private without probable cause or a warrant. A frisk was established in Terry v Ohio as an exemption to this so that an officer could briefly pat someone down to see if they had a weapon, because it was considered such a safety concern.
Well over the decades this allowance evolved into police in many parts of the nation frisking people to find drugs, the primary thing they find in a person's pockets they can arrest them over, and often what they expect to find in certain neighborhoods or on people in certain areas.
So police became accustomed to being able to pat anyone down to see if something obvious was present they could be arrested over, and came to rely on that as one of the tools available to them. Using it well beyond the intended scope of the bare minimum violation of a person's privacy for the sake of officer safety.
Well why they were doing it was rarely questioned, because everyone knew they would simply claim it was a Terry Frisk for weapons to create legal justification.
Basically police came to rely on reasonable suspicion letting them briefly search and giving them confidence to state they had probable cause from that or other evidence if they think they feel something like drug paraphernalia or drugs during the frisk.

Then came people legally carrying guns around. If someone is open carrying a gun, or tells the officer they are in fact carrying a concealed firearm, then the justification of searching them to see if they pose a lethal threat to the officer doesn't hold as much weight.
Yes they clearly do pose a potential lethal threat to the officer and do in fact have a lethal weapon, no need to pat them down to determine that.
It makes it much clearer they are doing an exploratory search for other wrong doing rather than to see if the person has a dangerous weapon because it is already established they are armed with a dangerous weapon. A Terry Frisk was authorized in spite of it being a violation of a person's privacy for safety purposes, not general exploration. General exploration is against the 4th Amendment.
But it has become such a basic tool of law enforcement that I am not surprised courts would move to protect it. And an argument could be made they might have other deadly weapons the officer should know about even if they have a gun on them. In reality though you know finding weapons is not the real motivation if a cop knows you have a loaded gun on you and chooses to pat you down anyways while leaving you armed with that firearm. They are looking for other wrong doing, which is not what the Terry Frisk is about.
In spite of that I would still prefer it to them securing my firearm, because removing a loaded gun from my holster or pocket poses a risk to me that patting me down does not. That muzzle is going to be pointing at my body, being removed by someone that may not have familiarity with that gun, can make a mistake, and is more concerned with their safety than my own.
In fact just thinking about it has me double thinking carrying something without an external safety but a relatively light trigger, such as a Glock, which I otherwise find to be a fine firearm. At least a safety reduces the chance of them discharging the weapon while they nervously remove it.

Is it not possible to ask the officer to please remove the entire holster without taking the gun out of it?

 

[22-rimfire]

The ruling has ramifications relative to the high crime "stop and frisk" issues that I believe were ruled unconstitutional in NYC. Personally. I feel an officer can frisk you any time they feel it is warranted.

 

[BearBrimstone]

I have thought this was the case long before reading about the court's decision.

 

[Speedo66]

Is it not possible to ask the officer to please remove the entire holster without taking the gun out of it?

Can you imagine a male police officer removing a belt from a female to get a holster off and her clothing becoming "disarrayed", or dropping?

I wouldn't want to be put in that situation, too much possibility of false accusations.

 

[Frank Ettin]

Thoughts.......

I think folks need to actually read the Fourth Circuit opinion if they want to understand the case. The case is U. S. v. Robinson (Fourth Circuit, No. 14-4902, 2017), and the opinion may be read here.

 

[lysanderxiii]

Basically, the rule is (and always has been), if (1) the officer has reasonable suspicion someone is armed, and (2) the officer feels there is a reasonable safety concern to him/herself and/or anyone on the scene, a frisk is in order.

Telling the officer you are legally carrying provides "reasonable suspicion" there is a weapon, as to the second, that's up to you . . . and the officer.

 

[DMK]

Basically, the rule is (and always has been), if (1) the officer has reasonable suspicion someone is armed, and (2) the officer feels there is a reasonable safety concern to him/herself and/or anyone on the scene, a frisk is in order.

Telling the officer you are legally carrying provides "reasonable suspicion" there is a weapon, as to the second, that's up to you . . . and the officer.

Well thats the thing. If a citizen is legally armed especially with a ccl, and is not doing anything dangerous, then there shouldnt be any concern for officer safety.

He has a gun. Maybe I should be concerned with my safety? Why not? Oh thats right, he's been vetted by the state. Well, haven't I? The state has given me a license to carry my gun every day.

 

[Milt1]

Like DMK, my CCP is tied to my driver's license so if the patrolman runs my plate then he/she knows that I might be carrying. I was headed home one evening after an afternoon at the range and happened to see a motorcycle accident in my rear view mirror. I'd been watching the motorcyclist as he gunned it when he came by me and I saw the motorcycle start to wobble and it got worse and finally threw him. I went back to the scene and helped direct traffic around the accident. Two state troopers pulled up and as they were doing their investigation I and another guy continued to direct traffic. One of the troopers came over to talk to me as I was a witness and I told him I was carrying and he said "I don't give a damn but in the future be sure to tell us early on". That made my day!

 

[patmccoy]

Like DMK, my CCP is tied to my driver's license so if the patrolman runs my plate then he/she knows that I might be carrying.

??? If a plate is run, how does that tell the officer who is driving? I sometimes drive vehicles belonging to others, and occasionally others (wife, kid, friend) drive mine. With the CCW linked to the drivers license, doesn't the officer have to approach the car, and get the license before learing I have the CCW?

It has been my understanding (from law enforcement officers) that they are trained to approach every vehicle with the idea that there is a gun in it.

 

[double bogey]

Before they ask, I hand them my Dl, and chl, at a traffic stop. In 20 yrs of carrying, I have yet had one do anything but hand my chl back an ask if I am carrying. And in all but one case, I have received a warning ticket. Never been patted down or disarmed. I am polite, and admit whatever transgression they pulled me over for, and they send me on my way.