Why "Terry" Frisk CCW Permit Holders?

[madcowburger]

If the cop *knows* the citizen has a valid CCW permit, he knows no law is being broken by the citizen being armed. So why does the citizen need to be frisked or disarmed, voluntarily or otherwise, for the duration of the encounter?

"For the safety of the officer (and/or the citizen)"? How is a loaded gun changing hands "safer" than one left untouched in a holster? That seems to be *setting the stage* for an accidental/negligent discharge, especially if the citizen's gun is of a model unfamiliar to the cop.

And how likely is valid CCW permit holder to attack a cop anyway?

I understand it is routine in many places for the cops to demand the permit holder's carry piece so they can "check its serial numbers to see if it's stolen." I ask you: what are the odds that someone who has applied for permission to undergo an insulting background check and ponied up the exorbitant fee for some "training" and jumped through all the ever-higher-and fierier hoops to get a license to carry concealed is going to be carrying a *stolen* gun? I'd guess something like about one in 900 trillion.

All this demanding that permit holders hand over their guns during "interviews" and submit to frisks seems to me like nothing but a tactic to put American citizens in their place, their properly subservient, submissive position. I don't believe it has anything to do with anyone's "safety" or with enforcing the law, since no law is being broken. And if no law is being broken, how is an American going about his business and exercising his constitutionally and statutorially guaranteed rights a police matter at all?

MCB

 

[Skippy]

I'd agree that a CCW permit doesn't justify a frisking. I also agree that the officer is more safe if NO guns are handled.

 

[tiberius]

Why "Terry" Frisk CCW Permit Holders?

To remind the prols of their place of course.

Seriously, no TX cop has ever asked such a thing the few times had to ID myself. When I did show them my CHL they either said "that’s nice" or asked me where it was....that's it. In TX they do have the authority to disarm during the encounter at their discretion.

 

[DMF]

Merely having a CCW, by itself with no other factors involved, does not justify a Terry frisk. However, I suspect that if there is a stop of some sort that would make an officer aware that the person had a CCW, it is more likely that other factors justifying a Terry frisk are present. But it's all speculation without knowing all the details of a particular encounter.

Read Terry v. Ohio for more information: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=392&invol=1

 

[Smoke]

Seriously, no TX cop has ever asked such a thing the few times had to ID myself. When I did show them my CHL they either said "that’s nice" or asked me where it was....that's it. In TX they do have the authority to disarm during the encounter at their discretion.

My experience confirms this exactly.

Smoke

 

[roscoe]

Yeah - the point of a "Terry" frisk is to search for illegal weapons, not drugs, etc. If you have a CCW, they probably have no legal right to do so, aside from having the articulable suspicion.

 

[spartacus2002]

Good F***ing luck getting me to just hand over my weapon's serial number. Go find some probable cause first, buddy, or blow off.

 

[Zero]

Maybe where you live.

But 99% of the time here in Florida, they don't even ask you about it. They don't want to see it, run the serials, nada.

 

[patentnonsense]

In practice the Terry stop justification is usually a pretext. (There's been a LOT of case law on what is or isn't a permissible Terry stop, and the standards are pretty loose.) So in the case you mentioned, I'd wonder if the permit holder's age, income level, and skin color were mismatched to his surroundings? There are rich neighborhoods in Dallas I don't drive through.

 

[dev_null]

Yeah - the point of a "Terry" frisk is to search for illegal weapons, not drugs, etc. If you have a CCW, they probably have no legal right to do so, aside from having the articulable suspicion

I'm not LE or a lawyer, but according to what I've read, the Terry Frisk is based on "articulable suspicion" on the part of an officer that a crime is in progress. That includes drugs, prostitution, illegal border crossing, B&E, and violent crimes that might involve a gun.

Now, you know and I know that odds of a legal CCW-er being another Scarface or second story man are slight, but he (she) could conceivably be a John, or a coyote, or, for that matter, a member of a "syndicated family."

The test, however (as I understand it), is whether the officer has a reasonable and articulable suspicion that a crime is being committed. Unfortunately, that can range from "he was halfway through the basement window" to "something didn't look right," depending on the cop... and the jury.

- 0 -

 

[The Real Hawkeye]

Doesn't the Fourth Amendment say something about our right to be secure in our persons and effects against unreasonable searches and seizures? The framers even gave us a definition of "unreasonable," i.e., lacking a warrant issued for probable cause supported by oath or affirmation particularly describing the person to be searched and the things to be seized. Oh, but I forgot that we no longer live in that America.

I recently heard an anecdote about an American traveling in France. A police officer walked up to him and demanded his papers. He obliged, and then asked the officer why he was demanding his papers? "Had I done something to lead you to believe I was in violation of law?" "No," responded the officer, "I did it because I can." We are no longer unique in the world, folks.

 

[Coronach]

The framers even gave us a definition of "unreasonable," i.e., lacking a warrant issued for probable cause supported by oath or affirmation particularly describing the person to be searched and the things to be seized. Oh, but I forgot that we no longer live in that America.

Not quite. The 4th Amendment states (paraphrasing) that searches and seizures shall not be unreasonable

-and-

no warrants shall issue except supported by oath or affirmation, etc.

By running the two phrases together you create a legal standard that never existed, and then proceed to get upset that it is not the current legal standard in America. The latter phrase deals with warrants and the burden of proof and specificity required for them, but it does not mean that all police action must be based upon warrants- merely that the actions be reasonable. For instance...you murder a man in front of a cop...he is not required to go get a warrant prior to arresting you.

Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.

Mike

 

[Coronach]

Double tap! When in doubt, empty your magazine.



Mike

 

[The Real Hawkeye]

Not quite. The 4th Amendment states (paraphrasing) that searches and seizures shall not be unreasonable

-and-

no warrants shall issue except supported by oath or affirmation, etc.

By running the two phrases together you create a legal standard that never existed, and then proceed to get upset that it is not the current legal standard in America. The latter phrase deals with warrants and the burden of proof and specificity required for them, but it does not mean that all police action must be based upon warrants- merely that the actions be reasonable. For instance...you murder a man in front of a cop...he is not required to go get a warrant prior to arresting you.

Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.

Mike

Coronach, after establishing that unreasonable searches are prohibited, the sentence finishes with, "and no Warrants (wonder what kind of warrants they're referring to) shall issue, but upon probable cause, supported by oath or affirmation, etc.,." These are not two separate and unrelated Amendments. This is one sentence, constituting one amendment, dealing with one liberty interest. The latter half of the sentence is a continuation of the prior half.

 

[dev_null]

Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.

Mike, is that an AND or an OR?

- 0 -

 

[DMF]

Hawkeye, you seem to enjoy ignoring the realities of the 4th Amendment, and the Constitution as a whole. The protection is against unreasonable searches and seizures, the warrant issue is intended to help ensure reasonable searches only, ie, just because the Magistrate doesn't like you isn't Probable Cause to issue a warrant. However, as Coronach points out there a plenty of searches and seizures that are still reasonable, without a warrant. The easiest to understand, and most obvious, is the arrest (arrest being the ultimate seizure) of someone who commits a crime in front of a police officer.

Should the officer just let a murder who he watches stab someone to death go and not arrest him until he gets a warrant from the Magistrate? No because the seizure (arrest) is reasonable with or without a warrant signed by the Magistrate.

The Supreme Court has addressed this issue many times, and quite thoroughly, as they are obligated to do by Article III of the Constitution. If you care to read their explanation in Terry v. Ohio, and other relevant cases, you can find them easily over at findlaw.com

Here is an easy way to get started on your education:
http://caselaw.lp.findlaw.com/data/constitution/amendment04/03.html#1

 

[Standing Wolf]

So why does the citizen need to be frisked or disarmed, voluntarily or otherwise, for the duration of the encounter?

The rights we don't actively defend are always lost to the predations of the state.

 

[The Real Hawkeye]

However, as Coronach points out there a plenty of searches and seizures that are still reasonable, without a warrant. The easiest to understand, and most obvious, is the arrest (arrest being the ultimate seizure) of someone who commits a crime in front of a police officer.

The language of the amendment is clear. First, you must understand that this amendment, like all the articles of the Bill of Rights, is a restraint on government. Government acts through its agents. When a Police Officer (while acting as an agent of government), wishes to search a person or the things under his control or on his property, or wishes to make an arrest of someone whom he has never witnessed committing a crime, he must, according to the Constitution, first obtain a warrant. It must also be remembered, however, that Police Officers are also civilians. Like all civilians, when they are a witness to an actual crime, they have the right and duty to act in their civilian capacity and make an arrest on the spot. Since, in this case, he is not acting as an agent of the state (he is, to the contrary, an actual witness of a crime, and will ultimately be called to testify to what he saw in a court of law), he is not bound to the requirement of obtaining a warrant, as I would not be if I observed a crime in progress.

The interpretation, however, that a cop has a choice of either getting a warrant, or searching and seizing on the spot, is a relatively modern development. The orthodox understanding of the Fourth Amendment is that it consists of one sentence, and does not speak of two distinct subjects, but two conjoined and related things, i.e., 1) No searches and seizures by agents of government without it being reasonable, and 2) here's what's meant by reasonable. Statist judges of the 20th Century gradually transformed that into two distinct subjects, like a cop has a choice of 1) getting a warrant or 2) just doing the search and seizure on his own, based on his judgment that it was reasonable. Like 90% of the developments in Constitutional law and criminal procedure, this is 100% pure grade-A horse dung.

 

[The Real Hawkeye]

Double posted by accident.

 

[Coronach]

quote:
--------------------------------------------------------------------------------
Getting back on track: Terry Frisks have two legal prongs:

1. Reasonable articulable suspicion that a crime is afoot.

2. Reasonable articulable suspicion that a weapon is involved.
--------------------------------------------------------------------------------


Mike, is that an AND or an OR?

Sorry, my bad. Thats an AND. Both conditions must be met for it to be a valid Terry pat-down.

Hawkeye, if you have case law and cites from the founding fathers to back up your argument, I'd like to see them. In short, I disagree, but I'm also not a lawyer. Can someone call El T on the Batphone? We need a tilecrawler here.

Mike

 

[The Real Hawkeye]

Hawkeye, if you have case law and cites from the founding fathers to back up your argument, I'd like to see them.

No, I don't have any off the top of my head, but I did a quick search of www.findlaw.com and came up with the following proof that the current view was not always the only view, and that in times past the view that held sway in the court was the one that I have asserted here. Here's the quote from www.findlaw.com:

Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ''reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ''reasonable'' searches under the first clause which need not comply with the second clause. This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases.

So you see that not only is my view not quackery, as suggested by DMF, but it has in fact been held in the past to be the standard and correct view by Courts of Appeals.

 

[DMF]

Rather, than just post the main page could you post the link to the page you got that quote? I'd like to see what else they had to say.

Controversies and reversals of decisions are nothing new, not common, but certainly not extra-ordinary. However, rulings are often made on very narrow issues, and later court rulings where a party attempted to use a previous ruling as precedent may not meet the specific criteria of the previous ruling. Therefore what some may classify as a reversal may in fact be a clarification of earlier rulings. Regardless the Court has the power to rule on matters of law, as defined in Article III, and absent an Amendment or new ruling from the Court their decision stands. Any previous rulings do not reduce the legal power of the current ruling.

____________

So Hawkeye let me ask a simple question before this debate goes any farther. Regardless of what actually goes on in our legal system, what do YOU think should happen when evidence that proves someone is guilty is searched for and seized in violation of the 4th Amendment? I am not talking about subjecting any government agents (LEO or non-LE) to civil or criminal penalties, I firmly believe and support civil and criminal penalties for malicious violations of someone's rights by agents of the government/ Rather, what should happen to the evidence and the defendant who is the subject of the search and seizure, in YOUR opinion?

 

[The Real Hawkeye]

Rather, than just post the main page could you post the link to the page you got that quote? I'd like to see what else they had to say.

Sure, it's at http://caselaw.lp.findlaw.com/data/constitution/amendment04/01.html#4

Controversies and reversals of decisions are nothing new, not common, but certainly not extra-ordinary. However, rulings are often made on very narrow issues, and later court rulings where a party attempted to use a previous ruling as precedent may not meet the specific criteria of the previous ruling. Therefore what some may classify as a reversal may in fact be a clarification of earlier rulings. Regardless the Court has the power to rule on matters of law, as defined in Article III, and absent an Amendment or new ruling from the Court their decision stands. Any previous rulings do not reduce the legal power of the current ruling.

As I've said before, I am aware of the ways in which case law has "developed" Constitutional protections, but my concern is the contrast between the course of those developments and the intent of the Founders, which I believe is most clearly expressed in the plain words of the Constitution and Bill of Rights. I believe that the power to enforce the Constitution is not the power to alter it. To alter it requires an amendment according to requirements laid out in the Constitution. The Federal Courts, however, have taken onto themselves the role of aristocracy, making law that is not only inconsistant with the plain meaning of the Constitution, but usually in direct conflict with it. They take it onto themselves to first determine what, in their own judgment, would be the "best" outcome for our society, and then rule that, miracle of miracles, this is precisely what the Constitution had in mind, ignoring the plain words and original intent entirely. The power to manufacture new law "out of whole cloth," however, divorced from the democratic process, is the very definition of tyranny. That power was never given to the Federal Courts. We have allowed them to play fast and loose with the facts for too long, and Congress needs to start putting limits on their appellate jurisdiction (which the Constitution allows) and impeaching clear violators, followed by stiff criminal penalties. Each justice needs to quake in his boots at the very thought of rendering a decision in conflict with the plain meaning and original intent of the Constitution.

So Hawkeye let me ask a simple question before this debate goes any farther. Regardless of what actually goes on in our legal system, what do YOU think should happen when evidence that proves someone is guilty is searched for and seized in violation of the 4th Amendment? I am not talking about subjecting any government agents (LEO or non-LE) to civil or criminal penalties, I firmly believe and support civil and criminal penalties for malicious violations of someone's rights by agents of the government/ Rather, what should happen to the evidence and the defendant who is the subject of the search and seizure, in YOUR opinion?

I am a believer in the notion that police work and convicting people of crimes ought to be very difficult, requiring government agents to abide by the letter of the Constitution. I am, therefore, a believer in the "fruit of the poisonous vine" doctrine. If government can benefit from violating rights, they are going to do it regardless of penalties. The evidence must be thrown out, along with all evidence that the discovery of that evidence led to. I realize that this means that occasionally a guilty person will go free, but I'd rather that a hundred guilty parties go free than for this nation to transform into a reflection of what we see in European police states. Follow the rules, and respect peoples' rights, and it will never become an issue.

 

[joe saxon]

Terry

The Knowledge Skills and Training of the officer, Given the circumstances, that have not been listed, at least what I have read, An experiened cop watched a store being cased for a robbery, determined that the actions of the suspcts was enough to engage in conversation, based on his training believing they had weapons conducted pat down, found gun made case, bad guys challenged no right to search, court (paraphrasiing) said given the circumstance and the officers KSA..knowledge, skills and abilities was ok, seasoned cops often pick up on things younger cops miss, courts have reocgnized this.

Normal, sane law abiding people who feel that they, are being victimized feel free to jump ship, if you carry, and a cop notices it and does not check your CCW/CCP and weapon, which in some states is listed on permit, are not dong their job. or just are hoping you a good guy,and nut some nut case.

 

[PrudentGT]

We have allowed them to play fast and loose with the facts for too long, and Congress needs to start putting limits on their appellate jurisdiction (which the Constitution allows) and impeaching clear violators, followed by stiff criminal penalties. Each justice needs to quake in his boots at the very thought of rendering a decision in conflict with the plain meaning and original intent of the Constitution.

I agree wholeheartedly, but sadly this is the same congress that seems woefully igorant of even the text, let alone intent, of the Constitution.