Frisk

[JTShooter]

You pull a guy over. He moved around more then usual, is acting "hinky" when you contact him. Pull him out, pat him down. Check him and he has a long history of violent crimes with weapons. You get that feeling from him, so to make sure he doesn't hop back in his car and grab a firearm and pop you before you leave, you have him stand in front of his car (yeah, I know) and you look under his seat for a pistol. You don't find anything and you cut him loose.

Legal or illegal "frisk"?

Terry v. Ohio, Michigan v. Long, and Arizona v. Gant... any others?

[oneoldcop]

Articulation...

Yes.

[SRT936]

As long as you can clearly articulate "hinky" you're good to go.

1. You're alone
2. He's moving around more than is normal
3. History of weapons
4. You limited your search to weapons so there is a valid officer safety reasoning behind it.

As long as point #2 is clearly articulated (i.e. suspect was moving around, dipped down and I saw his shoulder drop consistent with someone trying to conceal a weapon, etc).

Michigan v. Long is the controlling case law followed by Terry v. Ohio. Since no arrest occurred, Arizona v. Gant doesn't come into play.

[BenjaminsDad]

You forgot the part where you handcuff him. Why the hell are you not handcuffing him?

[TacSloth]

KS law actually restricted search scope recently: no longer can you search a vehicle simply "incident to arrest." You can only search for "fruits of THE crime" they have been arrested for (or is suspected): Example, if DUI, then you can search for more alcohol hidden in vehicle. All the same vehicular exceptions are still in place though: smell, sight, etc... Furthermore, and here's where it relates to the OP, KS Supreams also stated that you can only do a cursory vehicle search in a non-arrest situation for "officer Safety." So following your example, KS would say that (and here is the most ridiculous 'catch') that the subject whose vehicle your searching would have to pose a potential threat (reasonable articulation--your example is a good one) BUT he/she wouldn't be a threat if they were handcuffed as common sense tells us is appropriate. So, in order to search the car for a weapon with no crime (arrest) the subject would have to be 'close by' and 'unrestrained' WHILE you searched. How insane is that? So, if I need to do that, I place the subject at the truck of the car facing away from me, and place a cover Officer between me and the subject. Crazy I know, but that's what it is.

[775]

I think all Supreme Court Justices should be required to go on ride alongs. Then maybe they would get it and make the right decisions.

[LaPlaca]

legal. ive seen guys have the suspect actually sit on the hood of the car. this way while your heads down looking under the seat you can feel the car move if he gets off.

[JTShooter]

You forgot the part where you handcuff him. Why the hell are you not handcuffing him?

Can't "frisk" a car for officer safety if the suspect doesn't have the ability to access the passenger compartment of the vehicle. If he is handcuffed, he doesn't have access to the vehicle.

KS law actually restricted search scope recently: no longer can you search a vehicle simply "incident to arrest." You can only search for "fruits of THE crime" they have been arrested for (or is suspected): Example, if DUI, then you can search for more alcohol hidden in vehicle. All the same vehicular exceptions are still in place though: smell, sight, etc... Furthermore, and here's where it relates to the OP, KS Supreams also stated that you can only do a cursory vehicle search in a non-arrest situation for "officer Safety." So following your example, KS would say that (and here is the most ridiculous 'catch') that the subject whose vehicle your searching would have to pose a potential threat (reasonable articulation--your example is a good one) BUT he/she wouldn't be a threat if they were handcuffed as common sense tells us is appropriate. So, in order to search the car for a weapon with no crime (arrest) the subject would have to be 'close by' and 'unrestrained' WHILE you searched. How insane is that? So, if I need to do that, I place the subject at the truck of the car facing away from me, and place a cover Officer between me and the subject. Crazy I know, but that's what it is.

That's not KS law. That's case law from the US supreme court. Arizonia v. Gant took away the ability to search a car incident to arrest.

[mp1161]

You're good. Just the subject "moving around more than usual" is good enough not only for a frisk but to get in the car to do exactly what you did.

Can't "frisk" a car for officer safety if the suspect doesn't have the ability to access the passenger compartment of the vehicle. If he is handcuffed, he doesn't have access to the vehicle.

If you plan on uncuffing him and letting him have access to his vehicle after your person frisk then you can still "frisk" the car -- as long as you are going back to your car to issue paperwork or to do a wanted/registration/driver's check.

[LawFowl]

People can thank Arizona vs. Gant that their car gets towed more times than not.

[SRT936]

That's not KS law. That's case law from the US supreme court. Arizonia v. Gant took away the ability to search a car incident to arrest.

I know we've been over this before, but Gant did not eliminate SIA for a vehicle. It limited SIA, but you can still search a vehicle incident to arrest if you have PC to believe that evidence of the violation could be found inside.

[M-11]

Did you ask for consent to look in the car?

M-11

[PABear31]

While I find discussions of this sort entertaining I would caution anyone against relying on responses from other jurisdictions than your own for answers. While SCOTUS opinions are binding on Federal law enforcement in all 50 states, state and municipal officers are also bound by decisions by their own state courts. State courts are free to interpret their state constitution any way they wish. State courts can be more restrictive on the actions of government than federal courts but not less restrictive. What flies in Texas or Maryland may not be good in Pennsylvania or Oregon.

In your scenario I think you'd need a much better articulation of what constituted "hinky" just moving around more than usual probably won't be enough. As you presented the circumstances of the stop the long history of violent weapons crimes would be irrelevant because the search was conducted prior to running the rap sheet. Additionally, since you can no longer search a car incident to arrest without a warrant once the subject has been removed I think that it is very unlikely that any court would allow you to search a car on just reasonable suspicion after the occupants have been removed. There is no real problem if you don't find anything, the problem arises when you do find something. The question is will any evidence uncovered be admissible. In light of Gant I doubt it. There were a couple of times during my career that I conducted searches based on active spydey senses that might not have met constitutional muster but I thought going home at the end of my shift was worth the risk of not being able to make a case.

[OneAdam12]

Since the sole justification for the search is officer protection, it would stand to reason that you would handcuff the person.
But if you handcuff the person the justification of harm to the officer goes away. Unless he's a Bruce Lee type.
Catch 22

[LPD003]

No. It's not a "frisk" if you "searched" his car. He didn't give you consent based on your scenario. I'm not searching it. My luck, I'd find 500 Million dollars and it'd get tossed out.

Even if you have "hinky" movement, it doesn't give you probable cause to search it. You might be able to articulate it. If you're in doubt and you don't believe the suspect could destroy the evidence by the time you got a warrant, get the warrant.