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  • #16
    Originally posted by OneAdam12 View Post
    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
    No, it doesn't. Read my previous post.

    Comment


    • #17
      I'm being as vague as I can about this b/c a coworker is currently getting hemmed up over it.

      I know you can still search incident arrest, but not like it used to be.

      Personally, even though I know I can frisk cars, I don't. But that's because if I want in the car, what I'm looking for generally isn't going to be in the spots restricted by the frisk.
      “The man in black fled across the desert, and the gunslinger followed."

      "You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him."

      Comment


      • #18
        Originally posted by OneAdam12 View Post
        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
        Originally posted by mp1161 View Post
        No, it doesn't. Read my previous post.
        I would agree with cuffing and searching. I wouldn't search without restraint or cover. Using "officer safety" as cover for searching is how bad case law is made. You have reason to fear him so treat him like you are fearful of your safety. hook him up and search the accessible areas of the car. If you find something, arrest him. let them fight it and you get to articulate that you were so afraid you placed him in restraints or covered by a partner. Conversely, I wouldn't cuff him and not search the car for the same reason. If he's hinky with history, he's not getting back to access the passenger compartment without me having a look. I'd rather have the evidence tossed than missed.
        "Did that hurt? It looked like it hurt"

        Comment


        • #19
          Bottom line, you searched a section of his vehicle. You need PC, Consent or Articulable Reasonable Suspicion. I don't think you have any of them in your scenario. If I was the defense attorney, I'd ask the jury if they thought it was reasonable for the officer (someone in the officers position) to reasonably believe that my client was going to off him before you both left the scene. Doesn't make sense to me and actually is unconstitutional. If you were confident that your "officer safety" position was valid, then keep him away from his vehicle and get a warrant for it.

          Although I see where you're coming from, I think it's far too common for officers to use "officer safety" as an excuse to search someone when they can't really articulate why. I always ask officer why they searched without a warrant and they always say, "Officer Safety!" like I'm an idiot. I'd like them to say, "They were probably going to destroy the evidence and I didn't have time to get a warrant or if I didn't search, he gave me clues that he had a gun in the vehicle by telling me he was going to kill me and I felt he was probably going to do it." It's not a catch all and you can't do anything you want and cry it was for officer safety.
          "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
          -Calvin Coolidge

          "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

          Comment


          • #20
            If you cuff him, the area is no longer accessible to him. If you arrest him for a weapon crime, you can search for a weapon, but I don't think that's the case here.

            You pull him over and there's a warrant for armed robbery from a week ago, you can search the vehicle for a weapon.
            Last edited by LPD003; 03-16-2011, 07:04 PM. Reason: Expand
            "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
            -Calvin Coolidge

            "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

            Comment


            • #21
              Originally posted by JTShooter View Post
              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?
              Graham v. Connor
              "Did that hurt? It looked like it hurt"

              Comment


              • #22
                Originally posted by LPD003 View Post
                If you cuff him, the area is no longer accessible to him. If you arrest him for a weapon crime, you can search for a weapon, but I don't think that's the case here.

                You pull him over and there's a warrant for armed robbery from a week ago, you can search the vehicle for a weapon.
                It's the exact opposite. If you detain him (i.e. traffic stop) he is not under arrest. If you arrest him for a weapon crime, don't even bother searching the car because everything will get tossed since arrest means he is not getting back in. Tow it and have it inventoried or get a warrant.

                But if you are just conducting an investigation, you can secure and detain him in an objectively reasonable fashion. If you can articulate that he has a history of violence but you had no PC for arrest but RS for violence based on his actions, you search him and his car according to Terry because it's presumed that he will be released at the end of the investigation and he will get back in the car. The car search is limited to what he could reach. If you find something illegal, he is arrested and the search stops and you get a warrant for the rest of the car.
                "Did that hurt? It looked like it hurt"

                Comment


                • #23
                  Originally posted by LPD003 View Post
                  Bottom line, you searched a section of his vehicle. You need PC, Consent or Articulable Reasonable Suspicion. I don't think you have any of them in your scenario. If I was the defense attorney, I'd ask the jury if they thought it was reasonable for the officer (someone in the officers position) to reasonably believe that my client was going to off him before you both left the scene. Doesn't make sense to me and actually is unconstitutional. If you were confident that your "officer safety" position was valid, then keep him away from his vehicle and get a warrant for it.

                  Although I see where you're coming from, I think it's far too common for officers to use "officer safety" as an excuse to search someone when they can't really articulate why. I always ask officer why they searched without a warrant and they always say, "Officer Safety!" like I'm an idiot. I'd like them to say, "They were probably going to destroy the evidence and I didn't have time to get a warrant or if I didn't search, he gave me clues that he had a gun in the vehicle by telling me he was going to kill me and I felt he was probably going to do it." It's not a catch all and you can't do anything you want and cry it was for officer safety.
                  I think you should really read the US Supreme Court's decision michigan v long
                  “The man in black fled across the desert, and the gunslinger followed."

                  "You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him."

                  Comment


                  • #24
                    Originally posted by LPD003 View Post
                    Bottom line, you searched a section of his vehicle. You need PC, Consent or Articulable Reasonable Suspicion. I don't think you have any of them in your scenario. If I was the defense attorney, I'd ask the jury if they thought it was reasonable for the officer (someone in the officers position) to reasonably believe that my client was going to off him before you both left the scene. Doesn't make sense to me and actually is unconstitutional. If you were confident that your "officer safety" position was valid, then keep him away from his vehicle and get a warrant for it.

                    Although I see where you're coming from, I think it's far too common for officers to use "officer safety" as an excuse to search someone when they can't really articulate why. I always ask officer why they searched without a warrant and they always say, "Officer Safety!" like I'm an idiot. I'd like them to say, "They were probably going to destroy the evidence and I didn't have time to get a warrant or if I didn't search, he gave me clues that he had a gun in the vehicle by telling me he was going to kill me and I felt he was probably going to do it." It's not a catch all and you can't do anything you want and cry it was for officer safety.
                    Have you ever actually read Michigan v. Long? The fact set in that case is very similar to the one in the OP. You can frisk a vehicle for a weapon when you can articulate reasons why you believe a weapon could be located. Being alone, a history of weapons and violence, and the unnatural movement all lead to that articulable suspicion. You'd have to be able to articulate the movement (just saying "hinky" isn't going to cut it) but if its movement consistent with someone concealing a weapon, you're golden.
                    Originally posted by kontemplerande
                    Without Germany, you would not have won World War 2.

                    Comment


                    • #25
                      Yes, I've read it, but I don't think the he "moved around more than usual and him acting 'hinky,'" even while knowing he has a history of violent crimes gives you right to look under his seat. I'm saying the way it was described in the scenario isn't good enough. "Moving around more than usual and him acting hinky" was what was the OP wrote.
                      "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
                      -Calvin Coolidge

                      "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

                      Comment


                      • #26
                        In Michgan V Long they observed a weapon in plain view AND saw something protruding from under the armrest. Doesn't apply to this scenario... If the officer in the OP's original post saw something protruding from under the seat that he could articulate looked like a weapon, then he's golden, but this was not mentioned in the OP.
                        Last edited by LPD003; 03-16-2011, 08:41 PM.
                        "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
                        -Calvin Coolidge

                        "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

                        Comment


                        • #27
                          But SCOTUS stated in their review of Michigan v. Long:

                          Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons.
                          The officer in question, through training and experience, felt that there was reason to believe that the driver posed a threat to the officer if the driver was able to gain access to his vehicle. Given the driver's history and the way he was acting (both moving around erratically in the car and then out of the car), I believe my coworker was completely justified in his frisk of the car. Heck, he only checked under the front seat, didn't even go the full extent that was permissible by SCOTUS' ruling.
                          “The man in black fled across the desert, and the gunslinger followed."

                          "You go for a man hard enough and fast enough, he don't have time to think about how many's with him; he thinks about himself, and how he might get clear of that wrath that's about to set down on him."

                          Comment


                          • #28
                            Define erratically in and then out of the car and then I'm with ya. Was he frequently looking back at the car while out of it, was he shaking, was he trying to get in between the officer and the vehicle. I'm not doubting your officer knew what he was doing. I do think that either he, or you failed to adequately tell us what the suspect was doing to reasonably pose a danger. I don't doubt that he possibly did pose a danger to the officer, otherwise the officer obviously wouldn't have searched it. That being said, it was not articulated enough in the OP for me to say yes it was good.
                            "I sometimes wish that people would put a little more emphasis upon the observance of the law than they do upon its enforcement."
                            -Calvin Coolidge

                            "Amateurs train until they get it right. Professionals train until they can't get it wrong." - Unk

                            Comment


                            • #29
                              Originally posted by LPD003 View Post
                              In Michgan V Long they observed a weapon in plain view AND saw something protruding from under the armrest. Doesn't apply to this scenario... If the officer in the OP's original post saw something protruding from under the seat that he could articulate looked like a weapon, then he's golden, but this was not mentioned in the OP.
                              Plain view would be PC for arrest. "Not in plain view" is what happens during a stop and frisk. I am allowed to search you if I can articulate the reason as it pertains to my safety. I can also search the accessible areas of the car. It's not incident to an arrest as no arrest has occured. It well within the Terry stop procedure for officer safety. It's also a cursory search which usually means I am not opening things that I can't articulate as a threat unless I have permission.

                              That said, Michigan vs. Long would never happen today. Once contraband is found in the car or on his person, he's under arrest and the search stops until a warrant is obtained or, more likely, it's towed and inventoried.
                              "Did that hurt? It looked like it hurt"

                              Comment


                              • #30
                                Originally posted by JTShooter View Post
                                But SCOTUS stated in their review of Michigan v. Long:



                                The officer in question, through training and experience, felt that there was reason to believe that the driver posed a threat to the officer if the driver was able to gain access to his vehicle. Given the driver's history and the way he was acting (both moving around erratically in the car and then out of the car), I believe my coworker was completely justified in his frisk of the car. Heck, he only checked under the front seat, didn't even go the full extent that was permissible by SCOTUS' ruling.
                                What did he find and where?
                                "Did that hurt? It looked like it hurt"

                                Comment

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