TexasCHLforum.com

flintknapper wrote: Steve,

I want to Thank You..again, for your participation here and the information that you freely share with us.

I know it has been invaluable to me. Many Citizens (myself included) are simply unaware of what the law allows (or doesn't allow) LEO to do during a stop. I doubt many of us ever have a reason to question the actions of an officer, but its always good when we understand a little bit about the process.

Too, the citizenry is more apt to think only about themselves during a stop. So, your perspective (and that of other LEO here) gives us great insight to how officers view the event. This exchange of information...and the resulting discussion of it, goes a long, long...way toward educating both sides, (which should be the same side).

I appreciate it...my friend!

Flint.

and he does it with such clarity. He is a great resource to this forum.

Thnks Steve .

Target1911 wrote:My best friend was stopped a couple of days ago in Granbury . . . The LEO became very upset . . . Called back-up. Cuffed him. . . . The LEOs searched the truck . . .

Something similar happened to a guy I knew slightly 'way back in my college days, though no firearm was involved . . . taken out of his vehicle, lots of backup called, cuffed and made to sit by the side of the road. Thing is, the guy was some sort of amateur magician, and got out of the cuffs himself - threw them in the (water filled) ditch along the road. Meanwhile, he just sat there with his hands behind his back.

When they decided to let him go, the cop who'd cuffed him wanted to know where his cuffs were . . . guy said "Oh, they were hurting me, so one of the other officers took them off." "WHICH officer?" "I don't know, with uniforms, you guys all look alike to me."

Probably caused some ill-feeling in the group.

srothstein wrote:Ask your friend to call the police station and file an informal complaint. Since he had broken no laws, there was no reason to handcuff him or search the vehicle. friend would have been on his way quicker and with less hassles.

I'd make a formal complaint. most likely, nothing will come of it, but it could end up in the officer's file . . . a file full of complaints can work against him in the future if he oversteps the line of good sense again.

^^^^^^That is

Sounds like unlawful search to me. He informed where the firearms were, no need to search farther without a warrant.

I'd also have a real problem being cuffed.

srothstein wrote:Ask your friend to call the police station and file an informal complaint. Since he had broken no laws, there was no reason to handcuff him or search the vehicle. It was legal (sort of) under the guise of a frisk. For a frisk to be legal, the office must have an articulable reason why this particular stop put him in fear of danger to his life or health. I could see him saying he was in danger because he was told there was a loaded shotgun in the car. I disagree with him, but I can see his point of view and the SCOTUS says this one is pretty much based on the point of view of the officer at the time.

I'm going to have to disagree with you, unless I'm misunderstanding the extent of the search that you are saying is justifiable here.

I agree that the frisk of the OP's friend is arguably legal under Terry v. Ohio. The circumstances as given do not appear to have given the officer any reason to fear for his safety but, as you said, SCOTUS gives wide latitude for an officer to search. I don't disagree with this as the perception on the streets can be very different from when it is later relayed in court (or on an internet forum).

However, I do not see any justification for searching the car. Once the driver is out of the car, weapons in the car are not any danger to the officer. Since the officer should know that carrying loaded firearms in a vehicle is not illegal in Texas (as long as a handgun is concealed, etc.), there is no reasonable suspicion that a crime is being committed. And since there was no reasonable suspicion that a crime was being committed there was no arrest, and therefore no justification for a search incident to an arrest.

Please feel free to correct me if I have anything incorrect.

Hirundo,

The point you might have missed (and it is not commonly understood or accepted) is that a frisk of the car is justified by the same grounds as the frisk of the person. The justification does not disappear when the driver exits the car. SCOTUS recognized that I have to get the driver out of the car to search it, so I must still be allowed to do the search even if the driver has left the car. So, even if the driver leaves the car on his own, I can still do the frisk of the car if it was justified at the time of the person getting out of the car.

A still gray area is if I can frisk the car if the driver gets out when I stop it and I later (after he is already out of the car) develop the grounds to frisk him. Most courts have ruled that it is justified, but there have been a few where it has been ruled against. A good part of the question is how well the officer can write.

srothstein wrote:Hirundo,

The point you might have missed (and it is not commonly understood or accepted) is that a frisk of the car is justified by the same grounds as the frisk of the person. The justification does not disappear when the driver exits the car. SCOTUS recognized that I have to get the driver out of the car to search it, so I must still be allowed to do the search even if the driver has left the car. So, even if the driver leaves the car on his own, I can still do the frisk of the car if it was justified at the time of the person getting out of the car.

A still gray area is if I can frisk the car if the driver gets out when I stop it and I later (after he is already out of the car) develop the grounds to frisk him. Most courts have ruled that it is justified, but there have been a few where it has been ruled against. A good part of the question is how well the officer can write.

Question: If a person exists the vehicle prior to the officer requesting it AND locks the vehicle, would this have any effect on a Terry search?

srothstein wrote:The point you might have missed (and it is not commonly understood or accepted) is that a frisk of the car is justified by the same grounds as the frisk of the person. The justification does not disappear when the driver exits the car. SCOTUS recognized that I have to get the driver out of the car to search it, so I must still be allowed to do the search even if the driver has left the car. So, even if the driver leaves the car on his own, I can still do the frisk of the car if it was justified at the time of the person getting out of the car.

I guess what is confusing me is that the frisk prusuant to a Terry stop is justified on grounds of officer safety. Removing the person from the the vehicle and searching their person ensures that they do not have access to any weapons during the stop which may be a threat to the officer. I fail to see how searching the car as well makes the officer any safer.

hirundo82 wrote:

srothstein wrote:The point you might have missed (and it is not commonly understood or accepted) is that a frisk of the car is justified by the same grounds as the frisk of the person. The justification does not disappear when the driver exits the car. SCOTUS recognized that I have to get the driver out of the car to search it, so I must still be allowed to do the search even if the driver has left the car. So, even if the driver leaves the car on his own, I can still do the frisk of the car if it was justified at the time of the person getting out of the car.

I guess what is confusing me is that the frisk prusuant to a Terry stop is justified on grounds of officer safety. Removing the person from the the vehicle and searching their person ensures that they do not have access to any weapons during the stop which may be a threat to the officer. I fail to see how searching the car as well makes the officer any safer.

The idea is that after the person gets back in the car they will have access to the weapon again. Also, they may go to the car during the stop, while the officer is writing up paper work or the like.

AEA wrote:Believe it or not.....not all LEO's agree with us Civilians exercising our rights (within the Law) and if their Chief is one of these type, then you can expect the same from all the Dept. Officers.

If you're not in the military and subject to the UCMJ, you are a civilian.

wheelgun1958 wrote:

AEA wrote:Believe it or not.....not all LEO's agree with us Civilians exercising our rights (within the Law) and if their Chief is one of these type, then you can expect the same from all the Dept. Officers.

If you're not in the military and subject to the UCMJ, you are a civilian.

Wrong and wrong.

Chiefs are politicians/admin and have their own agenda.

"Civilian"- 1. a person who is not on active duty with a military, naval, police, or fire fighting organization.
2. Informal. anyone regarded by members of a profession, interest group, society, etc., as not belonging; nonprofessional; outsider

trdvet wrote:

wheelgun1958 wrote:

AEA wrote:Believe it or not.....not all LEO's agree with us Civilians exercising our rights (within the Law) and if their Chief is one of these type, then you can expect the same from all the Dept. Officers.

If you're not in the military and subject to the UCMJ, you are a civilian.

Wrong and wrong.

Chiefs are politicians/admin and have their own agenda.

"Civilian"- 1. a person who is not on active duty with a military, naval, police, or fire fighting organization.
2. Informal. anyone regarded by members of a profession, interest group, society, etc., as not belonging; nonprofessional; outsider

Civil law enforcement officers enforce civil law, not military law. The statement is true regardless of how many Websters think otherwise. Peace officers are civil servants, not military officers.

So only MPs are non-civilians? You can think what you will about who is not a civilian and who is but in the end you are wrong and nothing will change that.

What about ATF, FBI? They enforce federal law, does that make them civilians or non-civilians?

trdvet wrote:So only MPs are non-civilians? You can think what you will about who is not a civilian and who is but in the end you are wrong and nothing will change that.

What about ATF, FBI? They enforce federal law, does that make them civilians or non-civilians?

I agree that unles syou are in the military you are a civilian. I have said that in other posts too. My definition is that if you have freedom of your own movement, and speech, etc etc than you are a civilian. As someone who worked in LE I can tell you that I hate it when other cops said "civilian". Most of them said it like it was a bad thing as well....

Anyway this is OT. If we want/need to discuss it someone start a topic in the "Off Topic" forum.

trdvet wrote:

wheelgun1958 wrote:

AEA wrote:Believe it or not.....not all LEO's agree with us Civilians exercising our rights (within the Law) and if their Chief is one of these type, then you can expect the same from all the Dept. Officers.

If you're not in the military and subject to the UCMJ, you are a civilian.

Wrong and wrong.

Chiefs are politicians/admin and have their own agenda.

"Civilian"- 1. a person who is not on active duty with a military, naval, police, or fire fighting organization.
2. Informal. anyone regarded by members of a profession, interest group, society, etc., as not belonging; nonprofessional; outsider

Definitions of civilian on the Web:

* a nonmilitary citizen
* associated with or performed by civilians as contrasted with the military; "civilian clothing"; "civilian life"
wordnet.princeton.edu/perl/webwn

* In times of armed conflict a civilian is any person who is not a combatant. The term is used officially to describe those who do not belong to the military. ...
en.wikipedia.org/wiki/Civilian

I guess it depends on whose dictionary you use. In my experience, most military/ex-military use the latter definitions. Given the definitions I quoted, police, firemen and various other civil servants are civilians (no matter how "military" their style and training). This includes Federal agencies (such as the FBI) as well.