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Old May 23, 2010, 12:50 PM   #76
vranasaurus
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Scott,

Refusing to answer the question of a police officer, i.e. invoking your right to remain silent, can not be the basis for pulling someone out of a vehicle for a terry search.
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Old May 23, 2010, 01:01 PM   #77
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Re-read Terry v. Ohio regarding frisks and the subsequent Michigan v. Long regarding vehicle searches. They both basically set a lower standard for "reasonable suspicion" in the case where the officer has a reasonable suspicion that the subject may be armed. The searches aren't used predominantly for evidence-gathering the way other searches are - they're used out of concern for the officer's safety.

I personally don't believe that an unarmed person neglecting to mention having a CHL fits the requirement (although a lawyer friend of mine disagrees), but if an officer asks a subject point-blank if he has a weapon and the person refuses to answer, even I agree that would justify a Terry frisk and vehicle search. But again, the admissibility of any non-weapon-related evidence may be in question.
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Old May 23, 2010, 01:17 PM   #78
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No, I ask anything I think is relevant to the T-stop. Whether or not you have a weapon is something I am interested in.
According to your own words... If i am stopped for doing 7 over the posted speed limit of 45mph, I would expect you to be interested in...
1)I am a licensed driver
2)Do i have current required insurance
3)Do I have a current vehicle registration
4)Did I know i was speeding
5)Why was I speeding
6)Could it be a defective speedometer

Nothing about, again in your own words, this traffic stop has any "relevance" to my possibly carrying a loaded firearm legally in my center console or under my seat... so why would you ask?

The reason i don't keep it in the glove box is I don't want to have to explain to an officer that I will be revealing my loaded firearm when I go to retrieve my paperwork...

Brent
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Old May 23, 2010, 01:27 PM   #79
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Are you really staking out the position that a Police Officer cannot interview offenders?
Beyond what is pertinent to the offense? Absolutely. If you pull me over for a traffic violation, then appropriate questions might be: "Have you been drinking or taking prescription drugs?" "Did you see that speed limit sign back there?"

If you ask me if I'm a CHL holder or if I have a gun in my car (a perfectly legal thing to have in most states), then you are merely fishing - using a traffic stop to harass a citizen. I'm going to politely answer your questions and do so truthfully, but you're going beyond the bounds of what a public servant should be doing. As a CHL holder I'm already obligated to tell you if I have a firearm on my person.

If you ask permission to search my car, the answer is going to be "No". You're going to have to lie to create probable cause or get a warrant. I'm not going to be intimidated into ceding my 4th Amendment rights.
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Old May 23, 2010, 02:09 PM   #80
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Scott, you got it.

Kodiak, I wOuld reread Terry if I were you. Terry allows me to be reasonably inquisitive in my dealings with the public. I would advise anyone not to lie and be reasonably forthcoming in interactions with the Police. As I have said repeatedly I am not "fishing" to jam up Joe Legit with my initial questioning I am attempting to fully understand who I am dealing with.


Dogs, the why doesn't matter as far as the law. It matters that you are committing the violation. It might mitigate the enforcement but not the illegality.
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Old May 23, 2010, 02:15 PM   #81
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. . . but if you decide for whatever reason to ask if he has a weapon and he flat-out refuses to answer, I agree that should raise your suspicions, and would probably serve as justification for a Terry frisk and vehicle search.
Perhaps the Terry pat, but not the vehicle search. Since their is some level of indication the person might be armed, (because of the existence of the CHL combined with the refusal to answer a specific question about weapons, if that were the case) then a Terry pat doesn't seem unreasonable to me for the purposes of officer safety. The legal threshhold for a quick weapons pat is pretty low, as I understand it.

Not answering questions does not weigh in at all in justifying a vehicle search because of the 5th amendment.

How am I doing Wagonman?
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Old May 23, 2010, 02:41 PM   #82
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Dogs, the why doesn't matter as far as the law. It matters that you are committing the violation. It might mitigate the enforcement but not the illegality.
You lost me there... The weapon is being legally carried by a citizen legal to own a firearm. In Fla. I am legally allowed to tote a fully loaded and functional firearm anywhere in my vehicle except "on the person" without a CCW permit.

Back to my last post, the presence of a legal firearm in the vehicle but not held by me really has no relevance on a simple traffic stop... If you do ask if I have a weapon I will list all of them including my fists and elbows... But your curiosity or fear shouldn't result in a show and tell session as your safety is secure with it left alone where it is, just like my safety is insured so long as yours stays in the holster...

Brent
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Old May 23, 2010, 03:24 PM   #83
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Kodiak, I wOuld reread Terry if I were you. Terry allows me to be reasonably inquisitive in my dealings with the public.
Perhaps your interpretation of "reasonable" is different than mine. As I stated, I will answer your questions and do so politely. I have nothing to hide. However, there will be a complaint filed if you go beyond what I term "reasonable". There will be a civil action filed if you go beyond the legal definition.

If you push the envelope into demanding a search, the answer will be "No". If you threaten or intimidate or lie to try and force me to allow a search, there will again be a civil action.

Don't take that personally - the "you" is entirely generic.

I don't think most cops would use criminal means to effect a search or shakedown, but we both know that some will. Police are representative of the population as a whole and so there are likely to be as many criminals with badges as there are in the general population.

I'm not trying to be a cop-basher. I like and respect cops and think they do a fine job for little reward. If you treat me with respect and courtesy, I'll take my ticket and go on my way with a nod and a smile. I don't want to make your job any harder than it already is.
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Old May 23, 2010, 03:36 PM   #84
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At this time, I would like to remind everyone, that the interpretation of "reasonable" (and the resultant "reasonable man" standard) is a legal fiction determined by the courts.

It is not your definition, nor mine, or any dictionary you care to use. It is the definition that the courts have opined and will use in examining what Wagonman (and all LEOs) does.

The courts have found that questions (fishing) not directly related to the traffic stop, but related to officer safety, are reasonable.
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Old May 23, 2010, 03:41 PM   #85
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Another thread (with video) of what we are talking about here.

http://thefiringline.com/forums/showthread.php?t=410576
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Old May 23, 2010, 04:23 PM   #86
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Dogs, I was refering to the traffic violation not the issue of the weapon.

Antipitas, you are indeed correct. The hundreds of machine guns, the hundreds of keys of Peruvian marching powder.
etc you have at home are not fair game on a T-stop. Things that can affect
my safety are reasonable for me to inquire about.

Quote:
If you push the envelope into demanding a search, the answer will be "No". If you threaten or intimidate or lie to try and force me to allow a search, there will again be a civil action.
I don't threaten or intimidate people. But, I use the carrot and the stick approach if I feel the need to search a vehicle. The carrot being Terry and the stick being Gant. This can either be a traffic stop or an arrest. Because if I pull you over I have my PC for an traffic arrest. It doesn't have to be a ticket it can be arrest with a search prior to me towing your vehicle.

Last edited by Wagonman; May 23, 2010 at 04:34 PM. Reason: Language filter
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Old May 23, 2010, 04:30 PM   #87
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I'm glad of that, Wagonman! I'd play hell moving all that stuff from Idaho to your house in Illinois...
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Old May 23, 2010, 04:37 PM   #88
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Anti, LOL.
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Old May 23, 2010, 04:48 PM   #89
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Quote:
I don't threaten or intimidate people. But, I use the carrot and the stick approach if I feel the need to search a vehicle. The carrot being Terry and the stick being Gant. This can either be a traffic stop or an arrest. Because if I pull you over I have my PC for an traffic arrest. It doesn't have to be a ticket it can be arrest with a search prior to me towing your vehicle.
You can't arrest someone then search their vehicle. Once the suspect is arrested you can no longer demonstrate a continuing threat. Reread Gant:


Quote:
Police may search the passenger compartment of a vehicle inci-dent to a recent occupant’s arrest only if it is reasonable to believethat the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
How might a person arrested access their vehicle after arrest and what evidence of the offense of arrest (traffic violation) might you find by searching the vehicle?

Remember in Gant the Supreme Court said the search was unreasonable.

If you would arrest someone for a traffic ticket just to search their vehicle you have no business with a badge. By your own admission you do threaten and intimidate by threatening people with arrest for traffic violations just to search their vehicle. You have also admitted a willingness to search vehicles in violation of the law.
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Old May 23, 2010, 04:57 PM   #90
vranasaurus
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Re-read Terry v. Ohio regarding frisks and the subsequent Michigan v. Long regarding vehicle searches. They both basically set a lower standard for "reasonable suspicion" in the case where the officer has a reasonable suspicion that the subject may be armed. The searches aren't used predominantly for evidence-gathering the way other searches are - they're used out of concern for the officer's safety.
But remaining silent isn't reasonable suspicion for a Terry search:

If the officer asks if you have a gun? If you have one on you and it is illegal you have three options:

1. Incriminate yourself

2. Lie to the officer (which is a crime in most jurisdictions)

3. Remain Silent

I would argue that any evidence discovered because of a search of a suspect who refused to answer questions would be inadmissable. You have to have more than just "he refused to answer my questions" as the basis for your Terry search.
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Old May 23, 2010, 05:18 PM   #91
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vran, I think you and I are on exactly the same page! So will you entertain my opinion regarding my Fla law that includes the CD to include my vehicle... So do I have to volunteer I am armed? If a cop comes to my house and asks, I will tell 'em to buzz off... So why volunteer the info in my mobile extension of my home? And if I do admit to having a gun in my car, why would I have to submit it upon request to an officer? If a cop is at my house door and wants me to hand over my firearm/s, he would get a little more colorful version of the aforementioned "buzz off"...

Brent
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Old May 23, 2010, 05:29 PM   #92
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Because if I pull you over I have my PC for an traffic arrest. It doesn't have to be a ticket it can be arrest with a search prior to me towing your vehicle.
Right. If I don't quail in fear of your badge and surrender my civil liberties, you'll arrest me, tow my vehicle away and probably gut it in a search costing me thousands of dollars, an arrest record, etc? For a traffic ticket...

I have zero respect for that kind of cop. None, nada, zip. The average criminal operates on a higher moral plane.

Now we have an entire nation being run by the same Chicago mob.
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Old May 23, 2010, 06:28 PM   #93
maestro pistolero
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You can't arrest someone then search their vehicle.
Upon arrest during a traffic stop, the vehicle is typically inventoried, then towed. This is to document the property, but it may turn up evidence of criminal activity.
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Old May 23, 2010, 06:43 PM   #94
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Maestro, so you are stating that the arrest is basically a bogus way to gain entry under the guise of "inventory" assessment of the vehicle of a person who may be getting arrested for a failed tag light?

Pretty neat way to circumvent the citizens' constitutional civil rights...
NEATO!!!... NOT COOL!
Brent
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Old May 23, 2010, 06:59 PM   #95
vranasaurus
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I have a huge problem with bogus arrests just to circumvent the 4th amendment by "inventory".


In Knowles v. Iowa the supreme court said:

Quote:
Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.

So under Gant an arrest for a traffic violation would not warrant a search unless the officer could show that the suspect could still access the vehicle which is hard to do when in the back of a squad car.
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Old May 23, 2010, 07:33 PM   #96
Wagonman
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No Dogs it isn't. When I arrest someone I have to safeguard their belongings. So I administratively tow and inventory the vehicle. It is not a bogus arrest it is me playing by the rules the SCOTUS lays down. Like I said I have PC when I pull you over to arrest you so it's up to you whether it's a ticket or a physical.
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Old May 23, 2010, 07:41 PM   #97
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Like I said I have PC when I pull you over to arrest you so it's up to you whether it's a ticket or a physical.
You may be able to get away with that in a corrupt hole like Chicago, but it isn't going to play well in many other places. You'd find yourself out of a job.
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Old May 23, 2010, 07:41 PM   #98
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No Dogs it isn't. When I arrest someone I have to safeguard their belongings. So I administratively tow and inventory the vehicle. It is not a bogus arrest it is me playing by the rules the SCOTUS lays down. Like I said I have PC when I pull you over to arrest you so it's up to you whether it's a ticket or a physical.
It is a bogus arrest. You are arresting someone for a minor traffic offense just to search their car.

Last edited by Al Norris; May 23, 2010 at 08:17 PM. Reason: Removed personal attack.
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Old May 23, 2010, 07:55 PM   #99
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When you arrest a citizen for a traffic INFRACTION not a CRIME, you put your self into the realm of seriously out of control rogue officer and anything you find "inventorying" my ride will be deemed inadmissible with any decent defense attorney pointing out during the evidentiary hearing, the heinous abuse of power just so you can get yer rocks off looky looing my stuff...

Sorry to say it but I am glad to have you prove that there are cops out there like those many folks try to tell me do not exist...

Why terry stop the average guy or search a car at random when you need to be walking the beat in Chicago doing walk ups (YES WALK UPS NO PATROL CAR) on the inner city thugs and do your part to get the illegal guns from the hands of those not allowed to have them? You might just get a little peruvian marching powder off the street too.

If ya'll were doing your part to protect and serve, your fine mayor may not be after even more intrusive guin laws that only limit the honest man!

Brent
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Old May 23, 2010, 07:58 PM   #100
Wagonman
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Where is the "corruption"

1, I observe traffic violation

2, I curb said vehicle

3, offender is evasive in answering my questions and uses his discretion to not allow me to search his vehicle.

4, I use my discretion to instead of a warning or at most a ticket to physically arrest the offender.

5, instead of leaving his vehicle in a lane of traffc I tow his vehicle to secure it. Since I am responible I have to inventory everything in the vehicle to make sure there isn't a briefcase full of money missing when he retrieves his vehicle.
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