U.S. Constitution
See other U.S. Constitution Articles
Title: "Armed" is Same as "Armed and Dangerous" When it Comes to Police Searches, 4th Circuit Concludes
Source:
Reason
URL Source: http://reason.com/blog/2017/01/31/a ... ame-as-armed-and-dangerous-whe
Published: Feb 3, 2017
Author: Brian Doherty
Post Date: 2017-02-03 23:51:12 by Hondo68
Ping List: *Bill of Rights-Constitution* Subscribe to *Bill of Rights-Constitution*
Keywords: a bad decision, Judge Pamela Harris, dissent is correct
Views: 6399
Comments: 17
A decision last week in U.S. v. Robinson from the 4th Circuit Court of Appeals declared that being armed, even legally, is the same as being "armed and dangerous" and leaves you open to police search. It also implies, according to a concurring opinion, that gun carriers lose significant First Amendment as well as Fourth Amendment rights. Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts. However, the police had received a tip that Robinson had been seen loading a gun and putting it in his pocket before he got in the car. He was in a 7-11 parking lot known to cops as a frequent site of drug sales. The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon. Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon. To quote from the decision last week, Robinson argued as part of his appeals process that "Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down." Last year, a panel of the 4th Circuit Court of Appeals agreed with Robinson and overturned his initial conviction. The government appealed for a decision of the full court, and now last week that full court disagreed with the panel decision. The whole case hinges, as the Court explains, in whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and they conclude that yes, it can be. The decision, by Judge Paul Niemeyer, says that Robinson "argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated....Robinson's position...fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. " Niemeyer's majority opinion states that precedent all the way back to the 1968 Terry case that established current legal standards for police frisking make it clear that mere suspicion of gun possession, whether legal or not, is more than enough to justify a search. In that original case the Court, Niemeyer writes, "approv[ed] Officer McFadden's frisk of Terry that 'a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety.' In this manner, the Court adopted the now well-known standard that an officer can frisk a validly stopped person if the officer reasonably believes that the person is 'armed and dangerous.'" A separate concurring opinion from the 4th Circuit in the case, also against Robinson, by Judge James Wynn tries to separate out the majority opinion's apparent belief that "armed" and "dangerous" mean essentially the same thing to declare more clearly that being armed with a gun specifically (not, for example, a wine bottle) is the thing that indeed takes away your constitutional right to be free from unwarranted search. As Wynn plainly writes, "individuals who choose to carry firearms forego certain constitutional protections afforded to individuals who elect not to carry firearms." In Wynn's opinion, in a statement that alarmed many in the gun rights community, the majority opinion as it stands has further (bad) implications for gun carriers and their constitutional rights: I see no basis--nor does the majority opinion provide any-- for limiting our conclusion that individuals who choose to carry firearms are categorically dangerous to the Terry frisk inquiry. Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers "knock-and-announce" before forcibly entering homes. See Richards v. Wisconsin...(1997) ("In order to justify a 'no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile." (emphasis added)). Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment. See Schenck v. United States...(1919) (Holmes, J.) ("The question in every [freedom of speech] case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (emphasis added)). A dissent written by Judge Pamela Harris disagrees, after noting that so many law-abiding citizens have carry rights that it just doesn't hold up to conflate "armed" (even with a gun) and "dangerous" the way the majority decision does, and that: unless and until the Supreme Court takes us there, I cannot endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would I adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent. Harris' dissent also spells out what seems to this non-lawyer a clear circuit split on the question that the 4th Circuit has just created, one that might require the Supreme Court to hash out: We are not alone in this insight. In Northrup v. City of Toledo Police Dep't...(6th Cir. 2015), for instance, the Sixth Circuit held that where state law permits the open carry of firearms, the police are not authorized by Terry to conduct a stop – or an attendant frisk – of a person brandishing a gun in public. Where the state legislature "has decided its citizens may be entrusted with firearms on public streets," the court reasoned, the police have "no authority to disregard this decision" by subjecting law-abiding citizens to Terry stops and frisks.....; see also, e.g., United States v. Leo...(7th Cir. 2015) (rejecting "frisk" and search of backpack on suspicion that it contains gun in light of "important developments in Second Amendment law together with Wisconsin's [concealed-carry] gun laws"); United States v. Ubiles (3d Cir. 2000) (invalidating Terry stop based on suspicion of gun possession in open-carry jurisdiction). Wynn's boldly stated conclusions about all the rights that gun carriers lose based on this 4th Circuit judgment have been viewed-with-alarm by, among others, the National Rifle Association's Institute for Legislative Action and Ammoland. Poster Comment: Judge Pamela Harris' dissent is correct. There seems to be a number of conflicting decisions from various circuit courts. An armed, is not necessarily dangerous, ruling is needed from the supreme court. But that libtard gun grabber Gorsuch is plugging up the pipeline. He needs to be rejected quickly. Opinion from 4th Circuit Court of Appeals implies that exercising your Second Amendment rights means you inherently lose some of your Fourth and First Amendment rights.
John Biehler/Foter
Subscribe to *Bill of Rights-Constitution*
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
#1. To: All, *Bang List* (#0)
(((( BANG ))))
I've said it from the very beginning when mandatory seat belt laws went into effect. These laws are NOT about saving lives - they are just another way for cops to pull you over and used as a pretext to violate the constitution. And the "Law and Order" conservatives cheered. The court concluded it CAN be if the weapon is a firearm. Otherwise, "armed" and "dangerous" must be considered separately.
This was not a "Terry" stop. A "Terry" stop allows the police to briefly detain a person -- in a car or not -- whom they reasonably suspect is involved in in c in in criminal activity. This was a stop for a traffic violation. "Terry" does not apply. However, In Pennsylvania v. Mimms 434 U.S. 106 (1977), the U.S. Supreme Court ruled that a police officer may order a person out of a car following a traffic stop and conduct a pat-down to check for weapons for their personal safety.
A dissent written by Judge Pamela Harris disagrees, after noting that so many law-abiding citizens have carry rights that it just doesn't hold up to conflate "armed" (even with a gun) and "dangerous" the way the majority decision does... This is like arguing that a policeman has no right to check the validity of your license during a traffic stop merely because "so many people have cars and licenses". It is a specious argument to try to apply this to gun rights when you consider the general enforcement and juridical processes for all other laws. Now, if you want to argue that there should be no gun licenses at all, that is fine. But if you have a licensing regime in place, accepted by the voters and enacted via their legislatures, then you have given tacit permission to examine CCW licenses for validity and to enforce the laws against armed felons. In the end, the radical position on CCW and gun rights generally, namely that convicted felons have as great a right to carry CCW as any other citizen, is not a mainstream position, even among gunowners (who do generally favor keeping guns out of the hands of convicted felons). There is a crosscurrent of argument occurring here. Either you want the laws against possession of firearms by convicted felons enforced or you do not. We should not conflate this with the general principles of constitutional search and seizure policy.
Actually the whole case hinges on this statement here: A separate concurring opinion from the 4th Circuit in the case, also against Robinson, by Judge James Wynn tries to separate out the majority opinion's apparent belief that "armed" and "dangerous" mean essentially the same thing to declare more clearly that being armed with a gun specifically (not, for example, a wine bottle) is the thing that indeed takes away your constitutional right to be free from unwarranted search. When we have judges doing piece-meal separation of opinions on a simple case like this, it is no wonder nobody trusts the courts to do the right thing. Here we go again. Define armed and dangerous. Are the two related to the same incident happening or is someone just using those words to demonize the Second Amendment?
The phrase "armed and dangerous" isn't in the U.S. Constitution or the second ame ame ame amendment. Those words were contained in a prior U.S. Supreme Court opinion. THIS court concluded that, if a firearm is involved, armed = dangerous.
If a policeman has cause to stop you already, then 'armed' does equal 'dangerous' in a certain percentage of cases. If you are saying that all CCW permit holders have a right to be free of stop-and-frisk and that all concealed weapons must be assumed to be lawfully CCW licensed, then you are saying that violent felons have a right to never be stopped and frisked and disarmed. It does seem to me that the officer has a right to hold a gun on an armed citizen until the citizen produces his CCW permit. However, you do have at least Vermont where CCW is legal for all persons, though that may not cover felons. This website page offers a list of persons prohibited from firearms under the Gun Control Act of 1968. So even in Vermont, that doesn't seem to bar felons from owning guns and carrying concealed, this federal law would still forbid them from owning/carrying guns.
[...] The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon. Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon. To quote from the decision last week, Robinson argued as part of his appeals process that "Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down." Last year, a panel of the 4th Circuit Court of Appeals agreed with Robinson and overturned his initial conviction. The government appealed for a decision of the full court, and now last week that full court disagreed with the panel decision. The whole case hinges, as the Court explains, in whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and they conclude that yes, it can be. The decision, by Judge Paul Niemeyer, says that Robinson "argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated....Robinson's position...fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. " Niemeyer's majority opinion states that precedent all the way back to the 1968 Terry case that established current legal standards for police frisking make it clear that mere suspicion of gun possession, whether legal or not, is more than enough to justify a search. And the Court is right and Brian Doherty, whoever he his, is wrong and in conflict with about a half-century of precedent. Terry v. Ohio, 392 U.S. 1 (1968) This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances. Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary. Following the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would "stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in this case when I looked over they didn't look right to me at the time." His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. 'T get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man. By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of • the store window on Huron Road, he suspected the two men of "casing a job, a stick-up," and that he considered it his duty as a police officer to investigate further. He added that he feared "they may have a gun." Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the same man who had,- conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action, Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men "mumbled something" in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry's overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker's store. As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz' outer garments. Officer McFadden seized Chilton's gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons. On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it "would be stretching the facts beyond reasonable comprehension" to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants' motion on the ground that Officer McFadden, on the basis of his experience, "had reasonable cause to believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action." Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer's investigatory duties, for without it "the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible." After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no "substantial constitutional question" was involved. We granted certiorari, 3§7 U. S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner's rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643 (1961). We affirm the conviction. [...]
According to the court, armed = dangerous if the person has a firearm. The person may or may not be dangerous if they are armed with a different type of weapon. "If you are saying that all CCW permit holders have a right to be free of stop-and-frisk and that all concealed weapons must be assumed to be lawfully CCW licensed, then you are saying that violent felons have a right to never be stopped and frisked and disarmed." I'm not saying any of that.
Shaquille Robinson was not a Terry stop. Terry doesn't apply to Shaquille Robinson. Pennsylvania v. Mimms is the applicable precedent.
I think the court is more in the territory of "armed = presumed dangerous if a cop has adequate cause to believe the suspect is otherwise a criminal in unlawful possession of a firearm or other weapons". A key fact here is that the police were tipped off that the suspect had loaded a gun and concealed it. So, if approaching the suspect for other causes, the policeman is entitled to act on the reasonable suspicion that that suspect is armed and likely to not have a CCW permit. I still think the cop should have asked for the CCW permit first (while holding his gun on the suspect). It would be more clear-cut. Of course, that means that a lot of people could be held at gunpoint by a cop on suspicion that they were concealing a weapon, at least until they produced their CCW license or were searched by the cop for weapons. Admittedly, your shorter equation does have the advantage of brevity. What's the old saying about "if you're explaining, you're losing". Yeah, that. So my argument isn't as easy a sell to the public as your terse slogan.
Robinson sued to challenge the search. Since merely having the gun on his person, as the police already suspected from the call, could have been a perfectly legal act—he might have had a permit—the police, he insisted, had no legal grounds for the search that did find the (actually illegally possessed) weapon. To quote from the decision last week, Robinson argued as part of his appeals process that "Under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down." misterwhite #11: Pennsylvania v. Mimms is the applicable precedent. Terry establishes that a police officer may take action that a man of reasonable caution in the belief that the action taken was appropriate, including the patdown search. Robinson challenged the search. Mimms cited Terry to justify the search in that case. As Mimms cites Terry as precedent no less than four times, could you kindly provide a link and citation to the legal authority that holds Mimms is the precedent setting opinion? - - - - - - - - - - - - - - - - - - - - Terry was the precedent relied upon by the Court in Mimms. https://supreme.justia.com/cases/federal/us/434/106/case.html Pennsylvania v. Mimms, 434 U.S. 106 (1977) 1. The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety. 2. Under the standard announced in Terry v. Ohio, 392 U. S. 1, 392 U. S. 21-22 -- whether -- the officer was justified in making the search he did once the bulge in respondent's jacket was observed. [...] The touchstone of our analysis under the Fourth Amendment is always "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Terry v. Ohio, 392 U. S. 1, 392 U. S. 19 (1968). [...] We think it too plain for argument that the State's proffered justification -- the safety of the officer -- is both legitimate and weighty. "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties." Terry v. Ohio, supra at 392 U. S. 23. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. "According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings -- A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963)." [...] The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "petty indignity.'" Terry v. Ohio, supra at 392 U. S. 17. - - - - - - - - - - - - - - - - - - - - The Mimms opinion was issued per curiam. https://www.law.cornell.edu/wex/per_curiam Definition Latin for "by the court." An opinion from an appellate court that does not identify any specific judge who may have written the opinion. Overview A "per curiam" decision is a decision delivered via an opinion issued in the name of the Court rather than specific judges. Most decisions on the merits by the Supreme Court (and other appellate courts in the U.S.) take the form of one or more opinions signed by individual justices (and joined in by others). Even when such signed opinions are unanimous, they are not termed "per curiam." "Per curiam" decisions are given that label by the Court itself and tend to be short. Usually, though not always, they deal with issues the Court views as relatively non-controversial. - - - - - - - - - - - - - - - - - - - - Traffic stop equals Terry stop https://en.wikipedia.org/wiki/Terry_stop - - - - - - - - - - [10] For a unanimous Court in Brendlin v. California, 551 U.S. 249 (2007), Justice Souter wrote, Justice Souter continued: [11] Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) noted [12] For the Court in Maryland v. Wilson, 519 U.S. 408 (1997), Chief Justice Rehnquist wrote [13] Pennsylvania v. Mimms (per curiam) held [14] For a unanimous Court in Knowles v. Iowa, 525 U.S. 113 (1998), Chief Justice Rehnquist wrote that police may [15] For the Court in Michigan v. Long, 463 U.S. 1032 (1983), Justice O'Connor wrote [16] For a unanimous Court in Knowles v. Iowa, 525 U.S. 113 (1998)), Chief Justice Rehnquist wrote that police may = = = = = = = = = = = = = = = = = = = = Criminal Procedure, Fifth Edition, Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Hornbook Series, West Publishing, 2009, pp. 243-44: - - - - - - - - - - 17. 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). 18. See § 3.2(b). 19. Soon after Caballes was decided it was relied upon by the Court in another case which did not involve a traffic stop or other seizure on probable cause (but which did not involve a traditional Terry stop either, but instead a Summers stop incident to a search warrant execution, see § 3.4(i)). In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the Court concluded a Summers detainee could not object on Fourth Amendment grounds to being interrogated about her immigration status even though the search warrant justifying the detention concerned criminality unrelated to such status. Muehler was in turn relied upon in Arizona v. Johnson, U.S._, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), declaring that an “officer’s inquiries into matters unrelated to the justification for the traffic stop * * * do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” = = = = = = = = = = = = = = = = = = = = Black's Law Dictionary, Sixth Ed. Terry-stop See Stop and Frisk. - - - - - - - - - - Stop and frisk. The situation where police officers who are suspicious of an individual run their hands lightly over the suspect’s outer garments to determine if the person is carrying a concealed weapon. Also called a "patdown” or "threshold inquiry,” a stop and frisk is intended to stop short of any activity that could be considered a violation of Fourth Amendment rights. A police officer has the right to stop and pat down a person suspected of contemplating the commission of a crime. Reasonable suspicion which is sufficient for stop and frisk is more than a mere hunch but less than probable cause. U.S. v. Sokolow, 109 S.Ct. 1581, 104 L.Ed.2d 1. The scope of the search must be strictly tied to and justified by the circumstances which rendered the initiation of the stop justified. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. See Frisk; Investigatory stop; Stop. - - - - - - - - - - Stop. Within statutes requiring a motorist striking a person with automobile to stop, requires a definite cessation of movement for a sufficient length of time for a person of ordinary powers of observation to fully understand the surroundings of the accident. Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887, 888. "Stop” occurs when police officer restrains person’s liberty by physical force or show of authority. State v. Butkovich, 87 Or.App. 587, 743 P.2d 752, 753. "Stop,” within term stop and frisk, is temporary restraint of person’s freedom to walk away and is a permissible seizure within Fourth Amendment dimensions when such person is suspected of being involved in past, present or pending criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Anonymous (1971-20), 6 Conn.Cir. 583, 280 A.2d 816, 818. See also Stop and frisk - - - - - - - - - - Frisk. Contact of the outer clothing of a person to detect by the sense of touch whether a concealed weapon is being carried. People v. Francis, 1 Dept., 108 A.D.2d 322, 489 N. Y.S.2d 166. A pat-down search of a suspect by police, designed to discover weapons for purpose of insuring safety of officer and others nearby, and not to recover contraband or other evidence for use at subsequent trial. The scope of a frisk has been limited by the courts to be less than a full-scale search. In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered. One concerns whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous, and the other whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed. Terry v. Ohio, 392 U.S. 1,88 S.Ct. 1868. 20 L.Ed.2d 889. See also Stop and frisk. - - - - - - - - - -
In cases where the suspect had a firearm, the court opinion was more along the lines of "armed and thus dangerous". They made no distinction between a legal CCW holder and a felon, but they did distinguish between a firearm and other weapons. "the suspect had loaded a gun and concealed it ... and likely to not have a CCW permit." I do that every day. If you observed me doing that, why would you (wrongly) assume I don't have a CCW permit? "still think the cop should have asked for the CCW permit first" A permit doesn't make you "not dangerous". Or the permit could be fake. But the main reason is that you don't want a suspected armed subject rooting around in his pockets. The ruling in Mimms allows the officer to ask the subject to exit the car so he can do a pat-down for officer safety.
But a Terry stop is not always a traffic stop. Keep in mind that a Terry stop is not allowed in about half the states, including West Virginia. Yet they do traffic stops. Terry states the needed justification for a stop -- the officer must have reasonable suspicion that a crime has been committed or is about to be committed. On the other hand, the conditions for a traffic stop is a violation of traffic laws. The officer does not need reasonable suspicion that a crime has been committed or is about to be committed in order to pull you over for, say, speeding. No matter the reason for the stop, the officer is constitutionally allowed to do a pat-down for officer safety.
After killing all those electrons, and you seem to have entirely forgotten, your claim was: Pennsylvania v. Mimms is the applicable precedent. Mimms cited Terry not less than FOUR TIMES as precedent.
First of all, Terry stops are illegal in West Virginia. Ergo, Terry doesn't apply in the Shaquille Robinson case because it cannot apply. Mimms cited Terry not less than FOUR TIMES as precedent." Yes. As legal justification for the pat- down, not the stop itself. And I've already said, ""No matter the reason for the stop, the officer is constitutionally allowed to do a pat-down for officer safety." The gist of this biased article is that people, especially legal gun owners, may be stopped and frisked because the police consider them "armed and dangerous". That is just not the case. First, the officer must have a legal reason to stop you in the first place. Then the officer may conduct a pat-down for officer safety.
#2. To: hondo68 (#0)
Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts.
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#3. To: hondo68 (#0)
"The whole case hinges, as the Court explains, in whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and they conclude that yes, it can be."
#4. To: hondo68 (#0)
"Niemeyer's majority opinion states that precedent all the way back to the 1968 Terry case"
#5. To: hondo68, Gatlin, Deckard, GrandIsland, nolu chan (#0)
Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment. - Judge Wynn
#6. To: misterwhite (#3)
"The whole case hinges, as the Court explains, in whether "armed" should legally be presumed to mean the same thing as "armed and dangerous," and they conclude that yes, it can be."
#7. To: goldilucky (#6)
"Are the two related to the same incident happening or is someone just using those words to demonize the Second Amendment?"
#8. To: misterwhite (#7)
THIS court concluded that, if a firearm is involved, armed = dangerous.
#9. To: hondo68 (#0)
[Article] Shaquille Robinson in March 2014 was a passenger in a car pulled over by police in Ranson, West Virginia. It was pulled over, ostensibly, because driver and passenger were not wearing seat belts.
Mr. Chief Justice Warren delivered the opinion of the Court.
#10. To: Tooconservative (#8)
"If a policeman has cause to stop you already, then 'armed' does equal 'dangerous' in a certain percentage of cases."
#11. To: nolu chan (#9)
(Edited)
#12. To: misterwhite (#10)
(Edited)
According to the court, armed = dangerous if the person has a firearm.
#13. To: misterwhite (#11)
[Thread Article] The police searched Robinson after pulling the car over and found the gun in his pocket, and arrested him for an illegal possession of a gun by a felon.
Shaquille Robinson was not a Terry stop. Terry doesn't apply to Shaquille Robinson.
Held:
"the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate"
Per curiam
A traffic stop is, for practical purposes, a Terry stop;[9] for the duration of a stop, driver and passengers are "seized" within the meaning of the Fourth Amendment.[10] The U.S. Supreme Court has held that drivers[11] and passengers[12] may be ordered out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures, although such practices might not be authorized under state law.[citation needed] Drivers[13] and passengers[14] may be searched for weapons upon reasonable suspicion they are armed and dangerous. If police reasonably suspect the driver or any of the occupants may be dangerous and that the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment.[15][16]
When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop. (551 U.S. at 249)
Brendlin was seized from the moment Simeroth's car came to a halt on the side of the road (551 U.S. at 263)
We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures. (434 U.S. at 111, n. 6)
an officer making a traffic stop may order passengers to get out of the car pending completion of the stop. (519 U.S. at 413)
Under the standard enunciated in that case [Terry]—"whether the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate"—there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down". (434 U.S. at 112)
perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous (113 U.S. at 117–118, citing Terry)
These principles compel our conclusion that 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 in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. (463 U.S. at 1049)
conduct a "Terry patdown" of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon (525 U.S. at 118, citing Long)
But then came Illinois v. Caballes,17 where, after defendant had been stopped for a minor traffic violation, another trooper without request appeared with a drug dog and led the dog around the stopped car while the driver was being ticketed in the patrol car; the dog alerted, resulting in a full search of the vehicle and discovery of marijuana in the trunk. While the Supreme Court concluded otherwise. In a very brief opinion which cited none of the foregoing cases (or, for that matter, any prior decisions of the Court), the Court in Caballes (1) reaffirmed Terry’s “duration”/“length” limitation, declaring that a seizure “can become unlawful if it is prolonged beyond the time reasonably required” to serve its lawful purpose, but (2) severely weakened the “scope”/“intrusiveness” limitation by holding that an investigative technique, even when directed toward criminality not reasonably suspected, does not violate that limitation unless the particular tactic employed “itself infringed [the detainee’s] constitutionally protected interest in privacy,” i.e., was itself a search. Because use of the drug dog was not a search18 and “the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop,” the defendant’s Fourth Amendment rights had therefore not been violated. While Caballes involved a traffic stop on probable cause rather than a Terry investigative stop on reasonable suspicion, there is no suggestion in the case that the ruling extends only to the former and not the latter.19
- - - - - - - - - -
#14. To: Tooconservative (#12)
"I think the court is more in the territory of "armed = presumed dangerous if a cop has adequate cause to believe the suspect is otherwise a criminal in unlawful possession of a firearm or other weapons".
#15. To: nolu chan (#13)
(Edited)
"A traffic stop is, for practical purposes, a Terry stop"
#16. To: misterwhite (#15)
Shaquille Robinson was not a Terry stop. Terry doesn't apply to Shaquille Robinson.
#17. To: nolu chan (#16)
Top • Page Up • Full Thread • Page Down • Bottom/Latest
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]