Pulled over in PA
This is a discussion on Pulled over in PA within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by ScotWarrior
okay folks, let's get something straight - there is no violation of rights going on in the frisk. it is both ...
April 13th, 2010 07:54 PM
TERRY v. OHIO
Have you ever read TERRY v. OHIO in its entirety? The Court did not grant the police a carte blanche to search anyone they felt like at any time they found convenient. The Court ruled:
Originally Posted by ScotWarrior
The Court strictly limited such searches to circumstances where "specific and articulable facts" support such action. What kinds of facts? The Court went on to provide general guidance:
...in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
In the case of the original poster, he was legally armed and could prove that by presenting his permit. According to the poster, he displayed no actions or behaviors that would be considered by a reasonable observer to be dangerous. Quite the contrary. Therefore, it appears that the search of this particular individual failed the "Terry test".
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual
... [my emphasis]
If that wasn't clear enough, the Court said in its concluding paragraph:
Again, the target for search must be exhibiting criminal behaviors that indicate they are presently dangerous. In the case of Terry, he and an associate were casing a store for an armed robbery, exhibiting clear behaviors so associated. The officer involved was able to present "specific and articulable facts" in court to support that conclusion.
"Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot
and that the persons with whom he is dealing may be armed and presently dangerous
, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety
, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." [My emphasis]
In the case of the original poster here, again, he was legally armed and claims to have demonstrated no behaviors which the offending officer could present as "specific and articulable facts" that the poster was dangerous or about to commit a violent crime. Further, in presenting his carry permit, the poster provided the officer clear proof that he was legally armed and so met the test that in the "initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety" Thus the search as presented fails the "Terry test" in two vital ways. Thus the search appears illegal.
To the contrary, the searching officer in this case failed to comply with Terry and trampled the Second and Fourth Amendment rights of the poster, assuming the poster presented the bulk of the facts accurately. The facts as presented negate most of your assertions in the rest of your comment. The original poster appears to have a firm basis both to file a complaint and to file a federal civil rights action against the offending officer. Whether or not he pursues the case is up to him. You may want to educate your fellow officers in case they don't understand Terry, either, so that they don't trample any citizens' rights and incur embarrassment and financial penalties for your jurisdiction.
Originally Posted by ScotWarrior
The Founding Fathers provided prudent limits on the power that the state and its actors may exert over its citizens. A police officer's personal comfort or preference does not trump the right of citizens either to keep and bear arms or to be secure in their persons against unreasonable searches and seizures. If this is about the exercise of power, that power belongs first to the people, not the state or its actors no matter how well-intentioned they may believe they are.
FWIW, I'm not a lawyer, but I spent 30 years of my life supporting and defending the Constitution of the United States. I made it my business to know and understanding what I was supporting and defending. I've paid my dues and have no inclination to surrender any of my God-given rights to anyone, whether they have a badge or not.
"To disarm the people is the best and most effectual way to enslave them"
- George Mason, American Statesman (1725-92)
April 13th, 2010 09:31 PM
As long as he didn't run your gun against the so called "phantom illegal database" It sounds like a normal stop.
Originally Posted by PRSOrator
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