No, says the Indiana Court of Appeals in Washington v. State. Correct, I think: The Supreme Court has repeatedly said that the standard for a Terry frisk is whether the officer reasonably suspects the person is “armed and dangerous.” “Armed” alone shouldn’t be enough, although of course in many cases the two will go together.
Thanks to FourthAmendment.com for the link.
gab says:
So they suppressed the pot evidence as well? Or was that the only evidence that was at issue?
March 8, 2010, 4:45 pmgab says:
Or was that the only evidence that was at issue?
March 8, 2010, 4:51 pmNobody Really says:
I don’t know. It would seem to me that many armed people would potentially feel threatened when being stopped by a police officer, potentially making them dangerous.
I don’t think it is a reasonable standard to say that a police officer has to interrogate someone while they are armed (or even worse – potentially armed) just because nothing has happened to rise to a judge’s after-the-fact standard of what was reasonable.
On the other hand, I do agree that someone legally armed should not be subject to a search just on that basis. So maybe we can split the baby and say that if the officer intends to ask probing or potentially intimidating questions (such as questions which might make the person think they are a suspect in a crime or will be shortly subject to a full search depending on their answers) then that rises to the level of being reasonable to suspect an armed person of being dangerous?
March 8, 2010, 4:58 pmRoyLitmus says:
In this case, the suspect was removed from the car and handcuffed before the officer commenced the search. I think those actions were more than enough (if not over the top) to satisfy “officer safety.” A suspect that has been partially immobilized with restraints and separated from the firearm while under the direct control of the officer is clearly not a threat. Assuming that the man is actually licensed what is the point of also removing the firearm?
March 8, 2010, 5:08 pmKazinski says:
Is anybody else disturbed that the court seems to endorse the procedure of putting the driver in handcuffs just because he had a licensed handgun in the car? The majority makes no mention of the fact that Washington was handcuffed for merely being the licensed possessor of a handgun. And this is from the concurrence:
March 8, 2010, 5:33 pmohwilleke says:
A guy with a gun whom an officer has a reasonable suspicion is engaged in criminal activity is a threat to the officer, which justifies a search.
Also, in context, gun possession, even if legal, frequently is an important factor providing probable cause for a search. In a police locker room, or on an armored car guard, or at a shooting range, or in a hunting blind, no it wouldn’t provide probable cause, but in lots of typical urban environments the likelihood that gun possession, even if legal, is connected to criminal activity is very high.
Even in places where guns aren’t legally prohibited, carrying one in public is empirically, very unusual behavior in most contexts.
March 8, 2010, 5:43 pmPaul says:
RoyLitmus, supra, makes the salient point. Even if the officer had an articulable concern for his safety — which he did not — that concern was obviated when Mr. Washington was removed from the vehicle and handcuffed. The officer’s safety was not enhanced by the search.
Here, the officer engaged in a warrantless search for one reason: Mr. Washington acknowledged that he was in lawful possession of a handgun.
March 8, 2010, 5:46 pmHerb Spencer says:
What’s remarkable about this case – in which the MTS went to the pot only – is how strictly the officer complied with established law and procedures, and how honest he was when testifying, which makes the court’s “because the constable complied with the law, the criminal must go free” ruling all the more disturbing.
March 8, 2010, 5:48 pmSun Tzu's Nephew says:
Yeah, those burned out headlamp offenders should be executed… And having a legal, nay Constitutionally protected object is also prima facie evidence of criminality… well worth removing a citizen from his place and handcuffing him, prior to searching that place without a warrant. After all, being licensed by the State to carry a firearm must make it ‘unusual behavior’….
After all, as the majority said in their decision that since Washington didn’t offer any disrespect to the officer, he must not be too much of a criminal.
You’re not from around here, are you, son? Get a freaking grip.
March 8, 2010, 5:52 pmSteve Lubet says:
Aren’t all Terry stops based on lawful behavior? That is, if the officer observed unlawful behavior, then there would be an arrest, not merely a Terry stop. Apart from ideology, is there any reason to privilege lawful gun possession more than any other lawful behavior?
March 8, 2010, 5:53 pmHouston Lawyer says:
This guy was stopped for having a headlight out in his car, and was then handcuffed by the cop solely because the cop didn’t like that he was legally carrying a firearm. The cop should be prosecuted for official oppression.
Upon review of my concealed carry permit, a copy who had stopped me for running a red light let me go. Texas cops know that conclealed carry licensees have passed a criminal background check and are therefore not likely to be a threat.
March 8, 2010, 5:53 pmYankev says:
But that is not what happened here, unless you consider driving with one headlight to be criminal activity.
March 8, 2010, 5:55 pmMonty says:
gab, the defendant was charged only with the possession of the pot, and the broken headlight, he was seeking to have the pot supressed.
ohwilleke, he had a license to carry, can you show any evidence that a person who has been licensed by the state to carry a firearm is likely to be connected to criminal activity? He was cooperative and respectful with the officer, the officer never said he had any suspicion of illegal activity, reasonable or otherwise, prior to the search… where do you see the reasonable suspicion to justify this search?
March 8, 2010, 5:56 pmYankev says:
Okay, while I agree with you in principle, the criminal background check did not mean that the guy would not be in possession of a controlled substance. And had the search been upheld, he would not have passed the check when it came time to renew his license.
March 8, 2010, 5:59 pmPaul says:
Do you have a source for that claim? Specifically, for the claim that in “lots” of “typical” urban environments (as opposed atypical ones?), the legal possession of a firearm has a high likelihood of being connected to criminal activity?
March 8, 2010, 6:00 pmThor's Screwdriver says:
What are the statistics on percentage of CCW or otherwise registered gun owners that use their firearm in committing a violent crime?
I am from the free state of Arizona where there is legal open carry without a permit as well as concealed carry with a permit.
I have a CCW and if a police officer pulls me over for a traffic violation, will show my license and CCW card.
March 8, 2010, 6:24 pmSigivald says:
Having a concealed weapon permit and having a firearm is “very unusual behavior” justifying a search for officer safety, reaching to “probable cause”? I guess that whole “background check” thing they do for concealed carry permits in every state that issues them is irrelevant to the risk assessment – merely having a gun makes someone probably guilty of a crime?
Good thing there’s basically no chance of that theory working anywhere. There’s no probable cause one can extract from lawful possession of a firearm, which is what we must infer from the possession of a carry permit. See, most places, it’s legal to possess a gun.
Remember, Washington was not charged relating to possessing the gun, because he wasn’t breaking the law by possessing it*.
And doing legal things, even ones you baselessly** think are “very unusual”, is very much not probable cause of criminal activity.
(* If he was “addicted to or a user of unlawful drugs” at the time he filled out the 4473 form to acquire it, assuming he bought it from a dealer, he’s guilty of perjury.
And if he was “possessing in or affecting commerce”, he’d be violating 18USC922, while presumably being the user of the pot found with it, but we’ll leave the Commerce Clause nightmare for someplace else – and there aren’t any Federal charges pending, so presumably the US Attorney doesn’t think it’s worth his time and effort.)
(** 300,000 permit holders in Indiana out of 4.5M residents. That’s not “very unusual”.)
March 8, 2010, 6:35 pmalkali says:
If the gun is in view, what are you stop-and-Terry-frisking for? A live wolverine?
March 8, 2010, 6:35 pmFiftycal says:
“but in lots of typical urban environments the likelihood that gun possession, even if legal, is connected to criminal activity is very high. ”
What? What are you talking about? Legal gun possession where illegal is likely to be illegal? Otherwise, just having a gun is somekind of “indicator” of illegal conduct? Balderdash. If this were possible, I’ve been “breaking the law” for 40 years. Unlike some places, it is legal to have a rifle/shotgun in your car in Texas and now a handgun. With or without government “permission”. Find some facts to back up that statement or withdraw it.
March 8, 2010, 6:37 pmPaperNuncio says:
“So maybe we can split the baby and say that if the officer intends to ask probing or potentially intimidating questions (such as questions which might make the person think they are a suspect in a crime or will be shortly subject to a full search depending on their answers) then that rises to the level of being reasonable to suspect an armed person of being dangerous?”
That is too ripe for abuse. Aside from the constitutional issues posted by other commenters above (probably cause does not attach for something legal by definition), this recommendation is silly on its face.
All ANY officer has to do to meet this new standard is decide to ask a certain type of question? Take this case. Let’s presume asking someone if they have drugs in the car qualifies under your policy. “Sir, do you have any illegal substances on your person or in the car?” Because I intend to ask you that I can cuff you, search you and wow! No real probable cause required because I effectively invented it (legally, by your policy), and no poison tree! Great since qua non logic.
March 8, 2010, 6:49 pmLarryA says:
Not at all. The context here is licensed firearms. IOW the person carrying is known not to be a criminal. Research indicates that persons with CHLs are far less likely to be arrested than persons who are not licensed. In fact, men with CHLs are more likely to be law-abiding than women who are not licensed.
Not really. I live in Texas, and having a handgun or long gun in your car is not at all unusual, nor is carrying one on the street if the person is one of the hundreds of thousands of licensees. I’d guess the other thirty-nine right-to-carry states (Indiana being one) wouldn’t be much different.
Under that standard, a cop can search anyone at any time.
March 8, 2010, 6:53 pmMalvolio says:
Hmmm, if I could prove that for example, say, oh, I don’t know, black people were more likely to commit crimes, then should being a black person constitute reasonable suspicion under Terry?
If race is a “suspect category” that the police cannot use in determining dangerousness (and I would hope that it is), shouldn’t exercise of a Constitutional right be even more so?
March 8, 2010, 6:53 pmSteve says:
I thought the whole purpose of a Terry stop was to check for weapons. I don’t know what it’s called when you frisk someone who you already know has a weapon, but it seems like something different. What is the purpose of the frisk?
March 8, 2010, 7:02 pmNobody Really says:
Well, it is certainly possible to abuse it, but then again it is really possible to abuse a lot of things in that situation. The point is, antagonizing an armed person is not a good idea, and that is exactly what the police officer has to do. Since we don’t expect him to walk away, he needs tools to reduce the risk. You could protect against your hypothetical by say
By the way, of course probable cause can attach to something legal. Walking down the street with a baseball bat with blood on it is perfectly legal. What makes this case harder is that it is a constitutionally protected activity, so allowing the police to regard it as probable cause in and of itself undermines the right.
March 8, 2010, 7:05 pmzuch says:
This is truly silly. The principal rationale for warrantless Terry searches or Chimel reaching area searches is to protect officer safety. You’d think it a no-brainer to say that looking for (and securing) firearms would be a “safety” issue (and so said the state here). Hell, they allow Terry evidence on stops where no weapon at all is found, just because police make it a habit to frisk for weapons (and coincidentally find little lumps that they recognise by feel to be packets of crack cocaine).
What’s really weird is how many times drugs are coincidentally found when looking for weapons, right there next to the weapon or strangely falling out when such searches occur, and how many people permit searches when they actually have drugs in the car. There was one California case, IIRC, when the guy wanted a cigarette while in the police car, and the officers went and got him a cigarette package … which had drugs in it. And as long as such “exceptions” are allowed to Fourth Amendment jursiprudence so that the officers can cite circumstances such that these warrantless searches will be legal, such will continue. Far be it from me to suggest that the officers’ accounts are not accurate, though….
Cheers,
March 8, 2010, 7:25 pmzuch says:
True. But then the “automobile exception” rationale disappears in a cloud of smoke.
Cheers,
March 8, 2010, 7:28 pmPaperNuncio says:
So, just because it is his job to antagonize a person, that person sacrifices the right. But your, one-follows-the-other logic is still too open for abuse. Heck it’s not even abuse. It effectively eliminates probable cause in the case of a weapon, however legal. Especially in this case where the officer admitted that the person was respectful, not furtive, and had by definition, followed the law with regard to firearms. He was NOT affecting the security of the officer. He admits to simply doing it as a matter of course.
Your proposal would effectively eviscerate the entire poison tree idea by handing them half the baby. Splitting the baby is pretty bad for the baby.
And you’re right, there are legal things that can constitute PC, but it seems that you admit yourself that a constitutional activity should prevent the very solution you offer.
March 8, 2010, 7:30 pmzuch says:
Really?!?!? How so?
Cheers,
March 8, 2010, 7:31 pmKazinski says:
No, Terry stops are not based on lawful behavior. They are based on reasonable suspicion that the seized person is “armed and dangerous”. Eating an ice cream cone is lawful behavior that doesn’t justify a search and frisk. Carrying a concealed weapon with the proper permit is lawful behavior that doesn’t justify a search and a frisk. Furitve and suspicious behavior may be lawful behavior but it can justify a Terry stop.
March 8, 2010, 7:41 pmKazinski says:
Well here is how, statistical evidence showing Texas CCW permit holders are much more law abiding than the public as a whole:
March 8, 2010, 7:46 pmArthur Kirkland says:
Substituting “gun” for “dark pigmentation” among the list of things possessed by a citizen being questioned by police appears to recruit new supporters of civil liberties.
Baby steps, I suppose.
March 8, 2010, 8:30 pmorca says:
Haha, you seem to have left out the qualifying paragraph that preceded those rather dubious “statistics:”
In an unpublished report, engineering statistician William Sturdevant found that concealed carry licensees had arrest rates far lower than the general population for every category of crime. For instance:
In other words, some guy who’s on my side claimed …
March 8, 2010, 8:33 pmjack burton says:
I notice that you don’t have any counter-evidence…or evidence that Mr. Sturdevant fudged the stats in any way…
March 8, 2010, 9:35 pmNobody Really says:
Indeed it is, but getting shot at a routine traffic stop is pretty bad for the cop.
March 8, 2010, 9:37 pmPintler says:
He also left out this paragraph from later in the cited page:
March 8, 2010, 9:39 pmNobody Really says:
Thanks, that put it better than I have been able to express it over my last few comments.
March 8, 2010, 9:40 pmTim says:
Wow…
This is why you should never make small talk with a cop during a traffic stop. Indiana law doesn’t require you to inform an officer if you are carrying a gun.
Looks like the judges did the right thing, though. The concurrence is excellent as well.
March 8, 2010, 9:52 pmDangerMouse says:
You said it. Never talk to cops unless you’re giving your name, or asking for a lawyer. Just smile at them if they start asking you other questions.
And the concurrence is better than the majority opinion, because it acknowledges that “respect” to a police officer is B.S. and that as long as you’re not breaking the law, you’re under no obligation to cooperate with the police in their efforts to arrest you.
March 8, 2010, 10:31 pmMatthew Carberry says:
According to the states that tally such things, about .01% of issued permits are revoked, IIRC.
Note that is not just for actual criminal action or misuse, it can be for purely administrative causes, such as failing to renew in a timely manner.
Lawful carry is really proving to be a non-issue, threat to public or law enforcement safety-wise.
In Alaska (and Vermont), local law enforcement doesn’t seem to have a problem dealing with the public respectfully (as opposed to fearfully or confrontationally) in a situation that requires no permit whatsoever for a non-prohibited person to carry either openly or concealed. Apparently they are able to balance officer safety with respectful treatment of all persons until those persons give a concrete reason to be regarded as a threat, armed or not.
If there’s a “safety problem” with carry by the law-abiding (non-prohibited persons) it apparently exists mostly in the minds of some law enforcers, it doesn’t seem to be born out by reality and over 20 years of expanding growth and liberalization of carry.
March 8, 2010, 11:24 pmKazinski says:
He put his results out and put his real name on them, and he used public records and showed his work, if you want to refute them the internet is wide open Orca…
But somehow I think that you’ll pass on the opportunity. So unless you have some contrary information excuse me for thinking that you are just bloviating.
March 8, 2010, 11:31 pmzuch says:
“less likely” is not the same as “not likely”. Not to mention, such statistics don’t necessarily pertain to those stopped by the police. And WTF do “nonviolent offenses” have to do with the issue here?
You know, I’d like to apply for one of those “I’m not subject to random police searches” GOOJFCs as well … but I would have thought the Constitution might have been sufficient.
Cheers,
March 8, 2010, 11:52 pmzuch says:
Compare:
Cheers,
March 8, 2010, 11:54 pmzuch says:
You should try it some time. You might find that real life has a habit of smacking you in the face.
Cheers,
March 8, 2010, 11:58 pmRicardo says:
That’s because most of those violent criminals with CCW permits tend to drive around with busted tail-lights.
This skepticism at the statistics is a bit odd. Let’s whip out Occam’s Razor. You need a clean criminal background in order to get CCW permit in the first place. We know that a disproportionate number of crimes are committed by repeat offenders. For any given person who is arrested by the police, there is a very good chance that it is not his first time. I don’t see what’s particularly controversial about the proposition that people who pass background checks are less prone to crime than the general public. That’s the whole point of the background check.
March 9, 2010, 12:02 amPaperNuncio says:
Yah. When cops are worried about something we should allow unfettered violation of people rights.
Oh noes. This cop actually admitted that he wasn’t worried about getting shot. Dammit that’s thin. Let’s violate those
March 9, 2010, 12:23 amrights anyway.
zuch says:
OTOH, if you wanted to address my point, you might reread what I said.
Cheers,
March 9, 2010, 1:03 amSoronel Haetir says:
What I’d like to know is whether this cop will change his routine practice after this case. I would have hoped that going on a fishing expedition search would be beyond QI but that’s too much to hope for. So instead we get a lucky criminal and a cop who will most likely continue performing the searches at issue in this case.
March 9, 2010, 1:04 amzuch says:
Oh, I agree. I think the Fourth Amendment means what it says. I just think that the beneficiaries of this constitutional provision shouldn’t be only those carrying guns.
Cheers,
March 9, 2010, 1:05 amPaperNuncio says:
sure and pretty much most people would agree with that. Except this an article and instance about a guy with a gun. Focus…
March 9, 2010, 1:38 amkazinski says:
Zuch,
don’t quote me out of context:
But if you disagree with that, take up your quarrel with the Supreme Courts of the US and Indiana. They made the rules, not me.
And just for my education when you say “‘less likely’ is not the same as ‘not likely’” you must have been referring to the 127 per 100,000 violent crime arrest rate for CCW holders. I’d like to know in what statistical universe that would not be construed as “not likely”.
March 9, 2010, 2:09 amDavid Nieporent says:
Not quite. They’re based on reasonable suspicion that criminal activity is afoot, and that the subject is armed and dangerous. Terry is not a license to search someone just because they look dangerous. There must be some potential crime in the mix.
Remember, the frisk is not the point of a Terry stop; investigating a crime is the point. The frisk is simply a permissible self-protective measure for the cops to take while doing said investigation. (Remember Terry itself, where the cop saw the people casing a store. He didn’t stop them because he thought they were armed; he stopped them because he thought they were about to commit a robbery.)
(Of course, in a place like NYC where guns are essentially outlawed, then carrying a gun is itself a crime, so cops can bootstrap that into a Terry frisk.)
March 9, 2010, 2:48 amRicardo says:
No need to re-read as I already addressed it in the very first sentence: “That’s because most of those violent criminals with CCW permits tend to drive around with busted tail-lights.” You have to believe there are large numbers of CCW permit-holder violent criminals who happen to have a much greater tendency to be stopped by police than non-CCW permit-holding violent criminals in order to discount the applicability of these statistics. It’s Bayes’ Theorem in action.
March 9, 2010, 4:01 amSayUncle » Presence of a firearm says:
[...] Does not create a threat to an officer nor justify a search. [...]
March 9, 2010, 8:41 amYankev says:
Yes, but under Orca’s standard of
any statement by someone who agrees with you is ipso facto suspect. Remember, Orca admits to being easily confused.
March 9, 2010, 8:55 amSpook45 says:
Actually, the two should NOT go together. In our jurisdiction, when the officer runs the subjects information, they tell him if they are a permit holder and that there may be a gun present. The standard is different here though because if the subject is a permit holder in good standing, then the officer should be more at ease due to the fact that at that point he should know that that person has no criminal history to speak of or they wouldnt have a valid HG permit. The Terry frisk is for street level interactions where the officer suspects the individual may be armed, the context is different in that the latter situation calls into question the motives of the individual and the fact there is likely already a level of probable cause for the interaction in the first place. Allowing any precedence to stand that establiishes a causal link of criminality to the lawfull HG permit is a slippery slope that we definately want to avoid!
March 9, 2010, 8:59 amJeff the Baptist says:
Exactly. If I’m recalling correctly, a study of crime rates in Michigan showed that individuals with concealed carry licenses there have a lower crime rate than police officers.
March 9, 2010, 9:35 amVirginian says:
I could not find the source, but I have read before that in some states the concealed carry permit holders are more law-abiding than police officers.
March 9, 2010, 9:47 amNobody Really says:
See it is your trivializing of cop safety that makes you unable to address my point. You seem to place about zero value on the cop’s safety and about 100% value on the rights of the citizen. My calculation puts value on both. And the permanency of a dead cop is a lot greater than the violation of a citizen’s rights by securing their handgun while investigating them.
March 9, 2010, 9:48 amjac k burton says:
NObody sez:
You seem to place about zero value on the cop’s safety and about 100% value on the rights of the citizen. My calculation puts value on both.
Jack replies: Yes… as was pointed out your calculation put 00% of the value on people’s rights.
NObody sez: And the permanency of a dead cop is a lot greater than the violation of a citizen’s rights by securing their handgun while investigating them.
Jack replies: While I am sure no person here wants to see an innocent dead cop we know they know two things for sure…
1) The job was dangerous before they volunteered to do it.
2) Every person is a potential danger.
Which leads to your solution of locking everyone up when in a face-to-face with a law enforcement official.
March 9, 2010, 10:11 amjac k burton says:
And BTW… in Indiana where this happened there is no such thing as a state “licensed fire arm”. Doesn’t exist at the state level.
And Mr. Cop’s actions are exactly why I don’t bother to mention my Keltec in the front pocket while engaging in any interaction with Hoosier police.
March 9, 2010, 10:14 amPintler says:
One indirect source is an op ed by John Lott. Unfortunately, the op ed doesn’t give the original source. I’d love to know that if anyone has a reference.
March 9, 2010, 10:34 amDennis N says:
Of course the cop will continue his illegal searches, because there is no effective sanction against an agent of the State when they criminally abuse a citizen’s rights.
March 9, 2010, 11:06 amFormer Army MP says:
It is good to get some caselaw like this on the books. When my state went from may issue to shall issue the FOP board announced that if anyone was stopped with the new permits the police would handcuff the license holder, place them in the back of the police car, and tear apart their car.
March 9, 2010, 11:13 amOur bishop also hated the new law, so that gave the cops more juice for their jihad.
PaperNuncio says:
Very ironic. As a side job to my normal one, I work (for free) as a certified law enforcement armorer and firearms instructor. I actually teach cops how to maintain and use their weapons.
Aside from that, I DON’T put police safety above our liberty. It’s a tough job, but as seme smart dude said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
March 9, 2010, 11:37 amJohn Smith says:
In north carolina officers are trained to regard everyone as a suspect. Quite a few here seem to believe is that merely an officers suspicion is enough to detain. So basically what is being said is that NC officers can stop and detain anyone because they “think” they have reasonable suspicion. That is what is called circular reasoning. If a “suspect” is in lawful possession of a firearm then the officer has no reason to detain him unless he has evidence of a crime already committed. A firearm is not an excuse to look for evidence. That is and end run around unreasonable search and seizure. A weapon itself should not be enough. Sorry. Now find the dope first then the firearm is just icing on the cake. It is stupidity to believe that doing something legal can be used to catch you doing something illegal. Think of it as reverse entrapment. In NC I am yet to not have an officer search my vehicle when I say I do not want it searched. Since he is automatically suspicious of everyone it allows him to excuse the search. Perhaps you wonder where I go my information. Well I asked one of my friends who was taking law enforcement classes about what he was being taught. He graduated with honors. He is now a police officer in Forest City, NC.
March 9, 2010, 11:41 amIndiana Gets its Own Hawkins Ruling | Snowflakes in Hell says:
[...] In PA the ruling was called Commonwealth v. Hawkins, and ruled that an anonymous, unsubstantiated report of a “man with a gun” was not sufficient evidence to justify a Terry stop. Now it looks like Indiana has a version of the same. [...]
March 9, 2010, 12:13 pmNobody Really says:
It isn’t a question of above, it is a question of balancing. I take it then you are opposed to the whole principle of Terry stops, at which point arguing about the case where the person is armed is rather tangential.
Nice of you to give up the cop’s safety for your liberty, but somehow I don’t think that Benjamin Franklin had that kind of sacrifice in mind. I think he expected people to sacrifice their own safety for the sake of liberty.
March 9, 2010, 12:50 pmDangerMouse says:
When my state went from may issue to shall issue the FOP board announced that if anyone was stopped with the new permits the police would handcuff the license holder, place them in the back of the police car, and tear apart their car.
Tell the FOP board that this is America, not Communist Russia, and that people have things called “rights.” Also, that announcing a policy like this in advance of anyone being illegally searched seems like pretty good evidence that the police doing it would be intentionally violating a person’s rights, making him directly liable in court.
March 9, 2010, 12:53 pmPaperNuncio says:
I didn’t say I’m against Terry stops. You’re playing funny little strawman games. Terry stops have two requirements, and one of them wasn’t met in this case, even at the admission of the officer. So, the person’s rights were effectively violated. There WASN’T a safety issue, as you keep saying. The mere presence of the firearm (legally owned) doesn’t meet the safety criteria.
As for your second assertion, I never met the guy, but I would say you’re off base from the history we know of Ben Franklin. He often spoke against government intrusion on liberty, of which this is an example. I can find scant history of your implication.
March 9, 2010, 1:01 pmzuch says:
No. Here’s the gravamen of my point:
Hope that’s clear now.
Cheers,
March 9, 2010, 1:07 pmzuch says:
I was discussing your statistics in general. Do you agree that non-violent offences are not particularly probative, at least:
But as to violent offences:
Both numbers are very small, aren’t they? But both numbers are substantial, if you happen to be a police officer concerned with whether someone you stopped is going to shoot you. And, as I pointed out, those stopped are by no means a random sample of the entire cohort, so the population figures are not necessarily indicative of the behaviour of the subset, for which you have no data.
Cheers,
March 9, 2010, 1:15 pmPintler says:
On a practical note, a blanket practice of removing weapons from permit holders at every traffic stop or other interaction with LEOs is going to result in a lot of unholstering, reholstering, loading, unloading, and other general gun handling in an uncontrolled environment, and that presents a risk to both the stoppee and the LEO, especially if the LEO is handling unfamiliar types of guns and/or holsters. I also wonder if LEOs train to unholster a gun from someone else while observing good muzzle discipline (and think of the range of holster types – strong side, crossdraw, thunderwear, ankle, shoulder, fanny packs, retention devices). Drawing your own gun safely takes a lot of practice – now safely remove a gun from someone else’s ankle holster…
At the range I frequent (which is run by the local police dept, FWIW), loaded guns may only go in/out of a holster when A)on a range, facing the backstop, or B)facing the office loading barrel.
Given that people with permits are fairly common, and they rarely make trouble, even a low rate of accidents might result in a blanket policy of disarming being more dangerous than only disarming when some specific circumstances seem to justify the inherent risk of uncontrolled gun handling.
March 9, 2010, 1:16 pmPintler says:
If you were a police officer, and you stopped an off duty officer, would you handle that any differently than you would a person with a permit, and if so, why?
March 9, 2010, 1:24 pmzuch says:
Wow. I guess you don’t think much of police training, eh? I suppose, given that they’re rank amateurs, they ought just leave the weapons on the person of the suspect who obviously knows much better how to safely handle them….
Cheers,
March 9, 2010, 1:53 pmzuch says:
I’d say that prudence would dictate the same approach in both cases. But that’s just me. “Reef early, reef often” is my maxim at sea. Others may have different policies, but I would like to enjoy my retirement.
Cheers,
March 9, 2010, 1:57 pmPintler says:
To the contrary. Police are trained to deal with an amazingly diverse set of circumstances – delivering babies, traffic accidents, noise complaints, active shooters, traffic stops, etc. They have to know a fair amount about the law, how to operate a vehicle at speed, all the physical skills of controlling uncooperative suspects, etc.
Unfortunately, there is necessarily a bit of jack of all trades, master of none. A police officer in this state gets about two weeks of firearms training at the academy (and I think that is typical). That is starting from ground zero. In that time, they produce officers who can safely draw and use their own gun with at least a minimal level of competence. I do not believe they spend any time training on optimal procedures for safely unholstering someone else’s gun. Think about the complexities – how exactly do you unholster from someone else’s shoulder holster safely? From the rear – the jacket is going to be in the way, and a horizontal one is going to be pointed at you as you try and figure out the retention device (snap? velcro? spring?). To be honest, I’d have to spend some time experimenting to find a safe way. I am pretty sure officers don’t do that.
Now, if you are disarming someone where there is a high likelihood of danger, e.g. the bank robber you just caught, then the trade off between (leave him armed/run the risk of disarming) tilts strongly toward disarm. It isn’t clear, though, that the trade off runs the same way for an apparently harmless permit holder.
March 9, 2010, 2:12 pmzuch says:
Wow. I guess you don’t think much of police training, eh? I’d say it is inexcusable that our boys in blue are not instructed on the proper procedures to disarm suspects. I think a commission of inquiry is warranted to look into this egregious lapse.
Cheers,
March 9, 2010, 4:14 pmHow Can I Buy Mineral Makeup Online? | Mineral Makeup says:
[...] The Volokh Conspiracy » Blog Archive » Does the Presence of a … [...]
March 9, 2010, 4:58 pmNobody Really says:
Sorry, but I can’t agree with that. If a person’s liberty is being threatened by the police, it is far from obvious that their legally owned firearm does not represent a safety issue. Some even argue that that is part of the purpose of the 2A (to act as a check against the power of the State to threaten the liberty of its citizens).
March 9, 2010, 5:40 pmScott says:
This is a very similar ruling to Georgia’s State v. Jones (289 Ga. App. 176 2008 A07A2054) from the GA Court of Appeals. The overview is thusly:
OVERVIEW: A trial court properly granted defendant’s motion to suppress a firearm, which was a hunting rifle, seized from his vehicle after a traffic stop as no evidence was presented of any danger and the officer acknowledged he conducted the search merely to see if the firearm was stolen, with no basis shown that criminal activity existed.
I’m happy to see the Indiana courts reach a similar conclusion.
March 9, 2010, 6:03 pmPintler says:
Sure – if I am an officer conducting a stop, and dispatch says he has a permit and there is an outstanding warrant, then I want to separate him from the gun before giving him the bad news about the warrant – but the case at hand involved a burned out headlight. I think a reasonable officer is pretty unlikely to make an arrest for a burned out headlight, so there isn’t much deprivation of liberty going on.
I can see why an officer in a non-CCW, or recent-CCW state would be antsy about firearms, but it’s not common around here. In fact I have heard two local officers respond to questions about CCW by mentioning that armed civilians had come to their assistance at some point in their careers. Come to think of it, VC’s own Whit mentions an incident (search for ‘i realize this is anecdotal’)(in that one, the civilians got there just too late to help the officer, unfortunately).
March 9, 2010, 8:11 pmJack Burton says:
Yes, many police are totally unfamilar with guns. They’ll be the first to admit it. The police trainer in my home town told us that only ten percent of the department were comfortable with guns. Show up at a range a couple of weeks before quals and you’ll see some really poor shooting.
March 9, 2010, 9:42 pmJack Burton says:
Who’s liberty is being threatened by his having a burned out headlight?
March 9, 2010, 9:45 pmJack Burton says:
Which is why it is surprising here in Indiana. We’ve had this for over 70 years. Florida is just a newcomer.
March 9, 2010, 9:47 pmKirk Parker says:
Hey, has anybody heard from whit? I don’t think I’ve seen him on here since the changeover to wordpress.
March 9, 2010, 10:51 pmTam says:
Not really, no.
Excessive administrative handling is the source of the vast majority of negligent discharges. The safest place for the firearm, for all concerned, is in its case or holster unless absolutely necessary.
March 9, 2010, 11:10 pmRick Randall says:
Heh.
I had a Virginia State Trooper (generally speaking, VA troopers have a MINIMUM of four to five years on a local PD before they are even considered for VASP — they tend to be among the more competent LEOs in VA because they are pretty strict on hiring) almost blow a hole in my dashboard becuase he had apparantly never encountered an M1911 pistol. Instead of leaving the holstered pistol safely alone on the passenger seat (where I had told him it was, leavbing my hands in plain sight with my DL and carry permit in hand), he first tried to “decock” it, then ended up fiddling around unloading it.
Of course, he already had me out of my car and seperated from the handgun before he went around to teh other side to bend over and pick up teh gun.
So now, I am (unfrisked) on one side of the car, the officer has the back of his head to me, and instead of paying attention to the suspected cop killer dangerous civilian (ME), he is playing around with a gun he doesn’t even know how to safely operate. (Ever looked into how common Accidental Discharges are when cops are handling suspect guns?)
If he had just walked me back to teh rear of my car, I would have been just as seperated from teh gun, the officer would have been AT LEAST as safe
In other words, for teh BS claim of “officer safety”, the cop DIRECTLY endangered himself and I by unnecessarily playing with a strange gun, while exposing himself to a greatly INCREASED danger if I had wanted him harm. . . like if I had a second gun ON ME.
Keep in mind that everytime people fiddle around with guns, there is a small (but still present) chance that someone will screw it up. If no one is fiddling with it, it isn’t going to “just go off”. When someone who doesn’t understand the gun is the one fiddling, the risk goes up.
It’s pretty simple — a cop who uses the excuse of “officer safety” to try and slip in a Terry frisk (or tearing apart the car after removing teh suspect) without an real, articulatiable reason to suspect that THIS subject (not SUSPECT — Terry isn’t restricted to criminal suspects) is dangerous and may be armed — that cop is NOT acting out of “officer safety”. He is acting out of fear, hatred, and/or contempt for mere “civilians”.
March 9, 2010, 11:29 pmLarryA says:
I’ve interacted with law enforcement several times while carrying, and my students have reported doing so many times. I’ve heard more stories about cops chewing out licensees for neglecting to carry a handgun than I have officers disarming licensees.
For almost every officer I know a concealed handgun license is a “good guy” card.
There’s a bit of a gap between “securing the gun of someone already outside the vehicle” and “searching the interior car for anything that can be used to arrest the driver.”
Any cop that isn’t concerned about the possibility that any stop could turn violent isn’t properly trained. In this situation, however, cops are far more likely to be in danger when they stop someone who is not licensed. Most officers realize this, and strongly support licensed concealed carry.
I’ve been a civilian firearms instructor for twenty-five years, and a gunowner for fifty years. I still run into firearms I’m unfamiliar with. I’m happy to let the owner show me how they function.
New officers with no prior gun experience have enough to learn about the gun they carry before they start to study all the myriad of firearms available.
March 9, 2010, 11:37 pmRick Randall says:
Zuch –
Read my comment.
YES, cops tend to be amateurs at handling anything that isn’t departmental issue TO THEM.
But a guy with a burned out taillight who has a carry permit is not a dangerous suspect.
I suppose the SAFE thing for an officer to do when he finds a citizen in a minor traffic stop who has a carry permit would be to TASER him preemptively, in case he might snap and grab the gun, right? I mean, in your world, where no police officer is ever wrong, and any citizen uppity enough to actually expect the police to uphold teh law (which includes teh Constitution) deserves what he gets.
March 9, 2010, 11:38 pmRick Randall says:
I should have clarified — “a guy with a burned out taillight who has a carry permit is not AUTOMATICALLY a dangerous suspect”.
And if you’ve ALREADY seperated the subject from his gun by pulling him out of teh vehicle — there is no “officer safety” reason to search teh car. NONE.
If the cop is pulling you for DUI, you match the description of the felony suspect who just robbed the liquor store, or he pulls up on a domestic disturbance — YEAH, we separate the guy from the gun. Even if he’s a off-duty cop, in most cases (not the mistaken identity case, once you figure out he’s not the robber). And in these cases, you’re almost certainly going to be hooking the guy up and taking him downtown anyway, so you don’t NEED the BS “officer safety” excuse to ignore teh 4th Amendment — you’ll be searching incident to an arrest and/or inventorying the car before towing it.
But that is not the same as a burned out taillight or a minor traffic infraction — there is no componant of “dangerous” there.
March 9, 2010, 11:58 pmzuch says:
Why, yes. Some people ought not fiddle around with guns. Matter of fact, I’d say that’s true of most people. IIRC, Art Buchwald had his “Gun-owner Of The Year” awards for such people.
Oh, I agree. I just think that owning a gun shouldn’t be a GOOJF card for avoiding Terry searches. If they can do it for people that don’t have guns, the suspect possessing a gun is a more plausible (and ‘reasonable’) rationale for a Terry search, not less.
Cheers,
March 10, 2010, 1:20 amzuch says:
In my personal experience, cops tend to be amateurs at such things as statutory and Constitutional law as well. I’m no great fan of the professional proficiency of the average policeman (albeit they do a necessary and dangerous duty sometimes at great personal cost, and there is a rather great range in proficiencies as well). But they still should secure any weapons at the scene. Which is what they do usually, for some strange reason.
Where did I ever say such a thing? Matter of fact, I hinted at the opposite earlier, and have made my views explicit above.
Oh, I agree. I disagree with Terry frisks (particularly when any other evidence thus discovered is allowed), with the Chimel “grabbing area”, and other warrantless searches. But that’s not the law as it stands, and as long as Terry searches are allowed, one thing that is almost unarguable is that a search supposedly ‘to protect the officers’ should encompass search for and securing of any firearms at the scene. To insist that the most dangerous items at the scene are the one thing that ought to be immune from search and seizure is perverse.
Cheers,
March 10, 2010, 1:38 amJMA says:
Zuch? You’re really off your game this morning. Or yesterday morning. Or whenever it was. This man didn’t get out of a Terry search because he owned a gun. He was subjected to an unlawful Terry search because he owned a gun. Evidence gained by this unlawful search was later suppressed.
How does that constitute a “get out of jail free card”?
March 10, 2010, 10:43 amzuch says:
Yes. Because he possessed a gun. The officer went looking for the gun (and coincidentally found drugs). Had he owned a knife (and the officer took that), I don’t think there would be such an objection from the KABA folks.
There seems to be this notion here that he was perfectly trustworthy because he had a concealed-carry permit. Yet … what did the officer find?!?!? Drugs. My, oh my. Kind of knocks down Kazinski’s second stat a notch. If he had not had the CCW permit, perhaps some here might think that sufficient reason to search for weapons, but since he positively admitted to having the gun, and the officer knowing that there was one there, there’s this big stink about actually securing it. It seems the ‘logic’ is that you can look for and secure what you don’t know is there, but if you know it’s there, you can’t look. Strange, eh?
As I said, the rationale for Terry searches is officer safety, and if such a concern doesn’t encompass known unsecured weapons on the scene, I don’t know what does.
Cheers,
March 10, 2010, 12:07 pmRick Randall says:
Zuch, Zuch, Zuch. . .
I guess reading comprehension isn’t your big thing today.
First, by your statement, you apparantly think that COPS cannot be trusted with their own guns, merely because they are subject to the cold laws of probability when handling other people’s guns, that the officer has not been trained on.
I would say that a an officer who has an unintended discharge (whether negligent or truly accidental) has not demonstrated that “Some people ought not fiddle around with guns“.
What is DOES demonstrate is that NO ONE should unnecessarily fiddle around with a gun under any circumstances. I don’t care if it’s a cop, Elmer Fudd, or a Delta Force operator.
With teh vanishingly rare exception of a mechnaical failure or a fire, guns ONLY go off if someone screws up while handling them.
Ergo, less handling = less screw ups. More handling = more screw ups.
Once you have ALREADY physically seperated the subject from the firearm, what is the justification for either searching where the subject no longer IS, or for unnecessarily handling a loaded gun that isn’t a credible danger to the officer if left right where it is? A gun that IS a credible danger (and wholly avoidable one) to the officer if he just left the bloody thing alone.
What justification is there to conduct a further search of the car the subject is no longer in — the ONLY reason is to try and get away with a search without that pesky “warrant” requirement. A Terry frisk is justified ONLY when there is an articulable and reasonable suspicion that THIS subject is both ARMED and DANGEROUS.
And the Supreme Court has already ruled so, even BEFORE this case at hand.
Well, once you’ve seperated him from his gun, he is no longer armed. There goes one of the two necessary prerequisites. Also, statistically, if he has a license to carry, he is LESS of a probable threat — a cop is more likely to be shot by another COP than by a licensed civilian. There goes the OTHER necessary prerequisite for a lawful Terry frisk.
So, how many of the two prerequisites of a lawful Terry frisk were met in Washington’s case?
Uhhh. . . NONE.
Terry is not carte blanche to just frisk anyone the officer may come into contact with. After all, the very same “officer danger” risks are present in each and every “on duty” interaction with a civilian (aside from PR dog and pony shows) — if the subject has committed a crime, he may panic and attack the cop if he believes the officer may discover that crime.
That’s the same threat that applies whether it’s a traffic stop, or a cop walking up to a nun to ask if she’s OK.
The difference is that a citizen with a carry permit has (UNLIKE the rest of the civilians the officer encounters) established that he is basically a law-abiding citizen, with no serious black marks against him.
Cops don’t generally get attacked by law abiding citizens. They tend to be attacked by people with histories of law breaking who will generally be ineligible for a CCW, and darned unlikely to voluntarily submit to the background check (often fingerprinting) that goes along with getting one.
So while speaking to a guy dressed like Joe Normal, he doesn’t know if the guy is a thug who is putting on a good act. But if a citizen hands him a valid CCW, the cop DOES know (unlike “Joe Normal”) that THIS subject has been vetted for a criminal or mental health past, and is voluntarily part of the most law-abiding group of citizens in the area. Even if he is dressed like a punk today.
A civilian with a CCW is no more a threat to officer safety than an off duty officer.
A person who has been physically seperated from their weapon is eveb less of a threat.
March 10, 2010, 12:14 pmRick Randall says:
No, the logic is simple:
Terry requires a reasonable suspicion the subject is both armed and dangerous.
Having a gun is neither illegal, nor automatically does it make the subject dangerous. It only makes him armed.
Having a valid CCW makes him, statistically, LESS dangerous.
Physically seperating him from his weapon and handcuffing makes him NOT ARMED. Additionally, by disarming and physically restaining him, you have reduced the potential danger even further.
Thus, no Terry search of the car is lawful — the officer is NOT looking for things related to officer safety anymore. He is on a fishing expedition.
Officer safety was handled when Washington left the gun in the car, stepped out, was handcuffed, and sat down on the curb. That ended any Terry authority right there.
Keep in mind that, even if Washington had come out of the car and attacked the officer, a subsequent search of the automobile AFTER Washington had been subdued would have been illegal and all evidence suppressed, on teh basis that, once the subject is away from his vehicle, what is inside is not close enough to HIM to justify a warrantless search. (Not that it would be difficult to GET a warrant in that hypothetical case anyway — you’re going to have to inventory the car anyway, before you impound it.)
Supreme Court ruled on that, too.
So, absent any reasonable officer safety concern (Washington didn’t have access to a weapon anymore, remember?), what is the justification for the warrantless search of his car?
His gun was no more a threat to that officer than the guns in my locked closet half a continent away — Washington no longer had access to either.
March 10, 2010, 12:24 pmRick Randall says:
Should read:
A gun that IS NOT a credible danger (and wholly avoidable one) to the officer if he just left the bloody thing alone.
To use your terminology, the gun was “secured” once Washington was seperated from it and handcuffed. Had there been other passengers still in the car, that would be different. Unless and until they too, were removed from the car, physically restrained, and unable to get anything out of the car.
The OFFICER’S gun was less secure than Washington’s — the cop had his gun in close physical proximity to teh subject anytime he was near him.
By your logic, the cop should have locked his own sidearm in the trunk of his cruiser!
March 10, 2010, 12:31 pmPrayer in Time of Suffering | says:
[...] The Volokh Conspiracy » Blog Archive » Does the Presence of a Licensed Firearm Create A … [...]
March 10, 2010, 1:36 pmzuch says:
It seems you’re to one with reading problems. I never said that “COPS cannot be trusted with their own guns”. I stated more generally that most people (including cops) ought not be fiddling around with guns. My paraplegic cousin will agree, I think.
Wow. Thanks for telling me what I already told you. I appreciate it.
True, I’ll admit. But it says nothing about intentional discharges.
I’d appreciate it if you read what I wrote. I’m not in favour of Terry searches or of Chimel [expansive] “grabbing area” searches or searches of the back of a station wagon under the “automobile exception” after the subject is out of the car, because they “could have reached it” while they were in the car driving) as they exist. I think that, once a subject is under control and separated from the vehicle, the “officer safety” rationale disappears, and any such “safety” searches are merely pretext to do what is prohibited by the Fourth Amendment. But that is not the law. And if we accept the law as it is, I can’t think of a more ‘reasonable’ reason for actually doing a search than the knowledge that there is in fact a weapon on the site.
You quibble that the search requires a belief that the suspect be “armed and dangerous”. My reply is that the simple fact of the subject being armed makes him intrinsically more dangerous. Whether enough to trigger that absolute “dangerous[ness]” threshold is a matter where reasonable people can disagree, but certainly having a weapon and a CCW permit is no “GOOJF” card, in my mind. Your views may vary, but in the case at bar, your CCW holder was a criminal.
Here’s Terry v. Ohio:
“[A]rmed and dangerous” here is almost a single term of art. Read that last sentence there.
In the case we’re discussing, the officer was certain (or as certain as can be reasonably expected) that the suspect was armed; that would seem to satisfy that last sentence there.
Of course, you’re right that such a rationale loses it’s cogency once the suspect is removed from access to such a weapon (and is personally searched for any other weapons). I agree. But that was not the reason of the court for saying the search here was unwarranted.
Cheers,
March 10, 2010, 2:08 pmzuch says:
Yes indeed. It made the drugs at issue here just “legally” disappear.
Cheers,
March 10, 2010, 2:12 pmBucky says:
I can see how obeying the law could be interpreted by a police officer as evidence that someone is disobeying the law. Or isn’t that the argument that people are making when they say that legally concealing a weapon, legally, is evidence that the person may be involved in criminal behavior?
If you wonder if many people have insane or damaged critical thinking skills, look no further than that.
March 16, 2010, 9:52 am