Legality of frisk/disarmed during traffic stop.

[Jack T.]

Man stopped for speeding. Informed officer of possessing a CCW permit and of being in possession of firearm. Officer asked man to exit vehicle and place his hands on the truck. Man is frisked and his firearm and pocket knife are removed.

In light of TITLE 21 § 1290.8 sections B and E, is this *legal*. I'm not concerned about "well, I think what he did was fine". . .I'm asking if it is *legal*, and if so, on what basis.

TITLE 21 § 1290.8 Section B:

The person shall be required to have possession of his or her valid handgun license and a valid Oklahoma 
driver license or an Oklahoma State photo identification at all times when in possession of an authorized pistol.  
The person shall display the handgun license on demand of a law enforcement officer; provided, however, that 
in the absence of reasonable and articulable suspicion of other criminal activity, an individual carrying an 
unconcealed handgun shall not be disarmed or physically restrained unless the individual fails to display a valid 
handgun license in response to that demand

TITLE 21 § 1290.8 Section E:

Nothing in this section shall be construed to authorize a law enforcement officer to inspect any weapon properly 
concealed or unconcealed without probable cause that a crime has been committed.

 

[Shadowrider]

If the man was stopped for speeding, probable cause that a crime had been committed was fulfilled. It's legal.

 

[SMS]

Terry Vs. Ohio

 

[Jack T.]

I can see Shadow's point. . .but Terry vs. Ohio isn't enough. That just says an officer CAN perform the frisk, all things being equal. So if, for instance, Oklahoma law that said 100% "officers shall not frisk people in a traffic stop", then Terry vs. Ohio doesn't come into play.

Thank you, gentlemen. . .

 

[SMS]

But Oklahoma law doesn't say that, so Terry does come into play.

Both the old and soon-to-be current versions of the SDA simply state that you cannot be disarmed for the purposes of inspecting the weapon and/or cannot be disarmed without other reasonable suspicion/cause. Terry sets the precedence that a traffic stop meets those conditions...Terry applies.

 

[CODE_3]

i) May, in some cases, conduct a “pat-down” for weapons- “Terry frisk” if officer also has reasonable suspicion that suspect is armed.
1. When suspect is detained on reasonable suspicion, may only conduct a pat down or frisk if officer can also articulate reasonable suspicion that the person is armed, but cannot as a matter of course automatically frisk anyone who is detained. Coronado v. State, 79 P.3d 311 (Okla. Crim. App. 2003).

2. Terry frisk doctrine also applies to vehicles, and officer may conduct limited sweep of interior of vehicle, even without probable cause to search, if he has reasonable suspicion the driver or a passenger may have a weapon stored there. Coulter v. State, 777 P.2d 1373 (Okla. Crim. App. 1989)

j) an investigative detention must be brief; if it goes on too long it may turn into a de facto arrest without probable cause and any evidence gained therefrom will be suppressed.

 

[jhat]

Interesting question. With regard to stop and frisk, the U.S. Supreme Court stated in Arizona v. Johnson, a 2009 opinion (citation omitted), that the stop must first be lawful, and second, the officer must reasonably suspect that the person is armed and dangerous. Clearly under this scenario the officer knows the person is armed, but there are no facts to indicate the person is dangerous. The suspect has a valid CCL license and, pursuant to law, so advises the officer. The fact that the person has a CCL is evidence that he has gone through a record check and is legally entitled to be armed. Assuming all the officer had was a traffic violation, the search was illegal. In short, the cop f----d up, and had he found contraband on the suspect, the evidence would be suppressed.

 

[CODE_3]

Remember we are only hearing one side of the story. Given the facts for the OP I would of never conducted a pat down myself just my .02

 

[Just Don't]

I'm with Jhat. Based strictly on that information, that frisk was not legal. Terry is just the tip of the iceberg and it's an extremely complicated topic, but it comes down to scope of a traffic stop and reasonable suspicion that criminal activity is afoot. The scope of the original traffic stop is the traffic violation only. If the officer had noticed the firearm before or without receiving the license, he could have performed the stop and frisk because that expanded the scope. Since that didn't happen, he's just back to the traffic violation. In addition to case law, as mentioned by another poster, the statute specifically prohibits an officer from inspecting the weapon.

 

[Profreedomokie]

This same thing happened to me in Wichita when my wife made an illegal U turn.