Legality of frisk/disarmed during traffic stop.

[Shadowrider]

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.

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.

Where's my double facepalm?

 

[Just Don't]

Sorry if you don't agree but I do this for a living. This is pretty basic as far as search and seizure stuff goes. Feel free to face palm yourself repeatedly though.

 

[okiebryan]

According to my understanding of Terry, wouldn't you have to have some facts to point to that a subject was armed and dangerous to do a patdown? A Handgun License holder who notified in accordance with the law could hardly be considered dangerous given the facts that we have in the OP.

 

[Glocktogo]

Where does officer safety come into play? There's nothing that says an officer cannot disarm the subject of a traffic stop for the duration of the stop in the name of officer safety. So long as the detention length isn't unreasonable and the firearm is returned at the conclusion of the stop of course.

The inspection issue is a red herring. Removing the firearm, unloading it and securing it is not an inspection for the purpose of this law. Running it NCIC to check if it's stolen is.

I'm sure Mike Brown could quote the legal specifics of this much better than most. Question is, how many of you law abiding SDA permit holders are willing to file a lawsuit against the agency in order to get a legal precedent in your pocket?

According to my understanding of Terry, wouldn't you have to have some facts to point to that a subject was armed and dangerous to do a patdown? A Handgun License holder who notified in accordance with the law could hardly be considered dangerous given the facts that we have in the OP.

If you relied on Terry as the basis for the disarm, which is not necessary in every case. FWIW, there have been permit holders who've committed crimes with their firearms. Hence the officer safety aspect. I would not as a rule disarm a permit holder. However, if the little hairs on the back of my neck tell me to do something, I'll listen to them as opposed to a piece of plastic issued 5 years previous. Feel free to lodge a complaint with my agency if you take issue with my officer survival training.

 

[okiebryan]

Where does officer safety come into play? There's nothing that says an officer cannot disarm the subject of a traffic stop for the duration of the stop in the name of officer safety. So long as the detention length isn't unreasonable and the firearm is returned at the conclusion of the stop of course.

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.

Are you of the opinion that 60 in a 55 meets the standard of "reasonable and articulable suspicion of other criminal activity"?

The inspection issue is a red herring. Removing the forearm, unloading it and securing it is not an inspection for the purpose of this law. Running it NCIC to check if it's stolen is.

I agree. However, see above. Please don't remove my forearm. That sounds painful.

I'm sure Mike Brown could quote the legal specifics of this much better than most. Question is, how many of you law abiding SDA permit holders are willing to file a lawsuit against the agency in order to get a legal precedent in your pocket?

Depending on the facts of the "detention" and whether or not there was sufficient evidence available (audio or video, for example), I know of an organization that may take on a case for one of its members.

 

[Shadowrider]

Sorry if you don't agree but I do this for a living. This is pretty basic as far as search and seizure stuff goes. Feel free to face palm yourself repeatedly though.

Yes it is pretty basic. Basically speeding is a crime. Probable cause is in place and the officer can disarm if they so choose. Have a nice day.

Edit to clarify: After re-reading your post I think we are talking in two different contexts. Speeding is a crime and the officer on the stop is free to temporarily disarm for his/her safety. The weapon should be returned as soon as the "business" is finalized. When I read your term "search and seizure" I'm not stating that they can rip the vehicle apart looking for whatever they might find. In that case I would agree with you totally. I'm speaking in regards to officer safety alone, and I believe that this is covered pretty appropriately in the OK statute.

 

[okiebryan]

FWIW, there have been permit holders who've committed crimes with their firearms. Hence the officer safety aspect. I would not as a rule disarm a permit holder. However, if the little hairs on the back of my neck tell me to do something, I'll listen to them as opposed to a piece of plastic issued 5 years previous. Feel free to lodge a complaint with my agency if you take issue with my officer survival training.

According to the statistics released by the OBSI, in 2011 the ratio of revocations to approvals was .00165. That's not considering how many active licenses there are, only how many were approved in that one year. This tells me that the chances of someone presenting a license that is suspended or revoked during a traffic stop or OC license check is incredibly low.

P.S. I like that we are having this discussion. People on both sides of the thin blue line can always stand to learn something, and it helps us to understand the finer points of this topic.

 

[WillR]

I expect to get some criticism for this but here is one way to look at this. A officer disarming a citizen for the officers safety. What about a citizen disarming the officer for their safety? This seems just about as valid. Having a handgun license should show the citizen is no threat.

I don't think that a minor traffic violation should be used for justification to disarm a legally armed citizen. If it happens to me ill be funding the retirement plan for the best lawyer I can find to establish precedence.

 

[MyMonkey]

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.

So interesting how da police take such broad interpretations of those cases. Hmmm....

 

[Glocktogo]

According to the statistics released by the OBSI, in 2011 the ratio of revocations to approvals was .00165. That's not considering how many active licenses there are, only how many were approved in that one year. This tells me that the chances of someone presenting a license that is suspended or revoked during a traffic stop or OC license check is incredibly low.

P.S. I like that we are having this discussion. People on both sides of the thin blue line can always stand to learn something, and it helps us to understand the finer points of this topic.

I have a direct POC for SDA permit revocation requests for a large LE agency. IIRC, they said 3 requests so far this year due to criminal activity by the permit holder. I'll check tomorrow and confirm.

I expect to get some criticism for this but here is one way to look at this. A officer disarming a citizen for the officers safety. What about a citizen disarming the officer for their safety? This seems just about as valid. Having a handgun license should show the citizen is no threat.

I don't think that a minor traffic violation should be used for justification to disarm a legally armed citizen. If it happens to me ill be funding the retirement plan for the best lawyer I can find to establish precedence.

Jump if you feel froggy. Let us know how that works out for you!