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srothstein wrote:Hirundo,

The point you might have missed (and it is not commonly understood or accepted) is that a frisk of the car is justified by the same grounds as the frisk of the person. The justification does not disappear when the driver exits the car. SCOTUS recognized that I have to get the driver out of the car to search it, so I must still be allowed to do the search even if the driver has left the car. So, even if the driver leaves the car on his own, I can still do the frisk of the car if it was justified at the time of the person getting out of the car.

A still gray area is if I can frisk the car if the driver gets out when I stop it and I later (after he is already out of the car) develop the grounds to frisk him. Most courts have ruled that it is justified, but there have been a few where it has been ruled against. A good part of the question is how well the officer can write.

Question: If a person exists the vehicle prior to the officer requesting it AND locks the vehicle, would this have any effect on a Terry search?

LedJedi wrote:Scenarios like the one described always remind me of a stop i had a few years ago. I was speeding a bit and got pulled over. I had the engine off, wallet out and at the window. I had turned my head to say something to my wife about the time the officer walked up. He asked me for my insurance (already holding out my license in the same hand my wallet was in. When he asked for the insurance i reached in the wallet with my other hand and held it out to him. I turned back to say something to the officer and realized I was holding out a $50 bill in front of him, not my insurance. He did NOT look happy about it either.

The blood trained from my face and I apologized about 100 times and quickly got out my insurance. He had a bit of an attitude, but i can't say a blame him. Was an honest mistake on my part but made me look REALLY bad. lol

Thats hilarious.

I can relate to that because I did something similar when I was in College. I was still living in Austin at the time. I was going home from a night club one evening and was traveling along MoPac. I had a yellow '69 Jaguar XKE roadster...and sometimes I would manage to creep a little bit over the speed limit.

Apparently, I was speeding (just a bit) that night...because a few blocks from where I would turn off to go home, an officer fell in behind me and lit me up. Of course, I pulled over immediately and got my wallet out.

Because I had partaken of a few beers that night (2-3 really), I was a little worried that he would smell it on my breath. I wasn't anything like intoxicated....but I just didn't want the stop to turn into anything eventful.

To that end...I was trying to keep my head turned away a little (clever 22 yr. old that I was), and when he asked me for my drivers license I reached into my wallet and handed it to him (I thought).

There was silence for a few seconds, then more silence...then he leans down to my window opening and says " Sir....I have plenty of gas, what I need is your D_R_I_V_E_R_S.....license" he says real slow. At this point he hands me back my Exxon card.

I apologize profusely....tell him I am just going home for the night. Of course at this point...he asked the dreaded question: "Have you been drinking tonight"? I replied that I had...and that it was a couple of beers. He told me to go straight home...and to slow it down. I did exactly as he instructed... and felt very lucky that night. Talk about embarrassing!

That was 1976 and LEO were a bit more lax about folks drinking and driving, it probably wouldn't "fly" these days, but I quit drinking eons ago so it doesn't matter.

Anyway, the moral of the story is this: Look carefully at what it is you are handing the nice officer. It just might save you an embarrassing experience.

srothstein wrote:Ask your friend to call the police station and file an informal complaint. Since he had broken no laws, there was no reason to handcuff him or search the vehicle. It was legal (sort of) under the guise of a frisk. For a frisk to be legal, the office must have an articulable reason why this particular stop put him in fear of danger to his life or health. I could see him saying he was in danger because he was told there was a loaded shotgun in the car. I disagree with him, but I can see his point of view and the SCOTUS says this one is pretty much based on the point of view of the officer at the time.

I think an informal complaint would be in order just to help the officer and department learn that having weapons in cars is strictly legal now. I want to get this point across to help prevent the problem from re-occurring.

Also, you might mention to your friend that he is under no legal obligation to volunteer any information on firearms in the vehicle (unless he has a CHL of course). Doing so obviously scared this officer, who it appears would have been better of in his ignorance. If he had remained ignorant of the situation, your friend would have been on his way quicker and with less hassles.

Steve,

I want to Thank You..again, for your participation here and the information that you freely share with us.

I know it has been invaluable to me. Many Citizens (myself included) are simply unaware of what the law allows (or doesn't allow) LEO to do during a stop. I doubt many of us ever have a reason to question the actions of an officer, but its always good when we understand a little bit about the process.

Too, the citizenry is more apt to think only about themselves during a stop. So, your perspective (and that of other LEO here) gives us great insight to how officers view the event. This exchange of information...and the resulting discussion of it, goes a long, long...way toward educating both sides, (which should be the same side).

I appreciate it...my friend!

Flint.