RAS, 4th amendment

[Bruce]

Originally Posted by LittleRedToyota

terry says they can temporarily disarm you based solely on RAS...they do not need PC.

I thought Terry only allowed them to *search* for *illegal* weapons. I didn't recall reading it as stating that a person lawfully armed with a firearm (since firearms are not a *prohibited* weapon in PA.) could be disarmed *just* for the duration of the stop.

I must have read it wrong.

Could someone please paste and post the section of the Terry decision that shows where lawfully carried firearms can be confiscated (temporarily or otherwise) during a police 'stop' prior to arrest?

If I'm not mistaken, the concealed firearms that were found were, in fact, the PC for the arrest in Ohio. Or do I have the case all mixed up? That happens sometimes.
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[archon]

If the police have reasonable and articulate suspicion to detain you then they have the option of also disarming you. Whether this involves unloading and dismantling your firearm is another question. I did a cursory review of case law in PA and could find no case that was on point or closely related. I haven't read the entirity of Terry in a long, long time but I don't think it will answer your question.

In practice, the best thing to do is NEVER to consent to any search and to NEVER consent to being disarmed. Don't resist (especially when armed) but make sure you state that you are not consenting to this action even though you are not resisting.

Remember, in PA, the only time you can use force to resist police action is to defend yourself when police are using excessive force. In PA, there is no right to use reasonable force to resist an unlawful arrest or unlawful search. If you are subjected to an illegal arrest or search your sole rememdy is to file complaints and a lawsuit against the officer.

[LittleRedToyota]

Originally Posted by Bruce

I thought Terry only allowed them to *search* for *illegal* weapons.

as archon mentioned, i don't think terry directly addresses your question, either.

however, i believe terry is routinely interpreted to mean an officer can disarm you even if your weapon is legally carried. (or course, he is still *supposed*to have to have RAS of a crime, RAS that you are armed, and RAS that you are presently dangerous to do it, but, in reality, terry seems to end up being used much more broadly than that.)

in doing a quick google search to try to answer the question, i came across this little snippet.

from: http://bulk.resource.org/courts.gov/...-7248.195.html

We do not doubt that an officer, confronting a person carrying a dangerous weapon, may make an investigative stop, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), disarm the person, and ascertain whether the weapon is being lawfully carried

so, this court (the 2nd circuit US Court of Appeals), at least, says that you can be disarmed while it is being determined whether the gun is being carried legally or not. in PA, i imagine this would include verifying your LTCF and also possibly running the gun against the stolen guns database (not the illegal PSP sales database, though they would prolly do that as well) to see if it is stolen. it's pretty easy to imagine how this could take the entire duration of the stop.

there are also numerous references in case law to terry enabling an officer to frisk for weapons (obviously, as that is the whole point of terry). so, it would only seem reasonable that the officer could then also secure any found weapons (at least until the point they are shown to be legally carried...which, of course, could take the entire duration of the stop).

to argue otherwise would seem to be to say that the officer can frisk for weapons for his safety, but cannot actually secure any weapons he finds for his safety? it kinda doesn't make any sense.

[archon]

The question we are looking to answer is what actions may an officer take during an investigatory stop. I do know for sure that an officer:

1. Can detain you against your will; using physical means if necessary
2. Conduct a pat-down if he has reason to believe you might be armed
3. Confiscate any dangerous weapon he may find

I don't know for sure if an officer:

1. Can hold you while he verifies your LTCF once you have presented it to him.
2. Run your gun through whatever database he likes
3. Unload or disassemble your firearm

My guess is that once you present your LTCF that as long as it looks facially valid and that is the only reason for the stop that the officer must let you go if you demand it. But, you would probably have to demand it by saying, "Now am I free to go" or something of the sort. My guess is that also the officer has no cause to run your gun because there is no duty to register it and it isn't against the law to carry someone else's gun with a valid LTCF. I would also think that the officer couldn't do anything more then to take your firearm into his possession and render it incapable of immediate discharge (such as taking a round out of the chamber.)

If I have time I will do a quick look in case law to see if I can find anything to back this up.

[LittleRedToyota]

Originally Posted by archon

2. Conduct a pat-down if he has reason to believe you might be armed

doesn't he also need to have reason to believe you are presently dangerous?

given that terry mentions armed and presently dangerous rather than just "armed", it would seem the answer is yes.

however, many officers (and even lower courts sometimes...and maybe even the 2nd circuit court of appeals in the case snippet i posted above) seem to ignore the "presently dangerous" part.

(however, the appeals court in the case originally posted did not seem to ignore the requirement for RAS of "presently dangerous".)

i'm just curious what your take on that is?

[archon]

Here is what the PA courts have to say on the matter:

If, during the [***8] course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect's outer garments for weapons." Commonwealth v. E.M./Hall, 558 Pa. 16, 735 A.2d 654, 659 (Pa. 1999). In order to establish reasonable suspicion, the police officer must articulate specific facts from which he could reasonably infer that the individual was armed and dangerous. See Commonwealth v. Gray, 2006 PA Super 71, 896 A.2d 601, 606 (Pa. Super. 2006). When assessing the validity of a Terry stop, we examine the totality of the circumstances, see id., giving due consideration to the reasonable inferences that the officer can draw from the facts in light of his experience, while disregarding any unparticularized suspicion or hunch. See Commonwealth v. Zhahir, 561 Pa. 545, 751 A.2d 1153, 1158 (Pa. 2000).

Cut from Commonwealth v. Wilson, 2007 PA Super 175, P5 (Pa. Super. Ct. 2007)

PA uses a slightly modified version of Terry because the PA Supreme Court has held that the state constitution provides broader rights in this area than the 4th Amendment.

In practice, judges will usually validate most Terry searches as long as the police can give them a legitimate reason for doing one. Even a police officer saying that the subject looked nervous or was uncooperative might be enough for some judges. Judges in general don't like second guessing officer front line decision especially when the invasion upon a private citizen is minimal (such as a simple pat-down.)

[DaveM55]

From:
Commonwealth vs Mack 2008 PA Super 153

¶ 10 While the law of search and seizure is constantly evolving, its focus
remains on the delicate balance of protecting the right of citizens to be free
from unreasonable searches and seizures and protecting the safety of
citizens and police officers by allowing police to make limited intrusions on
citizens while investigating crime. Commonwealth v. Blair, 860 A.2d 567,
571 (Pa.Super. 2004). The court must be guided by common sense
concerns, giving preference to the safety of the officer during an encounter
with a suspect where circumstances indicate that the suspect may have, or
may be reaching for, a weapon. Zhahir, supra at 555, 751 A.2d at 1158.

[Bruce]

Originally Posted by archon

PA uses a slightly modified version of Terry because the PA Supreme Court has held that the state constitution provides broader rights in this area than the 4th Amendment.

In practice, judges will usually validate most Terry searches as long as the police can give them a legitimate reason for doing one. Even a police officer saying that the subject looked nervous or was uncooperative might be enough for some judges. Judges in general don't like second guessing officer front line decision especially when the invasion upon a private citizen is minimal (such as a simple pat-down.)

So, as I see it, my confusion lies in the fact that Terry was, basically, a case involving criminals in Ohio who were carrying firearms illegally. The SCOTUS decision in Terry seems to have been shaded in the light that these people were armed, and, being such, were breaking the (Ohio) law. As they were armed *criminals*, they were therefore considered "dangerous".

The fact that firearms are not illegal *everywhere* in America (and as this was long before Heller, obviously) was simply not a consideration in the decision (perhaps very purposely so).

It all seems so reasonable when explained like this. But I feel that it loses much of its logic when the phrase "armed and dangerous" gets pulled out of the context of this specific case and is suddenly applied to all law-abiding citizens everywhere - especially in places where there is no law against carrying firearms.

Therefore, in order to clarify Terry regarding a municipality (such as Pennsylvania, for example) where carrying concealed (or, more importantly, openly carried) firearms is not illegal (and, therefore, should not automatically be considered any danger to the general public or the police) we would either need:

A statutory redefinition of Terry (not bloody likely) or a new SCOTUS case that more clearly defines Terry in the light that citizens may very well be lawfully armed; say, a case like Mystery_Man's, for example (which is possible, now that D.C. vs. Heller in 'on the books').

Until such a case (that better defines Terry vs. Ohio), we can expect most judges to see Terry as case-law justification for the police (when they have RAS - and they better have RAS) to go ahead and (literally, lawfully) steal a law-abiding citizen's gun with impunity (temporarily, of course).

Some people here seem fearful that many cops will just 'think up' some RAS and that just about any judge will quickly accept even the most flimsy and thin RAS. Valid concerns, of course. If even one cop managed to pass off the most weak RAS in court and even one judge accepted it once, it would be a total discrace to our legal system and could prove a nightmare for those who choose to lawfully carry.

I like to not think about this - but the idea does worry me. Bad cops are one thing. But, bad judges... Ugh!

Do I have this all about right?

[headcase]

Originally Posted by Bruce

So, as I see it, my confusion lies in the fact that Terry was, basically, a case involving criminals in Ohio who were carrying firearms illegally. The SCOTUS decision in Terry seems to have been shaded in the light that these people were armed, and, being such, were breaking the (Ohio) law. As they were armed *criminals*, they were therefore considered "dangerous".

The fact that firearms are not illegal *everywhere* in America (and as this was long before Heller, obviously) was simply not a consideration in the decision (perhaps very purposely so).

It all seems so reasonable when explained like this. But I feel that it loses much of its logic when the phrase "armed and dangerous" gets pulled out of the context of this specific case and is suddenly applied to all law-abiding citizens everywhere - especially in places where there is no law against carrying firearms.

Therefore, in order to clarify Terry regarding a municipality (such as Pennsylvania, for example) where carrying concealed (or, more importantly, openly carried) firearms is not illegal (and, therefore, should not automatically be considered any danger to the general public or the police) we would either need:

A statutory redefinition of Terry (not bloody likely) or a new SCOTUS case that more clearly defines Terry in the light that citizens may very well be lawfully armed; say, a case like Mystery_Man's, for example (which is possible, now that D.C. vs. Heller in 'on the books').

Until such a case (that better defines Terry vs. Ohio), we can expect most judges to see Terry as case-law justification for the police (when they have RAS - and they better have RAS) to go ahead and (literally, lawfully) steal a law-abiding citizen's gun with impunity (temporarily, of course).

Some people here seem fearful that many cops will just 'think up' some RAS and that just about any judge will quickly accept even the most flimsy and thin RAS. Valid concerns, of course. If even one cop managed to pass off the most weak RAS in court and even one judge accepted it once, it would be a total discrace to our legal system and could prove a nightmare for those who choose to lawfully carry.
I like to not think about this - but the idea does worry me. Bad cops are one thing. But, bad judges... Ugh!

Do I have this all about right?

*bold italics are mine

Welcome to Pennsylvania

The system is ridiculous. You have a ruling from the highest court in the state, which could not be any clearer, in Hawkins. In this ruling they specifically address that there is no gun exception to Terry, and that since carrying a firearm is a legal action in this Commonwealth just having a firearm is not reason to be suspicious of anything. They go as far as to ridicule the generally held position of state prosecutors that guns held by anyone other than police are inherently bad, and will lead to assassinations and massacres. They confirm the legality of open carry without a LTCF and basically suggest that if a gun is present, police should just ask to see a LTCF and not make a big deal out of it. This decision seems to have gone against everything the state feels is right and from police to the lower courts, all the way up to the appellate courts, the state seems to have decided to completely ignore this ruling. In general, they still treat any sign of a gun as if you had a headdress and were yelling in Arabic, while squeezing off bursts from an AK. There are a few cops and DA's that seem to get it, but in the district courts you are at the mercy of the cop's probable drinking buddy. Much like every other aspect of local government in this state, it is all about who you know, and the law rarely enters into the picture, unless it is ridiculously flagrant.

There needs to be a purging at every level of government and people who have no idea what they are doing need to be tasked with using common sense to implement the provisions of our respective Constitutions.

The law is what the guy with the uniform says it is, until he is shown different, and unfortunately, there is far to little correcting going on in our legal system.....

[Wynder]

So, as I see it, my confusion lies in the fact that Terry was, basically, a case involving criminals in Ohio who were carrying firearms illegally. The SCOTUS decision in Terry seems to have been shaded in the light that these people were armed, and, being such, were breaking the (Ohio) law.

That's not entirely correct, no... Check out the wiki page on Terry v. Ohio -- it actually has a half decent summary.

The officer noticed Terry and his accomplices -- people he did not know to have lived in the neighborhood -- 'casing' a store. They had walked in front of the store several times, looking around intently each time they passed and exhibited other behavior that indicated that they were most likely going to break into it.

So, it wasn't so much about that they were armed and dangerous as the case was about the seizure of the individuals and the following search being not incident to arrest.

The police stopped them and searched them, turning up a revolver. Terry took the search to court on Fourth Amendment grounds and the search was upheld, and thus was born reasonable suspicion for a limited detainment and pat-down search for weapons or contraband.

The big thing here being, and this is supported by Florida v. J.L. that there is no firearms exception to Terry doctrine. I forget the exact wording, but absent a reliable prediction of criminal behavior, a stop and frisk is not warranted. Now, the Florida v. J.L. case was also based on an anonymous call, so I don't know how much of the decision would be restricted to circumstances contained within that case.