Vehicle Frisk/Search for Weapon Scenerio [Archive] - Glock Talk

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4949shooter
05-05-2011, 17:06
Here is a scenerio for the braintrust here at CT. We had a big dispute about this yesterday at work.

You have a caller who states someone in a van pointed a gun at him while driving on the highway. The caller stops at the nearest police station and gives his name, DOB and address and gives a written statement describing the vehicle/occupant who pointed a gun at him. You locate the vehicle and conduct a high risk stop. Do you frisk the vehicle or obtain a written consent for the vehicle?

If you frisk how far can you go? Can you look in closed gym bags? Can you open containers? How about checking for hidden compartments?

I forgot to mention the van contains mulitple occupants.

Now change the caller to an "anonymous" tip. Do you take the same action?

This is an actual scenerio we had to review. I will let you know what the guys did..

Unistat
05-05-2011, 17:16
Tagged 'cause I'm curious.

collim1
05-05-2011, 17:32
Warrant exception should cover you since it is a vehicle on the roadway. Your search "frisk" just has to "reasonable".

In the case of an anonymous complaint I would keep your search to a "wingspan" search meaning only where it likely that he stashed within reach while driving. Under car seats, glove box, console etc...

In the case of a known complainant who is willing to give a statement and prosecute I would think you could do a probable cause search without a warrant if needed.

Better safe than sorry, if its a safety issue you need to get that weapon secured. If it gets thrown out oh darn.

But if you have time why not wake the judge up and get a warrant over the phone?

Also this is a case what you find and where is key. A wingspan search based on a gun call will certainly stick if you find a gun. If you find weed or pills or child porn it might not depending on the judge. If you find other contraband and no gun the defendant's attorney will certainly argue the complaint was false, therefore the search that resulted in contraband was not reasonable.

I am not an attorney, I am a patrol cop who makes most of my cases as results of traffic stops. Maybe an attorney could chime with his opinion. I have lost cases before based on legal issues, it is part of of the job.

YOUR safety is the #1 concern. If nothing else you need to get the suspect out of the car, detained in handcuffs, and secured in the rear of a caged unit. If you cannot get into the car lawfully oh well, sometimes you have to let it go and remember his name and vehicle for another day.

DaBigBR
05-05-2011, 17:34
Fun one.

Michigan v. Long is the hallmark case for application of Terry to a vehicle.

BUT...

In the initial scenario, you have specific information from a presumably reliable witness that there may be a firearm in the possession of one of the vehicle's occupants and/or in the vehicle. I guess my opinion is that based solely on what you have provided, there is PROBABLE CAUSE to search the car. If you went to a judge with your witness (or with a signed statement and informant's attachment), I think that you would get a search warrant for the car. Since that's the case, Carrol would be governing. If that's the case, the scope of the search may include any place within the vehicle where the items being sought might be located. In this case, I would be looking anywhere a shell casing could fit.

I think there is some interesting debate about the application of Long since the occupants have been removed from the vehicle. I think you're going to get a pat-down of the passenger compartment based on the fact that you would have to put the people back in the car at some point, but again, I think this is more of a Carroll issue.

Now...

Anonymous tip? You're going to need some reason to stop the vehicle in the first place, becuase we know that a tip likely won't do it without a whole lot of verifiable information. Illinois v. Gates is the hallmark case for anonymous tips, but that case was distinctly different from this scenario and included a lot of leg work by the cops to verify the information.

And of course, I have to go on a call now, so I'll be back later to edit.

Alright...adding on:

There have been a TON of "anonymous tip" decisions throughout the country over the past few years. Most of those tips deal with drunk driver calls, and there has not been any real consistency in the decisions. For the most part, in those cases it seems that a call + some minor driving behavior observed is greatly preferred to making a stop based on an anonymous call ony.

Goodspeed(TPF)
05-05-2011, 17:37
Leave someone in the car. :whistling:

k9medic
05-05-2011, 17:43
The fact that there is a specific, identifiable complainant of a forcible felony crime allows you search the interior of a vehicle in reasonable areas that a weapon might be stored in.

I think this falls more under Carroll than Terry.

OLY-M4gery
05-05-2011, 17:53
I don't think it's actually a frisk, because a frisk deals with R-A-S to believe a crime is/was/about to be committed, and the suspect is armed and dangerous.

What you have here is PC, and Carroll vs US, so you can search everywhere in the vehicle where a gun coukl be hidden.

----------------------------------

http://www.floridasupremecourt.org/education/cybercourt/1997/dec/jl.html

Anonymous complainant, you have nothing.

Sam Spade
05-05-2011, 18:27
I agree with the guys calling it PC. While it would be bolstered by an officer's personal observations, there should be no problem getting a warrant with such a citizen's sworn statement. As we all know, if you can get a warrant for a car, you probably don't need to get a warrant for a car. So, as long as the PC doesn't go stale, like you didn't find the vehicle a week later, you're good to search.

txleapd
05-05-2011, 18:43
Nuke the car from orbit..... It's the only way to be sure.

Kahr_Glockman
05-05-2011, 19:19
I agree with DaBigBR. Carroll applies because of the car issue and the written complaint.

Minus the written complaint you will be hard pressed to search the car. There is nothing wrong with asking for consent and or looking for issues to impound the car and do an inventory.

Many options.

Dragoon44
05-05-2011, 20:19
Ok here is the old time street cop solution. Keep an eye on the van until it leaves the city limits then call the county or the state troopers and tell them the direction it was heading.

:supergrin::rofl::rofl:

4949shooter
05-05-2011, 20:22
Thanks guys.

Another thing I forgot to mention is that Carroll is on it's way out in NJ, and is already done as far as my agency is concerned. For us it's either a warrant, consent, or vehicle frisk.

Interesting replies. I will let you know more details soon, including the opinion in my review as well as those opinioins higher up on the food chain.

4949shooter
05-05-2011, 20:24
Ok here is the old time street cop solution. Keep an eye on the van until it leaves the city limits then call the county or the state troopers and tell them the direction it was heading.

:supergrin::rofl::rofl:

Nawww.......we don't do that stuff here. :tongueout::supergrin::whistling:

volsbear
05-05-2011, 20:26
Nawww.......we don't do that stuff here. :tongueout::supergrin::whistling:

Rule #1 about fight club...

EOD3
05-05-2011, 23:30
Ok here is the old time street cop solution. Keep an eye on the van until it leaves the city limits then call the county or the state troopers and tell them the direction it was heading.

:supergrin::rofl::rofl:

:perfect10: :shame: :rofl:

phuzz01
05-06-2011, 05:15
Another thing I forgot to mention is that Carroll is on it's way out in NJ, and is already done as far as my agency is concerned. For us it's either a warrant, consent, or vehicle frisk.

As you already know from previous discussions, my state also does not allow warrantless searches of vehicles based on probable cause without an exception such as exigency.

In your first scenario with a known complainant, the informant is presumed to be reliable unless known otherwise. I would arrest the suspect, seize the car, and apply for a search warrant.

In your second scenario with an anonymous complainant, I would determine whether there was sufficient corroboration of the complaint to establish probable cause (description of vehicle and occupants, location of the vehicle versus time of the complaint, etc.). If there was sufficient corroboration, I would again seize the car and apply for a search warrant. If there was not, I would ask for consent to search. If consent was denied and no probable cause existed, my inquiry would end there.

Although the warrantless frisk of a vehicle technically exists here, it is difficult to apply. Once you remove the occupants from the vehicle, it is difficult to make the case that you are in danger from a weapon inside the vehicle anymore. The frisk becomes even more questionable if I have just asked for consent and been denied.

merlynusn
05-06-2011, 07:27
I ask for consent all the time even though I have PC. Whether its a person or a car. It is easier to explain in court "I asked him and he said yes" than "I just did it." If he says no, then I have to explain that while he said no, I did it because of the following reasons. Six one half dozen the other.

As to the scenario... If you have a complainant who is willing to prosecute, give his information etc, you have a witness who is no longer anonymous. That gives you RS to stop the vehicle and conduct a frisk. Carroll does apply here and we use it. I still might ask for consent, but if you're doing a high risk stop, then you should at least frisk it once you have everyone out.

Sam Spade
05-06-2011, 09:48
Thanks guys.

Another thing I forgot to mention is that Carroll is on it's way out in NJ, and is already done as far as my agency is concerned. For us it's either a warrant, consent, or vehicle frisk.

Interesting replies. I will let you know more details soon, including the opinion in my review as well as those opinioins higher up on the food chain.

Okay, playing by your rules (as weird as they are :cool:) :

Based on witness statements, you have PC for a warrant. If you have PC for a warrant, then you easily meet the lower standard in Long of RS for a frisk. You can go into the vehicle and check those places that can conceal the weapon (pistol? Long gun?) and are accessible to the occupants.

4949shooter
05-06-2011, 16:57
That was my take on it Sam.

What the guys did was, obtain a consent to search for the vehicle. Being that our agency no longer recognizes Carrol, this is the logical next step, before applying for a warrant. I didn't fault them for getting a consent when I reviewed the stop, though I did admit that they could have gone the vehicle frisk route. Funny thing is, here we have to delineate between a reasonable suspicion consent request and a probable cause consent request. The lieutenant will have to approve an RAS request, while a sergeant can approve a PC consent request. This is what a consent decree will do to an agency. Even though we are out of it we still have its restrictions.

The guy who reviews my review, so to speak, said that this should have been an RAS request, and should have been approved by the Lt. I figured, by not frisking the vehicle, they used the least intrusive means possible and went with the PC consent. I believed then, as I still do, that with written and signed statements this was a probable cause request, and would have fit under the guidelines of Carrol if we were still allowed to do so as an agency.

actionshooter10
05-06-2011, 20:36
EXCELLENT THREAD!

Be careful or people might think ya'll know what you're talking about.

I always ask for consent first. It's a win/win situation. If they consent, you get to search. If they don't consent, and you have PC, you still get to search.

In this particular case, with a sworn statement from your witness, I think I would have gone the warrant route. You have more than enough to detain the car and occupants and the warrant is the safer route to defend in court. JMO.

Hack
05-06-2011, 21:19
Not a street cop per se, since I work within the confines and parameters of 18USC3050 for the most part. I would say you have PC in that you have a witness who identified himself, and gave a description of the suspect(s). Search, anything in plain view without a warrant, and search everything not in plain view with a warrant, unless you can articulate exigency and need to go further without the warrant. Of course, you work by New Jersey rules, and I work with another.

razdog76
05-06-2011, 21:26
Good question. You have a complaint with a written statement. The vehicle is a movable crime scene. My gut says;

It gets searched either with consent, or impounded and (inventoried) with a warrant. It would be fairly easy to articulate to the operator/vehicle owner how much more expensive and inconvenient it will be to impound the vehicle.

Conversely, you may be able to utilize what the say as additional PC.

In the worst case scenario, you are covered with complaint supported by statement. If you don't find a gun, then you can always ask why the driver did not submit to avoid rigmarole, and if you do find one then you got a gun from somebody that probably shouldn't have one in the first place regardless if you have a winnable case in NJ.

Newcop761
05-06-2011, 21:40
That was my take on it Sam.

What the guys did was, obtain a consent to search for the vehicle. Being that our agency no longer recognizes Carrol, this is the logical next step, before applying for a warrant. I didn't fault them for getting a consent when I reviewed the stop, though I did admit that they could have gone the vehicle frisk route. Funny thing is, here we have to delineate between a reasonable suspicion consent request and a probable cause consent request. The lieutenant will have to approve an RAS request, while a sergeant can approve a PC consent request. This is what a consent decree will do to an agency. Even though we are out of it we still have its restrictions.

The guy who reviews my review, so to speak, said that this should have been an RAS request, and should have been approved by the Lt. I figured, by not frisking the vehicle, they used the least intrusive means possible and went with the PC consent. I believed then, as I still do, that with written and signed statements this was a probable cause request, and would have fit under the guidelines of Carrol if we were still allowed to do so as an agency.


4949:
Interesting. The last search and seizure update I went to (as a California peace officer) was taught by a chippie from the CHP academy. He told us that CHP had agreed to stop asking for consent searches. I don't know if the agreement is still in effect today.

To get into the car they would either go with probable cause, a frisk, or just tow the damn thing and inventory it. And believe me CHP can find a reason to tow just about anything. I was told that the number of searches on traffic stops dipped briefly then increased above the number of searches based on consent. Probably not the result that the pro-criminal groups were looking for.

I'm sure some of the active California cops (or anyone that works for CHP :tongueout:) can expand on this or correct me if I'm blowing smoke.

Have the number of searches you guys do increased or decreased due to asinine consent decree that was forced on you?

Newcop761
05-06-2011, 21:44
Although the warrantless frisk of a vehicle technically exists here, it is difficult to apply. Once you remove the occupants from the vehicle, it is difficult to make the case that you are in danger from a weapon inside the vehicle anymore. The frisk becomes even more questionable if I have just asked for consent and been denied.

Except for the fact that absent an arrest you will be returning the driver or passengers to the car... thus justifying the frisk of the passenger compartment.

OLY-M4gery
05-06-2011, 22:17
That was my take on it Sam.

What the guys did was, obtain a consent to search for the vehicle. Being that our agency no longer recognizes Carrol, this is the logical next step, before applying for a warrant. I didn't fault them for getting a consent when I reviewed the stop, though I did admit that they could have gone the vehicle frisk route. Funny thing is, here we have to delineate between a reasonable suspicion consent request and a probable cause consent request. The lieutenant will have to approve an RAS request, while a sergeant can approve a PC consent request. This is what a consent decree will do to an agency. Even though we are out of it we still have its restrictions.

The guy who reviews my review, so to speak, said that this should have been an RAS request, and should have been approved by the Lt. I figured, by not frisking the vehicle, they used the least intrusive means possible and went with the PC consent. I believed then, as I still do, that with written and signed statements this was a probable cause request, and would have fit under the guidelines of Carrol if we were still allowed to do so as an agency.

If you had a witness, who gave his name, dob, address, phone number, and an account of what transpired, ie seeing what he beleived was a gun pointed at him, then it's PC.

The ridiculous process would be simpler if the same person gets both the RAS and PC search requests.

The 2nd reviewer should be careful about 2nd guessing, or he might be getting a lot of calls at home due to all the questions about searches that are likely to come up soon.

EOD3
05-06-2011, 22:36
Except for the fact that absent an arrest you will be returning the driver or passengers to the car... thus justifying the frisk of the passenger compartment.

You can't find a reason for arrest so you "escort" the driver to an area you'd like to search but can't legally? Interesting logic...

Newcop761
05-07-2011, 00:35
You can't find a reason for arrest so you "escort" the driver to an area you'd like to search but can't legally? Interesting logic...

So you have arrested 100% of the people that you've frisked? Wow.

4949shooter
05-07-2011, 04:15
4949:

Have the number of searches you guys do increased or decreased due to asinine consent decree that was forced on you?

Newcop, the searches decreased down to almost nothing. Now they are on the rise again (consents) as the guys get used to the new protocol.

4949shooter
05-07-2011, 04:18
If you had a witness, who gave his name, dob, address, phone number, and an account of what transpired, ie seeing what he beleived was a gun pointed at him, then it's PC.

The ridiculous process would be simpler if the same person gets both the RAS and PC search requests.

The 2nd reviewer should be careful about 2nd guessing, or he might be getting a lot of calls at home due to all the questions about searches that are likely to come up soon.

I am sure the lieutenant is not happy when he gets called at 2 AM for an RAS consent request!

Funny you should mention, because the second reviewer has developed somewhat of a bad name for himself for second guessing the guys.

4949shooter
05-07-2011, 04:22
You can't find a reason for arrest so you "escort" the driver to an area you'd like to search but can't legally? Interesting logic...

I think Newcop means absent a reason to arrest the subjects, before putting them back in the vehicle we have an obligation for public safety to frisk the vehicle. How about if they are arrested and the vehicle is being impounded? Would you have an obligation to frisk the vehicle for the safety of the tow guy?

pac201
05-07-2011, 06:38
I think Newcop means absent a reason to arrest the subjects, before putting them back in the vehicle we have an obligation for public safety to frisk the vehicle. How about if they are arrested and the vehicle is being impounded? Would you have an obligation to frisk the vehicle for the safety of the tow guy?

I don't think you would.

We do have an inventory policy, if the vehicle is towed, we inventory the contents without exception.

Photos and written log.

EOD3
05-07-2011, 06:45
I think Newcop means absent a reason to arrest the subjects, before putting them back in the vehicle we have an obligation for public safety to frisk the vehicle. How about if they are arrested and the vehicle is being impounded? Would you have an obligation to frisk the vehicle for the safety of the tow guy?

Bear in mind, I'm a dinosaur from way back, but... It would seem reasonable that as soon as you pop little Johny out of the vehicle, frisk him, and park him somewhere for safe keeping you'd "arms reach" all the usual places looking for the weapon and incidentals. Finding NADA, would force you to arrest based on the weight of the sworn complaint, resulting in a vehicle impound and detailed search/inventory back at the barn. It looks to me like there is ZERO chance little Johny or any of his friends are going back into the vehicle. I don't understand taking Johny back to his vehicle to trigger a search that is already justified (looking for the presumed "loaded" gun in the original complaint). Even if you don't find a gun in the vehicle, the complaint still stands and the LT can deal with it when everybody arrives at the cage.

The "couldn't legally do" in my original response was a poor choice of words in reference to a set of circumstances I would not have allowed to happen. I meant no offense to Newcop.

DaBigBR
05-07-2011, 12:38
I get what Newcop761 is saying and addressed it myself in an earlier post.

It could be argued that the felony stop obviates the danger involved coming from the vehicle. I agree that if you ARREST the suspect based on the complaint and he is not being put back in the car, that you do NOT get to frisk it, but even Gant would allow a search incident to arrest. IF for some reason there was no arrest made and you were going to return the parties to their vehicle, I think that the vehicle pat down would be articulable...unless, I guess, you decide to tell them to close their eyes and count to ten while you drive off before they get back in their car.

4949shooter
05-07-2011, 13:46
I think the vehicle frisk would be in order. There may be other, differing opinions though.

We lost Gant here about 5 years ago.

Let me edit this: We lost Belton 5 years ago. Gant came later .

Newcop761
05-07-2011, 14:13
EOD: Escorting them back to the car is ridiculously bad tactics. The frisk of the passenger compartment would occur w/ the occupants sitting on the side of the road and the cover officer watching them.

The others articulated better than I did.

A custodial arrest as BR said ends the danger from the car. You could then proceed under Carroll or inventory if you're towing the car.

My agency (federal) has no inventory policy. we don't as (generally) I have no authority to tow a car unless I'm going to seize it as evidence.

No offense taken. We're good.

Dragoon44
05-07-2011, 14:51
I think the vehicle frisk would be in order. There may be other, differing opinions though.

We lost Gant here about 5 years ago.

Lost? is this due to NJ screwed up system where the state Attorney General gets to dictate policies to LE?

4949shooter
05-08-2011, 05:41
Lost? is this due to NJ screwed up system where the state Attorney General gets to dictate policies to LE?

This one was more of case law. State vs. Eckel.

Us losing Carrol is the AG's interpretation of State vs. Pena-Flores, and State vs. Fuller. The AG interpreted these cases and dictated policy for my agency. I believe most of the other agencies in state still operate as they have been.

As I edited above, it was Belton that we had originally lost here 5 years ago in NJ with Eckel. Arizona followed suit with in 2009 with Gant.

S.O.Interceptor
05-08-2011, 11:03
Ok here is the old time street cop solution. Keep an eye on the van until it leaves the city limits then call the county or the state troopers and tell them the direction it was heading.

:supergrin::rofl::rofl:

You must have worked for a PD in my county. And it's not an "old time" solution, it was used when I worked 2 days ago. It amazes me that we can cover hundreds of square miles in the time it takes our PDs to drive 1 mile. Cars make it all the way through our cities all the time without ever coming across a PD car, yet the PD is always there to let us know it left their city.

ray9898
05-14-2011, 12:34
With a detailed statement from an identified victim/witness you have PC to search. With less I would limit myself to a frisk/consent search.

CAcop
05-14-2011, 14:03
4949:
Interesting. The last search and seizure update I went to (as a California peace officer) was taught by a chippie from the CHP academy. He told us that CHP had agreed to stop asking for consent searches. I don't know if the agreement is still in effect today.

To get into the car they would either go with probable cause, a frisk, or just tow the damn thing and inventory it. And believe me CHP can find a reason to tow just about anything. I was told that the number of searches on traffic stops dipped briefly then increased above the number of searches based on consent. Probably not the result that the pro-criminal groups were looking for.

I'm sure some of the active California cops (or anyone that works for CHP :tongueout:) can expand on this or correct me if I'm blowing smoke.

Have the number of searches you guys do increased or decreased due to asinine consent decree that was forced on you?

I haven't talked with a Chippie in awhile but it really hasn't affected them much.

If they don't have enough to search your car without consent you get a ticket.

If they do have enough to search your car without consent they will and are more likely to find things.

Besides CA law is pretty good when it comes to vehicle searches. The biggie is finding someone with a suspended license and towing their car for a 30 day impound and being able to inventory the contents.

I pretty much operate like the Chippies do to a certain extent. I have rarely found drugs or other contraband on someone with a consent search. Now if I have enough RAS or PC to search someone the odds are very good I will find something. RAS is often the smoke to the fire of dope in a doper's pockets.

If they change the rules it just changes the way we play the game.

4949shooter
05-14-2011, 14:50
With a detailed statement from an identified victim/witness you have PC to search. With less I would limit myself to a frisk/consent search.

Ray I thought the same, though those higher than me do not agree. We need to obtain a PC based consent to get into a vehicle, says my agency.

If they change the rules it just changes the way we play the game.

That's pretty much the way it works here too, CA. Although the rules are getting more stringent.

The Fist Of Goodness
05-14-2011, 15:42
I was just on another site debating the Indiana Supreme Court decision that threw out the right to resist the police from "unlawful" searches. It was like a typical GNG thread. Police are JBTs, "I'll meet them with the trusty shotgun" type arguments. Very anti-cop. The resounding opinion was that Training Day was a typical day on the job for the police in the USA.

Then I come here and read the many articulate, well though out posts on when and how to conduct warrant-less searches, and it made me feel better. I would link this thread there to show how the world generally works, but I feel like I would be wasting my time.

Sam Spade
05-14-2011, 15:47
Ray I thought the same, though those higher than me do not agree. We need to obtain a PC based consent to get into a vehicle, says my agency.

See here's the disconnect: you asked us a legal question dealing with making a criminal case. They're giving you a liability answer dealing with avoiding scrutiny.

Sucks to be you.

Dukeboy01
05-14-2011, 16:01
I was just on another site debating the Indiana Supreme Court decision that threw out the right to resist the police from "unlawful" searches. It was like a typical GNG thread. Police are JBTs, "I'll meet them with the trusty shotgun" type arguments. Very anti-cop. The resounding opinion was that Training Day was a typical day on the job for the police in the USA.

Then I come here and read the many articulate, well though out posts on when and how to conduct warrant-less searches, and it made me feel better. I would link this thread there to show how the world generally works, but I feel like I would be wasting my time.

You would definitely be wasting your time. Notice that none of the usual peanut gallery that hangs out in all of the Open carry threads is over here, trying to learn anything.

Some men you just can't reach...

Dukeboy01
05-14-2011, 16:03
See here's the disconnect: you asked us a legal question dealing with making a criminal case. They're giving you a liability answer dealing with avoiding scrutiny.

Sucks to be you.

Seems to me like it's beginning to suck to be all of us when it comes to the admin weenies thinking of liability first and foremost, even those of us who work for agencies that have never been anywhere near a consent decree.

4949shooter
05-14-2011, 16:10
See here's the disconnect: you asked us a legal question dealing with making a criminal case. They're giving you a liability answer dealing with avoiding scrutiny.

Sucks to be you.



Seems to me like it's beginning to suck to be all of us when it comes to the admin weenies thinking of liability first and foremost, even those of us who work for agencies that have never been anywhere near a consent decree.

it's just amazing, isn't it?