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Old 05-05-2011, 17:06   #1
4949shooter
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Vehicle Frisk/Search for Weapon Scenerio

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..
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Old 05-05-2011, 17:16   #2
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Tagged 'cause I'm curious.
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Old 05-05-2011, 17:32   #3
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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.

Last edited by collim1; 05-05-2011 at 17:42..
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Old 05-05-2011, 17:34   #4
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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.
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Last edited by DaBigBR; 05-05-2011 at 18:17..
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Old 05-05-2011, 17:37   #5
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Leave someone in the car.
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Old 05-05-2011, 17:43   #6
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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.
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Old 05-05-2011, 17:53   #7
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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/e...97/dec/jl.html

Anonymous complainant, you have nothing.
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Old 05-05-2011, 18:27   #8
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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.
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Old 05-05-2011, 18:43   #9
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Nuke the car from orbit..... It's the only way to be sure.
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Old 05-05-2011, 19:19   #10
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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.
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Old 05-05-2011, 20:19   #11
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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.

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Old 05-05-2011, 20:22   #12
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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.
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Old 05-05-2011, 20:24   #13
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Quote:
Originally Posted by Dragoon44 View Post
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.

Nawww.......we don't do that stuff here.
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Old 05-05-2011, 20:26   #14
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Originally Posted by 4949shooter View Post
Nawww.......we don't do that stuff here.
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Old 05-05-2011, 23:30   #15
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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.

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Old 05-06-2011, 05:15   #16
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Quote:
Originally Posted by 4949shooter View Post
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.
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Old 05-06-2011, 07:27   #17
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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.
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Old 05-06-2011, 09:48   #18
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Quote:
Originally Posted by 4949shooter View Post
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 ) :

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.
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Old 05-06-2011, 16:57   #19
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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.
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Old 05-06-2011, 20:36   #20
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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.
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