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re: officer taking pistol from vehicle

Posted on 11/13/13 at 1:10 pm to
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:10 pm to
Here is an excerpt from the Knowles decision. Seems to be applicable here.

quote:

We have recognized that the first rationale—officer safety—is “ ‘both legitimate and weighty,’ ” Maryland v. Wilson, 519 U.S. 408, 412, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) ). The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest. In Robinson, we stated that a custodial arrest involves “danger to an officer” **488 because of “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.” 414 U.S., at 234–235, 94 S.Ct. 467. We recognized that “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.” Id., at 234, n. 5, 94 S.Ct. 467. A routine traffic stop, on the other hand, is a relatively brief encounter and “is more analogous to a so-called ‘Terry stop’ ... than to a formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). See also Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) ( “Where there is no formal arrest ... a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence”).
This is not to say that the concern for officer safety is absent in the case of a routine traffic stop. It plainly is not. See Mimms, supra, at 110, 98 S.Ct. 330; Wilson, supra, at 413–414, 117 S.Ct. 882. But while the concern for officer safety in this context may justify the “minimal” additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they *118 may order out of a vehicle both the driver, Mimms, supra, at 111, 98 S.Ct. 330, and any passengers, Wilson, supra, at 414, 117 S.Ct. 882; perform a “patdown” of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); conduct a “Terry patdown” of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
Posted by boom roasted
Member since Sep 2010
28039 posts
Posted on 11/13/13 at 1:11 pm to
quote:

What do you do?

Attorney.
quote:

And if you practice, what do you practice?

Law.
Posted by Five0
Member since Dec 2009
11354 posts
Posted on 11/13/13 at 1:11 pm to
What kind of law all knowing one?
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:13 pm to
quote:

It is a definition for Christ's sake!!! Look up custodial arrest. Good God you are insufferable.


As defined by the Supreme Court, issuing a citation is not a custodial arrest for purposes of a search incident to arrest. This is clear as day.
Posted by boom roasted
Member since Sep 2010
28039 posts
Posted on 11/13/13 at 1:14 pm to
quote:

What kind of law all knowing one?

What kind of law do you practice, law student?
Posted by Five0
Member since Dec 2009
11354 posts
Posted on 11/13/13 at 1:16 pm to
quote:

What kind of law do you practice


Presently, law enforcement. Something tells me you do not venture to the criminal side often, if at all. I'll ask for you when we talk about divorces or wills.
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:17 pm to
quote:

Something tells me you do not venture to the criminal side often,


I hope not, for the sake of his clients.
Posted by boom roasted
Member since Sep 2010
28039 posts
Posted on 11/13/13 at 1:19 pm to
quote:

law enforcement

You practice law enforcement?
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:21 pm to
He is currently working as an LEO while attending law school, as he said earlier in response to your question.
Posted by boom roasted
Member since Sep 2010
28039 posts
Posted on 11/13/13 at 1:23 pm to
quote:

He is currently working as an LEO while attending law school, as he said earlier in response to your question.

I know. Just making sure he's currently practicing law enforcement.
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:25 pm to
No need to be a douche after you have been shown to be incorrect.
Posted by DanTiger
Somewhere in Luziana
Member since Sep 2004
9480 posts
Posted on 11/13/13 at 1:26 pm to
quote:

Presently, law enforcement.


Do you work in Louisiana?
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:27 pm to
I think five0 is an Alabama guy.
Posted by boom roasted
Member since Sep 2010
28039 posts
Posted on 11/13/13 at 1:28 pm to
quote:

No need to be a douche after you have been shown to be incorrect.

Incorrect about what? Haven't LEOs and attorneys shown up in this thread to say that cops do this all the time and it's deemed admissible by the court?

Also, this
quote:

No need to be a douche
coming from you is hilarious.
This post was edited on 11/13/13 at 1:30 pm
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:30 pm to
You laughed when I said detention was not the same as a custodial arrest. After citing a case to show that the two are different you go on to call me arrogant.
Posted by DanTiger
Somewhere in Luziana
Member since Sep 2004
9480 posts
Posted on 11/13/13 at 1:30 pm to
quote:

I think five0 is an Alabama guy.


Perhaps that has lead to some of the confusion. Our courts seem to believe that current case law supports an officer disarming anyone on a traffic stop. This has been upheld time after time in this state. There is no direct SCOTUS ruling on this so I imagine some courts could view it differently. I know I have never seen it questioned or shot down in this state.
Posted by DanTiger
Somewhere in Luziana
Member since Sep 2004
9480 posts
Posted on 11/13/13 at 1:32 pm to
quote:

No need to be a douche after you have been shown to be incorrect.


I think quite the contrary has been shown.
Posted by UpToPar
Baton Rouge
Member since Sep 2008
22968 posts
Posted on 11/13/13 at 1:33 pm to
Both of you laughed at the idea of a detention being different than an arrest. I cited case law showing that the two are not the same particularly relating to the issue at hand. Both of you resorted to name calling. Pretty typical.
Posted by DanTiger
Somewhere in Luziana
Member since Sep 2004
9480 posts
Posted on 11/13/13 at 1:34 pm to
quote:


You laughed when I said detention was not the same as a custodial arrest. After citing a case to show that the two are different you go on to call me arrogant


I will admit that the case you listed above does seem to show a course the SCOTUS is taking on defining custodial arrest. I have not seen this before. Even with this it does not disspute anything writen here. It simply clarifies ONE of the cases I listed as supporting securing firearms.
Posted by Five0
Member since Dec 2009
11354 posts
Posted on 11/13/13 at 1:36 pm to
That is because the federal question of seizing a legally possessed piece property had not been by the USSC. That 10th Circuit ruling and opinion give a clue as to how it would go. When it comes to a federal question the state does not matter.

And yes, I am in AL.
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