Date: Mon, 07 Feb 2000 10:33:47 -0700 From: AZRKBA@asu.edu
> The pat down search is for "officer safety". Any other thing that is
>found is inadmissible, although
in terry v ohio two people the cops did a terry search on were both convicted of conceled weapons violations. im not an expert but it seems the guns they found in the terry case were admissible.
THE THREE WERE TAKEN TO THE POLICE STATION. PETITIONER AND CHILTON WERE CHARGED WITH CARRYING CONCEALED WEAPONS.
<snip>
PETITIONER AND CHILTON WERE FOUND GUILTY, AN INTERMEDIATE APPELLATE COURT AFFIRMED, AND THE STATE SUPREME COURT DISMISSED THE APPEAL ON THE GROUND THAT "NO SUBSTANTIAL CONSTITUTIONAL QUESTION" WAS INVOLVED.
>they will try to add it. Of particular inmportance is the officer's
>ability to establish probable cause for approaching a citinzen and
>performing a pat-down. They were not given unrestricted pat-down rights
>by Terry, but under particular circumstances.
again im not an expert but it seems that terry says the cops dont need probable cause to give you a pat down search. no crime had occured. and the cops though the guys they stopped may be casing a store and might be planning to later on engage in burglary or robbery.
A CLEVELAND DETECTIVE (MCFADDEN), ON A DOWNTOWN BEAT WHICH HE HAD BEEN PATROLLING FOR MANY YEARS, OBSERVED TWO STRANGERS (PETITIONER AND ANOTHER MAN, CHILTON) ON A STREET CORNER. HE SAW THEM PROCEED ALTERNATELY BACK AND FORTH ALONG AN IDENTICAL ROUTE, PAUSING TO STARE IN THE SAME STORE WINDOW, WHICH THEY DID FOR A TOTAL OF ABOUT 24 TIMES. EACH COMPLETION OF THE ROUTE WAS FOLLOWED BY A CONFERENCE BETWEEN THE TWO ON A CORERN, AT ONE OF WHICH THEY WERE JOINED BY A THIRD MAN (KATZ) WHO LEFT SWIFTLY. SUSPECTING THE TWO MEN OF "CASING A JOB, A STICK-UP," THE OFFICER FOLLOWED THEM AND SAW THEM REJOIN THE THIRD MAN A COUPLE OF BLOCKS AWAY IN FRONT OF A STORE. THE OFFICER APPROACHED THE THREE, IDENTIFIED HIMSELF AS A POLICEMAN, AND ASKED THEIR NAMES. THE MEN "MUMBLED SOMETHING," WHEREUPON MCFADDED SPUN PETITIONER AROUND, PATTED DOWN HIS OUTSIDE CLOTHING, AND FOUND IN HIS OVERCOAT POCKET, BUT HAS UNABLE TO REMOVE, A PISTOL. THE OFFICER ORDERED THE THREE INTO THE STORE. HE REMOVED PETITIONER'S OVERCOAT, TOOK OUT A REVOLVER, AND ORDERED THE THREE TO FACE THE WALL WITH THEIR HANDS RAISED. HE PATTED DOWN THE OUTER CLOTHING OF CHILTON AND KATZ AND SEIZED A REVOLVER FROM CHILTON'S OUTSIDE OVERCOAT POCKET. HE DID NOT PUT HIS HANDS UNDER THE OUTER GARMENTS OF KATZ (SINCE HE DISCOVERED NOTHING IN HIS PAT-DOWN WHICH MIGHT HAVE BEEN A WEAPON), OR UNDER PETITIONER'S OR CHILTON'S OUTER GARMENTS UNTIL HE FELT THE GUNS. THE THREE WERE TAKEN TO THE POLICE STATION. PETITIONER AND CHILTON WERE CHARGED WITH CARRYING CONCEALED WEAPONS. THE DEFENSE MOVED TO SUPPRESS THE WEAPONS. THOUGH THE TRIAL COURT REJECTED THE PROSECUTION THEORY THAT THE GUNS HAD BEEN SEIZED DURING A SEARCH INCIDENT TO A LAWFUL ARREST, THE COURT DENIED THE MOTION TO SUPPRESS AND ADMITTED THE WEAPONS INTO EVIDENCE ON THE GROUND THAT THE OFFICER HAD CAUSE TO BELIEVE THAT PETITIONER AND CHILTON WERE ACTING SUSPICIOUSLY, THAT THEIR INTERROGATION WAS WARRANTED, AND THAT THE OFFICER FOR HIS OWN PROTECTION HAD THE RIGHT TO PAT DOWN THEIR OUTER CLOTHING HAVING REASONABLE CAUSE TO BELIEVE THAT THEY MIGHT BE ARMED. THE COURT DISTINGUISHED BETWEEN AN INVESTIGATORY "STOP" AND AN ARREST, AND BETWEEN A "FRISK" OF THE OUTER CLOTHING FOR WEAPONS AND A FULLBLOWN SEARCH FOR EVIDENCE OF CRIME. PETITIONER AND CHILTON WERE FOUND GUILTY, AN INTERMEDIATE APPELLATE COURT AFFIRMED, AND THE STATE SUPREME COURT DISMISSED THE APPEAL ON THE GROUND THAT "NO SUBSTANTIAL CONSTITUTIONAL QUESTION" WAS INVOLVED. HELD:
and this judge who argued against the decision seems to say the cops didnt have probable cause to stop terry and his 2 friends.
MR. JUSTICE DOUGLAS, DISSENTING.
I AGREE THAT PETITIONER WAS "SEIZED" WITHIN THE MEANING OF THE FOURTH AMENDMENT. I ALSO AGREE THAT FRISKING PETITIONER AND HIS COMPANIONS FOR GUNS WAS A "SEARCH.' BUT IT IS A MYSTERY HOW THAT "SEARCH" AND THAT "SEIZURE" CAN BE CONSTITUTIONAL BY FOURTH AMENDMENT STANDARDS, UNLESS THERE WAS "PROBABLE CAUSE" /1/ TO BELIEVE THAT (1) A CRIME HAD BEEN COMMITTED OR (2) A CRIME WAS IN THE PROCESS OF BEING COMMITTED OR (3) A CRIME WAS ABOUT TO BE COMMITTED.
THE OPINION OF THE COURT DISCLAIMS THE EXISTENCE OF "PROBABLE CAUSE." IF LOITERING WERE IN ISSUE AND THAT WAS THE OFFENSE CHARGED, THERE WOULD BE "PROBABLE CAUSE" SHOWN. BUT THE CRIME HERE IS CARRYING CONCEALED WEAPONS: /2/ AND THERE IS NO BASIS FOR CONCLUDING THAT THE OFFICER HAD "PROBABLE CAUSE" FOR BELIEVING THAT THAT CRIME WAS BEING COMMITTED. HAD A WARRANT BEEN SOUGHT, A MAGISTRATE WOULD, THEREFORE, HAVE BEEN UNAUTHORIZED TO ISSUE ONE, FOR HE CAN ACT ONLY IF THERE IS A SHOWING OF "PROBABLE CAUSE." WE HOLD TODAY THAT THE POLICE HAVE GREATER AUTHORITY TO MAKE A "SEIZURE" AND CONDUCT A "SEARCH" THAN A JUDGE HAS TO AUTHORIZE SUCH ACTION. WE HAVE SAID PRECISELY THE OPPOSITE OVER AND OVER AGAIN. /3/ IN OTHER WORDS, POLICE OFFICERS UP TO TODAY HAVE BEEN PERMITTED TO EFFECT ARRESTS OR SEARCHES WITHOUT WARRANTS ONLY WHEN THE FACTS WITHIN THEIR PERSONAL KNOWLEDGE WOULD SATISFY THE CONSTITUTIONAL STANDARD OF PROBABLE CAUSE. AT THE TIME OF THEIR "SEIZURE" WITHOUT A WARRANT THEY MUST POSSESS FACTS CONCERNING THE PERSON ARRESTED THAT WOULD HAVE SATISFIED A MAGISTRATE THAT "PROBABLE CAUSE" WAS INDEED PRESENT. THE TERM "PROBABLE CAUSE" RINGS A BELL OF CERTAINTY THAT IS NOT SOUNDED BY PHRASES SUCH AS "REASONABLE SUSPICION." MOREOVER, THE MEANING OF "PROBABLE CAUSE" IS DEEPLY IMBEDDED IN OUR CONSTITUTIONAL HISTORY. AS WE STATED IN HENRY V. UNITED STATES, 361 U.S. 98, 100-102:
quotes are from
TERRY V. OHIO CERTIORARI TO THE SUPREME COURT OF OHIO. NO. 67. ARGUED DECEMBER 12, 1967.-- DECIDED JUNE 10, 1968.