Terry frisk situation and its validity

[one_self]

I have a question regarding a Terry frisk. Does nervousness and pro-gun clothing create a level of reasonable suspicion to conduct a Terry frisk. Furthermore, are the details below warrant a search? I was arrested and charged with illegal gun possession. Thanks in advance.


Background on a case:
I was pulled over for tailgating on a highway in Florida. There were 2 people my car, myself and my passenger in the front seat. The officer was in an unmarked car. The officer approached the passenger's side and said this stop is being both audio and video recorded. She then asked for my license, registration and proof of insurance. As I was getting them, I asked the officer for the reason I was pulled over and she just repeated her request. I asked her again but this time she didn't say anything. I told her it was a rental, gave her the rental contract and my driver's license. I was ordered out the car as soon I gave the officer it. I refused. She repeated her request to step out the car. I then asked the officer for ID because it was an unmarked car, she didn't identify herself and wouldn't tell me the purpose of the stop. She was wearing a uniform. She repeated herself again to step out the car. I refused again. She then told my passenger to get out of the car. I told my passenger to stay in the car. I then asked the officer again for ID. The officer then said I will be arrested if I don't follow her orders. I got out the car through the passenger's side. My passenger had to get out first, then I came out. The officer then told my passenger to get back in the car. We walked to the back of my car. I then asked her why I was pulled over and she told me. I told her I wasn't and she followed with I was. She then asked me if I had any drugs or weapons in the car and I said no. She then asked if I had anything in the trunk of my car. I said no. She asked if I opened the trunk of the car since I got it. I said no. She then asked if anyone else open the trunk of the car. I said no. The officer wanted to frisk me. I asked her why and she said because of my NRA lanyard. I told her I don't consent to any searches and that I'm not answering any further questions. She then ordered me to put my hands on the car and I was searched. A gun was found in my waistband. In the police report, it listed the following reasons the officer feared for her safety: nervousness, carotid artery pounding, heavy breathing, failed to make eye contact, blank stare, uncooperative and a lanyard on my neck with 'National Rifle Association' on it.

 

[Zigner]

I have a question regarding a Terry frisk. Does nervousness and pro-gun clothing create a level of reasonable suspicion to conduct a Terry frisk. Furthermore, are the details below warrant a search? Lets please focus on the question and leave the smart comments out and the obvious, that I should have informed. Thanks in advance.

You don't get to pick who answers and how.

 

[tranquility]

I would think "smart" answers are the best kind. They would point out a "smart" person would find the issue you're trying to focus on, the Terry patdown, isn't really the point.

It's if you could be asked to get out of the car in the circumstances. If that was OK, then everything else was OK.

nervousness, carotid artery pounding, heavy breathing, failed to make eye contact, blank stare, uncooperative and a lanyard on my neck with 'National Rifle Association' on it.

Bummer, you had a good cop who has been in court before.

The stop and the reason why you were told to get out of the car are key.

Personally, I think you've got trouble.

 

[FlyingRon]

That you should have been informed what?
What exactly are you asking.
It sounds like she had an articulable suspicion.
Were you charged with anything as a result of the search?

 

[one_self]

It's been changed. Thanks. I came across the Mimms 1978 U.S Supreme court case where it allows an officer to order a person out the car. I think I was ordered out to seperate the driver and passenger so we can be questioned and not for the officer's safety. Now Mimms allow the order to exit the car, whether for safety or investigative, with no need for reasonable suspicion. So how and why would her reason for having me exiting the car be relevant?

 

[tranquility]

The driver was under arrest in Mimms (in order to write a citation). To know if you can be asked out of the car depends on why they stopped you and, then, why they asked you out of the vehicle.

Info edit:
Wow, I was just going from memory. When you read the case, it seems more than I recalled:

Against this important interest we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "`petty indignity.'" Terry v. Ohio, supra, at 17. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.

 

[FlyingRon]

Could you take a deep breath, and write that again as sentences. I'm still not understanding what you are after.

All she needs is articulable suspicion (and that means when she is called upon to justify the stop, not to you on the scene) for stopping you. It sounds like from her report, as tranq alludes, she has that quite nicely done.

What are you after? Was something found in the search? Are you protesting some violation of constitutional rights? What do you want to happen?

 

[one_self]

Thanks for the responses. A gun was found during the search. I was arrested for illegal gun possession and transporting a firearm in a car. The traffic stop was bogus. I wasn't tailgating or even anything close to tailgating. My question is based on my description of events, did the officer develop reasonable articulate suspicion to fear for her safety to perform a Terry frisk as required? I have hired an attorney for this case. He says the officer did not. However, a colleague of his said the officer did. I am looking for the opinions of others and their reasons.

 

[tranquility]

He was charged with possession of an illegal firearm because:

A gun was found in my waistband.

 

[tranquility]

And, conversely to Mimms, states can be more restrictive. For example, at FourthAmendment.com an Oregon case:

Defendant was stopped for a traffic infraction, and the officer determined that he had no valid DL. After deciding that he would ticket defendant and tow the vehicle he told defendant to get out of the vehicle and asked if he had any contraband on him. Defendant admitted that he did. The trial court found that he was not free to leave but that the question was valid. “There is no bright-line rule as to whether an officer's request that a person step out of a vehicle in the context of a traffic stop constitutes a seizure for purposes of Article I, section 9. Such a request is merely one of the factors that is part of the totality of the circumstances that must be evaluated.” Here, the totality shows that it was a seizure, and it should have been suppressed. State v. Smith, 2010 Ore. App. LEXIS 664 (June 23, 2010).*

 

[CdwJava]

I have a question regarding a Terry frisk. Does nervousness and pro-gun clothing create a level of reasonable suspicion to conduct a Terry frisk.

By themself, not necessarily. But when combined with some other articulable cause, it certainly can.

She then asked for my license, registration and proof of insurance. As I was getting them, I asked the officer for the reason I was pulled over and she just repeated her request. I asked her again but this time she didn't say anything.

Nor is she obligated to provide you with this information at that instant. As a matter of fact, we tend to be trained in the academy to avoid such a discussion of "why" until after we have obtained that information we need. There are good reasons for that procedure.

I told her it was a rental, gave her the rental contract and my driver's license. I was ordered out the car as soon I gave the officer it. I refused. She repeated her request to step out the car.

Oops! You do not usually have the right to refuse such a demand when detained.

The officer wanted to frisk me. I asked her why and she said because of my NRA lanyard. I told her I don't consent to any searches and that I'm not answering any further questions. She then ordered me to put my hands on the car and I was searched. A gun was found in my waistband.

I think that given the totality of the circumstances, she could articulate good cause for the search.

Your attorney can certainly attempt to suppress the evidence by claiming a lack of probable cause for the search. If the motion fails, and you were indeed carrying a weapon unlawfully, then it might be time to seek a plea deal.

 

[StevenJ_420Law]

CDWs dead on..

As pointed out, terry is not the "minimum" at all. A pat down for weapons, especially with just about any cause (such as you provided them) is simply not considered intrusive enough to outweigh the safety factor for cops. Courts dont like seeing cops in caskets and they have wide latitude for a minimally intrusive pat down.

So that means.. a PD will have no interest in even bringing this up as it is, in their view, a waste of time.

A paid lawyer will do the overtures of fighting it out (at a minimum) and would probably get you a better deal...

This ones pretty much a nonstarter.

 

[HighwayMan]

You being uncooperative and giving the officer a hard time and arguing about everything seems to indicate you have something to hide. Coupled with the fact that the officer is alone with multiple occupants in the car would make a pat down not unreasonable.

And most people I stop for tailgating (i.e. following too closely) certainly do not agree with my assessment that their following distance was unsafe.