In a previous article, we examined whether you should disclose you are carrying a firearm when a law enforcement officer detains you for a traffic stop. Generally, the advice was that you should voluntarily disclose you are carrying even if the law does not require you to do so. A logical follow-up question is: If you voluntarily disclose that you are carrying, have you given permission for the police officer to search you or your car?
The question is not an easy one to answer due to the current state of the law. There is a split among the different jurisdictions in the United States with respect to whether someone who is carrying a gun is automatically considered “dangerous” and subject to search if a law enforcement officer reasonably believes the person is engaged in criminal activity. In order to understand the issue, it is important to briefly discuss the history of the law related to an officer’s ability to “stop and frisk.”
The History of “Stop and Frisk”
The Fourth Amendment provides that citizens have a right to be free from unreasonable searches and seizures. The standard used to be fairly cut and dried. A search was reasonable if law enforcement had a warrant, and a warrant was issued only when there was evidence sufficient to demonstrate probable cause that a crime had been committed. Then, in 1968, the U.S. Supreme Court issued its decision in a case entitled Terry vs. Ohio. As a result, an officer could seize a person and subject him to a limited search for weapons on nothing more than reasonable suspicion. The right to “stop and frisk” was born.
The problem with the “stop and frisk” standard is that it is nearly impossible to apply with any precision. The U.S. Supreme Court explained in the Terry decision than an officer may (1) seize an individual for a brief investigatory stop upon “reasonable suspicion that the suspect was involved in, or is about to be involved in criminal activity,” and (2) frisk the outer clothing of the individual for weapons if he has “reason to believe that he is dealing with an armed and dangerous individual.” The “reasonable suspicion” standard is low, less than what is necessary for probable cause.
by John Thomas
