STOP, DETAIN, SEARCH - What CAN an Officer Do Legally (IANAL)

[archon]

This has been discussed in more depth by some lawyers that post occasionally on this board. You can find a more detailed and accurate conversation on types of police encounters if you use the search function.

In general, do not rely on snipets of discussion in case law as pure legal fact. Most of what is qouted above is dicta (discussion) and whereas it might be a good overview of a general area of law, it should not be regarded as a 100% accurate restatement of a particular standard (especially in older cases.)

If you want a fuller understanding criminal procuedure which includes search and seizure I would suggest you read some secondary resources on criminal procedure such as textbooks written for undergraduates or consultative material written for legal professionals. The book Criminal Procedure in a Nut Shell is a great overview. It is available here:

http://www.amazon.com/Israel-LaFaves...046520&sr=8-26

You can also try textbooks targetted for undergraduates. I will send out a few suggestions when I get a chance.

If you are very interested in the subject, most local colleges offer undergraduate level classes in criminal law and criminal procedure. Tuition at most community colleges is very affordable. I would suggest you find and take one of these courses.

I would say in general that you probably need an undergraduate degree or some undergraduate level work to understand the above resources the best. This is just a general statement though.

If you find specialized secondary material too tough, I would try to find texts written for police officer training. Many of those publications are written for people who have high school or associate level educational backgrounds.

[Mocha Java]

My question is: what is the practical recourse if you are wrongly Terry stopped/searched and/or arrested?

Complaining to the P/D is fine, but I believe that they have a special circular file for citizen complaints.
Lawsuits are expensive and iffy unless the circumstances are especially egregious.

Anybody care to comment?

[thetruepyromaniak]

My question is: what is the practical recourse if you are wrongly Terry stopped/searched and/or arrested?

Complaining to the P/D is fine, but I believe that they have a special circular file for citizen complaints.
Lawsuits are expensive and iffy unless the circumstances are especially egregious.

Anybody care to comment?

I second that question. My guess would be to talk personally to the department head and probally my state rep.

[Bruce]

My question is: what is the practical recourse if you are wrongly Terry stopped/searched and/or arrested? [snippage] Anybody care to comment?

Consult an attorney.
.

[steve_010]

Sorry if this was answered, but if you are carrying, can an officer confiscate your firearm during a Terry stop (under the assumption that you will get it back when you are free to go)?

[thetruepyromaniak]

Sorry if this was answered, but if you are carrying, can an officer confiscate your firearm during a Terry stop (under the assumption that you will get it back when you are free to go)?

I think a better term is hold, confiscate usually means no return. I have never been asked to hand mine over during a stop. (traffic) Once when i was intoxicated i was asked to place it on my dash. ( which didnt truly make it any better, it was easier to reach.) (!!!!DISCLAIMER: Before anyone tries to attack me. My wife was DD and I was drinking at a bar, I was not carrying on my person, I had locked it in the glove box. When we got stoped I told them it was in there before i opened it to get the papers out.)

[Mocha Java]

Consult an attorney.
.

Gee thanks--I never thought of that!

[ImminentDanger]

Israel and LaFave's Nutshell on Criminal Procedure - Constitutional Limitations (Nutshell Series) (Paperback)
by Wayne R. LaFave Jerold H. Israel (Author)
ISBN-10: 0314167757 ISBN-13: 978-0314167750
$28.00 (incl/shipping) at AMAZON
http://www.amazon.com/Israel-LaFaves...d_bxgy_b_img_a

Below I quote two passages from the Introduction....

During the latter half of Chief Justice Warren's tenure (i.e., over most of the 1960s), the Supreme Court instituted a reshaping of the constitutional regulation of criminal procedure so extensive that it came to be known as the "criminal procedure revolution." In subsequent decades, the Supreme Court retreated from some aspects of that criminal procedure revolution, but accepted most of its foundational elements and in many areas used that foundation to extend constitutional regulations to areas that had been largely untouched by the Warren Court. The end result was the establishment through Supreme Court rulings of a substantial body of constitutional standards governing the structure and administration of both state and federal criminal justice systems.

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And later in the same introduction
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It would take far more space than we have available to restate even in the briefest fashion all of the Supreme Court rulings that have shaped the constitutional standards currently applicable even as to the investigative stage alone. Prior to the 1960s, space limitations would not have been a problem. Indeed, those constitutional rulings applicable to the state criminal justice systems--which produce the vast bulk of criminal investigations and criminal prosecutions in this country--could readily have been surveyed in less than a quarter of these pages. Since that time, however, no field of constitutional adjudication has consistently occupied a more substantial portion of the Supreme Court's efforts than the regulation of criminal procedure. Almost every Supreme Court term has been marked by at least a few decisions producing significant new developments in constitutional criminal procedure, and by a larger group of rulings that have finetuned previously announced standards. The end result is a substantial body of precedent, creating as to some subjects (e.g., police searches) a body of constitutional regulation so extensive that it rivals a complex statutory code in its comprehensiveness and intricacy.

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We got along fine for nearly 200 years reading the Constitution as it was written.... then, in the 60's, Earl Warren decided everyone became too stupid to understand it, so he thought it necessary to put us back on the road to enlightenment....

Can you say 'ACTIVIST COURT' ! ! ! ! ! ! ! ! !

... Stay Safe ...
ID

[Bruce]

We got along fine for nearly 200 years reading the Constitution as it was written.... then, in the 60's, Earl Warren decided everyone became too stupid to understand it, so he thought it necessary to put us back on the road to enlightenment....

Can you say 'ACTIVIST COURT' ! ! ! ! ! ! ! ! !

... Stay Safe ...
ID

The most boggling thing to me is that so many of us allow ourselves to be convinced that we are just plain too stupid and poorly educated to possibly comprehend the meaning of the Constitution. And that burns my butt sum'en fierce!

Perhaps with the latest SCOTUS Justice nominee, who is supposedly "of the people" and "down for the cause" (and is pitched with other similar righteous 'catch phrases'), people might start to realize that any one of us can easily comprehend the Constitution and Constitutional Law if we would only choose to; this might just lead to an understanding of just how ridiculously 'messed up' it is that so much legislation and policy has been unconstitutionally created by the courts (as ImminentDanger points out to us).

Hey, I can dream - can't I?

As per the Constitution, it is the Legislative Branch that is in charge of the Supreme Court; they (Congress) can set the "rules" and they could (re-)define the "role" of the court if they chose to. One of the most sickening things to me is that not enough legislators would ever dare challenge how the courts wield their power nor would they ever attempt to (re-)set any limitations whatsoever on the power and authority of the Supreme Court of the United States.

Constitution of the United States of America
Article III:

Section 1:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

Section 2:
[...] "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
.

[ImminentDanger]

I see there are currently (still) some folks seeking these answers... so here's the research I've already collected...