Police searches during car stops and PA v. Mimms

[Dex Sinister]

PA v. Mimms

This case created case law that equates an armed subject as the same as an "armed and dangerous" subject. Thanks to this, now if you are detained and you are armed, even lawfully armed, you are considered "armed and dangerous" by the courts. This case also overturned a PA Supreme Court decision that had stated that an officer could not order you out of the vehicle without independent reasoning for doing so. So now cops can order you out of your vehicle whenever they please (in the course of a lawful stop, that is).

http://supreme.justia.com/us/434/106/case.html

I'm going to start a new thread here, referencing this quote used in the thread in order to point out that the cases cited by ironsight do not conclude what he says they do. And I say that as someone who graduated from law school and has a Doctorate in Law.

The majority in Mimms says that it is a "negligible" intrusion to federal constitutional rights, to be ordered out of the car at a traffic stop. What is says is that ordering someone out of the car does not require a reason -- the court simply treated being out of the car and being in the car as negligibly different in a constitutional sense, since you're already forced to be talking to the cop.

I certainly agree with the dissent that it isn't negligible, but that is all that Mimms says: Stupid officers do not offend the federal constitution if they order every person they stop out of the car, if they wish to do so.

What Mimms does not say is that "any armed person is an armed and dangerous person." Nor does Mimms change Terry's requirement that the officers develop an independent reason for believing that the person whom they are dealing with constitutes a danger to them, in order to justify a Terry pat down of the outer layers of clothing for a weapon.

Now admittedly, since the pat-down search in Terry is a search for weapons, there is the temptation to add a self-referencing logic loop and assume that if the officer observes that the person with whom he is interacting might have a weapon because of observable appearances, then he must be dangerous and therefore subject to a pat down for weapons. And that's what the court in Mimms accepted -- that they were justified in checking out an "obvious bulge" that they observed while talking to him, once the court assumed, independently, that it was okay to order him out of the car.

However, it is important not to lose sight of the fact that the thrust of Terry (and therefore Mimms as well) is the doctrine of the "fruit of the poisonous tree" [FOTPT] evidence-suppression doctrine. IOW, the why of why Terry objected to the search (and why the case wound up in the Supreme Court) was that he was charged with violating statutes against carrying a concealed handgun, because he was searched without probable cause that a crime had been committed, and the handgun was found.

If the search was unconstitutional, the evidence would have been suppressed, and he couldn't have been convicted of that crime. The "tree" is the search, the "fruit" is the evidence. Bad tree, bad fruit.

Now, it is worth noting that because of the way that case law and especially the FOTPT doctrine developed, police can violate the 4th amendment by unreasonably searching the law abiding all day long, and there is essentially not a damn thing the law abiding can do about it within the legal system. Why is that? Because you won't have standing.

If the cop decides that you aren't breaking the law (in relation to something he finds during the search,) he's not going to charge you. Since he's not going to charge you, you won't be a party to a case as related to that search (there won't even be a case related to the search). Since you're not a party to a case, you are not recognized by the court as a party who can object in court. No standing in court.

Your rights were offended, but according to way that the evolution of 4th amendment cases ran; no harm, no foul. Your rights have your person inviolate indeed been offended by the cop, but only those charged with a crime in direct relation to the search get to object.

Note: I'm not saying that I like it, nor am I defending it, I'm merely describing it. If history had taken a different fork, one would be able to sue the cop for violating your rights (but probably not suppress the evidence found in a search).

Now, does the Supreme Court's ruling in Mimms mean that police in PA can order you out of the car at any traffic stop? No. It means that the case was sent back to the supreme court of PA (which had already failed to support the practice under the 4th amendment), and as the majority carefully notes in Mimms, the supreme court of PA could subsequently have reached the exact same ruling that they already had reached -- this time by examining and rejecting the cop's behavior under the PA constitution instead of the Federal constitution.

Did they do that? I haven't the faintest notion, and don't have convenient access to PA case law. But that case would, in all likelihood, be what controlled the cops behavior in PA.

Now, what does this have to do with a PA LTCF? Well, the LTCF is an exception to the prohibition against carrying concealed weapons. So, if the cops examine the LTCF, they're not going to charge you with illegally carrying a concealed weapon. Hence, no standing, hence nothing that they do as far as cop theater has meaning, constitutionally.

They can freely pretend that your holstered weapon, which you as a law-abiding armed citizen have no intention of drawing is an evil deadly object which needs to be removed because it might attack them all by itself at any time. Their weapon, which they may regularly commit assault-with-a-deadly-weapon with by pointing it unnecessarily at people, is "perfectly safe and innocent".

Fifty to 75 years ago, police pointing their gun at people who were not actually threatening them would quite possibly have gotten them shot as justifiable homicide. Today, police can hold an irrational double-standard that their weapon is "safe" even when they're waving it at you with little justification, while yours is always "evil". It's stupid, but they can do it.

Of course, not all cops act like that. Some cops are part of the gun culture, and are perfectly comfortable with a "we both have guns, that's great, and if you don't draw yours I won't draw mine," policy during interactions.

But that is an education issue -- as in "We're law-abiding citizens whose taxes pay your department's salary, and we're offended go through a background check and the process to get a LTCF, only to be treated like a common criminal by your officers/deputies, at traffic stops," sort of conversation. After all, there is no intrinsic reason that a cop should not be relieved to find that someone has a LTCF -- because it undoubtedly means that the person is almost certain to be upstanding and law abiding.

Michigan v. Long

This case further butchered the 4th amendment, by allowing the search of the passenger compartment of a vehicle, if they have a reasonable suspicion that you are armed. So now, if you inform them you are armed, you automatically grant the officer a free search of the passenger compartment of your car, if he so wishes.

http://www.law.cornell.edu/supct/htm...3_1032_ZO.html


Working together, the two cases allow an officer to, once he knows or reasonably believes you are armed (since you are now both armed AND dangerous in the eyes of the court), order you out of the vehicle and pat you down and then search the passenger compartment of your car while you sit in the back of his car, or on the side of the road, in handcuffs, for officer safety of course. All of this is allowed because in the eyes of the court you and I, the law abiding citizens, are considered armed and dangerous.

I recommend reading the dissenting opinions in these cases, they are quite well written and provide further insight into how, exactly, the SCOTUS has butchered the 4th amendment during a traffic stop.

If you want to tell a cop you're armed, even in PA, just be prepared of what you could be forced to sit through, and then remember that you will have consented to all of it thanks to your "courtesy" towards the officer.

Again, this is not what MI v. Long says. It is a bit of an odd case, but police have long be able to act on things that they directly see, as long as they see them from a vantage point where they are legitimately allowed to be. So yeah, if there's an open door, and a knife plainly visible on the floor, they can certainly take note of the knife and enter the car to secure it.

Same with peering through the window and seeing something in plain view on the seat. And again, the question of standing intrudes -- because if you're not charged with anything relative to the search, the offense to your personal rights is not actionable anyway.

Fourth amendment protections have never been very strong for cars: Because they are mobile, and might not be there is the police were required to get a warrant and come back, the courts have always been rather weak-spined about enforcing 4th amendment protections. But that's also because the logic is always "was the offense against the Constitution so great as to justify throwing out this perfectly good conviction of this otherwise bad person". And you can see how that goes.

For the most part, if you don't want the police in your car, lock your doors before you come to a stop, and if you get out, pocket your keys and lock your door behind you. Say you locked it "out of habit," if they ask. It's a lot harder for police to justify searching the car, or any sort of voluntary consent if they have to prise the keys away from you and unlock the car to search it. After all, they can't very well claim that you were going to lunge through the locked door to get at anything.

Caveat: Nothing in the post above constitutes legal advice. I am not licensed to practice law in PA. No advice on a public forum should be taken in preference to consulting a lawyer licensed in the state in which you live, who is familiar with the current state of that area's laws.

[IronSight]

I'm still reading through this, but let me first post this.

If you think something I've posted is WRONG, and can back it up, I'll gladly review what you have to say and change my posts accordingly. However, the manner in which you've chosen to point out my mistakes (I'm still reviewing your post to see how accurate you are about that) is insulting.

Just a cursory reading of your post has already revealed to me at least one major error in your reading of my words, possibly due to the order in which I stated things.

I would have appreciated a PM, and a discussion on these two cases, before such a "calling out". Hell, if such a discussion had occurred I would have gladly made a post correcting errors in my statements myself.

[IronSight]

The majority in Mimms says that it is a "negligible" intrusion to federal constitutional rights, to be ordered out of the car at a traffic stop. What is says is that ordering someone out of the car does not require a reason -- the court simply treated being out of the car and being in the car as negligibly different in a constitutional sense, since you're already forced to be talking to the cop.

Okay, in agreement here.

I certainly agree with the dissent that it isn't negligible, but that is all that Mimms says: Stupid officers do not offend the federal constitution if they order every person they stop out of the car, if they wish to do so.

Still in agreement.

What Mimms does not say is that "any armed person is an armed and dangerous person." Nor does Mimms change Terry's requirement that the officers develop an independent reason for believing that the person whom they are dealing with constitutes a danger to them, in order to justify a Terry pat down of the outer layers of clothing for a weapon.

Okay, my original post is poorly worded, I see that now. I was talking about case law that has come after Mimms, federal cases that reference it as a sticking point where they, in one form or another, treat an armed citizen as an armed and dangerous one (despite a lack of independent reasoning to substantiate the "dangerous" part of that equation).

I wrote that sentence a while ago. At this time I don't remember the exact cases I was thinking of when I wrote it then.

Now admittedly, since the pat-down search in Terry is a search for weapons, there is the temptation to add a self-referencing logic loop and assume that if the officer observes that the person with whom he is interacting might have a weapon because of observable appearances, then he must be dangerous and therefore subject to a pat down for weapons. And that's what the court in Mimms accepted -- that they were justified in checking out an "obvious bulge" that they observed while talking to him, once the court assumed, independently, that it was okay to order him out of the car.

In agreement here as well.

However, it is important not to lose sight of the fact that the thrust of Terry (and therefore Mimms as well) is the doctrine of the "fruit of the poisonous tree" [FOTPT] evidence-suppression doctrine. IOW, the why of why Terry objected to the search (and why the case wound up in the Supreme Court) was that he was charged with violating statutes against carrying a concealed handgun, because he was searched without probable cause that a crime had been committed, and the handgun was found.

If the search was unconstitutional, the evidence would have been suppressed, and he couldn't have been convicted of that crime. The "tree" is the search, the "fruit" is the evidence. Bad tree, bad fruit.

Now, it is worth noting that because of the way that case law and especially the FOTPT doctrine developed, police can violate the 4th amendment by unreasonably searching the law abiding all day long, and there is essentially not a damn thing the law abiding can do about it within the legal system. Why is that? Because you won't have standing.

If the cop decides that you aren't breaking the law (in relation to something he finds during the search,) he's not going to charge you. Since he's not going to charge you, you won't be a party to a case as related to that search (there won't even be a case related to the search). Since you're not a party to a case, you are not recognized by the court as a party who can object in court. No standing in court.

Your rights were offended, but according to way that the evolution of 4th amendment cases ran; no harm, no foul. Your rights have your person inviolate indeed been offended by the cop, but only those charged with a crime in direct relation to the search get to object.

I've only heard the term "fruit of the poisonous tree" used this way once, maybe twice before. Any good articles you can link to offering a more thorough explanation? It was my understanding that you can indeed file civil action against police who violate your rights, even if you are never charged as a result of that violation.

Note: I'm not saying that I like it, nor am I defending it, I'm merely describing it. If history had taken a different fork, one would be able to sue the cop for violating your rights (but probably not suppress the evidence found in a search).

Now, does the Supreme Court's ruling in Mimms mean that police in PA can order you out of the car at any traffic stop? No. It means that the case was sent back to the supreme court of PA (which had already failed to support the practice under the 4th amendment), and as the majority carefully notes in Mimms, the supreme court of PA could subsequently have reached the exact same ruling that they already had reached -- this time by examining and rejecting the cop's behavior under the PA constitution instead of the Federal constitution.

Did they do that? I haven't the faintest notion, and don't have convenient access to PA case law. But that case would, in all likelihood, be what controlled the cops behavior in PA.

Well, I'm certainly going to have to see if I can dig up more records on this case now.

However, within Michigan v. Long, it is stated, "In Pennsylvania v. Mimms, 434 U.S. 106 (1977), we held that police may order persons out of [p1048] an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous."

So on this point, I believe you are incorrect.

Now, what does this have to do with a PA LTCF? Well, the LTCF is an exception to the prohibition against carrying concealed weapons. So, if the cops examine the LTCF, they're not going to charge you with illegally carrying a concealed weapon. Hence, no standing, hence nothing that they do as far as cop theater has meaning, constitutionally.

They can freely pretend that your holstered weapon, which you as a law-abiding armed citizen have no intention of drawing is an evil deadly object which needs to be removed because it might attack them all by itself at any time. Their weapon, which they may regularly commit assault-with-a-deadly-weapon with by pointing it unnecessarily at people, is "perfectly safe and innocent".

Fifty to 75 years ago, police pointing their gun at people who were not actually threatening them would quite possibly have gotten them shot as justifiable homicide. Today, police can hold an irrational double-standard that their weapon is "safe" even when they're waving it at you with little justification, while yours is always "evil". It's stupid, but they can do it.

I think there's more latitude for this today, agreed, but I do believe there is a limit to how far a police officer can go before crossing into the territory of recklessly and criminally endangering others in the course of his/her duties. Of course I don't think that limit is a white line that can be pointed to.

Of course, not all cops act like that. Some cops are part of the gun culture, and are perfectly comfortable with a "we both have guns, that's great, and if you don't draw yours I won't draw mine," policy during interactions.

But that is an education issue -- as in "We're law-abiding citizens whose taxes pay your department's salary, and we're offended go through a background check and the process to get a LTCF, only to be treated like a common criminal by your officers/deputies, at traffic stops," sort of conversation. After all, there is no intrinsic reason that a cop should not be relieved to find that someone has a LTCF -- because it undoubtedly means that the person is almost certain to be upstanding and law abiding.

Agreed.

Again, this is not what MI v. Long says. It is a bit of an odd case, but police have long be able to act on things that they directly see, as long as they see them from a vantage point where they are legitimately allowed to be. So yeah, if there's an open door, and a knife plainly visible on the floor, they can certainly take note of the knife and enter the car to secure it.

Okay, I've re-read Michigan v. Long, and I was too broad when I described it as allowing a terry search of a vehicle based on the occupant being armed. The court did appear to reinforce the notion that the police would need to "possess an articulable and objectively reasonable belief that the suspect is potentially dangerous". The obvious problem therein, however, is what are the reasonable standards for that belief to exist? The courts are unclear on that, in my opinion.

Same with peering through the window and seeing something in plain view on the seat. And again, the question of standing intrudes -- because if you're not charged with anything relative to the search, the offense to your personal rights is not actionable anyway.

Again, I do believe you're incorrect that you cannot seek redress for constitutional violations that don't result in criminal charges. Perhaps you could detail your stance on this a bit more to discuss here?

Fourth amendment protections have never been very strong for cars: Because they are mobile, and might not be there is the police were required to get a warrant and come back, the courts have always been rather weak-spined about enforcing 4th amendment protections. But that's also because the logic is always "was the offense against the Constitution so great as to justify throwing out this perfectly good conviction of this otherwise bad person". And you can see how that goes.

Agreed.

For the most part, if you don't want the police in your car, lock your doors before you come to a stop, and if you get out, pocket your keys and lock your door behind you. Say you locked it "out of habit," if they ask. It's a lot harder for police to justify searching the car, or any sort of voluntary consent if they have to prise the keys away from you and unlock the car to search it. After all, they can't very well claim that you were going to lunge through the locked door to get at anything.

Caveat: Nothing in the post above constitutes legal advice. I am not licensed to practice law in PA. No advice on a public forum should be taken in preference to consulting a lawyer licensed in the state in which you live, who is familiar with the current state of that area's laws.

Again, definitely in agreement.

[Dex Sinister]

I'm still reading through this, but let me first post this.

If you think something I've posted is WRONG, and can back it up, I'll gladly review what you have to say and change my posts accordingly. However, the manner in which you've chosen to point out my mistakes (I'm still reviewing your post to see how accurate you are about that) is insulting.

Just a cursory reading of your post has already revealed to me at least one major error in your reading of my words, possibly due to the order in which I stated things.

I would have appreciated a PM, and a discussion on these two cases, before such a "calling out". Hell, if such a discussion had occurred I would have gladly made a post correcting errors in my statements myself.

I'm sorry, didn't intend to be insulting...
and as I pointed out in the thread I pulled it from, I didn't intend to call you out:

Hey Ironsight - just wanted to note that I started a new thread to better explain the PA v. Mimms and MI v. Long cases you noted in your first post - not to pick on you, but just because they get thrown around in a lot of threads and needed a better explanation, I thought.

All the best,
and your project in this thread sounds great!

However, I do apologize for not sending you an PM.

[MDJschool]

If you move to PM, the community misses out on new points or new law gleaned from the discussion, some of which will be prompted by the serendipity of third parties. It might make sense that this exposition wasn't 'on topic' for that thread, and so this new one was started. I don't know why there's any offense to be taken to truth-seeking, which should better the lot of us, and having another purported Juris Doctor hash this out with us wouldn't be so bad (too bad he's not in PA with convenient access to PA case law...) So please don't.

However, I saw some points in the exposition that I didn't think we're right, and I'll come back around to address them later.

[Deleted]

After all, there is no intrinsic reason that a cop should not be relieved to find that someone has a LTCF -- because it undoubtedly means that the person is almost certain to be upstanding and law abiding. .[/I]

As it has been pointed out that just because someone is a police officer does not mean they are upstanding or law abiding..... Just because someone has a permit does not mean they are a good person either.

Great case law review though!

Are these run-ins that common though? Or is this more of a preparation issue for the "what if"? I stop about 1,000 people every year for traffic violations... Mims, Terry never come into play with "normal" law-abiding people.

[Dex Sinister]

I've only heard the term "fruit of the poisonous tree" used this way once, maybe twice before. Any good articles you can link to offering a more thorough explanation? It was my understanding that you can indeed file civil action against police who violate your rights, even if you are never charged as a result of that violation.

Here's a reasonably-accurate explanation of the exclusionary rule/fruit of the poisonous tree doctrine
Exclusionary_rule / Fruit_of_the_poisonous_tree (It might have been clearer if I'd just referred to the exclusionary rule, they're the same)

And you're correct, you can file a civil action for rights violations, under the Civil Rights Act of 1871 (or it's most important provision 42 U.S.C. § 1983) -- but the effective likelihood of winning it is annoyingly small. And did I mention that you'll be bearing the costs of the case?

The most important case is summarized here Monroe_v._Pape

However, within Michigan v. Long, it is stated, "In Pennsylvania v. Mimms, 434 U.S. 106 (1977), we held that police may order persons out of [p1048] an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous."

So on this point, I believe you are incorrect.

It doesn't say anything there, except summarize the restatement of Terry. The "and" is actually legally significant - it is not "if they are armed or if they are dangerous". It is, "if both conditions are true".

Legally anyway - it is not as if I'm not aware that cops ignore this distinction all the time. Cops often find themselves pushing the walls of their doctrinal cages, and there is little downside to doing so, even if they push them out of shape.

I think there's more latitude for this today, agreed, but I do believe there is a limit to how far a police officer can go before crossing into the territory of recklessly and criminally endangering others in the course of his/her duties. Of course I don't think that limit is a white line that can be pointed to.

Of course we're in agreement that a line exists...somewhere. But I've seen cops point their guns at people who were not even vaguely threatening, based on the mere concept that they might possess a gun (one I personally witnessed was my wife...with me standing at his 7-o'clock position with a holstered pistol he never knew about).

People don't generally do this today, but if if one mentally replaces the cop with an ordinary citizen with his gun out of his holster, and contemplates the charges based on where the gun gets pointed and the actual threat presented, the charges rack up pretty fast.

Okay, I've re-read Michigan v. Long, and I was too broad when I described it as allowing a terry search of a vehicle based on the occupant being armed. The court did appear to reinforce the notion that the police would need to "possess an articulable and objectively reasonable belief that the suspect is potentially dangerous". The obvious problem therein, however, is what are the reasonable standards for that belief to exist? The courts are unclear on that, in my opinion.

Yeah, the doctrine invented in Terry again. But the courts are going to be dithering with that question, (and do, in ordinary day-to-day cases) based on whether to exclude the evidence.

[Dex Sinister]

As it has been pointed out that just because someone is a police officer does not mean they are upstanding or law abiding..... Just because someone has a permit does not mean they are a good person either.

Great case law review though!

Are these run-ins that common though? Or is this more of a preparation issue for the "what if"? I stop about 1,000 people every year for traffic violations... Mimms, Terry never come into play with "normal" law-abiding people.

Well, run ins are probably not too common, simply because anyone who is going to go through the trouble and paperwork to get a LTCF probably isn't break that many traffic laws (on average, of course there are outliers in any population.) But I'm sure that if I gave most LEO's the choice of interacting with 100 people who had clean background checks, or 100 people who didn't, they'd probably gravitate toward the statistically-safer population.

I'm not really sure. I've interacted with enough cops while armed to not worry that they're going to pick up on it, and I simply wouldn't mention it if I was stopped. But if I did, I'd make sure that I established "License" before I said the word "pistol" or "gun", based on the worry that their hearing would shut off if I said "gun" first.

But I think that the issue probably looms larger in the minds of LTCF holders because they already know that they're not going to pull their weapon during a traffic stop, but at the same time are worried that the totemistic "guns are evil objects" that has been so promoted by the anti-gun crowd might also have been adopted by the cop they were interacting with.

Maybe it's just expectations raised (or lowered) by TV.

[MDJschool]

I don't feel like picking apart Dex Sinister's post yet, but I, too, think IronSight has misplaced the weight of Mimms on Terry-frisk jurisprudence. If you feel like (re)reading the direction of my argument, see http://forum.pafoa.org/general-2/805...h-seizure.html. In reading through cases that cite Mimms, I'm not sure that I ever found one that said "Well, Mimms says that armed=dangerous, so now officers just need RAS a suspect is armed, to frisk." I suppose there may be cases that say armed=dangerous without saying "Mimms said we could do it", but they are single rocks in decades of Terry jurisprudence that say 'armed and dangerous'. Why bother to keep repeating the 'dangerous' part as so? Even Arizona v. Johnson (2009) recognizes that Mimms didn't (or couldn't) dump the "dangerous" part. Even if we could conclude Mimms + Long created disgusting automobile exceptions, and PA recognized or should recognize that state of law under the 4A (there's actually an interesting per curiam SCOTUS opinion talking about how, during some decade, PA courts were applying 4A jurisprudence incorrectly -- too bad I can't find it at the moment; the caption has the lastname of an NBA player I think EDIT: turns out its Pennsylvania v. Labron, maybe not entirely on point but worth a read), PA doesn't recognize similar types of exceptions under Art. I, sec. 8.

[Dex Sinister]

I don't feel like picking apart Dex Sinister's post yet, but I, too, think IronSight has misplaced the weight of Mimms on Terry-frisk jurisprudence. If you feel like (re)reading the direction of my argument, see http://forum.pafoa.org/general-2/805...h-seizure.html. In reading through cases that cite Mimms, I'm not sure that I ever found one that said "Well, Mimms says that armed=dangerous, so now officers just need RAS a suspect is armed, to frisk." I suppose there may be cases that say armed=dangerous without saying "Mimms said we could do it", but they are single rocks in decades of Terry jurisprudence that say 'armed and dangerous'. Why bother to keep repeating the 'dangerous' part as so? Even Arizona v. Johnson (2009) recognizes that Mimms didn't (or couldn't) dump the "dangerous" part. Even if we could conclude Mimms + Long created disgusting automobile exceptions, and PA recognized or should recognize that state of law under the 4A (there's actually an interesting per curiam SCOTUS opinion talking about how, during some decade, PA courts were applying 4A jurisprudence incorrectly -- too bad I can't find it at the moment; the caption has the lastname of an NBA player I think EDIT: turns out its Pennsylvania v. Labron, maybe not entirely on point but worth a read), PA doesn't recognize similar types of exceptions under Art. I, sec. 8.

I read through your other thread with some interest. Reminds me somewhat of an ADA here in Butte County, CA who swore up and down in an informational seminar that CA has a mandatory-announce-during-a-stop clause in their CCW law (which it utterly doesn't). <sigh>

According to my Con Law prof (who's certified to practice before the Supreme Court,) you are absolutely correct, and the ADA was wrong. I had a rather extended running discussion with him on this very subject during my Con Law semester, as it was a particular interest of mine. And I haven't read any subsequent cases since, then that would cause me to change my mind.

The decision in Terry (and it's progeny) does require a separate RAS that the person is both armed and constitutes a danger to the officer(s) during the course of the temporary detention (to phrase it a different way) in order to to search -- partly because the entire Terry decision was such an abject departure from the hundreds-of-years-established historical probable cause requirement necessary for a policeman to even to even detain a citizen.

OTOH, following the requirements of Terry is not what a lot of police departments are doing, (probably because of sloppy opinions like your ADA's,) and many lower courts are letting them get away with it.

Sadly (and this is what irritates the heck out of me from a Constitutional POV,) the second you tell police that you've graciously not thrown out a conviction because -- even though their behavior was far over the accepted line of constitutional behavior -- it was clear that they were sincere, meant well, and had a good excuse, then some of them are going to be ranging far over the new line in the sand. Given that they have vanishingly little personal liability for doing so, I suppose that it is inevitable.

Not germane to PA, but witness New York's "Stop, Question, and Frisk" program (more references here and here) which blithely assumes in its very name that frisking is a routine part of stops for which the RAS for the initial stop is obviously essentially fabricated (the chance that there was any genuine RAS when stopping 575,304 people in NYC in 2009, when 504,594 of them [88%] were totally innocent, being vanishingly small.)