Butchering Terry v. Ohio and other law while teaching a class on search and seizure

[MDJschool]

Knowing what MDJs do, I came into MDJ school expecting the instructors to tow the government line while teaching crimes and criminal procedure. I was happily mistaken, at least from the beginning, as the instructor who is primarily covering non-evidence/non-4A criminal code and procedure is very knowledgeable and detached. Along comes the instructor for search and seizure.

The instructor is apparently an ADA who has been doing DA work for 25 years. He in fact seemed like a good instructor, and covered thoroughly enough the topics under search and seizure. Imagine my surprise when he said that in the course of search of an automobile incident to arrest (or maybe we were talking about the extent of terry frisks to a vehicle), under the 4A 'automobile exception', the police can simply look for firearms. I asked whether this could be done when a potentially discoverable firearm is neither incident to someone who is both armed and dangerous, nor is expected evidence of a crime, the unequivocal answer appeared to be 'yes'.

Later I asked if during the course of seizing a firearm in a search incident to arrest, where the firearm is not evidence, whether, for example, the grips of a revolver could be manipulated to find a concealed serial number, or whether that should require a separate warrant as it really is not within the scope of the search incident. He said this was not a problem, even after I reference Arizona v. Hicks.

WTF. I really felt like I was speaking to a career DA.

So I just had to know how this guy felt about Terry because these point of law sounded seriously fucked up. Maybe I didn't ask the right questions, or the scope of the question was under the purview of the 4A but not the PA Constitution, etc. It could have been my fault, but we'd soon see.

I first asked if a person could be pulled over in a traffic stop, where there is no RAS of criminal activity afoot, with the intention to elicit license, registration, and insurance. He seemed to say that it wouldn't be lawful but would be de minimis or something. I said I only ask this to contrast an issue that might come up later in discussing Terry. I then asked that he confirm whether Terry v. Ohio (and maybe progeny) says that in order to perform a Terry frisk, the officer must have RAS that a suspect is BOTH armed AND dangerous, noting that obviously the court chose these words because if one consumed the other, there'd be no point in specifying the other, so that there are two elements that clearly must be met. I further noted that Florida v J.L. and PA progeny say that there IS NO FIREARM EXCEPTION TO TERRY. Then I get blindsided when he says that a frisk can be effected any time there's RAS that criminal activity afoot, that I'm 'reading Terry wrong'. I ask him whether the criminal activity needs to have any relation to being armed or being dangerous, and he says it does not. I'm like, you're saying there's no restriction on the frisk incident to any stop (then why does every terry case address the stop and frisk separately)? is that some holding from terry progeny or is this based on terry v. ohio? He says terry v ohio. At that point I needed to leave to take care of some business.

I can't let that shit go, because this guy is saying things that might affect how these future MDJs look at probable cause in a warrant (suppose the firearm detained during terry stop after frisk is stolen, before being part of probable cause in a warrant, the frisk and terry seizure would have to be found lawful, or they cannot otherwise be included on a warrant to seize the property. Although in this example I don't know why the firearm would be collected by warrant and not by search incident to arrest, I'm sure it has happened and will happen.) I'll be writing up an outline to address all of this, so that either this guy can clarify in what scope he was speaking to, or he can learn the truth of our rights. It's a damn shame to think all the people before this guy as defendants might not get the benefit of 4A/Art1Sec8 as he strenuously argues that 'any frisk incident to a lawful stop is lawful'.

I'll post the outline as I develop it.

[Steve_NEPhila]

You raise an excellent point. This is exactly why there is a court hierarchy. These types of issues are usually solved on a State Supreme Court level, which is both unfortunate and fortunate at the same time.

If you think some of the instruction is bad at MDJ school, you should see what the police are retaining after the academy.

[gnbrotz]

I truly appreciate the seriousness with which you are taking your instruction and potential duties.

Sadly, for reasons just like the one's you are citing, many of us simply expect to lose in MDJ court on these types of issues and have an inevitable appeal to the CCP, where "real" due process is far more likely to occur.

[MDJschool]

Sadly, for reasons just like the one's you are citing, many of us simply expect to lose in MDJ court on these types of issues and have an inevitable appeal to the CCP, where "real" due process is far more likely to occur.

One thing I want to clarify is that I haven't detected any pattern of instruction designed to make MDJs horrible. My conclusion as I begin week 4 (of 4.5) is that perhaps the instruction is not to blame for the endemic issues plaguing the minor judiciary, and that perhaps all these people, on their own instigation, are choosing to become schmucks, or otherwise lack such an education that the USA is based on liberty that any notion of a neutral, detached magistrate who ought to be a counterbalance to the law enforcement (as police and DA) would simply be lost on them.

The aberrations I've mentioned above are very real and very potentially affective, but they don't seem to be part of a judiciary-board-wide attempt to bring down the citizen.

That's not to say we're undertaking some judicious look at the declaration of rights, and I was personally disturbed by occasional notions that we're simply low level decision makers who don't need to be well versed in case law and perhaps the AOPC doesn't even provide westlaw or lexisnexus to the MDJs, given that any case can be appealed de novo to CCP within 30 days of verdict. Even with that notion, there's much emphasis on not being a rubber stamp for the police, and there's often examples given about poor MDJ practices or police practices as they work with MDJs, as an example of the clear intent to educate good MDJs. There's oft a (serious) mention that since we're taking an oath to the constitutions, we ought to read them.

I try to ask questions during the course of instruction to direct the instruction to constitutional ends...to at the very least get these other folks to spark in their mind that maybe they should research the topics that are the basis of my question. 4.5 weeks is really not long at all in an attempt to educate, and so it really just is the law as it relates to procedure, and do know that there is continuing education as MDJs actually get closer to office and have been in office.

I'm considering submitting a right-to-know request for any video/audio recorded during the course of giving the instruction (not that I know if it would be made available) given that it is all recorded daily (probably only for internal review). There's at least one student with a recorder and I tried to get some audio, but I've been rather remiss.

[TaePo]

<snip>

The aberrations I've mentioned above are very real and very potentially affective, but they don't seem to be part of a judiciary-board-wide attempt to bring down the citizen.

<snip>

Nor do we know for sure that it isn't; the end result, however, is the same.

Kudos to you for bringing it up in class and getting clarification.

[son of the revolution]

Something that MDJ mentioned grabbed my attention. He mentioned about the soundness of having those that are swearing an oath to the Constitution actually reading that documents they're swearing to uphold. It got me thinking that perhaps we need to start a movement to have such a requirement added to the Police Officers MPOTEC Training regimen. Pushing for the topic of the legality of OC'ing worked to get it added to the curriculum , I see no sound reason why requiring reading of and testing on the knowledge of the US and PA Constitutions shouldnt be required as well. Might help cut down on some of the BS. I'll bet more then 50 percent of Officers Statewide at every level from Constable to State Police Patrolman couldnt answer a basic knowledge 50 question pop quiz on the contents of and restrictions imposed by the Constitution. Thats not meant to be a jab at LEO's , the school systems they've been raised in havent properly taught Civics or US History for the last 30 years or so.

[MDJschool]

[T]he soundness of having those that are swearing an oath to the Constitution actually reading that documents they're swearing to uphold[ ]got me thinking that perhaps we need to start a movement to have such a requirement added to the Police Officers MPOTEC Training regimen.

This is a noble goal, and I'm also glad it's being mentioned in the course of instruction here. What I'd like to see, however, is to have regular instruction on the foundations of law in (what is now) forced K-12 education, because I noted above that based on instruction thus far, education seems to be more likely than not benign as to the cause of a poor minor judiciary. I also mentioned above that those without a fundamental understanding of the concepts behind a liberty-oriented constitutional republic may not appropriately interpret procedure as it relates to law, or may ignore such noble mentions as to 'read the constitution'. The reality is that both forced education and professional education ought to be including such orientation.

The guy who did search and seizure is back today to teach evidence, and we're just beginning to get into it as of 9 am. In reading Terry progeny, I found I don't really need to go through an extensive and detailed analysis to show that a frisk is separate from a stop and has specific, separate requirements from the stop. I may need to do such a thing in addressing searches incident to arrest, because I just saw a court case or two that really blew my mind as to the powers of search and seizure without a warrant. (To me, it would be obvious that if we're going to create an incident-to-arrest 4A exception, that it would have to be narrow and as limited as possible, as to the geographical area, time taken to perform, and scope of search down to weapons, seized for the same purpose as Terry, and collection of KNOWN expected evidence that may be destroyed. If the search cannot be rationalized under the limited rules, try to get a search warrant! But perhaps this is not quite what the courts have said. Therefore, I won't be presenting an outline so much as a few cases from both PA and US, some as close as possible to 1968 and some as close as possible to 2009, to show that Terry has been understood since inception, and through today, to see a frisk separate from a stop in requirements.

[MDJschool]

My federal review:

Premise: A Terry frisk may be effected at any time during a lawful Terry stop, without any other predicate, where a lawful Terry stop may be effected upon reasonable articulable suspicion of criminal activity afoot.
Presumption: False.

How is a Terry frisk distinct from a Terry stop, and what are the requirements for a frisk after a lawful Terry stop? (according to SCOTUS, from Terry to year 2009.)

"We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." TERRY V. OHIO, 392 U. S. 30 (1968)

""When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," he may conduct a limited protective search for concealed weapons. [Terry v. Ohio,] 392 U. S. 24. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id. at 392 U. S. 30." ADAMS V. WILLIAMS, 407 U. S. 146 (1972)

"The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a pat-down of a person for weapons. Adams v. Williams, 407 U. S. 143, 407 U. S. 146; Terry v. Ohio, supra at 392 U. S. 21-24, 392 U. S. 27." YBARRA V. ILLINOIS, 444 U. S. 92-93 (1979). "The Terry case created an exception to the requirement of probable cause, an exception whose "narrow scope" this Court "has been careful to maintain." [Footnote 6: Dunaway v. New York, 442 U. S. 200, 442 U. S. 210.] [...] Nothing in Terry can be understood to allow a generalized "cursory search for weapons" or, indeed, any search whatever for anything but weapons. The "narrow scope" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." YBARRA V. ILLINOIS, 444 U.S. 93-94 (1979).

"After Wilson, but before Brendlin, the Court had stated, in dictum, that officers who conduct “routine traffic stop[s]” may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa, 525 U. S. 113, 117–118 (1998) . That forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms, Wilson, and Brendlin." Arizona v. Johnson, 555 U.S. 7 (2009) (slip opinion)

Note:

I was afraid to tack in Mimms here, or even quote it as mentioned in opinion because of its retarded notion that a traffic stop might somehow eliminate the need to articulate reasonable suspicion that a person, lawfully Terry stopped, is dangerous. I've found in passing, however, that after Mimms (1977), Mimms is related in that it allows drivers to be ordered out of a car, not that the RAS requirement for firsk is necessarily eliminated.

I feel Ybarra really captures that a frisk is separate from the stop, and might even articulate (as disallowing general "cursory search for weapons") that 'presently dangerous' is not some term of art swallowed by 'armed'.

I just don't have a printer here to print this out, though.

[MDJschool]

The rest:

What do the PA courts think of the Terry frisk?

"Similarly, the Hernandez Court held that potential danger to police or the public satisfies the exigency requirement for warrantless vehicle searches. Id. at 1281. In Hernandez (Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007)), however, the Supreme Court concluded that the warrantless automobile search in that case was not justified. Id. In so holding, the Supreme Court cautioned that “[t]he fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient. Rather, police must be able to articulate the danger posed under the specific circumstances of the case.” Id. at 1282 (emphasis added)." In re O.J., 958 A.2d 561, Pa.Super.,2008. (Musmanno, J., dissenting)

"[...]

4 “So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is *armed* and *dangerous*, he may conduct a weapons search ...” (emphasis added; footnote and citations omitted) Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1977 [1972]).

Anderson, at 297-298, 392 A.2d 1298, 392 A.2d at 1300-1301." Com. v. Hayward, 756 A.2d 29, Pa.Super.,2000.

"However, although reasonable suspicion to stop Appellant existed, the subsequent frisk was not legally justified.

'To justify a frisk incident to an investigatory stop, the police need to point to *specific and articulable* facts indicating the person they intend to frisk may be *armed* and *dangerous*; otherwise, the talismanic use of the phrase ‘for our own protection,’ a phrase invoked by the officers in this case, becomes meaningless.'

Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075, 1078 (1991) (emphasis added). See also In the Interest of S.J., 551 Pa. 637, 643, 713 A.2d 45, 48 (1998)(“If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the suspect which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect's outer garments for weapons.”)." Com. v. Myers, 728 A.2d 963, Pa.Super.,1999.

"While the Commonwealth does not contend that probable cause to arrest Hicks existed, it does nevertheless earnestly assert that the officers were justified in seizing Hicks and conducting a limited search of his clothing to discover the presence of dangerous weapons. This argument is premised upon the teaching of Terry v. Ohio, supra, Sibron v. New York, supra, and Peters v. New York, supra, as outlined hereinbefore, that even in the absence of probable cause, a person may under certain circumstances be seized and searched by the police to protect their own safety. What the Commonwealth overlooks is that for such a precautionary seizure and search to be legitimate, there must first exist on the part of the police a reasonable belief that criminal ctivity is afoot and that the seized person is armed and dangerous. The police must prove that specific conduct of the seized person, observed by them, justified and made reasonable their belief that criminal activity was afoot and that the seized person was armed and dangerous. The instant record is devoid of such necessary proof. Hence, the seizure was not ‘justified at its inception’ and was violative of the Fourth Amendment. The evidence resulting therefrom should have been excluded." Com. v. Hicks, 434 Pa. 160, 253 A.2d 276, Pa. 1969.

Note:

I found an absolutely ridiculous opinion by the Superior court saying that it's okay to hold someone in a police car for a Terry stop yet ALSO frisk the car. I was trying to imagine what situation would cause the police to allow the suspect to return to his vehicle but that the stop would still be effected, because anything they want from the vehicle is protected from unreasonable search and self-incrimination, so we couldn't expect the suspect be asked to go back to fetch something, and the only other answer would be arrest upon probable cause for an actual crime. If the police are releasing the suspect from a stop, they can no longer effect the frisk, and in fact the reality is that the suspect could retaliate with a weapon. When did this court expect the suspect to get his weapon back?

The above is my commentary only on the cursory review of In re O.J., 958 A.2d 561, Pa.Super.,2008. I will have to go back and read carefully to see if the court explains how this can be a reasonable conclusion.

[LittleRedToyota]

MDJschool...

you might want to read Arizona v. Johnson, 07-1122. (http://www.law.cornell.edu/supct/html/07-1122.ZS.html)

ginsberg basically did away with armed and dangerous being separate concepts.

"...harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous..."

a disgusting level of intellectual dishonesty...even by SCOTUS standards.