Originally Posted By Dave G:
What the lawyer didn't say was that if you are standing outside the vehicle, the officer has the right to pat you down for weapons.
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Dave, this is not necessarily so. The officer can pat you down for weapons (called a "Terry" pat down) if one of two things occurs (or both), to-wit: 1) He can point to objective, articulable facts (not inchoate hunches or "feelings" due to nerveousness or sweating) that would lead a reasonable officer in his shoes to believe that the person is PRESENTLY armed AND dangerous, or 2) the person simply consents to the search. A lot of ppl don't realize this, even prosecutors. I argue it all the time when LE state that it was "simply routine, you know, for safety purposes". Wrong.
I will say that there is a current exception to this and that is where drugs are found, since, as the Sup. Ct. Court reasons, "where there are drugs, there are weapons." For a good illustration of this exception involving a traffic stop, see U.S. v. Sakyi, 160 F.3d 164 (my beloved 4th Circuit- 1998).
How about a question for Steve in VA. Suppose the officer conducts a questionable search and finds an illegally carried handgun under the seat. Can't he confiscate it as contraband without charging anyone, leaving the owner with either no gun a legal bill in the thousands to get the gun back?
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I think yes, although that would be tantamount to a civil forfeiture and he could petition the court to get it back. If charged and the gun is suppressed 'cause of the illegal search, that's a different story. When successfull in suppressing a gun or other contraband, the defendant can never approach the bench after the hearing and say, "ahem, err, can I get that back now?" Not a wise move.