John Wiehn
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
You are the cover officer on a lawful stop. The passenger says she has a knife in her purse and hands it over. You frisk her and she is clean. Then you ask to check the purse and she clutches it and says absolutely not. Can you frisk the bag anyway?
Hey guys, this is John Wiehn, attorney and senior legal instructor with Blue to Gold Law Enforcement Training, coming to you today with another roadside chat.
Now today’s question deals with weapons and vehicles. Basically the scenario is this. If you stop a vehicle, lawful reason, while the primary officer is contacting the driver, you as the backup officer or the cover officer walk up and you’re making contact with the passenger.
You ask the passenger about any weapons and she discloses that, yep, she’s got a knife in her purse. She reaches into the purse and hands you the knife. You have her step out of the vehicle. You frisk her. She doesn’t have any other weapons on her. You ask her, hey, can I check the purse? And she is adamant, no. She clutches the purse against her, holds it tight against her and says, no, you absolutely can’t.
And so the question is, can you frisk that bag for weapons?
Does one weapon give you authority to look for more?
The answer is absolutely.
The courts have routinely held that the presence of one weapon gives you probable cause to believe there are other weapons inside the vehicle. That fair probability that there will be additional items in that area.
Now the question is, how do I go about doing that? Well, your case on point is Michigan v. Long. Basically what we talk about is, where you have reasonable suspicion to believe that there’s a weapon inside of a vehicle, you can perform a protective sweep or frisk of that area, that lunge or grab area, that internal access area.
Now in Michigan v. Long the officer actually went so far as to open the center console and remove a baggie of drugs inside there.
How far can you go into a purse or a container?
So following that rationale, can we check containers as well? The answer is yes.
What we want to do is we want to be minimally invasive as much as possible. We want to limit that level of intrusion. And so engage in what we call peeling the onion. Get that purse, get that container, frisk it to see if you can determine if there’s any weapons inside there.
If during that you feel something that is immediately apparent without manipulation as contraband, or fruits or instrumentalities of a crime, or a weapon, you can remove that item from the container.
Now, if you legitimately frisk that purse and you legitimately cannot tell if it contains a weapon or not, then you can make a limited intrusion. Minimally, again, we want to peel that onion and go layer by layer, to reduce the level of intrusion as much as possible, to determine whether or not there is a weapon inside that area.
Do you have to articulate both armed and dangerous?
Now, the officer asked, I know Terry v. Ohio talks about armed and dangerous. And that’s always good to articulate. Not just armed, but also dangerous.
Now classically the courts have held that if you are detaining someone based on reasonable suspicion that they are committing a crime, the specific articulable facts, more than an inchoate and unparticularized hunch, then you have the dangerous element met. And so if you can also articulate armed, well then you can frisk them.
Is a traffic stop different from a consensual encounter?
But what about on a traffic stop?
Well, I will tell you, primarily the Ninth Circuit has said yes, any time that you contact someone, any time you detain them, the dangerous prong is already met. And so articulate armed and you’ve got dangerous as well.
Consensual encounter, absolutely not. Consensual encounter, you’re going to need to articulate both armed and dangerous. There is an Arizona case that is a great example of this: where you are contacting somebody in a consensual encounter and you believe that they’re armed, it’s not enough just to articulate armed to justify a frisk. You have to also articulate dangerous.
A subsequent Arizona case distinguished the consensual encounter from the passenger in an automobile. That later court said that a passenger in an automobile is different than a consensual encounter. Why? Because they are already seized. And so if you can articulate armed for a passenger in an automobile, then the dangerous prong is pretty much going to be met as well.
Why articulation still matters every time
Obviously, articulate, articulate, articulate armed and dangerous whenever possible. And if you are going to be pulling people out of cars and taking weapons off of them, you should be able to articulate dangerous.
I mean, the Second Amendment, God bless America. The reason why other countries will never successfully invade our country is because, as the famous quote from World War II established, there’s going to be a rifle behind every blade of grass. And so, respect people’s Second Amendment rights. If you’re going to be pulling people out of cars and pulling weapons off of them, you should be able to articulate armed and dangerous.
Again, the United States Supreme Court and many lower courts have routinely recognized the inherent dangerousness associated with traffic stops. Arizona v. Johnson, Pennsylvania v. Mimms, Maryland v. Wilson, and so on and so forth.
So hopefully that helps, guys. Hopefully that gives you some direction.
The short version
- “The presence of one weapon gives you probable cause to believe there are other weapons inside the vehicle.”
- Michigan v. Long covers the lunge or grab area, the internal access area. In Long itself the officer opened the center console.
- Containers are included, but “we want to be minimally invasive as much as possible.”
- Peel the onion. Frisk the purse first. If something is immediately apparent without manipulation, you can take it out.
- If you frisk it and genuinely cannot tell, “then you can make a limited intrusion,” layer by layer.
- On a detention, the dangerous prong is generally met, so articulate armed.
- On a consensual encounter, armed alone is not enough. You need armed and dangerous both.
- A passenger in a car is not a consensual encounter, “because they are already seized.”
- “If you are going to be pulling people out of cars and taking weapons off of them, you should be able to articulate dangerous.”
Related from Blue to Gold
- What Factors Can Help to Justify a Vehicle Frisk for Weapons?
- Can Police Automatically Pat Down Suspected Gang Members?
- Purses, Bags and Backpacks
This article is an edited transcript of Roadside Chat EP#823. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
