# Pat/Frisk



## HoneyBadger1 (Aug 24, 2012)

I recently ecountered a person called into me for suspicious activity, After stopping the person on the street his BOP came back with resisting and A+B with dangerous weapons. He also kept reaching into his pocket when told not too twice which lead to me conducting pat/frisk.. *My question is this*; If person is breaking the law in any way (example: open container in public or smoking a joint on a public street) could this alone lead to Pat/Frisk? i'll be honest with you, i conduct these all the time for my own safety and stretch the use of pat/frisk with negatives BOPs. but technically speaking do I need the actual reasonable suspicion that the person is armed with a weapon or is commiting a crime alone enough to pat/frisk? Having a discusion with a fellow co-worker about the subject..I'm also not one to play lawyer and in MA it seems to be best the approach to think that way since everything gets thrown out, but my philosophy if you get the bad guy locked up for the night and attain drugs or weapons then its a solid pinch..


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## HoneyBadger1 (Aug 24, 2012)

I also feel like every in-service i receive different information regarding subjects like this but hey its MA for you... new case law every day


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## Killjoy (Jun 23, 2003)

Terry pat frisk.


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## HoneyBadger1 (Aug 24, 2012)

Killjoy said:


> Terry pat frisk.


Thanks for your response, yes Terry v. Ohio has been hammered away at me since college but from what you read always says "commiting crimes or is about to commit a crime *AND* has a reasonable belief that the person may be armed and presently dangerous." so stopping a person for suspicious activity alone would not be grounds for pat/frisk with my understanding unless other elements are involved. Pretty basic question I know and I know many officers conduct these in their sleep but just figured i would ask to the technically correct use of the pat/frisk


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## Code 3 (Dec 28, 2012)

A pat frisk is alright to do. It's for Officer safety.

A police officer may temporarily stop and briefly detain a person for the purpose of inquiring into possible criminal behavior even though the officer does not have probable cause to make a lawful arrest at that time. The purpose of this temporary detention for questioning is to enable the police officer to determine whether to make an arrest, investigate further, or to take no police action at that time.
An officer may frisk such a person for weapons as a matter of self-protection when the officer reasonably believes that his/her own safety, or that of others nearby, is endangered. The issue is whether a reasonably prudent person in those circumstances would be warranted in his/her belief that the officer's safety, or that of others, was in danger.
This policy recognizes that police officers are charged with community caretaking functions that do not require judicial justification. These functions are outside of the "law enforcement" function; for example, approaching a vehicle parked in a breakdown lane or checking on motorists in rest areas will not be an investigatory stop.[ii]
Police officers should never hesitate to make an investigatory stop and a necessary frisk under appropriate circumstances in order to meet the practical needs of effective law enforcement.

http://masscops.com/file:///C:/User... & Frisk and Threshold Inquiries.doc#_ednref1_Com. v. Matthews, 355 Mass. 378, 244 N.E.2d 908 (1969).
[ii] Com. v. McDevitt, 57 Mass. App. Ct. 733 N.E.2d 404 (2003); Comm. v. Evans, 436 Mass. 369, 764 N.E.2d 841 (2002)._


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## HoneyBadger1 (Aug 24, 2012)

Code 3 said:


> A pat frisk is alright to do. It's for Officer safety.
> 
> A police officer may temporarily stop and briefly detain a person for the purpose of inquiring into possible criminal behavior even though the officer does not have probable cause to make a lawful arrest at that time. The purpose of this temporary detention for questioning is to enable the police officer to determine whether to make an arrest, investigate further, or to take no police action at that time.
> An officer may frisk such a person for weapons as a matter of self-protection when the officer reasonably believes that his/her own safety, or that of others nearby, is endangered. The issue is whether a reasonably prudent person in those circumstances would be warranted in his/her belief that the officer's safety, or that of others, was in danger.
> ...


Thanks for your response, I assumed the answer was correct but having a fight with a co-worker..


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## csauce777 (Jan 10, 2005)

If you're "encountering" someone, you need no cause to speak with them, however they can also tell you to pound sand and walk away. I'm not so sure based only upon your description that you're necessarily playing by the rules. The short answer is no, you cannot pat frisk everyone you run into or even everyone you detain. When you give the "hands in the pockets, nervousness, furtive gestures, you're the single officer, high crime area, blah blah blah" descriptions, you get into good territory for a frisk, but because someone is simply suspicious, while you may have enough to stop and investigate, you don't necessarily have enough to pat frisk.


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## LA Copper (Feb 11, 2005)

Just out of curiosity, don't they teach this stuff in the academy? This is pretty basic stuff.


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## Herrdoktor (Jun 23, 2010)

To answer one of the OP's questions: If there is a crime being committed in your presence you are no longer falling under a terry stop. 

Also This not just a MA issue. Terry stops and safety pat downs have taken a lot of heat lately at the SC because officers are using horrendous articulation when they are interacting with someone.


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## Herrdoktor (Jun 23, 2010)

One of the biggest pat down issues is when you pull a driver out of a car to conduct FSTs. 

Do you have sufficient cause or need to do a pat down in that situation? I have heard both sides but imo its all about articulation..


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## 263FPD (Oct 29, 2004)

"Do you have any weapons on you? For my safety, and yours, I am going to check real quick"

Do it all the time. Every field encounter other than speaking to complainants on calls. 

My safety supersedes everything else. 


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## csauce777 (Jan 10, 2005)

263FPD said:


> "Do you have any weapons on you? For my safety, and yours, I am going to check real quick"
> 
> Do it all the time. Every field encounter other than speaking to complainants on calls.
> 
> ...


I agree, and I'm not saying I don't do the ole' "You have any weapons or anything on you, do you mind if I check real quick?" As I'm simultaneously starting my frisk. The OP seemed to be asking for the technical point of view I think.


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## 263FPD (Oct 29, 2004)

I never say "Do you mind?"

I do not give them an option. I say "I am going to check" or something similar. 


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## lofu (Feb 25, 2006)

HoneyBadger1 said:


> If person is breaking the law in any way (example: open container in public or smoking a joint on a public street) could this alone lead to Pat/Frisk?


In the "open container" scenario, we have a city ordinance that's arrestable so WITH PROPER REPORT WRITING a Pat Frisk is the least you could do.


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## Guest (Feb 1, 2013)

lofu said:


> In the "open container" scenario, we have a city ordinance that's arrestable so WITH PROPER REPORT WRITING a Pat Frisk is the least you could do.


If I have someone with an open container, I just arrest them, cuff them, and make a search incident to arrest. Sometimes I change my mind if they have a good attitude and then un-arrest them.


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## lofu (Feb 25, 2006)

Delta784 said:


> If I have someone with an open container, I just arrest them, cuff them, and make a search incidental to arrest. Sometimes I change my mind if they have a good attitude and then un-arrest them.


Exactly. Similarly if they are border line disorderly, trespassing, unlicensed and I want to get in the car, etc, etc, etc.


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## 263FPD (Oct 29, 2004)

Had a trainee ask me one if he had PC to arrest someone already, but had not yet done so, and decided to pat-frisk someone, subsequently discovering contraband (not weapon), could it then me considered Search Incident to an Arrest. His point was that there already was an arrest able offense. 

My answer was simple. You have PC, arrest him/her. I am no lawyer, but I would argue an unlawful search all day long. "You had PC, yet you chose not to arrest? Was he free to go? Was he not free to go?" 

WTF?!?!?!? 

That was a very odd question.


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## Guest (Feb 1, 2013)

lofu said:


> Exactly. Similarly if they are border line disorderly, trespassing, unlicensed and I want to get in the car, etc, etc, etc.


I have yet to have anyone complain about being un-arrested.


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## lofu (Feb 25, 2006)

263FPD said:


> Had a trainee ask me one if he had PC to arrest someone already, but had not yet done so, and decided to pat-frisk someone, subsequently discovering contraband (not weapon), could it then me considered Search Incident to an Arrest. His point was that there already was an arrest able offense.
> 
> My answer was simple. You have PC, arrest him/her. I am no lawyer, but I would argue an unlawful search all day long. "You had PC, yet you chose not to arrest? Was he free to go? Was he not free to go?"
> 
> ...


That's what I meant by GOOD REPORT WRITING. At what point did was the decision made that they were under arrest? It's not necessarily at the point the handcuffs go on.


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## 263FPD (Oct 29, 2004)

lofu said:


> That's what I meant by GOOD REPORT WRITING. At what point did was the decision made that they were under arrest?_* It's not necessarily at the point the handcuffs go on.*_


I get that, but if you are continuing to chat him up, he is in "Custody", shouldn't you be giving him a miranda at this time? If he is under arrest, you would probably, at least casually let him know that he isn't going to be leaving.

I am all about good reporting, but understand that a couple of bags of cocaine or whatever, are not worth me stretching or bending the truth and losing my hard earned court credibility.
If it's worth doing, it's worth doing right.

If you are conducting a threshold inquiry, that is one thing. If you have PC, why the hell not just arrest the guy?


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## CPT Chaos (Mar 1, 2006)

Delta784 said:


> I have yet to have anyone complain about being un-arrested.


I don't have any "hard and fast" numbers here on this. I'm thinking that the non-complaint rate at least on those previously arrested, given the "Un-Arrest" option, I'm thinking it's around 100%.


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## lofu (Feb 25, 2006)

263FPD said:


> I get that, but if you are continuing to chat him up, he is in "Custody", shouldn't you be giving him a miranda at this time? If he is under arrest, you would probably, at least casually let him know that he isn't going to be leaving.
> 
> I am all about good reporting, but understand that a couple of bags of cocaine or whatever, are not worth me stretching or bending the truth and losing my hard earned court credibility.
> If it's worth doing, it's worth doing right.
> ...


I'm certainly not advocating lying or bending the truth. I think we are arguing over semantics.


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## USM C-2 (Oct 27, 2010)

Reasonable suspicion that the person has, is, or is about to commit a crime = Terry Stop.

Reasonable suspicion the person is EITHER unlawfully armed OR dangerous = Pat Frisk.


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## HoneyBadger1 (Aug 24, 2012)

LA Copper said:


> Just out of curiosity, don't they teach this stuff in the academy? This is pretty basic stuff.


They teach lots of things in the academy yet defense attorneys still get cases thrown out and create case law... I know its basic element to policing but thought I check the fine details with an experienced officer such as you.


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## HoneyBadger1 (Aug 24, 2012)

263FPD said:


> I get that, but if you are continuing to chat him up, he is in "Custody", shouldn't you be giving him a miranda at this time? If he is under arrest, you would probably, at least casually let him know that he isn't going to be leaving.
> 
> I am all about good reporting, but understand that a couple of bags of cocaine or whatever, are not worth me stretching or bending the truth and losing my hard earned court credibility.
> If it's worth doing, it's worth doing right.
> ...


well said


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## csauce777 (Jan 10, 2005)

USM C-4 said:


> Reasonable suspicion that the person has, is, or is about to commit a crime = Terry Stop.
> 
> Reasonable suspicion the person is *EITHER* unlawfully armed *OR* dangerous = Pat Frisk.


Not in this state.

"First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is *armed and dangerous*." Arizona v. Johnson, 129 S. Ct. 781, 784 (2009).

Accordingly, the SJC held that a police officer may escalate a consensual encounter with an individual to include a *patfrisk only if*the officer has both a reasonable suspicion that the individual is engaged in criminal activity and is *armed AND dangerous*.



263FPD said:


> I never say "Do you mind?"
> 
> I do not give them an option. I say "I am going to check" or something similar.
> 
> Sent from my iPhone using Tapatalk


I'm not going to say you're wrong, because you're more experienced than I, however, if you are doing this as a matter of course during field encounters (You said all field encounters other than complainants), and you're not getting consent ("Do you mind?"), and you're not fulfilling the armed AND dangerous prongs, and I'm guessing on the majority of field encounters, neither are present, then where is the legal (not common sense) basis for the pat frisks? So you pat frisk joe blow on a field encounter and find a gun, aside from creative report writing, what is the justification?


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## 263FPD (Oct 29, 2004)

csauce777 said:


> Not in this state.
> 
> "First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is *armed and dangerous*." Arizona v. Johnson, 129 S. Ct. 781, 784 (2009).
> 
> ...


This isn't an argument. I don't know where you work but I know you know where I work. While we have many nice parts in our community, I began my career in our public housing area and spent a good number of years there.

I too am not saying you are wrong. To each his own. We run about 9 to 12 cars covering 28 square miles with a very steady volume if calls. I find myself alone often times. I will not sacrifice my safety for anyone or anything. I am pretty sure I can articulate a need for a pat down.

You say you ask them if they mind. What if they say yes? Do you then stop the encounter? Do you feel confident that they will not produce a weapon?

I can't tell you how you conduct your stops. I can't even tell the guys I work with how to do them. I do encourage my trainees to make their work environment as safe as possible.

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## PBC FL Cop (Oct 22, 2003)

Safety first...always


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## csauce777 (Jan 10, 2005)

263FPD said:


> You say you ask them if they mind. What if they say yes? Do you then stop the encounter? Do you feel confident that they will not produce a weapon?


We are discussing two different animals. If I am not confident that they wont produce a weapon, then I likely have enough for a pat frisk anyway. We are talking about pat frisking everyone for weapons as a matter of routine, and whether it is technically allowed. Thats what the OP was getting at I think. And again, I addressed your post in a technical context, not a common sense street context. I work almost exclusively alone, at night, with a population where guns outnumber people. I'm not saying I dont pat frisk people for my safety, I'm saying that many times, even though they produce no ill effects, our actions arent necessarily kosher within the context of case law. I'm not saying they arent prudent or necessary, but it seems there is some confusion with some people on what is technically permissible.


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## 263FPD (Oct 29, 2004)

May be I should have been more specific. I pat frisk Every Shitbag that I have an encounter with. I seem to encounter mostly Bags Of Shit. 


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## HoneyBadger1 (Aug 24, 2012)

263FPD said:


> May be I should have been more specific. I pat frisk Every Shitbag that I have an encounter with. I seem to encounter mostly Bags Of Shit.
> 
> Sent from my iPhone using Tapatalk


haha, you say it much more blunt then me and to the point, i like it! my "negative BOP" was basically trying to portray your term of "shit bag"


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## 263FPD (Oct 29, 2004)

HoneyBadger1 said:


> haha, you say it much more blunt then me and to the point, i like it! my "negative BOP" was basically trying to portray your term of "shit bag"


Your negative BOP just hadn't been caught yet. He will. If it walks like a duck, quacks like a duck, it's only a matter of time before its a fucking duck

Yeah, I am blunt. I lack filter. If I think someone is a piece of shit, they probably are. I'm not afraid to tell them that.

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## 263FPD (Oct 29, 2004)

As a side note, we can't always rely on what is and isn't in the BOP. My dispatchers don't run III unless we ask. I think that's ridiculous. They have almost missed fugitives from other states, wanted on some major crimes. 

If I am running someone with an out of state ID, you would think our civilian support staff would get the idea that III may not be that far fetched. 


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## HoneyBadger1 (Aug 24, 2012)

263FPD said:


> As a side note, we can't always rely on what is and isn't in the BOP. My dispatchers don't run III unless we ask. I think that's ridiculous. They have almost missed fugitives from other states, wanted on some major crimes.
> 
> If I am running someone with an out of state ID, you would think our civilian support staff would get the idea that III may not be that far fetched.
> 
> Sent from my iPhone using Tapatalk


out of state people dont break the law, thats why they dont


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## csauce777 (Jan 10, 2005)

263FPD said:


> May be I should have been more specific. I pat frisk Every Shitbag that I have an encounter with. I seem to encounter mostly Bags Of Shit.
> 
> Sent from my iPhone using Tapatalk


 Ok...now we are on the same page. BOS (Bags of Shit) always get patted.


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## HoneyBadger1 (Aug 24, 2012)

csauce777 said:


> Ok...now we are on the same page. BOS (Bags of Shit) always get patted.


ok took a few back and forth posts but i think we all can agree now, screw the (BOS) and defense attorneys


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## 263FPD (Oct 29, 2004)

Amen, brothers. 


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## LA Copper (Feb 11, 2005)

HoneyBadger1 said:


> They teach lots of things in the academy yet defense attorneys still get cases thrown out and create case law... I know its basic element to policing but thought I check the fine details with an experienced officer such as you.


As lofu mentioned, the majority of the time when that happens, it's because it wasn't articulated properly on the arrest report. Either that or the officer just plain did something that's not allowed.

And thank you for the compliment. In my case, experienced also means older.


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## HoneyBadger1 (Aug 24, 2012)

Haha


LA Copper said:


> As lofu mentioned, the majority of the time when that happens, it's because it wasn't articulated properly on the arrest report. Either that or the officer just plain did something that's not allowed.
> 
> And thank you for the compliment. In my case, experienced also means older.


Haha I'm all ears,, you should go for that position posted for for an academy Director.


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## LA Copper (Feb 11, 2005)

HoneyBadger1 said:


> Haha
> 
> Haha I'm all ears,, you should go for that position posted for for an academy Director.


Not a bad idea, that could be fun and a good retirement job from LA.


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## Guest (Feb 2, 2013)

LA your from here you must remember MA court decisions. Somewhat lately a Boston case. High crime neighboorhood, shootings drugs bla bla, late night, gang bangers, people running, SP behavior, fear of gun by BPD actually find gun. Mass courts throw it out. Kind of makes us have the attitude pat down then worry about it latter.


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## USM C-2 (Oct 27, 2010)

"...to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is *armed and dangerous*." Arizona v. Johnson, 129 S. Ct. 781, 784 (2009)."

Seems to me that decision dealt with searching a passenger. USSC held armed and dangerous was enough for a pat frisk, but nowhere did they hold that both were required for it. Terry v. Ohio still rules for us. I left Mass. in 2005, so missed that decision.

Looks to me like the SJC took the 'may' and made it a 'must.' That sucks.


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## Hush (Feb 1, 2009)

LA Copper said:


> Not a bad idea, that could be fun and a good retirement job from LA.


You could help change the "cause that's the way we've always done it" that runs rampant here!


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## gm7988 (Jul 18, 2010)

So you've got suspicious activity as in something a reasonable person would not do, and a conviction of A&B with dangerous weapons? Sounds like legitimate cause for a terry pat to me. Reasonable suspicion.


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## Mr Scribbles (Jul 7, 2012)

OCKS said:


> LA your from here you must remember MA court decisions. Somewhat lately a Boston case. High crime neighboorhood, shootings drugs bla bla, late night, gang bangers, people running, SP behavior, fear of gun by BPD actually find gun. Mass courts throw it out. Kind of makes us have the attitude pat down then worry about it latter.


I've been out of the Academy for a looooonnnnngggg time but I still recalll "to determine, by sense of the touch the prescence of a weapon" Key words "touch" "weapon". That case got tossed because the 2 cops just pulled up the guy's shirt and removed the gun. If they had given him even the briefest massage that arrest is good all day long. The only reason I know, is training video for on line InService.
One thing I'm surprised hasn't happened in MA-some POS asking for his gun or drugs back after a case is tossed and a judge granting it...only a matter of time IMHO


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## Guest (Feb 2, 2013)

If you go home at the end of your shift, that's all that matters.

Who gives a rat's ass if a panel of black robes throws an arrest out? Unless it directly impacts your life and/or family, who really gives a shit?

Go home, kiss your kids, and enjoy your time off.


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## HoneyBadger1 (Aug 24, 2012)

Delta784 said:


> If you go home at the end of your shift, that's all that matters.
> 
> Who gives a rat's ass if a panel of black robes throws an arrest out? Unless it directly impacts your life and/or family, who really gives a shit?
> 
> Go home, kiss your kids, and enjoy your time off.


Your forgot go home and pound Guiness alone because normal people dont have a day off on Wednesday's and your friends slowly stop calling you trying to get you to go out on Saturday. The job is still worth it though and wouldnt change it for anything!


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## 263FPD (Oct 29, 2004)

HoneyBadger1 said:


> Your forgot go home and pound Guiness alone because normal people dont have a day off on Wednesday's and your friends slowly stop calling you trying to get you to go out on Saturday. The job is still worth it though and wouldnt change it for anything!


That's what comp days and vacation days are for. You have to make time for your friends once in a while too.

But lets not derail this thread.

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## Deuce (Sep 27, 2003)

HoneyBadger1 said:


> The job is still worth it though and wouldnt change it for anything!


Give it time kid......


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## LA Copper (Feb 11, 2005)

Deuce said:


> Give it time kid......


24 years and I still agree with him...


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## Deuce (Sep 27, 2003)

LA Copper said:


> 24 years and I still agree with him...


Glad the meds are working.....


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## csauce777 (Jan 10, 2005)

263FPD said:


> That's what* SICK days and 111F days* are for. You have to make time for your friends once in a while too.
> 
> But lets not derail this thread.
> 
> Sent from my iPhone using Tapatalk


FIFY

I kid, I kid...


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## LA Copper (Feb 11, 2005)

Deuce said:


> Glad the meds are working.....


You ain't kidding!


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## 263FPD (Oct 29, 2004)

Mess? Yeah. I got to try that. 


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## PBC FL Cop (Oct 22, 2003)

Do not get too caught up in case law, it changes with the wind...Our safety should always be first and foremost in every circumstance, convictions are the prosecutors worry not ours. Be professional, reasonable and articulate and you'll never have a problem. 25yrs in and looking at another 16 to 20 and I still enjoy myself...Be safe and make the most of everyday, both on and off the job.


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## BxDetSgt (Jun 1, 2012)

Rember that thinking like a lawyer on the street is no good, that hesitation will get you killed. If you feel the need for a toss, just articulate why you did. Just remember that if you are using time and place for your reason, you need to know the reason cold. How many robberies in area and time, description of perp and M.O., Narco area, how many narco arrests have you been part of in area, or you looked at stats after r/c. The feeling in your gut, while not admissable, probably has a solid backing. Also, summons are issued in lieu of arrest, but you still have PC for a search when you observe a QOL violation. Summon's can also be issued from the desk, and in order to transport to facility you need to search. Maybe you want to verify BOP or negative response. Maybe the individual you observed with the violation does not comply with directions, all good reson to transport. The biggest issue I see down here is guys have good articulation, but don't follow through. If you are going to search after observing a violation, cuff and bring in to house, even if search is negative, that way you are covered. When you throw back to continue the hunt for the kilo fairy make sure you drop paper on the perp at the least. Your safe bet is to bring to the house, cite and release. Just remember that if you have to think about tossing, you have wasted too much time. Also, you can't toss for drugs, and articulating how a pat down got bags of weed is tough.


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