AZ: LEO disarming CCW Civil

[thesecond]

And there is no duty to inform an officer that you have a CCW, and are armed, in the state of Arizona.

That doesn't mean that you shouldn't notify, under some circumstances, in order to alleviate any concerns an officer may have that you are 'presently dangerous'.

 

[akodo]

here is the meat and bones from those links

Christian contends the trial judge erred in ruling that the police lawfully frisked
him for weapons during a traffic stop. We agree and reverse the conviction for possession of
cocaine with intent to distribute.

Clearly something more than just a traffic stop is needed for Terry Search to be okay

Officer Michael Stowe testified that he was patrolling a high crime area of Conroe when he approached an illegally-parked vehicle in which Williams was a passenger. When Officer Stowe looked inside the vehicle, he saw Williams furtively reaching into his waistband, and Officer Stowe believed Williams was attempting to conceal something. Officer Stowe asked the driver to get out of the vehicle, and he performed a Terry frisk on the driver

Again, just pulling someone over is not enough. However, if the driver 'adjusts the boys' that is going to give reasonable suspicion that a weapon is being hidden, and that is going to be enough

a police officer need not possess reasonable suspicion that an
individual is involved in criminal activity before the officer may conduct a Terry frisk for
weapons. Fleenor, 133 Idaho at 556, 989 P.2d at 788. This is so because a “stop-and frisk under
Terry constitutes two independent actions, each requiring separate justifications.” United States
v. Flippin, 924 F.2d 163, 165 n.2 (9th Cir. 1991). Thus, each action must be analyzed separately
and the reasonableness of each must be independently determined. Fleenor, 133 Idaho at 556,
989 P.2d at 788. Accordingly, the purpose of the initial vehicle stop is not dispositive of the
issue of whether the frisk was lawful...

....the issue is whether the officer’s observations at the scene provide a
reasonable basis to conclude that Hughes may have immediate access to a weapon in his vehicle,
thus creating a reasonable fear of present danger to the officer.1 A weapons frisk is lawful if the
officer possesses a reasonable belief that the subject poses such an immediate danger...

....the height of Hughes’ truck prevented the officer frombeing “able to look into the pickup truck and see what the defendant’s gestures were.” In the end
it was those furtive movements, coupled with Hughes’ refusal to cease his actions after the
officer requested several times for him to do so, which led the officer to remove Hughes from the
vehicle and frisk him for weapons.

Again, it is not related to the traffic stop. It is keyed on the officer observing something suspicious and possibly/probably weapon related.

As far as Terry is concerned, that white powder on your nose might be from a powdered donut, it doesn't care, but you reach to scratch your arm-pit, that will be enough to trigger a Terry stop.

I guess what this really shows to me is 'don't fidget' and the advice to keep your hands at 10 and 2 is GREAT protection against a Terry search. Also, if being batted down, say I do not comply with a search, and ask 'what is your reason for this search'

In the OPs case, had he asked the officer at the time, the officer might have said something dumb. As it stands now, if the OP files a complaint, the LEO has time to think it over and cite a movement as what caused his suspicion.


Now, unrelated to Terry, which clearly would allow an officer to take control of a hidden weapon that the person being frisked did not reveal, what is the legal grounds for controlling an openly carried or openly revealed legal weapon?

 

[deaconkharma]

this can be rehashed and rehashed in various forms

Those of us that feel police are more regularly overstepping and expanding Terry and PC and other searches and seizures (by either intimidation, misunderstanding, or misrepresentation) will forever be dogged by the "thin blue liners" who need no naming.
These laws are up for interpretation and we can argue this here, in court, and wherever else but I feel they were intentionally ambiguous in certain laws to allow leveraging in situations. Subjective things like if the officer feels a disturbance in the Force, he may disarm search etc. Reminds me of the "South Park" episode where you had to be in immediate danger of the animal to shoot it. So the hunters said "he's coming right for us" before they shot everything in the woods.
My advice is to shuddup, hide the firearm where it becomes legal to NOT INFORM, go more incognito (license plate), and go look up the 5000 other posts about duty to inform and disarmament by the thin blue line. You'll see the usual "suspects" and the usual "Uber citizens" espousing their opinions and can draw your conclusions from there.
-Deacon-Usual-suspect-kharma

 

[Rocco]

GUN Tag

I agree with DRAIL. I contemplated putting an NRA decal on the back of my new truck a couple of months ago then came to my senses. It would just alert everyone to the fact that I'm carrying a weapon in the vehicle.

It's the same as the guy that has stickers all over his back window describing all the wonderful stereo equipment installed inside. I wonder why that vehicle gets broken into ?

It's best to be ANONYMOUS in traffic (IMHO).

 

[Byron Quick]

I honestly thought that LEO's support permit holders' rights and have no issue with it. Clearly I am wrong.

Many are. Some aren't. It depends on where you are at mainly. Now police chiefs don't often support us, it seems.

I live in Georgia. I've been driving now for 38 years. I speed regularly and get stopped a LOT. Usually with firearms in the car. This has sometimes resulted in the officer wanting to take control of the firearms during the duration of the stop. It has usually also resulted in us leaning against the fender talking guns and hunting for 30 minutes or so or heading for coffee.

I've had exactly one stop in 38 years by an anti cop in Georgia who acted similar to the AZ cop and, boy, that guy was a whiner. The Arizona cop is probably as rare as the Georgia cop is.

 

[expvideo]

Many are. Some aren't. It depends on where you are at mainly.

I live in Georgia. I've been driving now for 38 years. I speed regularly and get stopped a LOT. Usually with firearms in the car. This has sometimes resulted in the officer wanting to take control of the firearms during the duration of the stop. It has usually also resulted in us leaning against the fender talking guns and hunting for 30 minutes or so or heading for coffee.

I've had exactly one stop in 38 years by an anti cop in Georgia who acted similar to the AZ cop and, boy, that guy was a whiner.

I used to speed a lot. I don't anymore, but that's beside the point. Anyway, I have had a lot of cops disarm me and make sure my gun was clean, put it in my trunk unloaded and asked me not to load it until they had left. I have also had a lot of cops not care at all that I was carrying a gun. They are almost never rude, but sometimes you get that one special guy that wants to be a total dick for no reason. More often, I get missinformation from a cop about the law. I've had two cops so far lecture me about leaving my gun in the car loaded being illegal (even though I was being pulled over and there was no indication that I was planning on doing anything like that). Of course, with a CWP in WA, it's not illegal. I've heard a lot of interesting impressions of what the law is. I let it go, because I don't want to get in an arguement with a cop that doesn't understand the law. Kind of sounds like firmly lecturing a grizzly about how the salmon on the camp fire is yours and not his. It's not going to end well.

 

[waterhouse]

No, do your own homework. Can you show me a case law where they are?

Terry stops are different from a vehicle stop, because the courts have ruled that you have an expectation of privacy in your vehicle.

Courts have also ruled that you have an expectation of privacy on your person. What could be more of a privacy issue than your own body and what you have on it? I think what we are discussing is a situation in which the courts have ruled that our right to not be searched without probable cause is, well, infringed.

Just to be clear, before I start putting some effort into it:

A terry stop requires that the officer has reasonable suspicion that you have committed a crime. A speeding violation is not a crime.

I think that Terry can come into play any time a police officer legally seizes a person for any reason. By legally I mean both that the seizure was a seizure under the law and that the officer made the seizure lawfully, after he had reasonable suspicion. Terry does not automatically come into play, but any time a police officer seizes a person, if they can articulate that they had reasonable suspicion that they person was armed and presently dangerous, they may perform a Terry frisk. This would include interactions where cops seized a driver for a traffic violation.

From what I can gather, you believe traffic violation do not have anything to do with Terry, because Terry only applies to criminal violations. Therefore, Terry does not apply at all to any traffic stop, because there has been no criminal violation. The cops suspicion as to weapons or danger would not come into play, as it is only a traffic violation. Am I understanding what you are writing correctly?

I am happy to be proven wrong in this matter. I would love to have more freedom than I currently think that I do. I just don't think it is the case, and I think Terry can apply to traffic stops if the right conditions are met.

 

[beatcop]

Lot's of great stuff being kicked around, finally a post with some meat!

Not to overly generalize, but if you get stopped on the street (walking), there has to be some kind of reasonable suspicion (criminal activity afoot). When it comes to vehicles, the initial stop (if valid) meets the requirements. Regardless of your interpretation of Terry, if the Ofc thinks you're armed, he may disarm you.

Obviously the gray area is "legal" carry. If you're being detained in the course of police work, assume you'll be disarmed. The whole nature of Terry is to protect the police while doing their jobs, that's it. The courts have afforded LE a lot of leeway in this regard for many years.

I'm not in an OC State, but if a permit holder mentions he's carrying during the course of a "routine traffic stop" it's not a big issue, unless there's something "more"...my .02

 

[BBQLS1]

Why did he ask you to put it in the trunk?

 

[mljdeckard]

beatcop and expvideo are absolutely right. Terry v Ohio is one of the most misinterpreted and....overused precedents by police. There are many police officers who have been trained or conditioned to believe that Terry allows them to search everyone they pull over. Many cops get away with it for a long time. It allows police to search a person for weapons if they have reason to believe the person is armed. The grey area is trick because when you have a permit, you are ALLOWED to be armed. If a cop uses Terry to search you, and subsequently finds other incriminating material, they have frisked you under suspicion of a crime when no crime has been committed.

The judge who taught my criminal law class has police come into his court all the time and testify that they had the suspect outside of his car, and did a Terry search. He asks them to articulate the reasonable suspicion that led to the Terry search.

They say, "I was in fear for my safety."

"Why?"

At this point, the cop better say something to the effect of, "I saw a magazine lying on the back seat", or "I saw a knife or barrel shaped bulge" under his waistband or in his pocket. Something specifically concealed weapon related. If they say, "I routinely frisk people outside their vehicles to protect my safety", he will throw the search out. Terry allows the officer to protect their safety under specific circumstances, NOT to frisk everyone they have outside a car. But the same cops keep doing it. (He admits not all judges care as much about privacy as he does. And he is a former cop and former prosecutor.)

In Utah, there is a duty to inform, but CCW info doesn't pop up with plate info, it pops with license info. This way the police can't drive around and target CCW holders. A few years ago there was a flap because police were randomly running plates to verify insurance, because we had a really bad uninsured motorist problem. In effect, that is using information with a degree of privacy attached to it to randomly search for crime. I never heard if a court ruled on it, but our uninsureds went from 20% to less than 5.

But they are right. Seek out more education. With three classes I took that are directly related to this subject, Criminal Law, Arrest, Search, and Seizure Law, and Professional Responsibility, I got 130 hours of classroom instruction from field professionals. One had a law degree, one was a prosecutor, and one was a judge. By way of comparison, a Cat I police officer in Utah might hit the street with as little as 8 hours total instruction in the same subjects. We had a lot of off-duty cops in these classes.

 

[Jim K]

I don't know if there is a court case on the subject, but I think some license plates or bumper stickers could be construed as "reasonable cause" to believe the driver is armed.

Further, bumper stickers like "OFF THE PIGS" and "I (heart) KILLING COPS" do not present a very good image to a police officer. Stickers like "STOP HONKING - I AM RELOADING" and "FROM MY COLD DEAD HANDS" are not much better.

Some folks, even otherwise law-abiding people, just love to provoke and antagonize police and others in authority. In this country, they mostly get away with it; in some countries they would be found dead in a ditch.

But why? Yes, you may have a right, but why be deliberately nasty and make yourself look like a dirtbag criminal just to have "fun" and "tweak the cops." That is a very immature attitude which most of us get over around the 16th birthday.

Jim

 

[expvideo]

waterhouse, you are correct in your understanding of what I have said. And yes, you have more rights than you were aware of.

 

[melikesguns]

I love that people will use any excuse for a law suit this day and time. It is getting ridiculous. nd we wonder why the gun haters view use as slobbering redneck retards. I think anyone that files a "dumb" lawsuit should be shot on sight!! People should try to gett off there lazy azz and get a job!!

 

[mljdeckard]

Jim, I will agree inasmuch as: it's a bad idea to give the cop a reason to start sniffing in the first place. You absolutely do have the right to be inflammatory, disrespectful, and attract negative attention to yourself. This is not reasonable suspicion of any crime. But a person is being naive if they have "Bad cop, no donut", pot culture stickers, etc. in their rear window and they expect to get treated exactly the same as everyone else. You are allowed to exercise your right of free speech well past the point of stupidity. It absolutely can make the difference between, "I'm just letting this guy know his taillight is out" and "I'm checking every piece of data I have access to and shining a flashlight on every exposed inch of this car until I can scrape together a reason to search it."

 

[sendarope]

First off: this cop was a jerk. sounds like some rookie fresh out of the academy. Though with the militarization and the "us vs them" mindset that creeps in over time it is hard to say. We can leave it at Jerk.

Second: I would have a real hard time having somebody disarm me. Mainly because of accidental discharge. I am safer for all concerned if I just stay in my car and let the LEO write the ticket. With that said sounds like this cop was both a jerk and stupid.

I would defiantly file a complaint with the local PD. The legal side is debatable but I happen to think that he had NO PC or any other reason to disarm you.

If I wasn't in a hurry I would have politely asked to speak with his commanding officer immediately. Most departments have a policy of compliance with that. I would have also dialed 911 to get the encounter recorded. LEO's are after all just employees of somebody and have a boss. Though, many don't like to think that is the case.

Fortunately for me at this time the local PD is very supportive of OC and CCW.

 

[expvideo]

mljdeckard,
+1. If you have a pot culture sticker on the back of your car, I don't feel sorry for you when the cop digs up a reason to search it.

 

[Art Eatman]

I've been moderating here and at TFL since almost ten years ago. I do believe I've read more than one or two threads of this sort.

My conclusion: There are a very few cops out there who get as berzerkoid about a non-cop with a gun as anybody in the Brady Bunch, and with the same lack of reason or rational thought.

But most don't.

 

[expvideo]

Pretty well put, Art. For the most part, having run into more cops than I care to remember in my speeding days, they don't really care that you carry a gun. Either they want to make sure that you aren't going to shoot them, so they take it for a minute, or they just ask you to keep your hands away from it and don't really care.

The worst I've met are cops that just don't understand the law as well as they should. I haven't run into a cop with a political agenda that disarmed me just because he hates gun owners.

 

[CoRoMo]

I'd agree with the notion that most LEOs are not hysterically rabid antis, but they do exist. Although like Byron mentioned, police chiefs seem to be different. Certainly it varies from place to place, but every time I happen to catch a news story regarding concealed carry or an AWB, I ALWAYS hear that law enforcement agencies and sheriff's departments resoundingly oppose concealed carry and support any AWB. Hearing this make one think that every LEO is one command away from willingly executing door-to-door 'Katrina confiscation'.

Back to the OT, I've only had one encounter while I was heading up the hill to hunt some deer and the model '94 was on the back seat and the cop only asked if it was empty or loaded. I got the ticket.

 

[mljdeckard]

I've never been issued a citation while I was carrying, but I drive a lot safer now than I used to.

Most of the time it turns into a conversation about guns.

 

[waterhouse]

exp, did you read the link I posted earlier?

The salt lake District Attorney's office wrote a paper on what is necessary to perform a Terry Frisk after a routine traffic stop, for a traffic violation. The name of the report is "Conducting a Terry Frisk During a Traffic Stop."

http://www.districtattorney.slco.org/html/news/uplink/vol6iss1.pdf

I posted it earlier, but I'll post it again, emphasis added:

A frisk is not normally considered to be within
the scope of a routine traffic stop. The discovery of
evidence that results from a Terry frisk incident to a
traffic stop is one of the more common scenarios
reviewed by the Utah Appellate Courts. The United
States Supreme Court has long held that an officer
may perform a protective frisk during a lawful stop
when the officer reasonably believes a person is
armed and presently dangerous to the officer or
others.5 In addition to the requirement that an officer
justify the initial reason for a traffic stop, in order to
conduct a Terry Frisk, a law enforcement officer is
required to further articulate the justification for
conducting the protective frisk. Frisking as a matter of
routine cannot meet this standard. The sole purpose
for allowing a protective frisk is to protect the officer
and other prospective victims by neutralizing potential
weapons. A frisk cannot be used as an effort to
search for evidence or contraband other than
weapons.6 If a protective search goes beyond what is
necessary to determine if the suspect is armed, the
frisk will no longer be valid under Terry and its fruits
will be suppressed.

It appears that an officer may, if conditions are met, use Terry for a simple traffic violation, and not just for criminal violations. I went to the ACLU site and read what they had to say about Terry as well.

You said you would not do my homework for me. I found a DA who seems to contradict what you are saying. I'll be happy to change my mind, but I'm going to need you to point to some evidence that Terry cannot be used for routine traffic stops.

 

[WardenWolf]

Gilbert and Mesa are rather backwards. This does not surprise me. Mesa is strongly influenced by a certain religious group from Utah and Gilbert isn't much more than a rural suburb of Mesa. There's a small but existant cultural gap between Mesa and Phoenix, despite their proximity. I did IT work for a school system in Mesa / Gilbert for 18 months and there was definitely a different feel to it than Phoenix. Slightly xenophobic, and family-favoritism runs deep.

 

[expvideo]

I'd agree with the notion that most LEOs are not hysterically rabid antis, but they do exist. Although like Byron mentioned, police chiefs seem to be different.

That's because people become police chiefs for political reasons. People generally become police officer because they want to help people. Two completely opposite goals.

 

[expvideo]

Waterhouse, thank you for doing the research and keeping an open mind. You are a pleasure to debate with.

A frisk is not normally considered to be within
the scope of a routine traffic stop. The discovery of
evidence that results from a Terry frisk incident to a
traffic stop is one of the more common scenarios
reviewed by the Utah Appellate Courts. The United
States Supreme Court has long held that an officer
may perform a protective frisk during a lawful stop
when the officer reasonably believes a person is
armed and presently dangerous to the officer or
others.5 In addition to the requirement that an officer
justify the initial reason for a traffic stop, in order to
conduct a Terry Frisk, a law enforcement officer is
required to further articulate the justification for
conducting the protective frisk. Frisking as a matter of
routine cannot meet this standard. The sole purpose
for allowing a protective frisk is to protect the officer
and other prospective victims by neutralizing potential
weapons. A frisk cannot be used as an effort to
search for evidence or contraband other than
weapons.6 If a protective search goes beyond what is
necessary to determine if the suspect is armed, the
frisk will no longer be valid under Terry and its fruits
will be suppressed.

(emphasis is mine)

Simply having a legal concealed weapon and a permit for it are not grounds to perform the search. The underlined portion of the above shows that the officer must have a valid reason for thinking that the person with the weapon is a threat. Simply having the weapon is not enough, or there wouldn't be that requirement (underlined)

 

[mljdeckard]

Um, yeah, the passage I read, and exp emphasized, says that the search hinges on being able to articulate a clear and present danger to the officer PRIOR to the search. Just incident to a traffic stop does not meet this standard.