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AZ: LEO disarming CCW Civil

Discussion in 'Legal' started by banditti, Dec 17, 2008.

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  1. banditti

    banditti Member

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    Here is my situation:

    I got pulled over, (my license is GUNXXX)
    Asked me if I was carrying
    Asked for my license and ccw
    Said I was speeding
    asked me to get out of the car and put my hands behind my back, thumbs together
    grabbed my thumbs, disarmed me
    asked why I had a gun
    I told him "it is my 2nd amendment right"
    He wrote me a ticket and asked to put my gun in the trunk when he gave it back.


    This was a Gilbert LEO. I called one of my best friends who is a Gilbert LEO, he said that their PD council said they could not disarm me unless the suspected a criminal violation.

    I think he pulled me over due to my plate and I am looking for the law or court case to back up my friends claim.

    Thoughts, comments?
     
    Last edited: Dec 17, 2008
  2. 22lr

    22lr Member

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    HMM im not remembering any cases from class other than you should contact the NRA and see what they think. They might provide a Lawyer, or at least some assistance. Im not sure how interested the NRA would be in this case but im sure someone out there would be.
     
  3. withdrawn34

    withdrawn34 Member.

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    Well, if that is the whole story, then it sounds like you may want to file a complaint with the Gilbert PD. Since he gave you a ticket you should have his name and badge number.
     
  4. Drail

    Drail Member

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    You now know why a lot of people advise not to place pro gun stickers or license plates on your vehicle. I believe you have an absolute right to do that but it will draw the attention of people you probably don't want to talk to, like cops and thieves. It's not right but that how it is. I don't think it's worth pursuing, you're right, he was wrong but you can't beat city hall or the cops most of the time and even if you can it can get very expensive.
     
  5. banditti

    banditti Member

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    I am changing my plate.
     
  6. waterhouse

    waterhouse Member

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    Were you speeding?


    If you were speeding, that is a criminal violation. If an officer has reasonable suspicion that you have committed a crime, are committing a crime, or are about to commit a crime (such as speeding), he can stop you. Under Terry, if he has reasonable suspicion that you are armed (your license plate, carry permit, and verbal confirmation would all go towards this) he may frisk and disarm you.
     
  7. shotgunjoel

    shotgunjoel Member

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    You could try raffling off your plates to pay for a law suit. Not a lot of money but it would help. Just a thought.
     
  8. Dr. Tad Hussein Winslow

    Dr. Tad Hussein Winslow member

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    Sounds to me like that's the only thing he did wrong - and make no mistake, that WAS wrong. Your response could have been (properly) "No thank you, I'm under no obligation to do so."

    Well, WERE you speeding? If so, then wrong; that's not why he pulled you over, or at least not the only reason. If you weren't speeding, then you're likely right. Not complicated. :)
     
  9. Wvladimire

    Wvladimire Member

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    I am a former LEO. Before I retired 4 years ago, the higher ups in the department were making sure that we got the training we needed to disarm the private citizens. It's been in the news, use Ask.com instead of Google, and you will see that Police Departments are being Federalized. By receiving money from Homeland Security, who in turn tries to make the regular beat officer think that civies are the enemy. Also the Federal Government is using the military against it's citizens, under the guise of helping the public servants by assisting in car accidents and such. When in reality they are setting up check points for the general public.

    Be warned gun owners, they are coming for our guns. Those who do not submit, or fall for their brainwashing, will be neutralized.
     
  10. expvideo

    expvideo Member

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    No it's not. That is a traffic violation. A criminal violation is a different thing. Call your local court house and ask if speeding is a traffic violation or a criminal violation.
     
  11. waterhouse

    waterhouse Member

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    My mistake. My point is that speeding is all the reason a cop needs to pull you over and detain you. As soon as that happens, Terry kicks in.
     
  12. expvideo

    expvideo Member

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    Wrong. It gives the officer the ability to detain you, not to search you. He has to have probably cause that you have committed a crime or have a warrant to search or seize your property. A traffic stop does not constitute a terry stop. A terry stop requires that the officer has reasonable suspicion that you have committed a crime. A speeding violation is not a crime.

    eta

    The officer had reasonable suspicion that the op was carrying a gun, but carrying a gun is not a crime.
     
    Last edited: Dec 17, 2008
  13. waterhouse

    waterhouse Member

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    So, just to be clear, traffic stops are not covered under Terry? Are you an attorney?

    We were taught that Terry covered traffic stops. I'll have to do some more research on this.

    eta: Terry frisks are not automatic for all traffic stops, but under the case I mentioned in post 6 (reasonable suspicion of an armed person) I think terry comes into play. When I said "terry kicks in", I meant in the way I described in post 6, when the officer could articulate reasonable suspicion of an armed driver.
     
    Last edited: Dec 17, 2008
  14. waterhouse

    waterhouse Member

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    This is from a google search on Terry stop.

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

    It is from the Salt lake DA office.

    Later, while discussing Terry:
    As I mentioned in post 6, if the officer had reasonable suspicion that the driver was speeding, he may "seize" the driver for the traffic violation. This is what the officer is doing when he pulls you over.

    After that, if an officer can articulate reasonable suspicion that there are weapons present, he may disarm the seized person for the sole purpose of protecting the officer and others from the weapon.

    I don't believe any probable cause or warrant is needed in this procedure. I also see no differentiation between a stop for a traffic violation and a stop for a criminal violation. Can you please direct me to case law that points to the fact that officers cannot perform a Terry Frisk for traffic stops if they can articulate reasonable suspicion that the driver is armed?
     
  15. Ron-Bon

    Ron-Bon Member

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    When I get pulled over,(all the time) the officer always unloads my gun and asks that I leave it unloaded with the slide in the open position until I am out of his sight or he is out of mine
     
  16. Rodentman

    Rodentman Member

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    Forgive me for being naive. I know that a LEO must protect himself, but do they believe that a permit holder poses a threat? Unloading the weapon until he is out of sight--are you gonna fire at him as he drives away?

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

    waterhouse Member

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    Try to think of cops as any other subset of America. Some of them are gun people. Some of them never held a gun until the academy.

    Some know the process for getting a concealed handgun permit. Others know of its existence, but not much else about them.

    For these reasons, different cops will react differently around people with guns.
     
  18. DKSuddeth

    DKSuddeth Member

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    I would have laughed at him myself.
     
  19. expvideo

    expvideo Member

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    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.

    Are you?

    Trust me. Go to the ACLU website and do some research. You are very wrong in your assumptions and I don't want to spend 20 minutes explaining why. Do your own homework instead of asking me to proove mine. I know what I'm talking about and you kind of think you have a basic idea of what you are talking about. Which one of us needs to be researching case law?
     
    Last edited: Dec 17, 2008
  20. Reyn

    Reyn Member

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    If the officer can articulate that your actions placed him in fear then he can disarm you or pat you down for weapons.

    Waterhouse,if an officer pulls someone over for a traffic violation that by itself is not enough to perform a frisk for weapons and to disarm.

    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. 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.
     
    Last edited: Dec 17, 2008
  21. cassandrasdaddy

    cassandrasdaddy Member

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    Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

    For their own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a “stop and frisk”, or simply a “Terry stop”. The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops.

    http://en.wikipedia.org/wiki/Terry_v._Ohio


    last sentence is clear i think.
     
  22. coyotehitman

    coyotehitman Member

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    If the laws there are anything similar to the laws in some states, this has nothing to do with "Terry", "PC" for a search, or anything else. If you are CCW in some states, you have a duty to inform and you can be disarmed for the duration of the stop. Failure to comply and your privilege to CCW is revoked with the simple singing of a document. Perhaps this is how the law is the OP's home state reads. What do you mean by council, city council (the board) or a city attorney/solicitor? Also, were you speeding, were you not speeding, or do you honestly not know if you were speeding?

    To this poster, what would be your basis for a complaint, being disarmed, being told to put it in your trunk, having the officer control your hands while he disarmed you?

    Was he rude or did he behave professionally and did he violate a civil right, a lawful policy/directive, or a law?

    If I questioned anything that was already established, I apologize in advance.
     
    Last edited: Dec 17, 2008
  23. Ron-Bon

    Ron-Bon Member

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    The majority of the police that I have encountered seem to hate the fact that I can legally carry a pistol. They always seem almost happy that I have a gun that they think is illegal, then when they discover that it is completely legal, they seem a little disappointed. I'm not exaggerating
     
  24. cassandrasdaddy

    cassandrasdaddy Member

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  25. thesecond

    thesecond Member

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    In this case, it's peculiar that the officer went immediately from a traffic detention to an "order out". Was there anything to indicate Banditti was presently dangerous to the officer's safety? Having a license to be armed does not make one, by necessity, presently dangerous.

    The following was posted by me in another thread asking about Terry stops. Please take note that, for now, at least, sidewalk detentions (Terry) are not the same as traffic violation detentions or subsequent "order outs" (Mimms):

    expvideo is correct in that, generally, you can't jump from a detention to a frisk and seizure without something more. The frisk may only commence upon a reasonable belief that the person is “(1) armed and (2) presently dangerous.” (emphasis added.) See United States v. Cortez, 449 U.S. 411 (1981). True that the “reach and seizure” into a specific area of the suspect’s garments may occur after a frisk, I.e., “a limited patdown based upon plain feel”, confirms that a weapon is there. See Minnesota v. Dickerson, 508 U.S. 366 (1993). But the “limited patdown-plain feel-frisk” and subsequent “reach/seizure” cannot be justified before the officer reasonably can explain that the “stopped and detained” suspect was both (1) armed and (2) presently dangerous. Note that the “reach” also may occur, without a preliminary frisk, when an officer is given “specific information regarding hidden weapons” in an area where it is prohibited. See Adams v. Williams, 407 U.S. 143 (1972).

    Remember also that the circumstances of the “stop and detention” under Terry are justified, dependent upon (1) the purpose of the stop, (2) the reasonableness of the time in effectuating the purpose of such stop and (3) the reasonableness of the means of investigation. See U.S. v. Sharpe 470 U.S. 675 (1985). Thus, for now, the police are not entitled to stop, detain, frisk, and seize items (and people) from the public at large, while the latter is going about their business in public, without a good ‘reason‘.

    The automobile detention stop (without arrest) and searches proceeding from an auto stop are informed by, but not necessarily analyzed under, the Terry rules. See, generally, Michigan v. Long 463 U.S. 1032 (1983); Pennsylvania v. Mimms, 434 U.S. 106 (1978); Maryland v. Wilson, 519 U.S. 408 (1997). Terry applies to a “stop”, for example, on a public sidewalk. If an officer orders a driver and/or passengers out of the car under Mimms, he then may proceed under Terry. You cannot go from traffic stop to Terry “frisk”, without something more. Arizona v. Johnson, argued recently in front of the SCOTUS, will have an effect on all of the foregoing.

    Don’t draw too many conclusions from what you read here. All of the Fourth Amendment analysis occurs after the fact of an arrest and indictment, pursuant to pretrial hearing on a motion to suppress evidence which is discovered, seized, and intended for use in a criminal trial. Maybe section 1983 litigation for the illegal detention leading to arrest (being physically restrained), and illegal seizure, considering Banditti was lawfully armed, but without more, could not then be considered "presently dangerous".

    Note: I am not a lawyer. But I did stay at a Holiday Inn Express …. J
     
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