CCW, "Duty to Inform," and refusing a search

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cassandrasdaddy said:
bolding is mine ianal

843.02 Resisting officer without violence to his or her person.—

Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
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That does not fly.

A legally carried firearm in a vehicle in Florida does not have to be disclosed at any time to a LEO during a stop for a traffic violation any more than does the existence of any other legal item, like a cell phone, MP3 player, bible, porn, a lunch box, tire iron, CD's, etc.

The presence of any of these, or the non-disclosure, or being untruthful about thier existence; in no way obstructs a LEO in the performance of his/her lawful duties.
 
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The presence of any of these, or the non-disclosure, or being untruthful about thier existense; in no way obstructs a LEO in the performance of his/her lawful duties.
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The Florida court system would agree with you, from W.W. v. State:

To convict a defendant of obstructing or resisting an officer without violence, the state must prove two elements: (1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant’s action constituted obstruction or resistance of that lawful duty. J.P. v. State, 855 So. 2d 1262, 1265-66 (Fla. 4th DCA 2003); Jay v. State, 731 So. 2d 774 (Fla. 4th DCA 1999).

If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction.

In Jay, we adopted the Second District’s list of legal duties, which when hindered and coupled with words alone, can result in an obstruction of justice. 731 So. 2d at 775. There, we concluded that the attempted arrest of the defendant for obstruction was unlawful where the defendant’s mere words to suspected prostitutes, “don’t get in the car, he’s a cop,” during a police sting operation did not constitute obstruction. The officer conducting the sting operation was “merely on the job and not engaged in the lawful execution of any legal duty.” Id. at 776.

Here, the deputy’s investigation, though performed during the course of his general duties, does not fall within the above category of legal duties. The state does not contend that Deputy Beatty was serving process or asking for emergency assistance. And although Deputy Beatty initially testified that his purpose in coming to appellant’s residence was to apprehend A.C., he later clarified that he was not there to arrest A.C. or to place him in custody, but merely to question him about the shoplifting incident at the Texaco station. Moreover, the trial judge determined that Deputy Beatty was merely investigating a crime.

Even assuming, for the sake of argument, that the investigation qualified as the execution of a legal duty, the state failed to prove that appellant, by his words alone, committed an action that “constituted obstruction or resistance of that lawful duty.” “With limited exceptions, physical conduct must accompany offensive words to support a conviction under [section 843.02].” Francis v. State, 736 So. 2d 97, 98 (Fla. 4th DCA 1999) (holding that falsely informing an officer that everything was fine when someone was in need of medical attention only became obstruction or resistance when the defendant also physically blocked the police officer’s path); Wilkerson v. State, 556 So. 2d 453, 455 (Fla. 1st DCA 1990) (holding that defendant obstructed officers not by simply yelling and cursing at them, but by refusing to leave an area where the police were attempting to make arrests). As the First District explained, We have no doubt that the use of “oppose” in conjunction with “obstruct” manifests a clear and unambiguous legislative intent to proscribe only acts or conduct that operate to physically oppose an officer in the performance of lawful duties. Wilkerson, 556 So. 2d at 455-56. See also H.A.P. v. State, 834 So. 2d 237 (Fla. 3d DCA 2002) (upholding defendant’s obstruction conviction not just for cursing and shouting profanities while SWAT team officers were executing a narcotics search warrant, but for refusing to leave the area and interfering with execution of the warrant).

This could be an interesting thread for Florida law. Anyone want to open another thread on that, so we don't take this one too far off topic?
 
they won't ask to search if they think they have probable cause. a traffic stop absent something more doesn't create probable cause. if they ask to search they know they don't have probable cause; therefore, the answer is no. it isn't that easy for them to turn a traffic vioation stop into something more (as long as you don't leave your kilo of cocaine setting on your dash).
my answer is, "you wouldn't ask to search if you believed you had any probable cause, no." they are unlikely to spend hourssss getting a search warrant, having to call their supervisor out, etc., (unless you left your kilo of cocaine laying in the back seat, uncovered).
when you get stopped, they are not you friend and they are not there to help you. think, don't do or say anyhing stupid. mcole
 
I knew of a man who consented to a search of his car.

They searched his car.

They took his seats out, ripped the door covers off, took his spare apart, tore his dash apart, and all because he agreed to let them do it. Once you give consent, then you have given permission to look anywhere they choose, even if it means taking the motor out. It cost him hundreds to get his car back together. But, hey, he gave them permission.

But look at it this way. You give a ride to a guy one afternoon when he has an accident, or your wife has a friend in the car for lunch. What about leaving the window down while you run into a store and someone drops a crack rock in the car because they see a cop. Or, what about getting a police officer that is determined that YOU will go away, so he drops something in your car during a search.

So, please, go ahead and let them search your stuff. But then watch the episode of COPS where the cops planted the weed to make the bust look better.

http://www.youtube.com/watch?v=VbFsZNcBeug
 
divemedic said:
I agree. I live in the Orlando area. I used to tell cops that I carry. A Sergeant with the Orange County Sheriff's office changed all of that, back in 2000. I was sitting at a stop light for a pretty long period of time, and after about 10 minutes assumed it must be broken. There was no traffic, so I went.

The deputy came up behind me and pulled me over. I still do not know where he came from, I never saw him until he was on my bumper. He asked me to step out of the car, so I did. I handed him my DL, registration, CCW permit, and Insurance. When he saw the CCW, he asked if I had a weapon. I told him yes.

He stepped back, put his hand on his pistol, and told me, "Make one move and I will kill you where you stand." Then he said, "Go ahead, try me. I bet I am faster."

I asked him what his problem was, and he began cursing me out, calling me names, and was a real jerk. Bragging about his 20 years on the force, etc.

I do not tell anymore, and yes I do have things to hide. I don't want people to know what my medical history is, nor do I want people to know details of the sex life between my wife and me, nor do I want anyone to have access to my financial information, like credit card numbers, etc. It is personal and private. No searches for you, unless you have a warrant or are arresting me. Just because I have something to hide does not mean that the "something" that I am hiding is illegal.
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I really hope you filed a complaint agaisnt the officer.
 
mcole said:
they won't ask to search if they think they have probable cause. a traffic stop absent something more doesn't create probable cause. if they ask to search they know they don't have probable cause; therefore, the answer is no. it isn't that easy for them to turn a traffic vioation stop into something more (as long as you don't leave your kilo of cocaine setting on your dash).
my answer is, "you wouldn't ask to search if you believed you had any probable cause, no." they are unlikely to spend hourssss getting a search warrant, having to call their supervisor out, etc., (unless you left your kilo of cocaine laying in the back seat, uncovered).
when you get stopped, they are not you friend and they are not there to help you. think, don't do or say anyhing stupid. mcole
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Even if they think they have PC, a 'good' LEO will still ask for permission. If you give permission it will be very, very difficult to exclude any 'evidence' they may uncover in their search, if it turns out their PC is not valid.
 
I like to walk early in the morning and it's not unusual for me to get stopped. About a month ago, a cop stopped me and, after checking out my CWP, asked if I'd mind if he frisked me . I said "Yup, I mind". He gave me the ol' "what do you have to hide" bit to which I replied "Nothing, but there's something I'd like to keep". He asked "What's that?"

I said "My dignity. Call me a homophobe if you like, but something just bugs me when a man has his hand up between my legs around Mr. Happy and the Giggleberries".

He declined the pat down.

Biker
 
A few months back my father in law had a run in with the local police. He was working at a hotel as a maintenance engineer, and the company van was involved in a fender bender. The General Manager sent my father in law out to get all the paper work and pics to file with the insurance and the company. From what I got from him this is how it happened. He had gone over to talk to the guy that was driving the van, asked him some questions, then walked back to his jeep. He sat around for about 20 minutes waiting on the cops to finish, and decided he was no longer needed at the scene. As he pulled out of the parking lot, one of the officers run up and smacked the back glass of his jeep with his hand. He stopped, the cop walked up and asked where the hell he thought he was going, at which my point my father in law said to him "just to let you know I have a CCW license and I am carrying," as he is handing him his ID. According to my father in law the cop flipped out, pulled out his gun, and acted like my father in law had just shot someone. They took his gun, then asked to search the vehicle. My father in law didn't comply. The reason they wanted to search it was because they searched the guy driving the van and found weed on him. When asked where he got it, he said my manager just gave it to me today. My father in law was wearing his name badge which read's "Maintenance Manager." The search didn't happen on the vehicle that my father in law was in because they couldn't get a dog out in time. The cops clear my father in law, and left his gun, unloaded on the hood of the jeep and told him not to touch till they were gone out of the area.

I agree with a lot of you. If you have nothing to hide, let them do the search. If they bring a dog out and sniff for drugs, and your clean write a letter to the mayor, and police chief. Call the police chief and ask to sit down and talk to him about it. I told my father in law to do that, maybe the local police have never had to do anything like that. With CCW on the rise and more people carrying its all about education on the police's behalf. They may not understand it, they may be that new kid right out of training that when they hear the word gun they freak out.
 
If you have nothing to hide, why are you refusing?
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Why would you ever allow a police officer to search your vehicle without cause. Would you allow them to search you home without cause.?????????

Because it's my right, damnit!
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Exactly! Even if I don't have anything to hide it is our right to refuse. The officer then has the right to charge me if he so desires.
 
I just posted this at the following thread carrying firearms across state lines

If you don't do anything wrong the police won't pull you over!

My brother and I went from Quebec to Maine then via the Eastern Seaboard to Dixie and Florida, around the Gulf of Mexico to Colorado via Texas and New Mexico, then Montana via Kansas and cross back into Canada from North Dakota...

We picked up guns from the semi custom makers along the way to replace those that were destroyed in a house fire and by the time we got back to Canada we had 42 longguns in the cab of the truck...We were stopped two times in "checks" asked for license and proof of insurance/ownership and that's it...The last stop the gun cases could be seen through the window of the crew cab with decals on it from NMLRA and NRA Life and JPFO and RKBA and a bunch of other orgs. and the officer smiles and asks "hunting or targets" which my brother, who was driving, replies target and he sent us off...

We were in a quandary as not for the fact we were Canadians--as the laws apply to us, but what to say to the police if stopped...According to the fifth amendment if asked if you have drugs or weapons in the car you do not have to respond etc.--but that will piss off the officer who will make life miserable for you...The officers do not have the right to search your vehicle without a warrant and that can be obtained only in the commission of a crime (and not answering if you have contraband is not a crime regardless what the policeman says) or with probable/justifiable cause or where the "items" are visible or can be readily smelt in the interior of the vehicle...

I have to relate a story to you that happened to my then 70 yr old uncle and aunt who were driving from Ontario to Florida to winter, as they have done every year since he retired as a "Federal" judge...It seems that all along the "corridor" as it's called (the main pipeline for drugs from FL to the NE states) has a policy by the LEOs called Harass the Snowbirds! or some such name...While going through TN he was pulled over for no reason other then the officer was a gigantic prick…The officer comes to the side of the car and screams “give me your lic/reg”— no hello, no why they got pulled over, no please--which my uncle complies to…the LEO goes back to the Cruiser and “does” the checks making them wait nearly 20 minutes, returns to the side of the Cadillac and yells “You gots any guns or them there drugs in your vee-hic-kle”. Now both of them were carrying concealed for which they have permits and never got a chance to indicate to the cop but my Uncle says nothing, officer demands again and uncle says “fifth amendment prevents me from incriminating myself and if you’re not going to ticket us, give me back my papers, please, and we’ll be on our way, thank you very much”…The officer starts a three minute and twenty two second tirade (recoded on his in-vehicle system and clandestinely by my aunt), which at the end he draws his gun and demands they exit the vehicle…before my uncle exits he then states that they were both legally carrying concealed and will exit slowly leaving the purse on the seat…the PIG demands backup via his radio, roughly disarms him, handcuffs both of them behind their backs and proceeds to search the interior and trunk and even opening their suitcases and boxes when a Sgt arrives in one patrol car and the “drug” dog in another…My uncle and aunt were taken and charged with speeding, unsafe (reckless) driving, failure to signal a lane change and resisting arrest and the car was towed to the compound…I am very pleased to say that the PIG in question is no longer an officer of the law (at least not at that location) and my nephews and nieces are sharing the multi million dollars awarded to their parents…

Before the flames get high, let me say that most LEOs are not PIGs, have some semblance of decorum and aren't out to harass the populous because they can because they’re wearing a uniform, badge and gun...Psychological testing prior to admission and whilst in officer school has brought a better class of officer forward but obviously some slip through…

So the choice is yours as to whether you answer or not the question of “You gots any guns or them there drugs in your vee-hic-kle”.
 
I would tend to think that the officer(s) are not going to apologize for wasting your time and sending you on your way.
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Refusal is not PC for a search, and they have to do exactly that unless they can articulate a reasonable PC for a search.

Learn your rights, or you might as well not have any.

WRT "duty to inform" I will inform whether or not I have a duty to do so. I have a license to carry concealed, and he can find me on his laptop, so it's not like it's a secret.

A cop DOES have the right to protect himself in the case of a traffic stop, so I'm not going to give him any reason for a Terry search, or to shoot me.
 
Ever since it became "cool" to be a lowlife (James Dean?), the beatnics, the hippies, the yippies, the punks, the goths, and now the tattooed/pierced people with their pants around their knees have belly-ached about being "mistreated" by the law. Boo foogin' hoo. If you wear a UNIFORM that screams: "I'm un-cooperative", expect the washed world to take you at face value. Is it your "right" to don the uniform of the shady persona du-jour? Sure. But if you don't want to be treated like a criminal, don't accessorize yourself as one. Especially if you carry a gun. This is all pretty simple. Sorry.

Les
 
[They took his seats out, ripped the door covers off, took his spare apart, tore his dash apart, and all because he agreed to let them do it. Once you give consent, then you have given permission to look anywhere they choose, even if it means taking the motor out. It cost him hundreds to get his car back together. But, hey, he gave them permission.
/QUOTE]

I've got to ask what that guy did to so epically fail the Hello Test. Given how much heat your average patrol officer gets from his chain of command to get out there and get to calls and such, I can't fathom how much he must have irritated multiple officers to be on the receiving end of that (unless he happened to seem a lot like someone who'd likely have that kilo of cocaine under his seat or whatever).
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ArmedBear said:
WRT "duty to inform" I will inform whether or not I have a duty to do so. I have a license to carry concealed, and he can find me on his laptop, so it's not like it's a secret.

A cop DOES have the right to protect himself in the case of a traffic stop, so I'm not going to give him any reason for a Terry search, or to shoot me.
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And you informing him of your license to carry and of the presence of your gun changes the Terry search situation exactly how?
 
It may have already been pointed out but bears repeating if so - a duty to inform is NOT the same thing as giving consent to a search. Two totally different issues. In TX, we must hand our CHL to the officer IF we are carrying. If not, the law does not require display. You can still refuse a warrantless search of your vehicle under the 14th Amendment (not the 4th - that is made applicable to the states via the 14th).
 
Ok so im a little unclear...

In FLORIDA, there is no Duty to inform, correct? Where is this stated?

If they ask you if you have a weapon and you say NO (when you do), what can come of it, what can they charge you with if they find it somehow if anything?
 
I don't know Florida law to tell you all of the consequences. However, if you lie and the LEO finds out, you just gave him probable cause to arrest you and your vehicle WILL get searched at that point. Don't overlook the obvious too; if the officer figures out you lied, he will likely immediately feel threatened and will have you eating dirt at gun point in 2 seconds flat. Is it worth lying? Why exactly would you even consider lying to a cop?
 
Just due to the reason's they were mentioning before, as far as the gun being no different than anything else that is legally in your car. Im not thinking about lying really...seems like it would almost be best to not answer at all.

"Is there anything i can do to help?"

lol

But how would you get around the DIRECT question of "do you have a gun?" With the only purpose being trying to maintain your rights as much as possible.
 
And you informing him of your license to carry and of the presence of your gun changes the Terry search situation exactly how?
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Legally, it does not.

However, he will know about my license anyway. His actions will probably depend on my demeanor.

In this state, cops usually have nothing against CWL holders, and figure that it means we're squeaky-clean and passed a background check. That plus politeness means far less likelihood that the cop would want to search anywhere he legally can per Terry.
 
tx_atty said:
I don't know Florida law to tell you all of the consequences. Then you should be careful speaking to the details of those laws.

However, if you lie and the LEO finds out, you just gave him probable cause to arrest you and your vehicle WILL get searched at that point.
Please cite the Florida statutes that support this statement.
Don't overlook the obvious too; if the officer figures out you lied, he will likely immediately feel threatened and will have you eating dirt at gun point in 2 seconds flat. Is it worth lying? Why exactly would you even consider lying to a cop?
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.....
 
Very clearly, I did NOT speak of Florida laws. Im not going to educate you or anyone else on the various laws concerning probable cause. If you doubt what Im telling you, do your own research. Not one place in my post did I mention Florida law. However, I can tell you that probable cause has been defined by the US Supreme Court and what Florida thinks of it is now absolutely irrelevant.

BTW - you want a cite - try this - "If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U. S. 798, 820–821 (1982), authorizes a search of any area of the vehicle in which the evidence might be found." SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONA v. GANT
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 07–542. Argued October 7, 2008—Decided April 21, 2009

Probable cause is not defined by statute. It is defined by common law. There is NO statute in Florida or anywhere else that defines it.

Read and learn - http://supreme.justia.com/constitution/amendment-04/07-probable-cause.html
 
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