Legality of detaining and disarming due to a 911 call...

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wickedsprint said:
If you're not breaking the law, you have nothing to worry about.
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Asolutely 100% false. My motto is, "Just because you have nothing to hide does not mean that they won't find something."

http://abcnews.go.com/US/michael-morton-free-25-years-prison-exonerated-wifes/story?id=14663445

One of the reasons for exercising your rights, always, is because you cannot possibly know every single law in every single jurisdiction that may apply. For example, it's illegal to possess a folding knife over 3" blade length in Seattle, although no state law against it. Traveling through Seattle on I-5, Officer Friendly pulls you over. You volunteer, not required by law, that you are carrying a firearm and have a CPL. Officer Friendly asks you to exit the vehicle and before he disarms you he asks, do you have any other weapons? You answer, "Yes, I have a pocket knife in my right front pocket." Officer Friendly retrieves both your gun and pocket knife. He measures the blade at 3 1/4". Congratulations, your traffic infraction just turned into a misdemeanor criminal offense.

Since I have never been asked about a gun or other weapon during a traffic stop, because I have always kept my mouth shut, I would say an incident like above would not happen if only the minimal information required by law was offered to the officer.
 
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Yeah, maybe being flat down on the old asphalt is a temporary inconvenience. No thanks. As Ben said on February 17,1775, "Those who can give up essential liberty to obtain a little temporary safety,deserve neither safety or liberty".
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It is a great quote and all, but, just to be clear, are you honestly stating that you would prefer to be shot instead of being disarmed at a traffic stop?

Police act on faulty information in this country on a daily basis. Generally, when they act on faulty information, no one gets hurt as long as they do what the cops say. As NavyLCRD pointed out, a person could realistically take down the make, color, model, and license plate number of your car and call 911 and make a false claim that you fired a gun at them in traffic.

If you are stopped in this situation, you may choose to either do exactly what the police tell you to do, which will likely end with you heading home about an hour late, or you may choose to not listen and quote the Founding Fathers with potentially disastrous results.

So honestly, when the 3 police cars are behind yours with guns drawn and you are receiving instructions over the PA system, what is your plan?

Bet even in the "officer safety" ones often you can argue that there is nothing UNSAFE about the citizen being armed, and that since no violent behavior has been shown in a traffic infraction, why the disarmament, as that's more unsafe that just not touching it.
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I agree. I have never once disarmed a person with a CHL at a traffic stop. Keep in mind, however, that the cop may have more information (or think that he has more information, see false report above) than you know about, so it is a good idea (in my opinion) to listen to everything they say without argument, let them disarm you, and then deal with it in civil court later if your rights were violated.
 
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NavyLCDR said:
Asolutely 100% false. My motto is, "Just because you have nothing to hide does not mean that they won't find something."

http://abcnews.go.com/US/michael-morton-free-25-years-prison-exonerated-wifes/story?id=14663445

One of the reasons for exercising your rights, always, is because you cannot possibly know every single law in every single jurisdiction that may apply. For example, it's illegal to possess a folding knife over 3" blade length in Seattle, although no state law against it. Traveling through Seattle on I-5, Officer Friendly pulls you over. You volunteer, not required by law, that you are carrying a firearm and have a CPL. Officer Friendly asks you to exit the vehicle and before he disarms you he asks, do you have any other weapons? You answer, "Yes, I have a pocket knife in my right front pocket." Officer Friendly retrieves both your gun and pocket knife. He measures the blade at 3 1/4". Congratulations, your traffic infraction just turned into a misdemeanor criminal offense.

Since I have never been asked about a gun or other weapon during a traffic stop, because I have always kept my mouth shut, I would say an incident like above would not happen if only the minimal information required by law was offered to the officer.
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If you weren't breaking the law with your illegal knife, you'd have nothing to worry about. :)

Ignorance of your local laws and ordinances is not a defense. In an ideal situation, the knife law wouldn't exist or the town would only employ officers with good judgement and discretion.
 
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The point about Laws is tha there are 10's of thousands of new ones made every year not to mention regulations. The point has been made that a LE can find an infraction quite easily by just following a motorist, when he gets up into your space and especially if you (feeling you have nothing to hide) relinquish your rights on the side of the road you might be in for an expensive ride.
A rural guy from Wyoming in his truck with what to him is typical, fully legal, and been doing it all his life would probably get him prison time in the extreme example in NYS or New Jersey but I'm sure his guns, knives, ammo, truck might all have items that the more progresive states have deemed illegal.
 
If you weren't breaking the law with your illegal knife, you'd have nothing to worry about.

Ignorance of your local laws and ordinances is not a defense. In an ideal situation, the knife law wouldn't exist or the town would only employ officers with good judgement and discretion.
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Oh, good grief! Ignorance of the law is no excuse -- when arrested and tried for the crime. But that only reinforces why I would NOT want to give any law enforcement officer, of however sound judgment and discretion, free access to my person and effects to go fishing for any possible laws or ordinances I may have violated!

It sounds like you're saying that our conduct and belongings should be an open book to law enforcement, but that "officers with good judgement and discretion" would ... what? Look the other way about the laws they find we've broken if they think we're the upstanding sort? :scrutiny: Fortunately the founders had a little experience with that kind of thing when they wrote that:

Some old guys... said:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
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They knew that without a serious check against agents of the government having free access to investigate the affairs of the citizens at will, no citizen would be safe from constant harassment and eventual arrest for some inadvertent, inconsequential "crime." And that's far more true today...FAR more...than it was in the late 18th century.
 
Sam1911 said:
Oh, good grief! Ignorance of the law is no excuse -- when arrested and tried for the crime. But that only reinforces why I would NOT want to give any law enforcement officer, of however sound judgment and discretion, free access to my person and effects to go fishing for any possible laws or ordinances I may have violated!

It sounds like you're saying that our conduct and belongings should be an open book to law enforcement, but that "officers with good judgement and discretion" would ... what? Look the other way about the laws they find we've broken if they think we're the upstanding sort? :scrutiny: Fortunately the founders had a little experience with that kind of thing when they wrote that:



They knew that without a serious check against agents of the government having free access to investigate the affairs of the citizens at will, no citizen would be safe from constant harassment and eventual arrest for some inadvertent, inconsequential "crime." And that's far more true today...FAR more...than it was in the late 18th century.
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I see your point. What would you suggest as the solution?
 
Follow the law. Don't volunteer anything you don't have to. Be polite, but know your rights and don't agree to anything that isn't a direct order. Don't be afraid to ask if you aren't sure, or to say "no" to requests. ("May I have a look in your trunk?" "You don't mind if I....?")

Follow all commands, politely, and make note of any thing that oversteps the officer's lawful authority. FOLLOW UP AFTERWARD.
 
Rail Driver said:
While I feel that "Opie" should have been the bigger man and either ignored "idiot driver", or noted his tag and called police reporting the reckless driving by said idiot driver, I also think the officer went a little too far in ordering "Opie" out of the vehicle and disarming him. "Opie" should find out if there are red-light cameras at the intersection in question, or other cameras that were monitoring the intersection at the time (even in the background). If there were then there is evidence that "Opie" was the one that got cut off. Filing a false police report (apparently by idiot driver) is a crime. This should have been reported and dealt with.

(all my opinion, worth exactly what you paid for it)
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...and this is why I am in the process of wiring up my everyday vehicle with a camera...
 
Sam1911 said:
Follow the law. Don't volunteer anything you don't have to. Be polite, but know your rights and don't agree to anything that isn't a direct order. Don't be afraid to ask if you aren't sure, or to say "no" to requests. ("May I have a look in your trunk?" "You don't mind if I....?")

Follow all commands, politely, and make note of any thing that oversteps the officer's lawful authority. FOLLOW UP AFTERWARD.
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And...if it is not obvious, such as a traffic stop, ask first, "Am I being detained?" If the answer is, "No" then leave or ask to be left alone.
 
I'm sure there are some non US members who might be shaking their heads in amazement at the thought that one may even have a choice in a police search.
I try to give thanks every day for being born in the free est of all nations but there is a constant battle and the last decade has seen its share of wins and defeats.
Eternal vigilance right?
 
Sam1911 said:
Follow the law. Don't volunteer anything you don't have to. Be polite, but know your rights and don't agree to anything that isn't a direct order. Don't be afraid to ask if you aren't sure, or to say "no" to requests. ("May I have a look in your trunk?" "You don't mind if I....?")

Follow all commands, politely, and make note of any thing that oversteps the officer's lawful authority. FOLLOW UP AFTERWARD.
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I agree 100%.

That's why I said if you follow the law, you have nothing to worry about.

You explained it much better than I did.
 
I see your point. What would you suggest as the solution?
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KNOW YOUR RIGHTS
no easier way to put it but that

read the law, talk to a criminal defense attorney
understand that you can say

"No thank you officer, but I prefer for you not to touch my weapon, as I believe it would be safer for us all, but if you insist, I am more than willing to remove my weapon, render it safe and put it in the drivers seat, if that would make you feel more comfortable.

Or similar, you can refuse, you can video, you can record, you can request their supervisor.
 
Shadow, you can say that, but if I don't want you to have your weapon I sure don't want
you putting your hand on it to remove it. I doubt any officer would allow you to draw your gun if they wanted it away from your person.
 
I doubt any officer would allow you to draw your gun if they wanted it away from your person.
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Certainly agreed.

We've talked through these scenarios several times. I've yet to hear a suggestion for a very safe and acceptable method of disarming a (not known to be hostile or "...and dangerous") citizen -- especially a driver -- that doesn't put the officer at risk, or rather at the mercy of, the person he's disarming.

We had one story of an officer climbing in the window, leaning across the driver's lap, to remove a sidearm from a strong-side belt holster. That seems astonishingly, almost laughably ... sub-optimal. :rolleyes:

Ordering the driver out at gunpoint, seems like it would preserve "officer safety" but that's a pretty horrible way to treat someone who has not demonstrated any ill will. (Might as well Taze 'em just to be sure, eh? :D) And it still doesn't completely resolve the issue of having to approach the ... uh, suspect (?) to danger-close in order to disarm them. Even cuffing them first :)eek:) would be a fairly dangerous step if the person had any intent of harming the officer.

So, it appears that the only manner of disarming the driver that is consistent with the concern for officer safety would involve waiting for backup and probably restraining the individual.

Do you have any suggestions that walk a less worisome path between the safety question and the more extreme practices?
 
NavyLCDR said:
The biggest question here is NOT does the officer have the right to disarm the subject during a lawful stop. That is almost 99% percent always that they do. However, if the stop is not lawful to begin with, then the subsequent disarming of the subject is also not lawful.
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How do you figure that cops are almost always legally justified in disarming someone during a traffic stop?

The seizure of a person's gun requires the same legal justification as any other seizure (unless there is some state law that specifically requires a permit holder to surrender the gun when asked by cops).

I know that cops almost always DO disarm people during traffic stops if they know that someone is armed, but I am curious as to what you think the legal justification for this is.

The closest justification I could find would be in the Terry line of cases, which allows officers to pat down a suspect and seize any weapons they find if they have reasonable suspicion, based on specific and articulable facts, that the suspect is both armed and dangerous.

It seems as if you are saying that they can dispense with the "dangerous" part, and disarm you just based on reasonable suspicion that you are armed. I know there is one circuit court that has basically ruled this way, but I think it is in conflict with the Supreme Court's ruling that for a Terry search/seizure, both the ARMED and DANGEROUS elements must be met, and supported by specific and articulable facts.

As for whether a cop can pull someone over based on a phone tip that they are driving recklessly, I think it would probably be justified. There are some cases stating that cops don't have probable cause to stop someone based purely on an anonymous phone tip, but reasonable suspicion is a lower standard than PC.

In that case, since there are allegations of violent behavior (road rage), the cop actually might be justified in disarming Opie with a Terry search, since he knows that he's armed, and he has specific and articulable facts (the phone tip) stating that he is at least irate and possibly engaging in dangerous behavior toward others, which could be RS that he is dangerous.
 
Do you have any suggestions that walk a less worisome path between the safety question and the more extreme practices?
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Not really. . . only good way in my opinion is to prone them out. If someone has a CHL here (at least an in state one), I generally know it before I step out of my car, or if someone volunteers that they are armed, I generally just tell them not to touch the gun and go about the rest of my business. I treat every car as though it has a gun in it, so a confirmation doesn't change much.

If I get a call that someone has a gun and is acting dangerously with it, or I'm pulling over someone known to be armed and dangerous, I wait for backup and make a felony car stop at gunpoint.

I've seen videos of cops reaching into cars to collect guns that made them nervous. This is bad practice, in my opinion, as it often leave the cop's gun accessible to grabbing as well as puts the officer at risk of being held in the window as the driver puts the transmission into drive and takes off.

I've had people open their glove box to get an insurance card and seen the gun. On the rare occasion that makes me nervous I've asked the person to step out of the car so we can finish talking.
 
henschman said:
How do you figure that cops are almost always legally justified in disarming someone during a traffic stop?

The seizure of a person's gun requires the same legal justification as any other seizure (unless there is some state law that specifically requires a permit holder to surrender the gun when asked by cops).

I know that cops almost always DO disarm people during traffic stops if they know that someone is armed, but I am curious as to what you think the legal justification for this is.

The closest justification I could find would be in the Terry line of cases, which allows officers to pat down a suspect and seize any weapons they find if they have reasonable suspicion, based on specific and articulable facts, that the suspect is both armed and dangerous.
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It depends largely upon state statutes and case law. I can't find, yet, where the US Supreme Court has seperated "armed" from "dangerous." Some articles (mostly pro-cop, anti-citizen) claim that courts intrepet the wording in Terry to be a mistake and they meant "armed or dangerous." I don't buy that for one minute. But I also have not found, yet, US Supreme Court opinion that says an indiviual is not dangerous simply because they are armed. I know there are state Supreme Courts that do say that, armed does not equal dangerous, I think Indiana is one, but not sure.

However, some states' statutes specifically allow officers to seize firearms during traffic stops, I have read that Alaska and Texas statutes are that way, but have not confirmed it. It looks like there is a New Mexico Supreme Court Case that says officers can temporarily seize firearms during traffic stops without there being reasonable suspicion of "and dangerous."

Washington State Constitution would tend to swing the other way. Washington State Constitution actually provides stronger protection against search and seizure (it does not contain the word "unreasonable"!) and stronger protection for firearms possession than the US Constitution does.
 
waterhouse said:
I've had people open their glove box to get an insurance card and seen the gun. On the rare occasion that makes me nervous I've asked the person to step out of the car so we can finish talking.
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Question for you. Real situation, happened to me. Stopped for speeding. Wife in passenger seat, two teenage girls in back seat. I pull over in a safe location for the officer, roll down window all way, have my out-of-state driver's license and military ID card in hand. Insurance card and registration in my lap. We exhange pleasantries, officer checks out my info, my CPL status is not returned because it was obtained with a Washington State ID Card and not my driver's license.

Officer returns and asks me to exit the vehicle and talk with him. He returns to between his car and mine. I am open carrying in a holster on my belt. It would be illegal for me to leave the loaded gun in the car, I don't really want to handle the gun and unload it. So, I just exited the vehicle, gun in holster in plain sight, and walk back to meet the officer. He said he didn't want to "lecture" me in front of the family and let me go with a warning.

So, question is, what would you have done in the officers situation when I exited the vehicle with a holstered handgun on my belt in plain sight?
 
In tht situation I'd ask you to please slow down and remind you to keep your firearm concealed (no open carry here). Depending on the make and model I may compliment your choice of firearm.
 
You had military ID. You had family in the car. I'm guessing you weren't acting nervous or adversarial. You didn't just have someone call you in for road rage. Translation: Not a scumbag.
 
Johnny Dollar said:
Yeah,Waterhouse,just shoot me! :D
Law Enforcement philosophy at its finest! :rolleyes: I only worked with your compadres for 20 years,none having your asinine attitude. :uhoh:

What a kick in the head from Round Rock,Texas. ;) With an ego bigger than those 254,000 square miles. :)
But this is America 2012. :rolleyes:
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Hey....no fair!
The "ego bigger than Texas" thing was mine!
lol.......:D
 
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