Relinquishing Your Sidearm To LEO's At Minor Traffic Stops.

[nigmalg]

In Florida vs. J.L., the SCOTUS specifically overturned the decision of the lower court:

RULING: In Case Law Update 97-03, it was reported that the appellate court recognized a "firearm exeption" to the Fourth Amendment which would justify a Terry stop and frisk on less than the required reasonable suspicion standard.

That ruling was deemed incorrect and nullified.

Edit: sorry for the three posts

 

[Yarddog]

Fl is not a inform state I will say NOTHING if asked I have nothing Illeagal in this veical ; )
Y/D

 

[Jeff White]

For the sake of argument, lets imagine after notifying an officer that you're carrying, it has become "Open Carry" per this story.

What court has ruled that notifying an officer you are carrying makes it open carry by default? There is no argument that matters except the one that happens in court.

The ruling you posted the link to only applies to detaining someone simply for carrying. Completely immaterial to this thread which is about surrendering the firearm during a minor traffic stop. Obvioulsy in a traffic stop, the CCW holder has committed a violation of the law or has given the officer another legal reason to detain him/her. In the case you cited, Judge Black correctly ruled that it was unlawful to detain St John simply because he was openly carrying a firearm in accordance with the law. There is no relationship between the police unlawfully detaining St John and them disarming someone whgo they are lawfully detaining for another reason. Apples and oranges here.

From the article:

"[r]elying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific, legitimate reason. . . . The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment is denied with regard to the same and with regard to qualified immunity."

The difference here is that during a traffic stop, the individual has already been "seized" (detained) for a lawful reason that has nothing to do with carrying a firearm. Show me the case where someone who was open carrying and had his firearm temporarily taken into custody for the duration of the contact where the contact was for a reason other then lawfully open carrying that was subsequently found to be an illegal seizure.

In almost every case following Terry, the suspicion must be that the suspect is armed and dangerous to temporarily seize weapons. There are several citations there expanding on the original Terry opinion, all of which make such a requirement.

What part of this has nothing to do with Terry is so hard for you to understand? Terry recognized that the officer's judgement based on their special knowledge and experience that the person may be involved in criminal activity permitted them to detain and frisk that person. In a traffic stop in a state where the CCW holder is required by law to notify the officer that he or she is armed, there is no frisk. The officer doesn't have to articulate anything to justify conducting a pat down search of the subject because the subject volunteered the information and no pat down search is conducted. At that point the officer knows that there is a firearm present and is legally justified in taking temporary custody of it for the duration of the contact. No requirement to articulate reasonable suspicion of a crime, no search is conducted and nothing is seized. The firearn is simply relinquished for the duration of the contact.

 

[nigmalg]

What part of this has nothing to do with Terry is so hard for you to understand?

Will all due respect, it has everything to due with Terry. Terry is a lineage of case law dealing with reasonable suspension of 4th amendment protections during detention. There is no other case law to cite. "Frisk" might have been a bad word to use. I'll use "seize" from now on. There are legal requirements in order to seize legally held property from someone.

Edit: when I reference Terry, I'm meaning Terry and the other cases that expanded on it.

No requirement to articulate reasonable suspicion of a crime, no search is conducted and nothing is seized

The removal of a firearm is absolutely a seizure, albeit a temporary one. Furthermore, the serials numbers are often ran on the seized property. It is absolutely a search as well.

This hasn't been challenged in court because CWP holders rarely have a reason, or standing to sue. Typically all of these cases referenced were bad people doing bad things. The cases were spawned from efforts of these bad people to quash the evidence.

As a purely legal CWP holder, you're left little recourse in suing for a simple civil rights violation on the side of the road. You don't have any evidence to suppress and you haven't been changed with a crime. A legal battle will be rare.


Terry et al defines the "unreasonable" portion of the 4th amendment.

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.

 

[deadin]

nigmalg,

Next time you are stopped for a minor traffic violation be sure to tell the LEO that you are armed and then, if he asks to secure your firearm, refuse and set some case law for us.

 

[Bhamrichard]

This is an officer safety issue, not civil rights issue. You have no right to be armed with anything from a pocket knife to an M2 Browning machine gun during an interaction with a police officer if the officer deems your possession of said item would present a danger to him, you or the public. The courts have consistantly upheld disarming people for the duration of an LE contact.

Since SCOTUS recently deemed 2A as a "fundamental" right, and incorporated it against the states. I wonder if the argument could be made from this point going forward that disarming a licensee is tantamount to an illegal seizure.

 

[nigmalg]

nigmalg,

Next time you are stopped for a minor traffic violation be sure to tell the LEO that you are armed and then, if he asks to secure your firearm, refuse and set some case law for us.

I'm not going to sit there and argue with an officer! This is a discussion on legal theory and some lines drawn in sand at this point.

I consider it perfectly valid to simply inform the officer that you'd rather not "disarm", but you will in no way resist or obstruct.

 

[Jeff White]

Will all due respect, it has everything to due with Terry. Terry is a lineage of case law dealing with reasonable suspension of 4th amendment protections during detention.

The issue with Terry was if they could detain him without articulationg probable cause for the detention. In a traffic stop the higher bar of probable cause has alreadcy been met. Terry established "reasonable suspicion". There are dozens of cases where the courts have ruled that temporary seizure of people or property while conducting a legitimate investigation was legal and proper. When I egt home and access my findlaw account I will post some links and synopsis for you.

This hasn't been challenged in court because CWP holders rarely have a reason, or standing to sue.

Why do you think that if your civil rights are violated you have no standing to sue? File a suit if your rights are violated. The reason it hasn't been challenged in court is that the courts have upheld all kinds of temporary seizures during the course of an investigation. The courts have uheld handcuffing a subject and securing him/her in the back of a squad car during a contact and releasing him/her at the end of the contact if no further actionis to be taken at that time. I think the case law on temporary detentions and seizures during a temporary detention has more to do with suits not being filed on this issue then CCW holders not having any standing to sue.

 

[nigmalg]

Why do you think that if your civil rights are violated you have no standing to sue? File a suit if your rights are violated. The reason it hasn't been challenged in court is that the courts have upheld all kinds of temporary seizures during the course of an investigation. The courts have uheld handcuffing a subject and securing him/her in the back of a squad car during a contact and releasing him/her at the end of the contact if no further actionis to be taken at that time. I think the case law on temporary detentions and seizures during a temporary detention has more to do with suits not being filed on this issue then CCW holders not having any standing to sue.

It's extremely unlikely to go to trial with the trivial damages from this sort of alleged civil rights violation. Most than likely a complaint will end with a settlement including minor legal fees and maybe a department policy change.

I suppose if a case was pushed forward to a judgment, one might be awarded some sort of injunctive relief which could be cited as case law in the future.

I firmly believe the reason a challenge hasn't made it to a judgment is due to the inconsequential damages.

I would love to read up on some case law if you'll have it available later. This is a hot topic with CWP holders and Police Officers.

 

[mr.trooper]

Only time it came up for me, the officer asked me if I had any weapons in the car (because he saw my NRA sticker). I informed the officer that I had a firearm in my possession, and that I had a valid handgun permit. He asked where the gun was... I told him i keep it in my glove box, thus why my registration is in my visor... His response? "Ok, no problem"

He never asked to see it. He never tried to handle it, and he never even hinted at disarming me.

I didn't make any sudden moves, kept a cheery attitude, and drove away with no police problems or tickets... I feel like a broken record when I say this every 3'rd post... but you catch more flies with honey.

If you go into the encounter expecting LEOs to be against you, they will pick up on the tension. If you project the notion that you are in the right, and that everything will be fine, you're much more likely to walk away without any problems.

 

[bbuddtec]

I went as far as Sam 1911's post (#17) and that was it. Pointless post... >Delete<

 

[nigmalg]

Loosedhorse, it's a valid point of discussion. Some of us haven't had very good experiences. I feel it's worth talking about.

bbuddtec, I thought my posts were awesome and worth reading

 

[nigmalg]

I can't believe I actually dug this up:

Washington v. State, 922 N.E.2d 109 (Ind. App. 2010).
http://www.state.in.us/judiciary/opinions/pdf/03041001jsk.pdf

...Washington alleges that, because he was completely cooperative with Officer Reynolds and made no furtive movements, the officer had no articulable reasons to believe Washington was dangerous. Therefore, absent a reasonable suspicion that Washington was dangerous or might access the car to gain immediate control of the weapon, Officer Reynolds’ search of the car was unreasonable...

 

[LouCap]

Officers uphold the Consitution and abide by all sorts of legal decisions that complicate identification and apprehension of bad folks to protect the rights of citizens in general day in and day out. That's the nature of the job and it often means not charging someone at all or seeing someone who is guilty as the day is long skate on

Whether or not their actions gel with your amateur interpretations of Constitutional Law may be a broader question.



Quite honestly, running serial numbers is a discretionary thing. If you handed me a high end phone I might run the serial number as well simply because if it is stolen it's always a nice day when a routine traffic stop helps catch someone guilty of some real, felony level crime.

But if during a traffic stop you start digging through your car for items with serial numbers on them (furtively from my point of view in the patrol car, and definitely in defiance of direct orders if I'm at the car) odds are really good that after a verbal warning you're going into handcuffs for the duration of the contact. In my training and experience people who furtively search their vehicle and/or disobey direct and entirely reasonable commands from an officer while they are detained on a traffic stop are either engaged in some criminal enterprise, under the influence of alcohol or narcotics, or have mental health issues that make them potential dangers to themselves and others. So, while on the street I was the nicest and most polite officer most people ever met (even including the people I arrested), I'd feel entirely comfortable with putting you in cuffs for the duration of the contact and don't think I'd have been looking at anything more than a verbal talking to from a sergeant that wouldn't have even risen to the level of a verbal reprimand when I articulated my observations and course of action prior to putting you in cuffs.

(And I might be wrong -- we had a case up here several years back where a woman sued about being detained in cuffs because she matched the description of a bank robber -- crux of her argument being that the only thing that matched was her skin color -- and a civil jury did find in her favor. The $40K she spent in legal fees and is still on the hook for was not exactly offset by the $1.00 awarded to her for damages . . .)

And that's not a power trip, that's just the sort of basic prudence that surviving the job requires. You may know yourself to be a law abiding citizen, and may feel yourself to be the victim of some jackbooted thuggery, but all you're presenting from my perspective is someone who violated the traffic code and then started acting crazy and potentially dangerous during the contact.



A) I'm not rationalizing anything. The courts -- the people who are paid professionals when it comes to interpreting the Constitution -- have supported the rights of officers to run serial numbers on guns. End of story until such time as case law produces a new precedent that changes that. Could that happen? Sure, but until then the people who are empowered to interpret the law and their interpretation trumps your amateur efforts to do the same.

B) So what you're saying is your opposition to this boils down to getting your feelings hurt in a traffic stop?



No, if you get disarmed during a traffic stop (and that's a big if, at least in my neck of the woods) it's not a power trip, it's for your safety. You are infinitely less likely to be shot to death if you are not in possession of a firearm than if you are if/when the officer gets back to his vehicle, runs your OL, and discovers any sort of new facts that mean the routine traffic stop is now something else. Or already knows that you're going to be doing field sobriety tests and possibly facing DUI arrest but he's not getting you out of the car until after his cover officer arrives.

Routine traffic stops occasionally become acrimonious and result in someone being detained in cuffs or arrested only after the initial contact where the gun may have been removed from the equation. If you are still in possession of a firearm when those sort of situations go sideways the odds of something very bad happening go up exponentially (and that includes both bad scenarios where officers act appropriately or where some tragic error occurs).

One of the BEST posts I've read here from the LEO perspective.

Sent from my Samsung Galaxy Tablet using Tapatalk Pro.

 

[Loosedhorse]

It's obvious from your response to my original post, that what I was asking/posting not only went right over your head, but didn't even come close to answering what was asked/stated.

Actually, no, I think I "got it," and my response was clear and on-point. I just didn't agree with your estimation of risk here, or with your low opinion of (some? most?) LEOs.

But perhaps you could re-state "what you were asking"...and without the statement that those who see things differently do so because your point goes right over their heads?

 

[orionengnr]

At the time of notification some LEO's will temporarily relieve the person of their sidearm, unload it..

In reality, the LEO may temporarily relieve the person...

No, if you get disarmed during a traffic stop (and that's a big if, at least in my neck of the woods) it's not a power trip, it's for your safety.

BS. If you have a CCW/CHL/CPL/call it what you will, you have been proven to be a law abiding citizen.
If an LEO chooses to disarm you, it is a power trip, pure and simple.

 

[nigmalg]

Washington v. State cited Malone v. State, 882 N.E.2d 784. I figure Malone might have a bit more information regarding officer safety vs. "unreasonable".

Malone v. State, 882 N.E.2d 784:
http://www.ai.org/judiciary/opinions/pdf/03200808jsk.pdf

Again, Washington v. State, 922 N.E.2d 109 (Ind. App. 2010).
http://www.state.in.us/judiciary/opinions/pdf/03041001jsk.pdf

Let me know what you guys think about both.

 

[HorseSoldier]

BS. If you have a CCW/CHL/CPL/call it what you will, you have been proven to be a law abiding citizen.
If an LEO chooses to disarm you, it is a power trip, pure and simple.

No, it's not -- pure and simple.

I'm going out on a limb and guessing you've never had occasion to take possession of a weapon from someone during a traffic stop, so unless I'm wrong about that, we can infer you simply don't know what you're talking about. You've never done it, you don't have a clue what the mental process is, and can only infer motive or simply invent it in your head because your feelings got hurt.

On the other hand, I've done it on a number of occasions (but haven't in most cases). "I'll show Mr. Poor Citizen just how powerful and mighty I am" never once entered into my thinking on whether to take possession of the weapon or not. I never needed to humiliate or shame citizens to do my job, and made it a point not to -- protect & serve and all that. Now I recognize I'm not every cop, but I do have the benefit of actually knowing what goes through at least one mind in that situation and in my hands on experience of doing that part of the job you simply don't know what you're talking about.

Now as to your first premise -- your premise is simply ridiculous. We don't have a requirement for permits up here, but I've absolutely arrested people who would qualify for our CHP or anyone else's right up until they went off the rails and decided to get themselves arrested for whatever. I've had to fight some of those people into cuffs who had never been arrested before they decided to make that big mistake. "I have a concealed carry permit, I'm special" . . . no, sorry, you're not.

 

[Jeff White]

nigmalg posted taken from this link: http://www.state.in.us/judiciary/opinions/pdf/03041001jsk.pdf

...Washington alleges that, because he was completely cooperative with Officer Reynolds and made no furtive movements, the officer had no articulable reasons to believe Washington was dangerous. Therefore, absent a reasonable suspicion that Washington was dangerous or might access the car to gain immediate control of the weapon, Officer Reynolds’ search of the car was unreasonable...

Let me try to clear up the misunderstanding we are having here. Terry was about detaining and searching a subject without having probable cause to believe a crime was being committed and seizing a weapon found on Terry during the search.

In a traffic stop, the reason for the detention has nothing to do with the person being a CCW holder. The reason for the temporary detention is either for a violation of a traffic law or investigation of a crime for which probable cause exists to stop the vehicle i.e. vehicle or occupants match the description of a vehicle or people wanted for a crime.

In a state where the CCW holder is required to notify the officer he/she is carrying a weapon, there is no search for the weapon. The officer came into knowledge lawfully and at that point it's the same as if it was in plain view. Running the serial number is the same as running a license plate. There was no illegal detention and no illegal seizure because the CCW holder was required to inform the officer he/she was carrying.

You would get into an illegal search and seizure if, in a state where there was no requirement to inform, the officer just pulled the occupants out of the car and patted them down without being able to articulate reasonable suspicion that they were involved in criminal activity and were armed.

In the case you referred, the officer searched the car without probable cause. The legal requirement to inform the officer that you are carrying legally give the officer the knowledge that you have a firearm and the legal authority to temporarily seize it for the duration of the contact if he/she wishes.

 

[devoeski]

The point is the criminals aren't getting ccw permits,getting class 3 licences,abiding by 922 on assault weapons or getting stamps for sbr/aow. The only people white,black or purple giving over a weapon handgrip first is the law abider. And laws and regulations haven't protected anyone any more than overzealous police have. Does an officer have more powers and responsibility than I do? Sure. Do I think they should use it better to take guns off felons and prohibited possessors? Sure. Having an officer drop your Kimberly on the deck or placing my glock on the trunk of my 41,000$ Lexus slide release down pisses me off,as much as when Iowa coast guard recruit ties his pbr to our boat too tight in choppy seas during an inspection. Government tit workers are notorious for damage to personal property. That's a fact. There are hundreds of for and against arguments. I push that it should only be asked if I'm carrying when there is probable cause..

 

[NavyLCDR]

In a state where the CCW holder is required to notify the officer he/she is carrying a weapon, there is no search for the weapon. The officer came into knowledge lawfully and at that point it's the same as if it was in plain view. Running the serial number is the same as running a license plate. There was no illegal detention and no illegal seizure because the CCW holder was required to inform the officer he/she was carrying.

I disagree with you on this one Jeff. Let's say I am in a state that requires me to inform. I tell the officer I have a gun and show him my CCW during a traffic stop for speeding. At this point the officer has a choice, ha can, "FOR OFFICER SAFETY" choose to temporarily seize my firearm. Up until the point that he seized my gun "FOR OFFICER SAFETY", the serial number was not in plain view. The entire reason for the seizure of the firearm is FOR OFFICER SAFETY.

The officer has no RAS to indicate I am in possession of a stolen firearm. The seizure of the firearm is limited to OFFICER SAFETY. I feel that because the seizure was for the purpose of OFFICER SAFETY, running the serial number which was unavailable to the officer prior to seizing the gun FOR OFFICER SAFETY, goes beyond the reason for the seizure and is now violating the 4th amendment in that the officer is now conducting a search without a warrant for the purposes of obtaining additional evidence not related to the reason for the initial stop and for which no RAS of the crime of possessing a stolen firearm exists. Also, running the serial number does nothing to further the cause of and is completely unrelated to OFFICER SAFETY.

 

[zxcvbob]

Running the serial number is evidence that "Officer Safety" was not the real reason in the first place.

 

[Jeff White]

I feel that because the seizure was for the purpose of OFFICER SAFETY, running the serial number which was unavailable to the officer prior to seizing the gun FOR OFFICER SAFETY, goes beyond the reason for the seizure and is now violating the 4th amendment in that the officer is now conducting a search without a warrant for the purposes of obtaining additional evidence not related to the reason for the initial stop and for which no RAS of the crime of possessing a stolen firearm exists. Also, running the serial number does nothing to further the cause of and is completely unrelated to OFFICER SAFETY.

What court has ruled that way? Serial numbers of all kinds of property that is in temporary custody are run all of the time. I have recovered plenty of stolen property by running serial numbers that I came into possession of without PC of it being stolen. It's routine.

Do you also feel that it is a fourth amendment violation to run all the occupants of a vehicle through NCIC? A few years back the Illinois Supreme Court ruled that you had to be able to articulate reasonable suspicion to require the occupants (other then the driver of a vehicle) to ID themselves during a traffic stop. Yet I am aware of no other states and no federal court that has ruled similarly.

 

[junk250]

Jeff white,

You have no constitutional right to be armed while you have any contact with a police officer.

Well, maybe not in Illinois.

But in Kentucky,

237.104 Rights to acquire, carry, and use deadly weapons not to be impaired during disaster or emergency -- Seizure of deadly weapons during disaster or emergency prohibited -- Application of section.
(1) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, have the right to revoke, suspend, limit the use of, or otherwise impair the validity of the right of any person to purchase, transfer, loan, own, possess, carry, or use a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument.
(2) No person, unit of government, or governmental organization shall, during a period of disaster or emergency as specified in KRS Chapter 39A or at any other time, take, seize, confiscate, or impound a firearm, firearm part, ammunition, ammunition component, or any deadly weapon or dangerous instrument from any person.
(3) The provisions of this section shall not apply to the taking of an item specified in subsection (1) or (2) of this section from a person who is:
(a) Forbidden to possess a firearm pursuant to KRS 527.040;
(b) Forbidden to possess a firearm pursuant to federal law;
(c) Violating KRS 527.020;
(d) In possession of a stolen firearm;
(e) Using a firearm in the commission of a separate criminal offense; or
(f) Using a firearm or other weapon in the commission of an offense under KRS Chapter 150.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 240, sec. 7, effective July 12, 2006.

Cooperate yes, reach for a gun or consent to search or seizure no, like an earlier poster said that would be "like wearing Antlers in deer season".

 

[Deanimator]

I guess one solution would be if you don't want a LEO handling your gun during a minor traffic stop would be to not speed, not run red lights, etc. (In other words, don't give them a reason to stop you in the first place.)
I realize there will still be a few just plain "harassment" stops, but it should cut the odds of being stopped way down.

It has always been my position that the way to avoid speeding tickets is NOT to notify LEOs that you're carrying concealed when not required by law, or to render any other such extra-legal "courtesies". It's to drive the speed limit. That being said, there are MANY ways to find yourself involuntarily interacting with LEOs on the road, such as sobriety checkpoints and being a witness to a crime.