Tense Florida Traffic Stop with Firearms

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Lots of interesting debate here.
A.) Is a speeding violation a crime
In your situation 15 MPH over, no. But you do not know for 100% certain that is the only reason for the stop.

and is a traffic stop a criminal investigation?
It can be, but unlikely in your situation.


B.) Is the passenger of a vehicle an accomplice to a crime
not in your situation

and can they be detained as a result of the stop?
They are, in fact, seized, and therefore under the lawful direction of the LEO.


C.) Had the passenger refused to disarm, would she have been disarmed by force?
I guarantee it!

If so, what implications does that have for lawful ccw... Armed but only at the pleasure of any LEO?
In a traffic stop situation, don't tell the LEO you are armed. Unless like in your situation the LEO might find out when you are asked to get out of the car.


D.) Are public rights a moot point when they can take your child away and draw weapons on you at any sign of disagreement until you sort the details out at personal expense in a courtoom?
With the current state of the law, unfortunately, yes.


For clarity, you informed the LEO you were carrying a concealed firearm. It is a felony to carry a concealed firearm in Florida -it currently is a defense to that charge if you possess a CWFL or are carrying under one of the exceptions of 790.25(3) or 790.25(5).
At that moment, it arguably became an investigation into a possibly felony. The LEO then took what could then be classified as prudent steps to insure his safety and the safety of his partner by securing the pistols until your status could be confirmed.

I know a bunch of folks are going to have a hissy-fit here, but that is the current state of the law in Florida.

Until such time as the Florida Supreme Court rules on the conflict between the two District Court rulings as to posession of a firearm being RAS/PC for a Terry stop, we will just have to sit back and wait.
 
Great post, brboyer.

If I'm understanding this correctly, informing the officer about the passengers weapon was the justification for disarmament of that weapon during a traffic stop. Possession or suspicion of possession is cause to seize property under the guise of officer safety.

I suppose then that if I were to casually discuss firearms with an officer on the street, and as a result of that discussion they saw a bulge in my pocket, that they could then seize the weapon on suspicion of felony arms carry, even if I am in possession of a permit? Or is it only the officers prerogative to pursue that course of action when the citizens have already been detained?

If, however, I had not informed them about the passengers weapon, they would have no justification to search her or her belongings. However, they could lawfully command her to exit the vehicle, and if she had not obeyed the command then they could have forced her to exit and search her belongings? Might be a catch-22 somewhere in there...
 
Is the mere possession of a firearm a crime ?
No it is not.

Is the possession of a concealed weapon in the state of Florida whilst issued with a concealed weapons permit a crime?
No it is not. The statue states that an unlicensed concealed weapon is a 3rd degree felony, not a permited weapon.

790.01 Carrying concealed weapons.—
(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
Does Florida Statues 790 list carrying a cncealed wepon with a permit as a crime?
No it does not.

Does Florida Firearms Law Statue 790 state that you have to surrender your weapon to a LEO whist you interact with him or her?
No it does not

Does section 790 of the Florida Statutes Proclaim premption of all exsisting firearms laws?

§790.33 Florida Statutes - Field of regulation of firearms and ammunition preempted

"Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void."

The power of arrest by a citizen can not be negated by the person being arrested ONLY BY A COURT.

Once arrested you have to comply or resist arrest. As a LEO you would be unable to resist the arrest in any lawful manner as you have a full understanding of the meaning of being under arrest, any resistance could be deamed unlawful.
As an LEO you would have a greater hurdle to overcome in stating that you did not understand that you had been placed in detention. Whether that detentuion was lawful or not is a matter for the courts to decide not the LEO being detained.
 
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Great post, brboyer.


If I'm understanding this correctly, informing the officer about the passengers weapon was the justification for disarmament of that weapon during a traffic stop.
Well, the justification was officer safety and/or felony investigation. You provided them with the RAS/PC necessary.

I suppose then that if I were to casually discuss firearms with an officer on the street, and as a result of that discussion they saw a bulge in my pocket, that they could then seize the weapon on suspicion of felony arms carry, even if I am in possession of a permit?
Currently, in at least one District in Florida, Yes. One other, No. And the rest...your guess is as good as mine.
Remember, the license is a defense to the crime of carrying a concealed firearm, not a exception to it. If the officer had verified knowledge of your license prior to noticing the bulge, that would be a different story.

If, however, I had not informed them about the passengers weapon, they would have no justification to search her or her belongings
Well, they would still have the justification, just not the knowledge that it existed in the first place.

However, they could lawfully command her to exit the vehicle, and if she had not obeyed the command then they could have forced her to exit and search her belongings? Might be a catch-22 somewhere in there...
Yep. The officer is within in his authority to have a passengers exit the vehicle. Failure to do so is a crime. Which would then permit a search incident to arrest. They could not pat down the passenger without RAS of a crime.
 
This is a very interesting thread, even with the inevitable drifts thrown in.

My own personal plan has always been never inform an LEO I'm carrying unless I'm asked to step out of the car. Then it's the more-or-less standard "Officer, I'm licensed to carry blah, blah, blah, how should I proceed?" But that's always been predicated on the fact the LEO is standing right there at the car door. This idea of getting out and walking back to the car is different. I think I might be tempted to slip my weapon off (I'm a paddle-holster guy) and stick it under the seat, and then exit and lock the door. (This obviously assumes it's not a giagantic, flopping-around-in-the-seat-like-I'm-having-seizure move.)

"Got any weapons on you?"
"Nope."
"Any weapons in the car?"
"Nope."

This scenario is making me think about the right way to proceed. Obviously, the standard "volunteer and show them you're a legal good-guy" move did nothing positive.
 
The power of arrest by a citizen can not be negated by the person being arrested ONLY BY A COURT.

Once arrested you have to comply or resist arrest. As a LEO you would be unable to resist the arrest in any lawful manner as you have a full understanding of the meaning of being under arrest, any resistance could be deamed unlawful.
As an LEO you would have a greater hurdle to overcome in stating that you did not understand that you had been placed in detention. Whether that detentuion was lawful or not is a matter for the courts to decide not the LEO being detained.

Good luck with that. Academically you might be right, but what will really happen is you will end up dead. If the officer doesn't kill you, his partner will, or a backup officer will, and if you miraculously escape that... I can't say what I think will happen courtesy of the [strike]Police Benevolent Association[/strike] Fraternal Order of Police because the mods would ban me for it; use your imagination.
 
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The power of arrest by a citizen can not be negated by the person being arrested ONLY BY A COURT.

Once arrested you have to comply or resist arrest. As a LEO you would be unable to resist the arrest in any lawful manner as you have a full understanding of the meaning of being under arrest, any resistance could be deamed unlawful.
As an LEO you would have a greater hurdle to overcome in stating that you did not understand that you had been placed in detention. Whether that detentuion was lawful or not is a matter for the courts to decide not the LEO being detained.

So wait, all the criminals have to do when the police show up is tell them they are under arrest and the police have to comply? Why do I feel it might not work that way...


When I was on the force, honestly, if someone I had detained at a traffic stop started telling me I was under arrest, things would have gone rodeo very quickly. And I don't think there's a judge out there that would have had problems with the person I had detained suddenly having an all he could eat asphalt buffet.

For a self proclaimed ex-police officer to suggest attempting to arrest a uniformed on duty police officer for running the serial on their gun... somethings just not right.
 
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Is the mere possession of a firearm a crime ?
No it is not. [Yes it is, see below]

Is the possession of a concealed weapon in the state of Florida whilst issued with a concealed weapons permit a crime?
No it is not. The statue states that an unlicensed concealed weapon is a 1st degree felony, not a permited weapon. [See below]

Does Florida Statues 790 list carrying a cncealed wepon with a permit as a crime?
No it does not. [See Below]

Does Florida Firearms Law Statue 790 state that you have to surrender your weapon to a LEO whist you interact with him or her?
No it does not [Irrelevant, as I stated before, many times]

Does section 790 of the Florida Statutes Proclaim premption of all exsisting firearms laws? [How is this relevant to the discussion?]


[snip irrelevant stuff, again]

Wrong, again.
790.01
. . .
(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.
. . .

If you understood the rules of statutory construction you would know that when an exception to a crime is listed subsequent to the enacting clause in the statute, it is an affirmative defense, not a negative element of the crime.

Florida Supreme Court - Watt v State 31 So. 3d 238
. . .
Proof of a license is pertinent only as an affirmative defense. Generally, for a statutory exception, such as a license, to constitute a defense under Florida law, the exception "must be in a clause subsequent to the enacting clause of a statute." State v. Robarge, 450 So.2d 855, 856 (Fla.1984). Accord Royal v. State, 784 So.2d 1210 (Fla. 5th DCA 2001).
. . .
The license defense is in the subsequent clause, subsection (3). As such, it is an affirmative defense, not an element of the crime.
. . .
 
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[Simmer down, folks. Keep it civil or we're done. Anyone wanting to edit personal slights out of their posts just to be polite, now would be the time. :scrutiny:]
 
Ianp240 brought up a good point about firearms registry. Is there a state level record of specific firearms I happen to own as a result of the FFL's checks and sale of the firearm? Is there a record now with an LEO agency as a result of the serial numbers and makes/models being referenced through radio contact at the traffic stop event?

Lets continue discussions about personal behavior, passenger behavior, officer behavior, firearms, and consequences thereof pertaining to a traffic stop. For the purposes of this thread lets assume that the citizen has no interest in invoking citizens arrest. My primary concern during the stop was to engage peacefully with the officers and return home with my family, preferably without breaking any laws and without having my rights infringed upon... subsequently we are learning about personal rights and their implications during interface with law enforcement officers.
 
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IMHO, the only thing you screwed up was telling them your wife was armed. But I can't think of a good way to have avoided that without lying. ETA: You don't have to answer every question they ask, but that one would've been hard to deflect.
 
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Ianp240 brought up a good point about firearms registry.
[snip]


Is there a state level record of specific firearms I happen to own as a result of the FFL's checks and sale of the firearm?
No.

Is there a record now with an LEO agency as a result of the serial numbers and makes/models being referenced through radio contact at the traffic stop event?
No.
 
They are, in fact, seized, and therefore under the lawful direction of the LEO.

This is not correct.
see Wilson v. State 734 So.2d 1107

There is a lot of misinformation being thrown around as fact in this thread. I would sincerely suggest that anyone who CCW's and is not a lawyer or LEO get a book written by a lawyer or talk to one in person if they have the means.
 
This is not correct.
see Wilson v. State 734 So.2d 1107

There is a lot of misinformation being thrown around as fact in this thread. I would sincerely suggest that anyone who CCW's and is not a lawyer or LEO get a book written by a lawyer or talk to one in person if they have the means.
I see your Wilson v State and raise you Brendlin v. California, 127 S. Ct. 2400 - Supreme Court 2007

When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well. . .
 
There is a lot of misinformation being thrown around as fact in this thread.


Are you implying that an anonymous person sitting at a keyboard might give out information that is not totally true?

I have said it before but anyone who takes info gathered from a single source, especially an anonymous source such as an internet forum, probably deserves whatever trouble thet get into. Since I do not know every law of any state, including my own, it seems to be that the best course of actions is to ASSUME that the LEO knows what he is doing and that things will work out in my favor if I follow his directions. I may not like it, but I can generally live with it and can complain vociferously AFTER the incident is over.
 
^^^ Been reading this thread a couple days now...this is the best post so far.

Most everything that should be said, has. But I would like to thank the OP for an interesting and informative thread. Thanks, Tiger.
 
Lets be clear, this thread is for educational purposes only. My post provides a reference description of a real traffic stop involving armed citizens and the following discussions may be used as a thought experiment for appropriate behaviors and citizens rights during LEO interactions in Florida.

it seems to be that the best course of actions is to ASSUME that the LEO knows what he is doing

Probably true, and it holds true for the context of this stop... but a potentially dangerous assumption nonetheless, IMHO.
 
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I think you did ok ! I t is my understanding that you only have to disclose that you are carrying if asked ! I have been stopped and been disarmed , Which kind of ticks me off but it could be worse . Kevin
 
I've been thinking this over some...

It's probable that the deputies were nervous because they had to follow their protocol. Most folks trained in the use of firearms know that the safest place for a loaded handgun is in its holster. Yet, since they have their policies for stops of subjects with firearms, they didn't want to get in trouble with their department for not following them. From the way the stop went, it sounds like they were reasonably sure you would be armed. The deputy followed a bit before lighting up, then had you exit and approach his vehicle. I think he had already called in your plate, decided that he had to go by the book (sans the actual citation for speeding, thankfully), because at least the dispatcher knew you would probably be carrying.

Now, I also think it's a dumb policy, but you were absolutely correct to comply. Despite your mild complaints (and your wife's more direct complaints) about their disarming you being unnecessary, they still let you go with a warning. Though they may have been a bit unprofessional and unnecessarily nervous, they probably didn't violate their dept's policies, so a complaint to the sheriff's dept may not do much good. Still, I think I would file a complaint anyway just to make the point that it's not a good policy. You've got your permit, so you've passed a background check. If there are no outstanding warrants at the time of the stop, then disarming you and your wife just introduces unnecessary risk to what should be a relatively routine traffic stop. They should hear this from reasonable people without an axe to grind, such as you seem to be (so far as we can tell on an Internet forum).

All that said, I think in the account provided here, it WAS best to assume the LEOs knew what they were doing, right up to the point where you or your wife would have been put in danger of life or limb. Short of that, compliance at the time and filing a complaint later--if necessary--seems to be the best course.
 
Brendlin v. California, 127 S. Ct. 2400 - Supreme Court 2007

The holding revolves around whether a passenger can assert that the stop was unlawful for purposes of the exclusionary rule. It also addresses whether a passenger (under these circumstances) would reasonably believe that they were free to leave. It does not stand for the proposition that a LEO could actually refuse a request of the passenger to leave. It is possible to reasonably believe you can't leave when in fact you do have a right to leave. The "reasonable person" here isn't a constitutional lawyer.

P.S. That's a really good case, BTW. I might be able to use that in the future.
 
You've got your permit, so you've passed a background check. If there are no outstanding warrants at the time of the stop, then disarming you and your wife just introduces unnecessary risk to what should be a relatively routine traffic stop.

That is a great summary of the argument, and I happen to agree with you.

It also addresses whether a passenger (under these circumstances) would reasonably believe that they were free to leave. It does not stand for the proposition that a LEO could actually refuse a request of the passenger to leave. It is possible to reasonably believe you can't leave when in fact you do have a right to leave.

There are different interpretations being represented on this thread. Gatorjames85, is it your opinion then that the passenger of a vehicle stopped for a moving violation is in fact not being detained?
 
Gatorjames85, is it your opinion then that the passenger of a vehicle stopped for a moving violation is in fact not being detained?

It depends (I know, I know, but that is how our law is). For purposes of the 4th amendment, and for all practical purposes, a motion to suppress, the answer is apparently yes. If they asked to leave and the officer didn't have reasonable suspicion, they would have to let them go. I'm sure that doesn't sound at all confusing.;)
 
NEVER, EVER, UNDER ANY CIRCUMSTANCES will I CONSENT to a search.

I ALWAYS carry a voice recorder of some kind. My REFUSAL of consent will be documented.

If you try to unlawfully search after that, well you're free to play career Russian roulette to your heart's content. I won't resist, but I will do everything possible to wreck your career.

Get a K-9, get a velociraptor. I'm not CONSENTING to ANYTHING.

1. Your recorder makes officers laugh. They are recording you with video and audio.
2. Detaining you for a reasonable amount of time while awaiting K-9 is entirely lawful and not career suicide. The Supreme Court is pretty clear on this matter.
3. Their are plenty of lawful ways to search a vehicle without your consent.

To others, like I've said I can't speak with any knowledge to the laws in Florida as I'm not an leo there. I will say this with 100% certainty though. In NC if you fail to notify an leo of your carry status during a traffic stop it IS a violation of your permit and the officer is to seize your permit, your weapon, and arrest you charging you with a misdemeanor.
 
First off, I am a lawyer (a criminal defense attorney). Here's how a traffic stop legally works, according to the U.S. Supreme Court. First off, a warrant is a presumed requirement for any search or seizure. A traffic stop is legally considered to be a seizure (of your person and your car). However, there are many exceptions to the warrant requirement. One exception is for an investigative stop when the cop has reasonable suspicion of a crime being committed. Reasonable suspicion means "sufficient knowledge to believe that criminal activity is at hand," and it must be supported by specific and articulable facts (just a hunch is not enough).

For a traffic stop, reasonable suspicion is usually met when the cop clocks you over the limit, or actually witnesses something illegal about your vehicle or your driving. Once reasonable suspicion is established, the cop has the authority to stop you for the limited purpose of investigating the crime he has reasonable suspicion of. The investigation must be limited in scope and duration to what is necessary for investigating the crime for which there is reasonable suspicion, and for performing any administrative actions necessary (such as writing a ticket). The scope of such a stop does not extend to any additional searches or seizures beyond the initial stop.

During the stop, the officer can talk to you and ask you questions, even if they have nothing to do with the stop (as long as the questioning isn't so prolonged that it causes the duration of the stop to exceed the limits mentioned above). Also, a cop can ask you to consent to a search or seizure, even if he doesn't have any reason to think you have any contraband. Consent is another exception to the warrant requirement, and you generally can't get any evidence excluded in court if it is found pursuant to a search that you consented to. It is possible that in talking to you and observing you and your vehicle, reasonable suspicion of additional crimes might arise, which could extend the allowable duration of the stop. Also, under the "plain view doctrine," if it is immediately apparent that something in plain view in your vehicle is contraband, the officer may seize it as evidence. This is another exception to the warrant requirement.

If at any time during a stop the officer comes to have reasonable suspicion that a suspect is both armed and dangerous, he may engage in a "pat-down" of the person's outer clothing, purely for the purpose of officer safety, to see if the person is carrying any dangerous weapons. If any are found, they may be seized for the duration of the stop. Also, under the "plain feel doctrine," if during a pat-down it is immediately apparent that something he feels is contraband, he can pull it out and investigate, even if it is clearly not a weapon or anything dangerous to the officer.

Another exception to the warrant requirement, which could allow a cop to make a more in-depth search of your property, is the motor vehicle exigency. If a cop has probable cause that a crime is being committed, and that evidence of said crime is in your vehicle, he may search the vehicle anywhere such evidence could reasonably be found. Probable cause means "a reasonable belief that a person has committed a crime." It is a higher standard than reasonable suspicion. Like reasonable suspicion, it must be supported by specific and articulable facts, and must relate to a specific crime (a cop cannot say that he has probable cause of "general criminal activity" or something like that).

Another exception to the warrant requirement is a search incident to arrest. If a cop has probable cause that someone committed a crime, he may arrest them for the purpose of taking them to a place of confinement, to allow criminal legal proceedings to begin (arrest is another exception to the warrant requirement). When someone is arrested, the cop may search the arrestee for dangerous weapons. The same rules apply as for a "pat down." Also, the cop can search the immediate area around where the arrestee is for the same purpose. If the arrestee is not presently securely confined (such as in the back of a cop car), the cop may also search the interior compartment of any vehicle the person recently occupied for the same purpose.

Another exception to the warrant requirement is a custodial search. If the cop takes a person or property into custody, he may search and inventory all of said person's belongings or all of said property's contents, as long as there is an official policy to do so in effect. The purpose is administrative -- to ensure that all property is accounted for. This happens most often when someone is arrested, and when someone's car is towed.

So though a traffic stop is initially only for reasonable suspicion/probable cause of violation of a traffic ordinance, there are a variety of ways that it can escalate to a more invasive search or seizure if certain standards are met.

Especially while being disarmed, your best bet is to comply with the demands of officers (even if illegal), while making it clear that you do not consent to the search or seizure. Any violations of the law can be hashed out after the fact, either up the chain of command in the agency, or in court.

Asking if you are free to leave is pretty much a way of saying "either write me a ticket, or let me be on my way." Really the only reason to say this would be if you think a cop has exceeded the legal scope of his stop, or if he is asking questions that you don't want to answer. If the cop hasn't finished his stop, he will just tell you "no." If he has already exceeded the permitted duration of his stop or has already given the ticket or warning, legally he should tell you that yes, you are free to leave and let that be the end of it.
 
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I have quoted the Florida statue as it is, so for the sake of discussion please expand on your interpretation of the law as quoted, I for one would like to benefit from understanding your point of view.

From my point of view the porperty (lawful provable ownership and lawfully carried firearm) is not seen differently from anyother type of property under the law, and as such unless the officer has justifiable and substantiated probable cause to believe it is in fact contraband, he or she has no legal right to take possession of the firearm. (Unless Tery v Ohio comes into play)

In addition for the sake of arguement it could be argued that I have the same probable cause to believe that he or she has stolen their uniform and police cruiser.

I can prove ownership of all my firearms and carry such with me at all times and I have a Florida issued license to carry a concealed weapon which I carry with me at all times.

If he or she asked to take possession of your wallet and money clip would you see it differently?

The fact that he has called in the serial number is in fact a form of registration as he or she has no justifiable cause to do so, that call and serial number enquiry will have been checked against a database and will have been linked to that officer in that database enquiry and possibly linked to me, this is further strengthend if the officer wrote the serial number down in his notebook or on a piece of paper.

That act of noting the serial number of my lawfully owned and possessed firearm is a form registration and is probable cause to believe that a third degree felony has been commited in my pressence and as such the power of arrest by a Flroida citizen is likely justifiable.

In addition the law states that a prosecutor shall prosecute any infraction of this section of the law, that's what the law says and leaves no discretion to the prosecutor.

I would be interested in your interpretation.

1. Give me one example of where checking a firearm to see if it is stolen has ever been considered establishing a database.
2. Attempting to arrest an officer in this situation will surely get you hurt and result in you being charged.
3. I think the only advice I've seen in this threat I can completely agree with is comply at the time and complain or sue later if you feel you have been slighted. Doing something stupid in the moment that will result in you sitting in a jail, possibly your wife sitting in a jail, and your child in the hands of the local social services just doesn't seem that wise.
 
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