Traffic stop legality question

[LopezEL]

This is part of a letter that I wrote to the South Carolina, Jasper County Sherriff concerning a traffic stop:

My recollection of the traffic stop for "speeding" on I95:

I was approached, greeted, and asked if I had seen the blue lights behind me since I took exit 8 and stopped at a gas station instead of stopping on the highway. I responded, “Yes, I saw you but this was my exit so I decided to take it and stop at the gas station.” I feel this was much safer for both the officer and myself than parking on the side of the highway. State Troopers and motorists have had horrible accidents due to parking in the highway emergency lanes.

I was then asked for my driver’s license and registration. According to SC state law, when a concealed weapon permit holder is asked for an identification by a law enforcement officer, we are required to provide our concealed weapon permit. Therefore, I handed the officer my DL, CWP, and vehicle registration. I was promptly asked where my weapon was and when I responded , “in the glove box,” I was told to step out of the car. I politely complied with all of his requests and stood by my trunk while he ran my name, DL, and tag. After a moment he came back and said he wanted to run my gun’s serial numbers. At this point, I was not sure if he had the legal right to do this (without reasonable suspicion) but I agreed. In my mind, I was merely agreeing that he verify the legality of my pistols; I was NOT and never would consent to a search of my property. I asked if he wanted me to get the pistols or if he wanted to get them himself. He thought about it for a second and stated that he would get them. I gave the officer my keys and told him exactly where the three guns were (Glock 19 in the glove box, Glock 17 and Dan Wesson 1911 in a luggage bag in the trunk). He told me to step away from my car and proceeded to (in my opinion) conduct an illegal search of my vehicle. By law, an officer is allowed to search his/her general vicinity for his/her safety while conducting an interview. However, I gave him permission to access my pistols, not to search my car in the way that he did and If he was doing a “general vicinity” search he should have patted me down as well instead of just searching the vehicle. Why worry about guns that are safely tucked away inside a car and not worry about the person in front of you that could possibly have a gun, knife, or martial art skills?

After (again, in my opinion) illegally searching my car, he told me to step away while he proceeded to clear my guns and set them on the hood of his vehicle… in a completely unsafe manner. I had warned the officer that two of the guns (the ones in the trunk) were highly customized range guns. It made me very uncomfortable to stand where he wanted me to stand while he pointed the loaded barrels of my own guns in my direction as he tried to clear them. If there is a traffic stop video of this incident you might notice that I step towards his back and tell him to please not point the guns at me. I can assure you that the way he cleared my guns would be unacceptable at any gun range. Once the guns were cleared and laid out on his hood, he asked why I had so many guns… at this point, I seriously considered not answering any more questions and asking if I could be on my way. I have guns because I like to compete with them, collect them, hunt with them, protect my family with them, and because it’s my constitutional right to own them. However, I should not have to explain myself to anyone on the above matter… especially not an officer of the law that is detaining me for a routine traffic stop....

...Not only do I feel like my vehicle was illegally searched, officer (name withdrawn) put by standers and me in danger due to the manner in which he conducted this particular traffic stop. I would very much appreciate it if you forward this email to the appropriate commanding officer. I urge you to look into this matter for the public’s sake and for the officer’s sake as well. Maybe this incident can be used as a training talk point so that your officers can continue to handle situations in a more competent manner.


I have three questions:

1. Could I legally have refused for the officer to "run" my serial numbers on the guns?

2. Am I legally obligated to produce my CWP any time I am asked for an identification by a law enforcement officer or ONLY when I am carrying a firearm on my person? I have heard different answers from different people. My father in law said that since I was not carrying a gun on me, that I did not have the duty to inform?

3. Short of suing to subpoena evidence, is there any way that I can request a copy of the the traffic stop video?

 

[Telekinesis]

Yes, you can always refuse to allow a police officer to search your car (or home for that matter). I would recommend always refusing, as if the officer has probable cause to search, he'll just go ahead and search anyway, but if he doesn't he'll stop. Also, if you refuse to allow him to search and he does anyway, you maintain a bit of legal protection that may get evidence thrown out in court if he violated any policy or law during the traffic stop.

Unfortunately, you telling the officer he could access your car and run the serial numbers on your guns (and handing the keys to him) was essentially you allowing the search of your car.

For the video of the stop, you can always ask, but I highly doubt you'd get it without going through the courts. Especially since your writing of the letter, they would probably think (and rightly so) that you would put it online, and no officer wants to be the one who gave it to you without being required to.

 

[Sam1911]

1. Could I legally have refused for the officer to "run" my serial numbers on the guns?

Yes. You could have said, "I do not consent to any searches." That puts him in the position of having to do whatever he's going to do next without your consent which raises the bar for him having to come up with a legitimate reason why he needs to go into your vehicle and/or take your property and "search" it.

You cannot stand in his way and try to prevent him from doing what he wants, but by refusing consent you will make him at the very least consider if his next actions are worth the hassles, and could make anything he then finds "fruit of the poisonous tree" if the search is deemed illegal.

Whether an officer has the lawful authority to automatically confiscate and run serial number searches on any gun you happen to have in your possession when he stops you for a completely unrelated issue, is up to state law.

2. Am I legally obligated to produce my CWP any time I am asked for an identification by a law enforcement officer or ONLY when I am carrying a firearm on my person? I have heard different answers from different people. My father in law said that since I was not carrying a gun on me, that I did not have the duty to inform?

You can always check http://www.handgunlaw.us/states/southcarolina.pdf for this kind of question.

The SC statute says...

Section 23-31-215. Issuance of Permits.
(K) A permit holder must have his permit identification card in his possession whenever he carries a concealable weapon. When carrying a concealable weapon pursuant to Article 4 of Chapter 31 of Title 23, a permit holder must inform a law enforcement officer of the fact that he is a permit holder and present the permit identification card...

Pretty clear, I think.

3. Short of suing to subpoena evidence, is there any way that I can request a copy of the the traffic stop video?

Look up how to file a "Freedom Of Information Act" request.

Unfortunately, you telling the officer he could access your car and run the serial numbers on your guns (and handing the keys to him) was essentially you allowing the search of your car.

Exactly so. Had you truly refused you'd be in a different situation, but you gave permission and that's going to mean you don't have much of a leg to stand on.

Believe it or not, most of the cntraband/illegal that police officers find to charge people with is discovered after a motorist says, "Yeah, go ahead, I've got nothing to hide..."

 

[bainter1212]

The only way to get that video is to file for discovery, and that only works if you were cited. I have seen a cop unable to operate the bolt on a Remington 700! Remember not all cops are "gun guys". Many of them are astonishingly ignorant about common firearms, some of them only have encountered firearms through the limited training and experience that comes with being an LEO. Good luck.

 

[Sav .250]

Maybe a call to the Sheriff`s Internal Affairs Section might be a way to go.
Your not happy ( a complaint) on what happened. That`s what they are there for. J s/n.

 

[sawdeanz]

I'm glad you made it through the stop okay and learn from the experience how to handle them in the future. Its sad that by trying to be as helpful to the police as possible we might be putting ourselves in harmful situations.

 

[tyeo098]

Same thing happened to me at a traffic stop. I did the same thing but the officer had ME hand HIM my loaded CZ75.

This is the email I sent to his HQ:

I was stopped by a trooper on Hwy 606 in Loudoun county by Trp. <name>.
It was my first traffic stop since getting my license at 16 (I'm 21 now) and it was for my window tint being too dark. (I had bought the car that way from a dealer in VA).

The main point I am contacting you about is that Trp. <name> had asked me if I had any weapons/firearms with me. Being on my way home from a shooting range in Ashburn, I had 3. Trp. <name>, has then asked me if my firearms were registered 'in my name'. Now I do not live in California nor on any CSI type show, and there is no registration requirement for any firearms of any type (save NFA). When I informed Trp. <name> of this, he simply stated that if I had bought a firearm from a dealer, it was registered 'in my name'. This is simply not true. 2 of the 3 firearms were purchased from a private party, who's names I have forgotten long ago, the most recent one I had purchased, any my reason for going to the range that day was in fact purchased from a dealer, but federal law prohibits the maintaining of any firearms registry (again, save NFA). I would like to see Trp. <name> educated on this nations, and this states, basic firearms laws as to not confuse any law-abiding citizens that he may stop in the future. Misinformation about the law, especially from those sworn to enforce it should not be tolerated at all.

One more issue that has very greatly concerned, is that he requested that I remove my sidearm from my side and hand it to him. Why on earth a police officer would want me to handle my loaded sidearm in his presence? Normally I would have denied such a request, but like I said, it was my first traffic stop and I was being as compliant as I possibly could. I have waived my rights when I let the Trooper see inside my trunk and record the serials of my other firearms, all of which were loaded, and all of which he requested me to handle, again.

As I complied with his every request, no action can be taken against the department, I would just like yo let the department know of the misinformation that Trp. <name> had spread, and the awfully dangerous situation he but both myself, and himself, in when he requested me to handle my loaded firearms in his presence. I have alerted the VCDL of that actions that were taken by both Trp. <name> and myself.

A follow up would be greatly appreciated.

Thank you and have a great day,

tyeo098

And their response:

Lieutenant Colonel <name>, <title> for the Virginia State Police asked that I thank you for and respond to your e-mail of October 30, 2012, concerning your recently traffic stop by Trooper <name> of this Department.

Please be assured that it is not the intent, nor the practice of the state police to jeopardize the safety of motorists, citizens, or our troopers while in any capacity of their law enforcement duties.

I am forwarding your e-mail to our Headquarters in <city>, Virginia to make them aware of your observations and ask that they have a supervisor discuss this matter with Trooper <name> to ensure there is a thorough understanding of our firearms laws and the principles of officer safety.

We appreciate your bringing this matter to our attention.

Something must have happened because the Trooper wasn't very happy to see me when I showed up to traffic court to contest the ticket about my window tint

MODS: I did my best to censor the parties involved in the above quotes, if you see I missed anything, can you please correct it?

 

[BSA1]

Generally speaking you have the right to withdraw your voluntary consent to search after the officer has started it and the officer must comply with your request.

Just so I don't get into too much trouble with the legal experts each situation is different and the final decision if the search was legal rests with the court not on the street.

 

[NavyLCDR]

1. Could I legally have refused for the officer to "run" my serial numbers on the guns?

2. Am I legally obligated to produce my CWP any time I am asked for an identification by a law enforcement officer or ONLY when I am carrying a firearm on my person? I have heard different answers from different people. My father in law said that since I was not carrying a gun on me, that I did not have the duty to inform?

3. Short of suing to subpoena evidence, is there any way that I can request a copy of the the traffic stop video?

1. You never have to give consent for any search and you can withdraw consent at any time.

2. If the firearms were in the glovebox, you were under no legal obligation to inform. This is the South Carolina law which Sam1911 referred to, but he highlighted the wrong portion:

http://www.scstatehouse.gov/code/t23c031.php

(K) A permit holder must have his permit identification card in his possession whenever he carries a concealable weapon. When carrying a concealable weapon pursuant to Article 4 of Chapter 31 of Title 23, a permit holder must inform a law enforcement officer of the fact that he is a permit holder and present the permit identification card when an officer (1) identifies himself as a law enforcement officer and (2) requests identification or a driver's license from a permit holder. A permit holder immediately must report the loss or theft of a permit identification card to SLED headquarters. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined twenty-five dollars.

You were not carrying a concealed firearm pursuant to Article 4 of Chapter 31 of Title 23. You were carrying a concealed firearm pursuant to Article 1 of Chapter 23 of Title 16:
http://www.scstatehouse.gov/code/t16c023.php

SECTION 16-23-20. Unlawful carrying of handgun; exceptions.

It is unlawful for anyone to carry about the person any handgun, whether concealed or not, except as follows, unless otherwise specifically prohibited by law:
(9) a person in a vehicle if the handgun is:

(a) secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle; however, this item is not violated if the glove compartment, console, or trunk is opened in the presence of a law enforcement officer for the sole purpose of retrieving a driver's license, registration, or proof of insurance;

Carrying firearms in the glove compartment in South Carolina requires no permit at all and the fact the you do have a permit does not negate that.

3. You can file a Freedom of Information Act (FOIA) request to obtain the video of the stop and any time that you are detained by a police officer or other government agency.

Your situation is an example of why most of us recommend only interacting with law enforcement officers to the minimum extent required by law. In Washingtion I am not required to inform any officer about my CPL or any firearms I am or am not carrying. I have been stopped at least three times, maybe four while carrying a firearm requiring my possession of a CPL. I have never mentioned it, neither has the officer, and we both go on our merry ways, no fuss no hassle no search.

 

[NavyLCDR]

Giving consent to searches

This also highlights why it is never a good idea to give consent to a search. If you choose to contest the search in court, and you gave consent to the search, it will be up to you to prove that your consent was coerced in some way. Once you consent to the search, you basically give up all of your rights to fight anything the officer finds as a result of that search. My motto is: "Just because you have nothing to hide is no guarantee that they won't find something."

If you refused to give consent, and the officer searched anyway, then the burden of proof in court falls squarely upon the officer to prove his justifications for the search without a warrant. He could find 3 tons of illegal drugs and if he did not have legal justification for the search without a warrant it could not be admitted as evidence.

 

[Sam1911]

Good catch!

 

[LopezEL]

Thank you all for the very informative and thoughtful responses. Especially for the links to the SC laws that pertain to this issue.

I understand now that when I consented to running the serial numbers on my guns, I basically opened the floodgate to searching my vehicle. I did not think of that at the time.

I did hesitate before agreeing because I did not know the law... now I do. I will take it as a learning experience. At the time, In my mind, I was merely consenting to the officer checking the legality of the pistols. If the officer had outright asked me, "can I search your vehicle?" I would have said no.

I had a large fixed blade Case knife in a sheath in the door panel. He did not see it. I honestly forgot it was there. I also had my daily carry Kershaw in my back pocket. He never patted me down and I forgot about it as well. These could have been issue if they were found... an excellent example of why not to consent to a search.

It was not a very thorough search but it still is not a good feeling to have your space invaded whether you have something to hide or not.

I will look into the freedom of information act. Thanks again.

 

[NavyLCDR]

I had a large fixed blade Case knife in a sheath in the door panel. He did not see it. I honestly forgot it was there. I also had my daily carry Kershaw in my back pocket. He never patted me down and I forgot about it as well. These could have been issue if they were found

Why would they be an issue? Are they illegal?

At the time, In my mind, I was merely consenting to the officer checking the legality of the pistols.

The officer already called in all your information and knew you had a valid concealed weapons permit. What possible legitimate reason did he have to check the "legality" of the pistols?

And this is why I won't tell an officer about my license or my guns (when not required to by law), even though they are 99% chance going to be informed of my CPL in Washington via the roadside records check:

If I tell the officer about my guns and show him my permit, he has no verification that my CPL is real and/or valid until he calls it in. This gives him every legal right to temporarily seize my guns "for officer safety", until he verifies the status of my permit.

If I don't tell the officer about my guns and my permit, I have never been asked about guns during a traffic stop, and the officer finds out from the state of Washington that I hold a valid and current CPL - he now has no legal justification for seizing firearms that I might be carrying due to the way that the Supreme Court decision in Terry v. Ohio is written:

We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

I would think that learning from the issuing agency that the subject possess a valid and current Concealed Pistol License that any court would view that as an item that would dispel a reasonable fear for their own and others' safety. Isn't that the whole point of requiring licenses and permits for firearms?

 

[Phatty]

Why worry about guns that are safely tucked away inside a car and not worry about the person in front of you that could possibly have a gun, knife, or martial art skills?

That was my favorite part of the letter. "Officer, you shouldn't worry so much about the guns in my car. My hands are the deadliest weapons you will encounter today."

 

[PBR Streetgang]

As a retired officer I can say the officer has the right to pat you down for his and your safety (Terry vs Ohio) if he has a legitimate reason for doing so. If he feels there is a threat to his safety in the vehicle he can have you exit the vehicle. Once you have exited the vehicle that perceived threat is no longer relevent.He can even cuff you for the same reason but he better be prepared to answer for his actions with some type of legitimate justification.

At this point unless you give him consent he cannot search the vehicle unless there are extingent circumstances that call for it.( such as a possible kidnapped person in the trunk or a life threatening emergency). A well trained officer will ask you to sign a consent to search if he wants to search which you have the decision to do or not.

An officer cannot just do a search unless he has a justified probable cause.

If you are being arrested for other than the original motor vehicle violation that changes the game. (such as outstanding warrants,ect.)

 

[tarakian]

Here is a very interesting summary of traffic stop rules with case citations. It appears that as soon as the officer is aware of a weapon in the vehicle, he/she has the right to search it for other weapons.

 

[Cosmoline]

If they are having to ask your permission, the answer should always be "NO I DO NOT CONSENT". If they don't have to ask for your permission, they won't.

 

[Phatty]

It appears that as soon as the officer is aware of a weapon in the vehicle, he/she has the right to search it for other weapons.

That's a gross oversimplification of the actual rule. The correctly stated rule is that when an officer conducting a Terry stop reasonably believes the detainee is dangerous and may gain immediate control of weapons the officer may search the passenger compartment of the detainee's automobile, limited to those areas in which a weapon may be placed or hidden.

Thus, whether or not an officer is permitted to search for weapons in the automobile is highly dependent on the facts in each particular circumstance.

 

[Phatty]

If they are having to ask your permission, the answer should always be "NO I DO NOT CONSENT".

Better advice has never been given, and it can't be stated enough. Even if you are 100% confident that there is nothing illegal to be found, still DO NOT CONSENT. I had a friend who consented to a search of his car during a traffic stop thinking that there was no harm. Turns out, unknown to him, his girlfriend had left her prescription bottle of antibiotics in his car. Apparently its a crime to be in possession of prescription drugs of another person.

The vast majority of people (surprisingly even criminals that know contraband is in the car and will be found if searched) consent because they believe nonconsent is somehow an admission to the police that you are guilty. So its a damned if you do, damned if you don't scenario in these people's minds. Of course, the police expertly put this idea in the heads of the people that are being asked for permission to conduct a search.

The conversation might go like this:

Officer: You're not hiding any illegal drugs in your car are you?
Detainee: No, of course not officer.
Officer: Then you don't mind if I search your car to check do you?
Detainee: I'd rather you don't . . .
Officer: But, if you really don't have anything illegal in the car, there's nothing to worry about, right?
Detainee: No, I'm just not sure I'm comfortable . . .
Officer: I'm starting to get the feeling that your hiding something. Do I need to call the K-9 unit down here? Why don't we just skip to the chase and you admit that you have some drugs in the car or I guess you can put me through the trouble of having to find it, but either way its going to get found. So let me ask you again, can I search the car?
Detainee: Sure, I guess.

 

[hq]

Better advice has never been given, and it can't be stated enough. Even if you are 100% confident that there is nothing illegal to be found, still DO NOT CONSENT.

The advice I've been given multiple times by my lawyer friends in the US, especially when traveling with a weapon on hunting trips, is not to consent to any searches, not to reply other questions than obvious ones (about identity etc.), ask if you're free to go unless you're just being given a ticket and if not, ask to speak to a lawyer. No exceptions.

Complying and being truthful are a given when asked, of course, but with a minimal amount of detail.

There's no shortage of people convicted for what other people have left in their cars, especially rental cars, or small talk and bad choice of words getting innocent people in serious trouble. You'll never regret anything you haven't said or given your consent to.

 

[NavyLCDR]

If they are having to ask your permission, the answer should always be "NO I DO NOT CONSENT". If they don't have to ask for your permission, they won't.

That is not true. They will ask your permission first. The reason is once you give permission ANYTHING they find can be entered as evidence and there is less likely chance of having anything thrown out in court if the search was consented to.

 

[Aaron Baker]

Just wanted to post to add that you can limit the scope of a consent search.

Consenting to the officer's checking the serial numbers on your guns, and then telling him that they're in the glovebox and trunk does not give him permission to search your back seat.

Consent searches may be limited in scope by you telling them what you're okay with them searching. You may also withdraw consent at any time after the search has begun.

The problem is that both of these scenarios get you into a fuzzy situation where it may be a cop's word against yours. A court will be interpreting the "scope" of the consent you gave. Or deciding whether you clearly communicated your revocation of consent.

The best practice, as has already been stated, is to NEVER consent to any search. You don't have to be a jerk about it. Try this:

Officer: You don't mind if I search your car to make sure there's nothing illegal in there, right?
You: (chuckle) You know, officer, my best friend is a lawyer, and if I let you search my car, I'd never hear the end of it from him. So no, I can't give you consent to search. Sorry.
Officer: Well, you don't have to tell your friend. If you've got nothing to hide, it won't take me long to search.
You: Sorry, officer. I'm still going to have to say no.

In other words, start friendly, but if he gets more insistent, you can get more insistent.

They will almost always ask to search, whether they have independent probable cause or not. If they don't, your refusal to consent will end the encounter. You might get a speeding ticket, but don't think that playing along with a search will get you out of a ticket. As soon as you're pulled over, resign yourself to the fact that you're getting a ticket and don't let that influence your decisions.

Aaron

 

[garymc]

He was jerking you around because you didn't promptly stop when he turned on the lights.

 

[Cosmoline]

That is not true. They will ask your permission first. The reason is once you give permission ANYTHING they find can be entered as evidence and there is less likely chance of having anything thrown out in court if the search was consented to.

Well that's what I'm saying. If they don't need your permission they don't ask for it. A warrant for example. They come right on in. They ask because they want permission for a broader search and need that consent. Never give it to them.

One little trick is if they ask you to exit the vehicle, leave the keys on the floor and lock yourself out of it. When they leave, call AAA to get you back into your car.

 

[coloradokevin]

Simply stated, you'll never win a pissing match with a police officer at the side of the road. You didn't attempt to have one, and that's a good starting point. There's nothing wrong with telling the officer that you don't consent to any searches, but there's always the possibility that the officer will conduct a search anyway. There are volumes upon volumes of laws/case law governing this particular subject, and the legality of the subsequent search is often a topic that the lawyers will happily debate in court. Nevertheless, telling the officer that you don't consent to the search will certainly clear up the fact that the search was not conducted on the basis of the consent exemption to having a warrant. The officer may still have another valid and articulable reason for conducting a search, but it won't be on the basis of him saying that you consented to the search.

Some states allow the officer to temporarily seize a weapon during a lawful stop of a CCW holder. Whether that is written into your laws is not a question I can answer. I also can't answer as to whether or not the officer would be legally allowed to "clear" the weapon's serial number during that temporary seizure. My inclination is to say that IF the officer is statutorily authorized to take possession of the weapon during the stop, he's probably okay with clearing the serial number on that weapon, since doing so would not really constitute a further intrusion upon your privacy. BUT, most laws I've read on this subject allow the officer to temporarily seize the firearm for the purpose of preserving their own safety during the stop. The actions you described suggest that the officer wasn't concerned for his safety, and was far more interested in clearing the guns themselves. In that sense I think you could look at it in much the same way as you would a "Terry Stop". Under Terry v. Ohio an officer is permitted to conduct a limited pat-down of a lawfully detained subject for weapons when they have a reasonable belief that the party may be armed and posing a threat to their safety. That ruling does not allow the officer to simply search anyone they encounter, or to search for items other than weapons (ex: a crack rock in a napkin).

I never understand these kinds of CCW traffic stops anyway. I've never in my career felt a need to run the serial number on a gun when a citizen has handed me their CCW permit and told me that they were carrying a gun. Gang members with stolen guns don't make it that easy for us, I promise.