swinokur
Member
See also Carroll vs United States for the parameters of a legal warrantless search of a vehicle. Narrow but permissible in some cases.
Traffic stop legality question
- Thread starter LopezEL
- Start date
- Status
henschman
Member
No, an officer is not automatically entitled to search a car if he learns there is a weapon in it. There must be either reasonable suspicion that the detainee is both ARMED and DANGEROUS, or probable cause that there is some law being broken involving the gun. Also there are some states with laws requiring right-to-bear-arms-permission-slip holders to surrender the arm if requested to by police. Most states do not have such a law. It is up to you to know whether this is a requirement in your state (check handgunlaw.us).
It is cases like this that show what a crock the current law on consent is. Outside of trained legal professionals and cops, hardly anyone is aware that they actually have a right to deny consent to a search. Cops are specifically trained to ask for consent in such a way as to make the detainee think he has no such choice. The fact is, when someone with a badge and gun is in your face asking to look through your stuff, most people will give in to the authority figure regardless of whether they actually want them going through their stuff.
This is why we need some sort of Miranda-like requirement whenever the cops ask for consent -- they should have to tell the subject that he has the absolute right to deny consent and that denial of consent cannot be used against him in any way.
It is cases like this that show what a crock the current law on consent is. Outside of trained legal professionals and cops, hardly anyone is aware that they actually have a right to deny consent to a search. Cops are specifically trained to ask for consent in such a way as to make the detainee think he has no such choice. The fact is, when someone with a badge and gun is in your face asking to look through your stuff, most people will give in to the authority figure regardless of whether they actually want them going through their stuff.
This is why we need some sort of Miranda-like requirement whenever the cops ask for consent -- they should have to tell the subject that he has the absolute right to deny consent and that denial of consent cannot be used against him in any way.
coloradokevin
Member
- Joined
- Mar 22, 2008
- Messages
- 3,285
henschman said:
Actually, here in Colorado we're required to inform the person being asked for consent that they are not required to consent to a search, just as you mentioned in your post. Personally, I think it's just another issue that in the future will be lawyered to death, and allow TRUE criminals to walk free on minor technicalities ("Miranda" has done that for us in the past, even when the rights have been read to a suspect, and even despite the fact that most 4-year-olds in this country could read you their rights). Admittedly, there are cops who use a more "high pressure" sales pitch to gain "consent", but those cases were usually tossed in court in the past on the very basis of the fact that the consent was not actually consensual (sorry if that sounds confusing). The current law means that if an officer stops a car load of gang members, politely asks for consent to search the car, recovers a murder weapon, and then gets challenged on a technicality in court (for failing to mention their right to refuse), a killer may end up walking free. But, nevertheless, that's how we do things out here in the mountains these days, and I believe we're the only state doing that.
There are definitely two sides to the "consent search" coin, and I can plainly see both of them. I'm a big supporter of people's constitutional right to privacy, but I also know how many legitimate dirtbags have been collared due to a simple and polite request to take a look in their vehicle. The issue isn't often made complicated by guys like you and me, but officers, citizens, and lawyers who push the boundaries on this issue have certainly made it a complicated subject.
Incidentally, as I mentioned, the OP's situation isn't the type of situation where I'd have tried to search a car, or clear a weapon's serial number. And, I wouldn't have been happy if that had happened to me, either. Had evidence of a crime been located during the search of the vehicle, I think there would have been a strong possibility that the evidence would have been tossed at trial due to the search being ruled unlawful.
Assuming there is no obligation to notify an LEO of the presence of a weapon in one's state (in my case California), is one legally obligated to answer the question "are there any firearms in the vehicle?" I have been asked this question during a traffic stop, and at the time I truthfully answered "no." In the future I would prefer to say "I respectfully decline to answer that question" unless I have a legal obligation to answer.
coloradokevin
Member
- Joined
- Mar 22, 2008
- Messages
- 3,285
I think you're legally fine with the answer you stated about respectfully declining to answer. You could run afoul of the law (potentially) by lying about the issue, but not by declining to answer.
Personally, I'd like to remind people that telling an officer you have a gun (legally) doesn't always end badly. A lot of us street cops are pro-gun, and I've had consensual 20 minute discussions about gun stuff with people on traffic stops in the past (hey, I can't help myself).
I'm in a state that doesn't require me to inform, but I typically do (on the rare occasion that I'm stopped). That's just me though.
Personally, I'd like to remind people that telling an officer you have a gun (legally) doesn't always end badly. A lot of us street cops are pro-gun, and I've had consensual 20 minute discussions about gun stuff with people on traffic stops in the past (hey, I can't help myself).
I'm in a state that doesn't require me to inform, but I typically do (on the rare occasion that I'm stopped). That's just me though.
NavyLCDR
member
99.9% of the people that we encounter in our lives everyday are just regular Joe Citizens who have no intention of harming us. But we carry our firearms to defend ourselves with should we encounter the .1% that would mean to do us harm.
Personally, I feel the same way about police officers. I have encountered one "bad" cop in my life. But the thing is, I don't know if the officer who has stopped me is one of the 99% good officers, or one of the 1% of bad cops. There simply is no down side to protecting myself by keeping my private affairs private regardless of if the officer who has me stopped is good or bad.
coloradokevin said:
I've heard stories from a LGS owner that people have reported to him being more likely to be let off with a warning (on a traffic stop) after voluntarily notifying the LEO.
NavyLCDR said:
I'm not really worried about a "bad" cop, but I get your point. I am a private person in this day and age when people post every personal detail on Facebook (I have no FB account), and I prefer not to answer questions of a personal nature when asked by strangers, LEO or not. My co-worker occasionally responds to questions this way, which I like:
"If I thought that was any of your business I might tell you."
henschman
Member
No, there is no legal obligation to answer the question of whether you have guns in the car.
NavyLCDR
member
The safest place for my handgun is in it's holster not being handled by anyone. If I volunteer to the officer that I am legally carrying a handgun, I am extending an invitation to that officer to remove my handgun from the safety of the holster and needlessly handle my handgun (under the guise of "officer safety") placing myself, the officer and anyone within range in additional danger from a negligent discharge that would not otherwise exist.
Some officers will accept the the invitation to handle the firearm and some won't. But, I won't risk putting all of us in needless danger by extending that invitation when not required to by law just to increase my chances of getting out of a ticket.
- Status
