Traffic stop turns into much more...questions.

[gotime242]

Hello and good morning all,

Last night I was involved in a traffic stop that has me curious of a few things, and was hoping some could shine some light on it for me.

I was driving home, i entered an area where the road turned to 25 mph for a bit. At this point i was going a touch over 30, maybe 33/34 or so. It was late at night and the one other car going the other way was a police officer. He turned around and pulled me over.

I rolled down my window and he asked me what the rush was, and at that point probably smelled beer/alcohol that had been around me while i spent about 5 hours around it watching the football game. I did have about a beer and a half, but by NO means was even close to intox or anything for that matter. I do understand that it is irrespondsible to have any form or quantity of alcohol and drive, even if you are 5 min away. Like i said, about a beer and a half.


So i step out of the car and he places me on the hood of his, while another cop that showed up watches me. As im standing there i see him open my door, and goes "OOOHHHH WHAT IS THIS?!!?" regarding a medium size asp that i have in a small compartment that is next to my seat. It is in plain view/open sight, and not in a sheath or anything. The picture at the bottom shows where it was. It was on the lower left of the seat, again in open sight.

He then SEARCHES my entire car without asking. While he is doing this He asks if there are any other weapons and i say "Yes sir, there is a small pistol that is loaded securely incased in the center consol." Of course he finds it and says that i have it illegally due to the fact that i consumed alcohol. I present him with my weapons permit, (which was not needed because it was on my car not on my persons). Then he makes a big deal of how my gun has a bullet in the chamber (its a KT P3at). I say, for my safety that is how it should be kept.

I make a couple points to say that 1) I did not authorize a seach of my vehicle. 2) It was securely encased and being legally transported. One of the other officers say that since i have a holster on (its a small leather IWB holster that is on me 24/7) that means i had the GUN on me this whole time and put it in the center consol upon being pulled over...
He tells me i am wrong. That he can search the car because he saw the asp (which he had to open the door to see) and also all of my gun rights go out the door if ive had even one beer.

Anyway, about 4-5 cop cars show up and they have taken my gun, license, CC permit. Im issued a field sobreity test which i pass no problem and eventualy they get another call they have to rush off to, and he throws my gun in my trunk. But im left wondering, how did that all go exactly? Did they take advantage of my rights regarding the car search?

The whole time i was very respectful and courtious, and they returned the favor. (Except for the one time when someone said the gun must of been on me since i had a holster on me.) I am fortunate to have gotten away with no tickets or anything else.

My questions:

-Was my asp illegaly (this is FL) housed in a little "tray" that is on my seat, in open view.

-With him seeing that, does it give him right to seach my entire car?


Here is the picture, bottom left was asp. The kel-tec was in center consol.

 

[Oro]

1) to quote staff sergeant Martin from "Band of Brothers" - "Don't give'em no excuse!" - This is why I don't speed or break any other driving law. It's an open invitation to "probable cause" at any time. Especially late at night.

2) Before someone else asks, you had a snake on your seat? What other kind of "asp" is there? I don't get it and a google search didn't help.

What exactly are you talking about them seeing? Even searching "slang" and "asp" I don't find anything that would warrant probable cause.

 

[gotime242]

Sorry, an asp is a make of retractable baton. Obviously kept in the retracted position.

 

[Treo]

First I'm going to suggest that you go to youtube and watch "Busted A Citizens Guide To Surviving An Encounter With The Law"

Then I'm going to suggest that you purchase a copy of "You And The Police" by Kenneth W. Royce writing as " Boston T. Party" and read it.

Then I'm going to recomend a lawyer.

Now I'm going to say that by leaving the door of your car open you made it easier for the cops to search your vehicle.

Being asked to step out of the car indicates that it's time to Calmly and firmly, assert your rights

OFFICER: I smell alcohol sir, Please step out of the car.

YOU : ( rolling up the window & locking the door as you step out and pocket the keys) Officer I do not wish to make any statement or answer any questions W/out my attorney present. Then SHUT UP!

Take the FST (it's usually a requirement or you automatically lose your licence) and politely refuse any request to search your vehicle. If they have PC they'll tell you, if they say they'll get a warrant tell them to go for it ask for your lawyer again and SHUT UP.

Final thought if they'd had PC to arrest you they would have.

Again any time any accusation of a crime is made ask for a lawyer and SHUT UP.

 

[Floppy_D]

It's an acronym, Armament Systems and Procedures.

In the future, lock the door behind you, and then he has to ask you to open it, or break a window to get in. Simple enough.

 

[gotime242]

I actually have watched that video a couple of times. And you are correct about stepping out and shutting up. Its just hard to do at the time, as usually it seems worth it to talk it out and maybe reason a bit. I guess i feel like is i said "no statements without my attorney present", that would be like admitting something. But you are right.


I did however step out and close the door behind me. The window was down but he opened the door, which must be done to see it.

 

[Oro]

I figured out it must have been a collapsible baton shortly after I posted given the location you illustrated. I googled "asp" and "baton" and found it.

Treo's advice is solid, but also, it sounds to me as they did "rick roll" you, likely hoping to find something that could then retroactively warrant their search, or were hoping you would blow high enough on the breathalyzer to put you in custody.

Yes, it does sound like they walked all over your rights. But that is often how LE agencies work - I've seen it in FL as well as WA - it's not a local or regional thing. It's the "us" vs. "them" attitude most LE agencies cultivate in their ranks. Rights exist for you to assert, not LEA's or the government to respect - sadly. Treo's advice is the best you can hope to get. It's hard to act upon in the heat of the moment and the glare of the lights - the law abiding of us assume compliance is the best thing, but it's not always the case.

 

[gotime242]

Yeah, it is unfortunate. When i did try to assert them they were shot down, and to be honest i would rather go home that night then try to argue rights and law with someone who thinks he going to be right regardless of what i have to say.

Also, at the time i couldnt remember what was legal about seeing the baton, and how that affects their ability to search.

Either way, it was all a good learning experiance, and the baton will not be in that location again.

 

[Prion]

Get a truck. How could you not speed in that thing? Kidding, but I've got a WRX and I find it is harder to drive the limit than it was in my old Jeep. If I drink at all, a rarity, my guns stay locked up at home. Don't want to give anyone any reason to bust my chops. Sometimes cops are just looking for trouble be it real or not. Always have a designated shooter.

 

[Starcheck55]

this would have been a perfect time to have assorted advil and tylenol (otc variety) scattered all over the carpet of your Z.

 

[FullEffect1911]

I was always under the assumption that if a officer can see something through the windows of the car (or an open door or trunk) that seems suspicious or illegal, then they have probable cause to search your vehicle.

Since in this case they opened your door then I *think* that they were in the wrong. But they could easily say that they just saw the ASP through the open window, and then it's your word vs theirs.

Still sounds like you were getting harassed for being a pistol owner.

In FL, if you have one beer your firearm rights go out the window?

 

[Treo]

would rather go home that night then try to argue rights and law with someone who thinks he going to be right regardless of what i have to say.

No one said anythingabout arguing anything W/ the cops I said ask for a lawyer and SHUT UP

Treo's first law of police interactions:

If you talk long enough you WILL say some thing they can & will use against you.

 

[Art Eatman]

"...probably smelled beer/alcohol that had been around me while i spent about 5 hours around it..."

There ya go. Suspicion of Driving While Messed Up. I won't disagree with Treo, but I can tell you that cops are just really, really fed up with the cleanup after some drunk has a wreck. They perceive a mix of booze and any sort of weapon and you have a problem with folks who go into Guard Dog mode.

Can't blame 'em, really. Pretty much normal human behavior for folks in that line of work.

 

[divemedic]

Ask for the laws, you will receive:

790.151 Using firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances; penalties.--

(1) As used in ss. 790.151-790.157, to "use a firearm" means to discharge a firearm or to have a firearm readily accessible for immediate discharge.

(2) For the purposes of this section, "readily accessible for immediate discharge" means loaded and in a person's hand.

(3) It is unlawful and punishable as provided in subsection (4) for any person who is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his or her normal faculties are impaired, to use a firearm in this state.

(4) Any person who violates subsection (3) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(5) This section does not apply to persons exercising lawful self-defense or defense of one's property.

Unless the weapon is a firearm (the Asp does not count), the firearm is loaded and in your hand, and you are proven to be intoxicated, it is not illegal to drink and have a weapon in your vehicle. (It is illegal to operate the vehicle while impaired, but that is a different issue)

790.153 Tests for impairment or intoxication; right to refuse.--

(c) The provisions of s. 316.1932(1)(f), relating to administration of tests for determining the weight of alcohol in the defendant's blood, additional tests at the defendant's expense, availability of test information to the defendant or the defendant's attorney, and liability of medical institutions and persons administering such tests are incorporated into this act.

Under the law an ASP baton is not a weapon:

790.001 Definitions.--As used in this chapter, except where the context otherwise requires:

(13) "Weapon" means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

Unless you want to make the case that any club is a weapon, in which case you need to include bats, golf clubs, and lug wrenches.

 

[Master Blaster]

billie

That would be a short weighted club

or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.

Deadly weapon Includes an ASP Baton which has no other use than as a weapon.

 

[Treo]

really fed up with the cleanup after some drunk has a wreck. They perceive a mix of booze and any sort of weapon and you have a problem with folks who go into Guard Dog mode.

And this abrogates the OP's rights how?

 

[CDH]

Points to ponder:

1. I don't want to assume where the OP lives, but here in Texas, any, a-n-y, (ANY) alchohol consumption while you are carrying will get you arrested and very probably cost you your CCW license. The standards of alchohol use are totally different from when you are not carrying to when you are carrying. When carrying, there is no legal limit because any amount is illegal when you are packing.

2. A pistol in your center console is, i-s, (IS) the same as "carrying" because it's within easy reach. By having the pistol loaded and chambered, all pretext of "not carrying" was taken away.

3. Police do not, n-o-t, (NOT) have to ask for permission to search the moment they see anything even possibly illegal. The fact that the OP smelled of alchohol was enough to give the police a legal right to search the vehicle.
Noticing a weapon in plain view was most definitely a "lets have a closer look" moment.

So here's the deal: The OP had obviously been drinking, was carrying a CCW legal weapon at the same time as the drinking part, and a weapon in plain view plus the alchohol virtually assured that the car would be searched.

I'm thinking that the OP was very, very lucky that, in the end, he was allowed to leave without being cited for drinking while carrying his CCW weapon. That could have cost him his CCW permit except for the kindness of the police.

 

[divemedic]

1. I don't want to assume where the OP lives, but here in Texas, any, a-n-y, (ANY) alchohol consumption while you are carrying will get you arrested and very probably cost you your CCW license. The standards of alchohol use are totally different from when you are not carrying to when you are carrying. When carrying, there is no legal limit because any amount is illegal when you are packing.

The OP lives in Florida. The law in Florida states "when affected to the extent that his or her normal faculties are impaired" there is no zero tolerance law for weapons and alcohol in Florida. According to FS 790.151, the OP did not break the law concerning alcohol and firearms. See my last post.

2. A pistol in your center console is, i-s, (IS) the same as "carrying" because it's within easy reach. By having the pistol loaded and chambered, all pretext of "not carrying" was taken away.

Not in Florida. A person traveling by private conveyance when the weapon is securely encased or in a public conveyance when the weapon is securely encased and not in the person's manual possession is not considered to be carrying the weapon. It is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. "Readily accessible for immediate use" means that a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person. "Securely encased" means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.

Can't we have a discussion about state law without someone mentioning Texas law?

 

[sendarope]

file a complaint

I don't see enough here that you could sue them. They imho violated your rights. At the very least you should file a citizens complaint and write a lte and the nra and goa and pitch a fit. The squeaky wheel and all that.

 

[jr45]

3. Police do not, n-o-t, (NOT) have to ask for permission to search the moment they see anything even possibly illegal. The fact that the OP smelled of alchohol was enough to give the police a legal right to search the vehicle.

Are you sure about that? I know they can search the area that is accessible to the suspect at the time of the incident (i.e. the glove box, under the seat etc) but the entire vehicle with out the intent to impound it? I do not know if this applies to vehicles...

 

[Mainsail]

I often read the appeals court cases here in Washington when they come up about this subject. Here’s what I’ve learned so far:

The police can look into your car for anything illegal; this is not a search. Anything they seize that is illegal that is in plain sight will stand up in court.

To otherwise search your vehicle they need your permission, unless you are arrested. They can then do a “search incident to arrest” of the portions of the car that are/were accessible to the driver or passenger(s). If you get out and pocket the keys as suggested here, they can still search incident to arrest if you are within an undefined closeness to the car. The idea here is officer safety; if you could pull away from the officer and unlock the car, you could get a weapon. Even if you are in handcuffs, if you are arrested next to your car it is considered accessible to you. That is what allows the search. If you get out and lock the keys inside, or are a significant distance from the car at the time of your arrest, they cannot search the car since it was inaccessible to you.

One suspect did just that. He knew the officer was going to arrest him for DWS, so he got out of the car, locked the doors, and had walked a significant distance from the car before the officer told him he was under arrest. The court ruled the evidence they found in the search of the car, incident to his arrest, was inadmissible because of how far he was from it. In other words, he couldn’t have retrieved a weapon from the car so the police had not authority to search it.

 

[gotime242]

Wow, good info guys. Im glad i asked, this thread is definetly turning into a good read.

One thing to add as well, the asp is NOT visible, UNLESS the door is open. When he approached my car only my window was down, (asp is too low/behind a panel with door closed.)

But as mentioned, it might be that once alcohol was introduced in the whole situation that might of given them the right to search?

 

[ants]

I don't think it has anything to do with the weapons.

Well, you did draw attention upon yourself by speeding at night after consuming a beer (and a half). That wasn't very smart, was it?

Once they stopped you, anything would attract further review. Weapons, drug paraphenalia, the smell of illegal aliens in the trunk, a bag of ammonium nitrate and a gallon of diesel fuel, or a bumper sticker saying "We [heart] Terrorism". Anything like that is going to set the cops into mode of looking for probable cause when they stop you for speeding at night in a fast Nissan Z after drinking beers.

Know your rights ahead of time. Don't do anything wrong, including speeding after drinking beers at night.
Then you probably won't have to follow Treo's advice in your lifetime.

 

[Sniper X]

I can say that even though it is a pain, you should not drink anything and have weapons in the car. The cop was probably right about that law.

I have been lucky enough to never be asked to get out of my vehicle after being stopped, even when armed.

 

[gotime242]

Yes, it wasnt smart, it never is.

One funny point too, is i dont have a wallet, but more of a leather card-holder that i keep 2 credit cards in, my DL , CWL, annndddd a small business-sized card that has on one side the constitution's preable and 2nd amendment and on the other side Florida Statute 790.25 (lawful ownership possession and use of firearms) as well as 790.001 (definition on securely encased).



So im sure they thought it was interesting to see those in there with my licenses. Hopefully they read it.