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Relinquishing Control of a personal weapon

E

emptypockets

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May 21, 2009
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Midland, Michigan, USA
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A question was posed to me at work. At what point are we - whether OC or CC - required by law to relinquish control of our sidearm? At a traffic stop, we are required to disclose our CC status. Does this give the officer the right to seize our weapon under the guise of officer safety?

My initial response to the question was only if we are being detained (?) or placed under arrest. Any other situation would constitute illegal search and seizure.

I will research it on my own when I am able to do so, but I would love to have the input of others.

Thanks.
 
Michigander

Michigander

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A lawful Terry Stop (like a traffic stop) or arrest is definitely a reason for a cop to take away your gun. Anything less, no.
 
Outdoorsman

Outdoorsman

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Genesee County, Michigan, USA
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emptypockets wrote:
A question was posed to me at work. At what point are we - whether OC or CC - required by law to relinquish control of our sidearm? At a traffic stop, we are required to disclose our CC status. Does this give the officer the right to seize our weapon under the guise of officer safety?

My initial response to the question was only if we are being detained (?) or placed under arrest. Any other situation would constitute illegal search and seizure.

I will research it on my own when I am able to do so, but I would love to have the input of others.

Thanks.
Click to expand...

As listed on the MSP website:




[align=left]
[font="arial, helvetica, sans-serif"]Proper Conduct During Encounters with Police[/font][/align]


[align=left][size=-1][font="arial, helvetica, sans-serif"][font="Arial, Helvetica"]Responsibilities of Individuals With a CCW License:[/font][/font]
[/align]
  1. [font="Arial, Helvetica"]An individual licensed to carry a concealed pistol who is stopped by a police officer (traffic stop or otherwise) while in possession of a pistol shall immediately discloseto the police officer that he or she is carrying a concealed pistol either on their person or in their motor vehicle.[/font]

  • [font="Arial, Helvetica"]Failure to disclose this information to a police officer carries the following penalties:[/font]

  • [font="Arial, Helvetica"]First offense = State Civil Infraction - $500 fine and 6-month CCW license suspension.[/font]
  • [font="Arial, Helvetica"]Second offense = State Civil Infraction - $1000 fine and CCW license revocation.[/font]
  1. [font="Arial, Helvetica"]An individual licensed to carry a concealed pistol shall have the license in his or her possession at all times he or she is carrying a concealed pistol.[/font]

  • [font="Arial, Helvetica"]Failure to possess CCW license when carrying a concealed pistol is a State Civil Infraction and a $100.00 fine.[/font]
  1. [font="Arial, Helvetica"]Upon request, an individual licensed to carry a concealed pistol shall show bothof the following to a police officer:[/font]

  • [font="Arial, Helvetica"]His or her license to carry a concealed pistol[/font]
  • [font="Arial, Helvetica"]His or her driver license or personal identification card[/font]

  • [font="Arial, Helvetica"]Failure to show CCW license and Michigan driver license or Michigan personal identification card when carrying a concealed pistol is a State Civil Infraction and $100.00 fine.[/font]
  1. [font="Arial, Helvetica"]A pistol carried in violation of numbers 1, 2, or 3 is subject to immediate seizure by a police officer.[/font]

  • [font="Arial, Helvetica"]If a weapon is seized for failure to possess a CCW license while carrying a concealed pistol:[/font]

  • [font="Arial, Helvetica"]Individual has 45 days in which to display their license to carry a concealed pistol to the law enforcement agency that seized the pistol and the pistol shall be returned.[/font]
  • [font="Arial, Helvetica"]If the individual does not display their license to carry a concealed pistol within 45 days the pistol is subject to forfeiture.[/font]
[font="Arial, Helvetica"][font="Arial, Helvetica"]To Ensure Safety During Police Encounters[/font] [/font][font="Arial, Helvetica"]If you are stopped by a law enforcement officer you should:[/font]


  • [font="Arial, Helvetica"]Keep your hands where an officer can see them.[/font]
  • [font="Arial, Helvetica"]Cooperate fully with the police officer.[/font]
  • [font="Arial, Helvetica"]If you have a gun with you, tell the police officer as soon as possible.[/font]
  • [font="Arial, Helvetica"]Do not make any quick movements, especially toward the weapon.[/font]
  • [font="Arial, Helvetica"]If in a vehicle at night, turn on your vehicle's dome light.[/font]
[font="Arial, Helvetica"]In certain circumstances, a law enforcement officer may take temporary possession of the weapon during interaction with the individual to ensure the safety of the officer and others. The police officer will return the pistol at the end of the stop unless the individual is being charged with a violation of the act or any other law that allows for the weapon to be seized.[/font] [/size]
 
E

emptypockets

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[size="-1"][font="Arial, Helvetica"]"In certain circumstances, a law enforcement officer may take temporary possession of the weapon during interaction with the individual to ensure the safety of the officer and others. The police officer will return the pistol at the end of the stop unless the individual is being charged with a violation of the act or any other law that allows for the weapon to be seized."

The question that was qualified later in our discussion at work was what is meant by "certain circumstances" As Michigander has stated, I can understand the traffic stop situation (sort of) and the arrest issue.
[/font] [/size]
 
S

SlackwareRobert

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Alabama, ,
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Well at least they have to return it to you, and not disable it and leave
it on the corner. I am glad we don't have those crazy you have no
right to keep quite laws in the south.
Although the section that says you have to produce the permit when asked
doesn't make sense when the one before it says you only need it if you are carrying.
So if you only need it when you carry, then how can you be required to produce
it at any time?

Now for the big $64 question. Are you required to tell them that you still
have your bug after he takes the primary? I read nothing that says you need
to keep notifying till he gets them all.
 
dougwg

dougwg

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MOC Charter Member Westland, Michigan, USA
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SlackwareRobert wrote:
Well at least they have to return it to you, and not disable it and leave
it on the corner. I am glad we don't have those crazy you have no
right to keep quite laws in the south.
Although the section that says you have to produce the permit when asked
doesn't make sense when the one before it says you only need it if you are carrying.
So if you only need it when you carry, then how can you be required to produce
it at any time?

Now for the big $64 question. Are you required to tell them that you still
have your bug after he takes the primary? I read nothing that says you need
to keep notifying till he gets them all.
Click to expand...
shhhhh
 
G

ghostrider

Regular Member
Joined
Jul 24, 2007
Messages
1,416
Location
Grand Rapids, Michigan, USA
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emptypockets wrote:
A question was posed to me at work. At what point are we - whether OC or CC - required by law to relinquish control of our sidearm? At a traffic stop, we are required to disclose our CC status. Does this give the officer the right to seize our weapon under the guise of officer safety?

My initial response to the question was only if we are being detained (?) or placed under arrest. Any other situation would constitute illegal search and seizure.

I will research it on my own when I am able to do so, but I would love to have the input of others.

Thanks.
Click to expand...
Your addressing two different things here.

First. You are NEVER required to relinquish control of your sidearm, nor should you. That would be a consensual action, and it is not the same as the officer "seizing" it. You have no say (at that time) if the officer seizes it. You can relinquish control and turn it over to him, but remember that doing so is "consent", and a waive of your rights.

The "circumstances" under which an officer may seize control of the weapon is during the Terry Stop, and You have no discretion on when and where that can happen. It is up tot he courts to decide however, the courts worded it that an officer may do a brief "frisk", if he has RAS, and believes the suspect is "armed and dangerous" (I always find this interesting since being armed does not necessarily mean "dangerous". If I'm detained, I'm asking if the officer thinks "I'm dangerous?". Hopefully, he'll say, "I don't know if your dangerous or not." I'm not sure it'll fly, but I want to give my lawyer as much ammo as I can).

If an officer is not detaining you, and you are not under arrest, then you are free to leave, and I suggest you do so. Not doing so opens a Pandora's box giving him opportunity to develop RAS/PC, and you may not know when that happens.


Go read "WASH, RINSE, REPEAT". What an officer can and can't do to you on the street encounter does not matter to you at that time, because you can't do anything about it. What's important is that you assert your rights without antagonizing the situation. If the officer chooses to violate your rights, it's for your lawyer to pursue in court later. Knowing if the officer has the right to do it or not doesn't matter if you adamantly refuse consent.
 
G

ghostrider

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Joined
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Grand Rapids, Michigan, USA
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SlackwareRobert wrote:
Well at least they have to return it to you, and not disable it and leave
it on the corner. I am glad we don't have those crazy you have no
right to keep quite laws in the south.
Although the section that says you have to produce the permit when asked
doesn't make sense when the one before it says you only need it if you are carrying.
So if you only need it when you carry, then how can you be required to produce
it at any time?

Now for the big $64 question. Are you required to tell them that you still
have your bug after he takes the primary? I read nothing that says you need
to keep notifying till he gets them all.
Click to expand...
It probably doesn't make sense because it's a paraphrase that can be misleading to someone who hasn't actually read the actual law.

Everybody has a right to keep quiet.

The section that says, "...you have to produce the permit when asked.." doesn't make sense because it doesn't say that. What it says is that if you are carrying concealed, and the officer requests your ID/CPL, then you are required to do so. The caveat is that if an officer does this, then your are by definition by the courts being detained. The court ruled in Terry that one is detained when a reasonable person beleives they are not free to leave. They used examples of a show of force such as another officer blocking your exit, or flashing lights, or hand on the gun, but it's reasonable to think that your not free to leave as long as the officer keeps your ID/CPL. Since it's a requirement to turn it over upon request, it is no longer a consensual submission, and therefore represents detainment.
 
W

Wglide90

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Belleville, Michigan, USA
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ghostrider wrote:
emptypockets wrote:
A question was posed to me at work. At what point are we - whether OC or CC - required by law to relinquish control of our sidearm? At a traffic stop, we are required to disclose our CC status. Does this give the officer the right to seize our weapon under the guise of officer safety?

My initial response to the question was only if we are being detained (?) or placed under arrest. Any other situation would constitute illegal search and seizure.

I will research it on my own when I am able to do so, but I would love to have the input of others.

Thanks.
Click to expand...
Your addressing two different things here.

First. You are NEVER required to relinquish control of your sidearm, nor should you. That would be a consensual action, and it is not the same as the officer "seizing" it. You have no say (at that time) if the officer seizes it. You can relinquish control and turn it over to him, but remember that doing so is "consent", and a waive of your rights.

The "circumstances" under which an officer may seize control of the weapon is during the Terry Stop, and You have no discretion on when and where that can happen. It is up tot he courts to decide however, the courts worded it that an officer may do a brief "frisk", if he has RAS, and believes the suspect is "armed and dangerous" (I always find this interesting since being armed does not necessarily mean "dangerous". If I'm detained, I'm asking if the officer thinks "I'm dangerous?". Hopefully, he'll say, "I don't know if your dangerous or not." I'm not sure it'll fly, but I want to give my lawyer as much ammo as I can).

If an officer is not detaining you, and you are not under arrest, then you are free to leave, and I suggest you do so. Not doing so opens a Pandora's box giving him opportunity to develop RAS/PC, and you may not know when that happens.


Go read "WASH, RINSE, REPEAT". What an officer can and can't do to you on the street encounter does not matter to you at that time, because you can't do anything about it. What's important is that you assert your rights without antagonizing the situation. If the officer chooses to violate your rights, it's for your lawyer to pursue in court later. Knowing if the officer has the right to do it or not doesn't matter if you adamantly refuse consent.
Click to expand...

ghostrider!

It couldn't have been said any better than that.
 
E

emptypockets

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Midland, Michigan, USA
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"First. You are NEVER required to relinquish control of your sidearm, nor should you. That would be a consensual action, and it is not the same as the officer "seizing" it. You have no say (at that time) if the officer seizes it. You can relinquish control and turn it over to him, but remember that doing so is "consent", and a waive of your rights." Ghostrider

Thanks, now I understand the wording of the procedure. "Take, seize" is much different than letting him have the gun.

[size="-1"][font="Arial, Helvetica"]"In certain circumstances, a law enforcement officer may take temporary possession of the weapon during interaction with the individual to ensure the safety of the officer and others. The police officer will return the pistol at the end of the stop unless the individual is being charged with a violation of the act or any other law that allows for the weapon to be seized."[/font][/size]

At the end of the day we came to the conclusion that when we sign our CPL that we agree to the rules the have been put in place. If, for whatever reason, Mr. Officer decides to temporarily seize the weapon, it might be best to request that he take the gun from its holster. It is certainly the best to make sure the he and any other officer knows exactly what is taking place.


Now, here is a piggy back question. Is the officer lawfully allowed to run a search on the gun while it is in his possession, even if it has nothing to do with his reason for stopping you, i.e. a traffic stop?
 
G

ghostrider

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emptypockets wrote:
"...

[size="-1"][font="Arial, Helvetica"][/font][/size]
At the end of the day we came to the conclusion that when we sign our CPL that we agree to the rules the have been put in place. If, for whatever reason, Mr. Officer decides to temporarily seize the weapon, it might be best to request that he take the gun from its holster. ...
Click to expand...
Again, why would you give consent. Requesting that he take control of the gun is giving consent. He doesn't need your permission or direction to take the gun, so the request is consent.

You: "Officer, would you please remove the gun from my holster."

Officer: "Honest your honor, He requested that I take possession of the gun. "



emptypockets wrote:
... Now, here is a piggy back question. Is the officer lawfully allowed to run a search on the gun while it is in his possession, even if it has nothing to do with his reason for stopping you, i.e. a traffic stop?...
Click to expand...
This has not been determined in a court of law. There has been a USSC ruling where an officer was in an individuals apartment, and the officer moves some electronics equipment around so that he could read the serial numbers. That was ruled as an unconstitutional search because the serial numbers were not in plain view even though the officers had were legally in the apartment. They needed PC to believe the equipment was evidence in a crime, and since that wasn't established by the officers, it was thrown out.

This is why you do not consent. It stands to reason that the officer cannot read the serial number while it is in a holster. He must first seize the weapon to do that. To seize the weapon, he must have RAS, and articulate that you are armed and dangerous.

Running the SN is a search however, they use the "plain view"" doctrine to justify it, and it may or may not stand up under challenge (I would hope not since they have to seize it to run it).


 
W

wally1120

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Hell here in Jackson some of the cops dont really care that you have a Concealed Handgun. I have heard from a few people that they disclosd the have a CPL and they are carrying. The officer says " I dont care" there should be more peoplethat shold be carrying.
 
J

jmlefler

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I have searched and have yet to come up with any controlling authority (i.e. 'law') that states that:

[size="-1"][font="Arial, Helvetica"]"In certain circumstances, a law enforcement officer may take temporary possession of the weapon during interaction with the individual to ensure the safety of the officer and others. The police officer will return the pistol at the end of the stop unless the individual is being charged with a violation of the act or any other law that allows for the weapon to be seized."

The only place I've seen it is on the MSP website. I'll ask again; any legal references to this?

Carry on.
[/font][/size]
 
G

ghostrider

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jmlefler wrote:
I have searched and have yet to come up with any controlling authority (i.e. 'law') that states that:

[size="-1"][font="Arial, Helvetica"]"In certain circumstances, a law enforcement officer may take temporary possession of the weapon during interaction with the individual to ensure the safety of the officer and others. The police officer will return the pistol at the end of the stop unless the individual is being charged with a violation of the act or any other law that allows for the weapon to be seized."

The only place I've seen it is on the MSP website. I'll ask again; any legal references to this?

Carry on.
[/font][/size]
Click to expand...
Do a search for Terry v. Ohio.

The USSC ruled that an officer may seize weapons and contraband used in a crime for purpose of officer safety during a detention or arrest.
 
Bronson

Bronson

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ghostrider wrote:
emptypockets wrote:
"...

[size=-1][font="Arial, Helvetica"][/font][/size]
At the end of the day we came to the conclusion that when we sign our CPL that we agree to the rules the have been put in place. If, for whatever reason, Mr. Officer decides to temporarily seize the weapon, it might be best to request that he take the gun from its holster. ...
Click to expand...
Again, why would you give consent. Requesting that he take control of the gun is giving consent. He doesn't need your permission or direction to take the gun, so the request is consent.

You: "Officer, would you please remove the gun from my holster."

Officer: "Honest your honor, He requested that I take possession of the gun. "
Click to expand...


I believe he was saying that during a legal Terry stop that if the officer wantedto sieze the gun he would have the officer remove it instead of removing it himself and giving it to the officer ....at least that's how I took it.

Bronson
 
Bronson

Bronson

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ghostrider wrote:
emptypockets wrote:
... Now, here is a piggy back question. Is the officer lawfully allowed to run a search on the gun while it is in his possession, even if it has nothing to do with his reason for stopping you, i.e. a traffic stop?...
Click to expand...
This has not been determined in a court of law. There has been a USSC ruling where an officer was in an individuals apartment, and the officer moves some electronics equipment around so that he could read the serial numbers. That was ruled as an unconstitutional search because the serial numbers were not in plain view even though the officers had were legally in the apartment. They needed PC to believe the equipment was evidence in a crime, and since that wasn't established by the officers, it was thrown out.

This is why you do not consent. It stands to reason that the officer cannot read the serial number while it is in a holster. He must first seize the weapon to do that. To seize the weapon, he must have RAS, and articulate that you are armed and dangerous.

Running the SN is a search however, they use the "plain view"" doctrine to justify it, and it may or may not stand up under challenge (I would hope not since they have to seize it to run it).


Click to expand...
Assuming a legal stop and the officer has made it clear that he is going to take control of my firearm:

Since my holster snaps onto my belt and is easily removable if I asked the officer, for the sake of everyone's safety, to remove the entire holster/gun combo and he did sothen he couldn't legally remove it from the holster and run the numbers?

Bronson
 
P

Phoenixphire

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The officer can seize your weapon once he has detained you in a Terry Stop.

Whether or not that Terry Stop was legal, or a violation of your rights, is a question for a latter time.

One could argue that by an officer demanding or ordering you to yield your weapon, versus requesting, that the officer is performing a de facto Terry Stop, as one would reasonable believe that they are no longer free to go. (The cop siezed your weapon, after all.)
 
E

emptypockets

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Prior to posting this question to the forum, I fired off an e-mail to the State Police. Tpr Hawkins replied rather promptly (I was expecting an answer some time in the next few weeks). The following is what he replied:

"Sir,

The most common circumstance would be a Terry encounter [see Terry v. Ohio, 392 US 1 (1968)] where the officer had reasonable suspicion to believe a crime may be occurring. "What happens during this process" will vary as the circumstances which could lead to such an encounter will vary.

Best Regards,
Tpr C Hawkins
Michigan State Police"


It is what many of you had stated and what I suspected when first asked this question. The circumstances that warrant seizure of the gun seem to lie in the perception of the officer conducting the Terry stop. It may not be right, but I would rather go home having cooperated as much as necessary rather than end up on jail or the morgue.
 
SlowDog

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emptypockets wrote:
Prior to posting this question to the forum, I fired off an e-mail to the State Police. Tpr Hawkins replied rather promptly (I was expecting an answer some time in the next few weeks). The following is what he replied:

"Sir,

The most common circumstance would be a Terry encounter [see Terry v. Ohio, 392 US 1 (1968)] where the officer had reasonable suspicion to believe a crime may be occurring. "What happens during this process" will vary as the circumstances which could lead to such an encounter will vary.

Best Regards,
Tpr C Hawkins
Michigan State Police"


It is what many of you had stated and what I suspected when first asked this question. The circumstances that warrant seizure of the gun seem to lie in the perception of the officer conducting the Terry stop. It may not be right, but I would rather go home having cooperated as much as necessary rather than end up on jail or the morgue.
Click to expand...
A regular stop with no RAS does not qualify in my mind. I may be wrong but if there is no reason to believe there is any laws being broken what gives the LEO the right to sieze my weapon?
 
G

ghostrider

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SlowDog wrote:
A regular stop with no RAS does not qualify in my mind. I may be wrong but if there is no reason to believe there is any laws being broken what gives the LEO the right to sieze my weapon?
Click to expand...
A regular stop IS a Terry Stop/detainment, and requires RAS.

Without valid RAS, it is an unlawful stop. This of course is determined by the court later.
 
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