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Thread: traffic stop, CHP, 4th amendment questions...

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    i got pulled over and had my pistol under my left leg while driving.

    is this legal carry? my buddy said that its illegal and that the CHP is only good if the firearm is on your person. i always thought it was good for your possession (on person in glove box, under seat, etc.)?

    -also, i told the officer i had my concealed carry permit

    before i could tell him that i had it and where it was he asked

    i told him that it was under my left leg, he opened my door and reached for my firearm,

    i told him i did not want him to take it and he said it was for safety.

    he took the firearm, unloaded it and handed me my mag + 1 and commented on it being a nice choice in firearms...(he also brought the firearm back after the traffic stop)

    now, i have no real quam with the officer (he was not rude, handled my firearm properly, etc.) but what i want to know is if this violates my 4th amendment rights? he had no reason to believe the firearm was illegal or that my possession of it was illegal... (unless having it under my leg was not legal carry)

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    Founder's Club Member Hawkflyer's Avatar
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    Your carry method was legal assuming you had a permit. It might have been without one. Even if it was not considered open carry, having the permit to conceal allows you what ever flexibility you might need. He took your gun to run it through NCIC. He knew you had a permit (suspected you had a gun) because when he ran your tags there is a notation on your file that you have a permit. When that comes up they always ask.

    Welcome to the forum.

    You might want to go to the state police website and/or the ODCO legal pages and read up on some of this.

    Regards

    I am not a lawyer and this is not legal advice
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    carpesignum wrote:
    -also, i told the officer i had my concealed carry permit
    That's all I needed to hear - if you tell them, they will come.

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    Of course it's a 4th Amendment violation: he seized your firearm and searched to find if it was reported stolen, without a warrant, probable cause, or reasonable articulable suspicion that crime was afoot.

    Good luck on getting a court to rule that way, though.

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    I am NOT a lawyer or for that matter someone to take legal advice,

    but,

    I don't think it was necessary for you to hand over your weapon. You could have protested or simply said "no" and nothing else. You should not have let him open your door (keep it locked) and if he asked you to get out of the vehicle, you get out, shut the door, and lock it. I believe what he did was unconstitutional, and regardless of what people think our bill of rights still holds strong (I know from recent personal experience).

    Like I said I may be completely wrong here, but I do believe that you could have simply told him "no, i prefer you not handle my gun, i will leave it where it is. If it must be secured I will lock it in the glove box. Thank you."

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    carpesignum wrote:
    SNIP i got pulled over and had my pistol under my left leg while driving.

    ...i told him that it was under my left leg, he opened my door and reached for my firearm,...

    ... he took the firearm,...

    ...what i want to know is if this violates my 4th amendment rights?
    No, not your legally recognized constitutional rights; what is left of them anyway.

    The case that started it all is Terry vs Ohio,1a case about a foot encounter. Under Terry, in addition to needing a good reason to seize the person in the first place, two moreelementsmust be present in order for the LEO to search for and seize a weapon: 1) armed, and 2) presently dangerous. Again, this was a case about a foot-encounter.

    The case that seems to controlin traffic stops, Pennsylvania vs Mimms,2 is worded in such a way that one can come away from it with the impression that armed equals dangerous, instead of armed and presently dangerous being two separate elements. However, a careful reading of the case, in full context does not automatically yield the meaning that armed equals dangerous.Certainly the court did not expressly say it was changing from the previous two-prong standard.

    Pennsylvania vs Mimms:

    ...The bulge in the jacket permitted the officer to conclude that Mimms was armed, and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down."

    Which circumstances are "these circumstances"? The mere presence of the gun? Or, the totality of the circumstances. There seems to be a number of court opinions where the "totality of circumstances" is the standard for deciding certain things.

    However, the federal appeals court that has jurisdiction over Virginia didinterpret Mimms to mean that armed equals dangerous:

    US vs Baker:3

    Based on the inordinate risk of danger to law enforcement officers during traffic stops, observing a bulge that could be made by a weapon in a suspect's clothing reasonably warrants a belief that the suspect is potentially dangerous, even if the suspect was stopped only for a minor violation.


    So, it seems to be legal for police to just seize a gun from the driver during a traffic stop with no other restrictions about needing also separate circumstances indicating some sort of dangerousness.

    I'll leave the righteousness and justice questions to your own opinion.

    For other questions about your 4th and 5th Amendment rights during police encounters, there is a thread4 where I collected all my reference materials.

    1. Terry vs Ohio: http://www.law.cornell.edu/supct/htm...2_0001_ZO.html

    2. PA vs Mimms: http://supreme.justia.com/us/434/106/case.html

    3. US vs Baker: http://pacer.ca4.uscourts.gov/opinion.pdf/955287.P.pdf

    4. http://opencarry.mywowbb.com/forum65/23936.html



    PS: Thanks for the careful punctuation. Reading would be easier if you used capitalization where customary, too.

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    KBCraig wrote:
    Of course it's a 4th Amendment violation: he seized your firearm and searched to find if it was reported stolen, without a warrant, probable cause, or reasonable articulable suspicion that crime was afoot.

    Good luck on getting a court to rule that way, though.
    Depending on where the serial number is locatedon the gun, it may have been legal for the LEO to read it.

    As I've shown above, the gun seizure was legal. Now that the gun is in the officer's hands, it iswithin plain view.The next question is whether any of the serial numbers on the gun are also in plain view.

    Under Arizona vs Hicks, if the serial number was not in plain view, then uncovering it would have been unconstitutional. Conversely, if the serial number was in plain view, then reading it would not have been unconstitutional.

    For example, some Smith & Wesson revolvers have the serial number written on the frame, under the cylinder crane, meaning you have to open the cylinder to read it, and they have the same serial number written on the bottom of the metal grip frame. Perhaps all S&W revolvers are like this; I don't know. If you have a factory or aftermarket grip that covers over the serial number on the grip frame, say like one of the Hogue or Uncle Mikes rubber grips, then the only way to read the serial number is to take off the grips or open the cylinder. Under Hicks either action by a police officer would be illegal (unless he hadsome otherprobable cause to believe the gun was evidence of a crime or one of the other circumstances listed in Hicks existed.)

    Arizona vs Hicks: http://supreme.justia.com/us/480/321/index.html
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    I believe this was reasonable considering Terry v Ohio. A crime was committed (traffic violation I am assuming) and you were seized by the officer. A terry "frisk" would be legal at that point. Considering you keep a gun under your loaded firearm under your leg would make any officer suspicious and interested in keeping themselves safe, so by temporarily seizing the weapon during the duration of the stop does not seem to violate any rights. Also, since you do have a weapon he would be allowed to investigate your permit and legal status to carry.

    On a side note.. you should carry a gun in a holster. Although you do not legally have to tell the officer about the gun, doing so was the right thing. Any officer looking in and seeing a gun sticking out from under a leg would most likely result in them drawing their gun on you (legally) to determine the situation. You are responsible for that weapon and could be charged for an illegal discharge. Also, you should not be handling a firearm when you enter/exit your car to place the gun under your leg. You might be mistaken for brandishing a firearm.

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    carpesignum wrote:
    i got pulled over and had my pistol under my left leg while driving.why was it under your leg?

    is this legal carry? my buddy said that its illegal and that the CHP is only good if the firearm is on your person. Your buddy is incorrect. i always thought it was good for your possession (on person in glove box, under seat, etc.)? Correct, anywhere within your wingspan in the passenger area.

    -also, i told the officer i had my concealed carry permit

    before i could tell him that i had it and where it was he asked

    i told him that it was under my left leg, he opened my door and reached for my firearm,

    i told him i did not want him to take it and he said it was for safety.

    he took the firearm, unloaded it and handed me my mag + 1 and commented on it being a nice choice in firearms...(he also brought the firearm back after the traffic stop) Many officers would do the same thing for safety reasons so that it becomes less of a concern to them during the stop,although I'm sure someone in the next 5 minutes will chime in with some "agent of the state disarming you" mantra. Most judges that I have ever run into would have no issue with an officer temporarily taking control of the firearm during the course of the stop, assuming that he gave it back in a timely manner when the stop was over.
    James Reynolds

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    KBCraig wrote:
    Of course it's a 4th Amendment violation: he seized your firearm and searched to find if it was reported stolen, without a warrant, probable cause, or reasonable articulable suspicion that crime was afoot.

    Good luck on getting a court to rule that way, though.
    Of course we're going to go off the deep end and assume that every right imaginable was violated here without a shred of evidence to support the illegal search theory.
    James Reynolds

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    NovaCop10 wrote:
    Considering you keep a gun under your loaded firearm under your leg would make any officer suspicious and interested in keeping themselves safe, so by temporarily seizing the weapon during the duration of the stop does not seem to violate any rights.
    +1 Keeping a gun under your leg while driving would make an officer feel as if you were secreting the weapon in a manner so that it was quickly and easily accessible for you to use on him.

    If it was in a holster, I think that you may have had less of an issue, IMHO.
    James Reynolds

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    NovaCop10 wrote:
    SNIP Also, you should not be handling a firearm when you enter/exit your car...
    This is a good point in light of the fact that police can order people out of the car.PA v Mimms. I can't imagine it would be good to be seen handling a gun as you are stepping out of the car during a traffic stop.

    PA vs Mimms:

    The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety.

    http://supreme.justia.com/us/434/106/case.html


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    If you don't want the LEO to hassle you about the gun, ****. You brougt it upon yourself. Also, the ACLU puts out a very good video about what to do and not do during a traffic stop.

    Rule #1 Shut up, dont say anything. Don't volunteer ANY info about any subject.

    Rule #2 Lock your doors.

    Rule #3 All windows rolled completely up except the driver's window which is only opened up enough to hear the LEO and give him any documents.

    Rule #4 If asked to get out of the vehicle, get out and immediately lock your door again (don't forget the key).

    Rule #5 Tell any passengers not to say a word. Period.

    Rule #6 Do not for any reason consent to a search of your car or your person.

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    jegoodin wrote:
    SNIPthe ACLU puts out a very good video about what to do and not do during a traffic stop.
    You mean FlexYourRights? The narrator is former ACLU; FlexYourRights is a separate organization.

    Busted: The Citizen's Guide to Surviving Police Encounters

    http://www.youtube.com/watch?v=yqMjMPlXzdA



    While we are on the subject of videos for new guys. Here is another great video:

    Don't Talk to Police by Prof. James Duane of Regent University Law School

    http://www.youtube.com/watch?v=6wXkI4t7nuc
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Hawkflyer wrote:
    He knew you had a permit (suspected you had a gun) because when he ran your tags there is a notation on your file that you have a permit. When that comes up they always ask.
    I was under the impression that wasn't the case (tags telling anything about CHP). Furthermore, I drive my sister's car, my fiancee's truck and my dad's truck on a regular basis. None of them are 'permitted', so it certainly doesn't come up in those cases.

    It does definitely come to light once they know who you are (driver's license).

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    SaltH2OHokie wrote:
    Hawkflyer wrote:
    He knew you had a permit (suspected you had a gun) because when he ran your tags there is a notation on your file that you have a permit. When that comes up they always ask.
    I was under the impression that wasn't the case (tags telling anything about CHP). Furthermore, I drive my sister's car, my fiancee's truck and my dad's truck on a regular basis. None of them are 'permitted', so it certainly doesn't come up in those cases.

    It does definitely come to light once they know who you are (driver's license).
    When an officer runs your license plate number they are notified if you have a VA CHP. BUT, that only lets the officer know the vehicle's registered owner has a CHP, not the driver nor the passengers...

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    Citizen wrote:
    While we are on the subject of videos for new guys. Here is another great video:

    Don't Talk to Police by Prof. James Duane of Regent University Law School

    http://www.youtube.com/watch?v=6wXkI4t7nuc
    And don't forget Part 2
    http://www.youtube.com/watch?v=08fZQWjDVKE

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    nova wrote:
    SaltH2OHokie wrote:
    Hawkflyer wrote:
    He knew you had a permit (suspected you had a gun) because when he ran your tags there is a notation on your file that you have a permit. When that comes up they always ask.
    I was under the impression that wasn't the case (tags telling anything about CHP).* Furthermore, I drive my sister's car, my fiancee's truck and my dad's truck on a regular basis.* None of them are 'permitted', so it certainly doesn't come up in those cases.*

    It does definitely come to light once they know who you are (driver's license).
    When an officer runs your license plate number they are notified if you have a VA CHP. BUT, that only lets the officer know the vehicle's registered owner has a CHP, not the driver nor the passengers...
    Correct. I was assuming he was the owner of the car and is a Virginian.
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    It comes up under the VCINS (Virginia Criminal Investigative Network?? VA state police system) when the LEO runs your license. It doesn't have anything to do with the tags on the car. All states and any license and NCIC information is returned as well.

    I think you answered that you had a handgun and where it was at so it gave the LEO reasonable probable cause to search and seize.

    Both the ACLU and FlexYourRights have videos about the 5 th and 4 th ammendments. They both look the same.

    The existence of a CHP is not enough to create reasonable probably cause but since you admitted to it you created it for the LEO. Once they have your weapon they can investigate all they want.

    I am not a lawyer, I give no legal advice and only offer opinion.
    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

    excerpt By Marko Kloos (http://munchkinwrangler.wordpress.com/?s=major+caudill)

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    nuc65 wrote:
    It comes up under the VCINS (Virginia Criminal Investigative Network?? VA state police system)
    Actually, VCIN (no S) stands for "Virginia Crime Information Network".
    James Reynolds

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    nova wrote:
    SaltH2OHokie wrote:
    Hawkflyer wrote:
    He knew you had a permit (suspected you had a gun) because when he ran your tags there is a notation on your file that you have a permit. When that comes up they always ask.
    I was under the impression that wasn't the case (tags telling anything about CHP). Furthermore, I drive my sister's car, my fiancee's truck and my dad's truck on a regular basis. None of them are 'permitted', so it certainly doesn't come up in those cases.

    It does definitely come to light once they know who you are (driver's license).
    When an officer runs your license plate number they are notified if you have a VA CHP. BUT, that only lets the officer know the vehicle's registered owner has a CHP, not the driver nor the passengers...
    I'm in Fire and Rescue and always have a scanner on. I have never heard an officer being notified of a CHP when running a tag, the only time I hear it is when they run the DL.

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    Citizen wrote:
    jegoodin wrote:
    SNIPthe ACLU puts out a very good video about what to do and not do during a traffic stop.
    You mean FlexYourRights? The narrator is former ACLU; FlexYourRights is a separate organization.

    Busted: The Citizen's Guide to Surviving Police Encounters

    http://www.youtube.com/watch?v=yqMjMPlXzdA



    While we are on the subject of videos for new guys. Here is another great video:

    Don't Talk to Police by Prof. James Duane of Regent University Law School

    http://www.youtube.com/watch?v=6wXkI4t7nuc
    Here's an even better one if you don't understand legal speak. It cuts through all the BS!:

    www.spike.com/video/chris-rock-how-not/2458063


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    ProShooter wrote:
    +1 Keeping a gun under your leg while driving would make an officer feel as if you were secreting the weapon in a manner so that it was quickly and easily accessible for you to use on him.
    When I am not CC I keep my sidearm holstered.

    When I am CC and driving (or riding) I place it under my leg while driving because otherwise it digs into my spine in the Check-6 holster I wear SOB.

    What the officer "feels" shouldn't come into play (I know that's not the way you're implying it) but rather what the law is. He has no more reason to disarm you for a minor traffic infraction than he does for jaywalking.

    I agree 100% with EVERYTHING in jegoodin's response above. ****. Tell everyone else in the vehicle to **** . Do not volunteer any information. Ever.

    If an officer approaches (in Virginia: non-notify) and asks you about firearms without any advance information about why you were pulled over, get his information and report him. Regardless of what he "feels" it is none of his business. IANAL, BIYAOOMWTWT.
    The quiet war has begun, with silent weapons
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    wylde007 wrote:
    ProShooter wrote:
    +1 Keeping a gun under your leg while driving would make an officer feel as if you were secreting the weapon in a manner so that it was quickly and easily accessible for you to use on him.
    When I am not CC I keep my sidearm holstered.

    When I am CC and driving (or riding) I place it under my leg while driving because otherwise it digs into my spine in the Check-6 holster I wear SOB.

    What the officer "feels" shouldn't come into play (I know that's not the way you're implying it) but rather what the law is. He has no more reason to disarm you for a minor traffic infraction than he does for jaywalking.
    As much as I'd love to dive into this one, discretion tells me to just walk away.
    James Reynolds

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  25. #25
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    ProShooter wrote:
    As much as I'd love to dive into this one, discretion tells me to just walk away.
    By all means.

    I'll probably be "learned" by some officer somewhere down the road and my opinion will be rendered moot. I've been Terry stopped, had my ID run (though I was walking and not required to provide it) and had an officer ask me if I was armed because, as we all know, our DMV records have a little check-box that pops up when they run your ID that says whether or not you have a CHP.

    He didn't demand that I disarm or even to see the weapon, just asked if I was carrying.

    Meh. Carrying a firearm is not in itself a crime, therefor logic SHOULD carry that there is no reason to disarm a lawful citizen for a non-violent/non-arrestable infraction.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
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