I was reading a post from another state tonight where they debated on wheather after a traffic stop when a Police officer asked the driver if he had any weapons in the car and the driver responded with Yes, I have a gun, could the Police officer order the driver out of the car, hand cuff himand search the vehicle to locate the gun? The posting listed this case and the answer was NO
and the evidence that was found during the search was supressed.
We all transport out firearms in our vehicle, what is the law in Wisconsin in relation to searching the vehicle after a traffic stopwhenwe are questioned by the police officer who stopped us with "do you have any weapons in your vehicle" and then admitt to having a gun in the vehicle?
Do you deny having a weapon? [I have not contraband of any kind on my person or in my vehicle, why do you ask?
Do you refuse to leave the car? [Alway inquire as to the REASON they want me out
Do you agree to leave the car, but then lock it and put the keys in your pocket. [I always lock the door when I exit the vehicle, why should a traffic stop be any different?
Do you then refuse to open the vehicle without a warrent? [I REFUSE period. If they have a warrant, then I'm already in jail and anything I say will be used against me
If he or shesearches your vehicle without a warrent is he or She violating your civil rights? [With the keys in MY pocket, the only way they get them is by detainment/arrest. At that point, make it clear, "I do not consent and I want my lawyer."
What is the law in Wisconsin, can anyone provide case law like the one below. Quite honestly, I don't know for sure what I can and can't do in this situation.
Police may not search a vehicle merely because its driver has been issued a valid concealed carry permit, the Indiana Court of Appeals ruled on Thursday. A three-judge appellate panel weighed the actions of Indianapolis Police Officer Danny Reynolds who pulled over Melvin Washington for driving with a burned-out headlight on September 17, 2008 at 12:30am.
On that morning, Reynolds first asked Washington whether he had a gun, and Washington said he had one under his seat. Washington also carried a valid concealed carry permit. At this point, Reynolds ordered Washington out of the car and handcuffed him so that he could conduct a search under the seat of Washington's vehicle. Reynolds spotted a small bag of marijuana and issued Washington a court summons and a ticket for the defective headlight. Washington was then released with his handgun placed in the trunk of his vehicle, unloaded.
Washington moved to have the evidence against him suppressed because the warrantless search, he argued, violated the Fourth Amendment protection against unreasonable searches. A lower court disagreed, insisting that "officer safety" justified the search. The court of appeals did not buy the safety argument.
"In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety," Judge James S. Kirsch wrote for the majority. "Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer's questions, and showed no disrespect to the officer. At the time he searched for the handgun, Officer Reynolds had no information that any crime or violation of law had been or was about to be committed, except for the inoperable headlight infraction. Further, at the suppression hearing, Officer Reynolds did not testify that he had any specific concern for officer safety during his traffic stop of Washington."
Because no legitimate safety exception to the Fourth Amendment applied in this case, the court ruled the search was improper. Judge Melissa S. May added in a concurring opinion that the majority's ruling created a subjective element -- cooperation -- that could serve as a loophole allowing searches. To solve this problem, May cited the US Supreme Court case Arizona v. Gant where a warrantless vehicle search was overturned because the suspect had no access to his car (view decision).
"While we are dealing here with a traffic stop, rather than an arrest, the fact remains that Washington, like Gant, was removed from his car and handcuffed," May wrote. "Accordingly, Washington's statement there was a gun under his seat simply could not justify a search of his car based on concern for officer safety."
A copy of the decision is available in a PDF file at the source link below.
Washington v. Indiana (Court of Appeals, State of Indiana, 3/4/2010)