I was thinking about this last night.
Say you are pulled over, or approached on the street for whatever reason and you are illegally concealing a firearm. (Im not saying its a good idea, i would advise against it, but go with it for this discussion) Now, traffic stop or anything else, officer asks you if there are any weapons present. Saying yes will get you into trouble for breaking the law, and you have the constitutional right to not incriminate yourself correct? Saying no would be lying to the officer, now your busted for illegal CC, and however many charges they can pin on you for lying.
Refusing to answer would lead to a search thought correct? I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways. Would that search be legal, and would any charges of illegal CC stick? If i remember correctly, anything found in that type of search cannot be used as evidence, and can only be removed from the person if it is a weapon, a crack pipe would not qualify.
What do you all think? Seems like a Catch 22 sorta thing
Last edited by wrightme; 08-03-2010 at 04:55 PM.
"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin
A citizen asserting his right to remain silent can not in and of itself be used to justify a warrantless search nor can a search warrant be granted on those grounds alone. A police officer must be able to demonstrate reasonable suspicion and probable cause for a magistrate to issue a search warrant. A search warrant must clearly state what the police are searching for and the places they are authorized to search. They must also only search for what they are looking for in places they can possibly be. For example. If a police officer obtains a warrant to search your car for a firearm and opens a pill bottle and finds a dime bag of pot in your possession, that evidence will be suppressed because a pill bottle can not possibly contain a firearm. Look at it this way, if the police arrive at your house with a warrant to search for an elephant, they can't look inside a bread box.
A police officer cannot simply say, "I need a search warrant, this suspect refuses to answer when I asked him if he had a firearm in his car." He must have something other than a hunch to lead him to believe that there is a firearm in the car. Even then, in the state of Nevada, you can have a loaded firearm, with a round in the chamber anywhere in your car. Glove box, map pocket, center console or under the seat. It doesn't matter if it's "discernible by ordinary observation" or not, so long as it is not concealed on your person. So what if he finds a firearm or not, you haven't broken any law unless you are not legally eligible to own and posses a firearm in the first place.
Now as for "on your person," this is where it gets a little more vague. A police officer is permitted to do a "Pat down," however at this point you have been taken into custody (where a reasonable person would not believe they were free to leave) and anything recovered as evidence from this "pat down" would be suppressed if your attorney can demonstrate in court that the officer had no reasonable articulable suspicion that you had, were or would commit a crime. Always ask first and foremost, "am I free to leave?" If the officer responds with anything other than yes, you are now in custody and reasonable suspicion/probable cause applies to every action the police officer takes.
Remember, reasonable suspicion and probable cause can not and should not be argued at the scene. This is for your attorney to do on your behalf in the court of law. Arguing with a police officer could get you charged with resisting or obstruction at best; at worst you could be thrown to the ground, tazed, or shot. Asserting your fifth amendment rights means you do just that, remain silent except to ask if you are free to leave or state that you are going to remain silent and wish to summon your attorney.
Last edited by Nevada carrier; 08-03-2010 at 06:48 PM.
I understand it isn't as fun and you don't get to rattle off NRS numbers or quote supreme court rulings. It is like having sex with a freaky chick and not having a "safe" word. Best not risk it :P
First, you should always keep your conversations about legal topics. It is a crime to conspire to commit a crime, and some of the information in this thread might be mistaken or otherwise construed to be just that - how to get away with the crime of illegally concealing a weapon.
But one needn't be "illegally" concealing a firearm for this same discussion to have merit. One might be in possession of a concealed firearm and simply not want to deal with the hassle of some rookie cop on a power trip. One of our members, who I won't call out unless he chooses to participate in this thread, is consistently harassed by law enforcement while driving due to circumstances beyond his control. Every time, he tells the cop he's armed, and usually upon telling them of his concealed weapon, he is removed from his vehicle and handcuffed.
Who needs that? I will never tell a cop I'm armed if I'm CC. In fact, I'll probably tell him nothing other than what I'm legally obliged to tell him, which is my name in certain circumstances, and that's it.
So how do you get around this Catch 22? You're right, if the cop says "I see you have a CCW, are you carrying now?" and you respond with "I'm not going to answer any questions.", it probably means he's going to want to pat you down. But that doesn't mean he's allowed to!!
One of the common misunderstandings about Terry law is that an officer cannot pat you down to check for weapons just because he believes you're armed. He must have reasonable and articulable suspicion that you are not only armed, but also dangerous! See the US Supreme Court decision in Florida v JL. A partial snippet is below (emphasis added):
An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous.
...you see, it's a two-fold test. A person must be more than armed, he must be presently dangerous.
You may find this brief article interesting:
A snippet (emphasis added):
If the person denies having a firearm or refuses to answer, and the officer does not otherwise have (legally sufficient) reasonable suspicion of criminal activity, the officer must allow the person to continue on his or her way.
If the person denies having a firearm or refuses to answer, but the officer has a reasonable suspicion that the person is armed and presents a danger to the officer or public, the officer may conduct a stop and frisk the person. If the officer finds a weapon, the officer may hold it while conducting the field inquiry. As long as the person is properly licensed, and no arrest takes place, the officer must return the gun at the conclusion of the interview
This "officer safety" card is played way too often. I agree, police officers should be safe, but they have nothing to fear from me or other lawfully armed citizens, whether they know it or not. They have inherently dangerous jobs, and though I pose no threat, I refuse to give up any of my rights to give them the perception of being safer.
Any evidence found in an illegal search is inadmissible in court. So don't consent to a search and don't do anything that would give them probable cause to search. (A recent case upheld on appeal: multiple air fresheners in a car and "suspicious" behavior by a passenger gave the officer PC to search for marijuana.)
Remaining silent makes them suspicious but doesn't give them reasonable suspicion or probable cause (legal grounds). I have been falsely arrested for remaining silent (prior to the SCOTUS decision requiring a detainee to assert his right to remain silent by speaking out). The weird thing was they didn't execute an illegal search, not even a Terry pat. They were willing to make an illegal seizure but not an illegal search.
I carried concealed almost daily for five years in California and had a few encounters with LEOs while carrying. In those and many other detainments before them, they never asked if I was armed. If you want/need to carry where it is prohibited, consider presenting a certain image to LEOs and the world at large.
The SCOTUS decision doesn't mandate anyone say ANYTHING!! It merely states that if you choose to remain silent, merely remaining silent doesn't explicitly assert that right, meaning police can still question you, even though you remain stone faced. If after 2 hours of continuous questioning, you finally relent and start answering questions, those first two hours of silence were not any indicator of your intention to remain silent.
The decision expands on this by explaining that unless explicitly asserting his right to remain silent, it may well have been the intention of the detainee to formulate a story before starting to speak, and since police aren't mind readers, how would they know?
If you tell them you are invoking your right to remain silent, but they keep asking, anything you say can be thrown out of court, completely trashing any kind of case they might come up with against you, so it's in their best interests to stop asking you questions. If they aren't asking, you're not likely to give them any answers.
a lot can be learned about their case against you based on the questions they ask. Assume that they know the answer to the question then think about the question and you shall find out the evidence they have. Use this to formulate a defense in court. Watch them fall on their face. Police are like trained apes; so predictable.
Once the case is set for trial, your attorney can (and should) find out what the evidence is under "discovery."
There is no advantage to you in letting them ask questions. There is a very real risk that you will rise to the bait, and once someone gets pried open, they tend to stay open. "Good Cop, Bad Cop" isn't as good as NO cop asking questions.
"I want a lawyer" ends the questioning if you are arrested. That is the first thing you should say.
If you are detained, "I don't want to answer any questions without legal advice." Then shut your pie hole.
A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs.
"You need only reflect that one of the best ways to get yourself a reputation as a dangerous citizen these days is to go about repeating the very phrases which our founding fathers used in the struggle for independence."
-- Charles A. Beard
I have seen numerous posts on here about people going about concealing where it is illegal, or they dont have permits, such as California, or post offices, in some states, stores that have signs making it illegal to bring a handgun inside (some states have laws so those signs actually mean something, I know in Nevada they are about as enforceable as "No yellow underwear" signs unless asked to leave, and then its only trespassing.)
I was just pondering and the thought came up. Cant lie, but they can search you for their safety. Then those people would be busted, and possibly hit with a felony. Buy if the refuse a search, it seems that the charges wouldn't stick.
Last edited by wrightme; 08-05-2010 at 07:40 PM.
"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin
Say you are pulled over, or approached on the street for whatever reason and you are illegally concealing a firearm.
(Im not saying its a good idea, i would advise against it, but go with it for this discussion) Now, traffic stop or anything else, officer asks you if there are any weapons present.
If the officer is extending the duration of the stop, (ie asking questions before or after a computer check is being done) then it is an illegal detention and illegal stop. Any evidence gathered is inadmissible.
Saying yes will get you into trouble for breaking the law, and you have the constitutional right to not incriminate yourself correct?
Self incriminate or not, you have no obligation to speak to anyone you don't want to, cop or no cop. Second, yes if it may incriminate you, then you can always and forever remain silent.
Saying no would be lying to the officer, now your busted for illegal CC, and however many charges they can pin on you for lying.
Non-sequitor. How is lying to the officer equate to getting busted for illegal CC? Saying no doesn't mean you consent to a search and they suddenly know you have an illegal gun.
Refusing to answer would lead to a search thought correct?
Umm, no. You don't have to talk to anyone, ever. Remaining silent is not incriminating or indicative of anything. You could be mute. You could have a broken jaw. You could have burned your tongue drinking hot coffee. Not talking isn't RAS or PC of anything.
I know that theoretically it shouldnt, but cops can pull the "Officer safety" card, and conduct a search anyways.
Illegal search. Now you sue them and any evidence of any crimes get tossed. Bad cop.
Would that search be legal, and would any charges of illegal CC stick?
Probably not, but I wouldn't want to find out.
What do you all think? Seems like a Catch 22 sorta thing
There's no catch 22. Just remain silent.
Terry only applies to RAS that a crime was or is about to be committed. Nothing else. "I choose not to answer your question" is all you need to say. You have no legal requirement to answer any question from a cop. None. In a traffic stop, if he asks for you license/reg/insurance proof, give it to him. No need for speaking except to answer a question specific to the reason for the stop and material to information you are required to provide, i.e., "is this your current address?"
Last edited by Gunslinger; 08-09-2010 at 01:24 PM.
Not contradicting anybody; just adding to the discussion generally.
You have to take into account how things will play out on the ground. The "law" is one thing. How it may or may not be applied to your situation by the cop in front of you or the judge later is something else.
Courts are finding all kinds of wiggle-room holes through which to squeeze some of the damnedest pro-government decisions. Take this into account when planning your tactics. For example, (I'm just making this up) answering some questions, but then suddenly refusing to answer whether there is a gun is something I'll bet a number of courts would allow as reasonable suspicion of a gun--not RAS of the crime of carrying a gun illegally, but reasonable suspicion of a gun for officer safety. Just let the cop tell the judge that he also saw you move your hand, or that your eyes shifted toward the floorboard, or whatever he wants to make up to give it that little additional factor, and I'll bet that in a number of courts a gun search for officer safety is suddenly found "reasonable."
It seems as if in some courts, if the judges can find wiggle-room in the law, they will give it to the police. Especially on officer safety issues.
Also, realize that if a cop even gets the barest inkling of an idea there may be a gun and he is the tiniest bit concerned about his safety, there is a good chance you or your car are going to get searched. The cop isn't going to spend any time thinking about case law once he genuinely suspects--correctly or incorrectly--that there might be a gun. Case law and your rights be damned. We have heard as much from cops on this forum. I am not trying to discuss whether it is proper or legal. I am pointing out the cop's mindset. To hell with the law--get out of the car, now! Keep your hands where I can see them!
You can keep tabs a little bit on what the courts are letting police get away with in regards to the 4th Amendment with this handy little blog by an attorney: www.fourthamendment.com
Last edited by Citizen; 08-09-2010 at 09:21 PM.
The court case that lets cops search and seize for guns during a car stop is broader than Terry. The main car stop case that I know of is Pennsylvania vs Mimms.
In Terry the court required four things before a cop could search someone for a gun during a foot encounter: 1) reasonable suspicion of a crime 2) reasonable suspicion the person is armed 3) reasonable suspicion the person is dangerous and 4) nothing in the opening moments of the encounter serves to dispel the officer's concern for his safety.
In PA vs Mimms (1977) the court went further and basically said any reasonable suspicion of a gun was good enough to search for and seize a gun. No need for reasonable suspicion the person was dangerous. According to Mimms, the mere presence of a gun equates to dangerousness. The court said in relevant part:
...There remains the second question of the propriety of the search once the bulge in the jacket was observed. We have as little doubt on this point as on the first; the answer is controlled by Terry v. Ohio... In that case, we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case -- whether
"the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate -- there is little question the officer was justified. 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." (emphasis added by Citizen)
Notice that the presence of the gun = dangerousness in Mimms, where under the earlier Terry decision, dangerousness was a separate factor and the officer was required to look over the circumstances and judge if anything served to dispel his concern for his safety.
Do not take too far Gunslinger's comment about probable cause for a full search of the car. While the cop cannot search the entire car--trunk, engine compartment, wheel wells, fuel tank--for a gun merely on the pretext of officer safety. He can order you out of the car (Mimms says so), search you (Mimms says so); and I'm betting the cop can search any part of the passenger compartment where you could stash a weapon and you can reach.
So, back to the thread topic--silence. I'm still betting that answering some questions, but suddenly getting evasive or silent when asked about a gun or weapon is enough for some cops, and I'm betting some courts would go along with him on it, especially if he spices up the story by saying you looked toward the floorboards or moved your hand to your side or something.
Terry vs Ohio: See the last paragraph for the four elements needed to search for and seize a weapon during a foot encounter. http://www.law.cornell.edu/supct/htm...2_0001_ZO.html
PA vs Mimms: http://supreme.justia.com/us/434/106/case.html
Last edited by Citizen; 08-12-2010 at 10:03 PM.
Citizen: "Do not take too far Gunslinger's comment about probable cause for a full search of the car. While the cop cannot search the entire car--trunk, engine compartment, wheel wells, fuel tank--for a gun merely on the pretext of officer safety. He can order you out of the car (Mimms says so), search you (Mimms says so); and I'm betting the cop can search any part of the passenger compartment where you could stash a weapon and you can reach."
The pretext of searching for weapons which could "reasonably" be available to the driver to do great bodily harm ("Officer safety"--"We must take the guns from the people to make the streets safe for the SS." A. Hitler) to the cop has been held to limit the scope and range of the Terry search. Under the back seat is not permitted; trunk is not permitted; locked compartments not permitted. The glove box is a point of contention, although initially was proscribed in Terry, if locked, not permitted, open--up for interpretation. Inside of briefcase, backpack, etc not permitted. The rationale behind Terry was to memorialize what could be done with less than probable cause. For ANY portion of the search to be legal, the cop has to be able to articulate in a manner that would be understood by the reasonable man, his reason. Otherwise, it remains an unlawful search. And his reason must indicate a crime was or is likely to be committed--and that would include him getting blown away. Just because the cop has no balls is not a justifiable reason for a Terry stop. But I have no doubt it applies in the vast majority of the cases.
Citizen cites Mimms. Keep in mind, Mimms resulted in an arrest for a crime. This is not pertinent to an ordinary Terry stop. RAS could (and was) shown in Mimms, so it met the standards. Vacant searches under Terry are subject to review for 4A violation. Mimms does not apply, imo. While it may seem to expand the scope of Terry, the instant case will be determined by demonstrable RAS. Officer safety is BS as far as I'm concerned in 99% of the cases it's cited, but in this case fits the 1% exception.
Last edited by Gunslinger; 08-13-2010 at 12:18 PM.
I personally believe that unless we get some special interest jerk like Bob Irwin on the Nevada assembly (yes, he's running) who makes his living selling CCW training courses, We'll very likely have Constitutional carry just as Arizona does.