Did you say you did not consent to a search before he entered?
Thread: Traffic Stop Situation
Question.. just today I was stopped for failing to properly yield to a stop sign in Fenton. I had my gun with me but not on my person; it was in the center console of my SUV. He pulled up, and I gave him my driver license, insurance, and my non-driver license which has the CCW on it. I know I don't have to do so, but I do it as a courtesy.
When he got back to my car, he asked if I had my firearm with me. I said yes. He asked where it was, and I said the center console. He had me step out of the vehicle and he went into my car and rooted through the console til he found it, and took it back to his car, only saying, "It's not that I don't trust you, of course."
He wrote the ticket and returned the gun to my console, put my Smartcarry back on top of it, and then we had a tiny chat about guns.
Was he even legally able to do that? He never asked me to enter my vehicle, search it, or detain my legally-owned firearm. Nice cop (I'm not mad he wrote the ticket), but I'm just not sure it was legal. What're your thoughts?
Last edited by silo; 09-07-2010 at 08:28 PM.
Did you say you did not consent to a search before he entered?
At a minimum the OP needs to contact the supervisor, chief, or sheriff and file an official complaint. This is the only way to communicate to bad LEOs that we will no longer tolerate the blatant violations of our rights.
First, the law:
Michigan vs Long:
These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
PA 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."
Note: PA vs Mimms also addresses whether the cop can order you out of the car.
Citizen's Handy Legal References for OCers:
Last edited by Citizen; 09-07-2010 at 11:58 PM.
Based on your report and comparing it to Michigan v Long it was an illegal gun seizure. There is nothing in your report for the cop to reasonably believe your were dangerous.
The police will claim that the mere presence of the firearm makes you dangerous; and, they will assert the officer acted legally.
I would like to gently suggest a written formal complaint that minces no words, and includes the points below.
1. Michigan v Long requires circumstances giving rise to reasonable suspicion of dangerousness.
2. Temporary weapon seizures are generally only for officer safety (unless your state has a law like California that permits the cop to check to seee if it is illegally loaded.)
The cop only had to return to the car exactly one time--to give you a warning or citation. Walking back to the car to inquire about the gun exposed himself unnecessarily to the "supposed" danger--in short he all but proved he had no reason to consider you dangerous. All he had to do was walk back to the car with a ticket or written warning, but he couldn't do that because then he would have no justification at all to seize the gun. Just get your signature and send you on your way. The cop exposed himself unnecessarily to danger in order to be safe from danger? Ha! Yeah, right. There is no way the police can rationally squirm out of this one.
3. Also, he took the gun while expressly admitting he did not consider you dangerous. Thank you for the confession, Officer. That will look very nice in my formal complaint.
4. He probably took the gun just so he could run the serial number, something not authorized by court opinions. This is known as a fishing expedition. "Hey, if I can find a gun that was reported stolen, I may add some excitement to my evening, and gather a few brownie-points and locker-room accolades." Arizona vs Hicks forbids a search only to get a look at a serial number without probable cause.
5. And, here is the best line. While some cops do order CCW permit holders out of the car and seize the gun, the simple fact that many other cops do not do that proves that mere gun possession by a CCW-holder during a traffic stop is not in and of itself dangerous. If it really was dangerous, all cops would automatically seize all CCer's guns during traffic stops.
I suspect the police will likely reply to your complaint by asserting everything was perfectly legal and done completely in line with police department policies and accredidation agency recommended best practices. That is fine. Police rarely admit error. But, they will get the idea anyway--that a mere citizen knows the deal. "$hit! Now we gotta be careful!"
Arizona vs Hicks:
This is why...the distinction between looking at a suspicious object in plain view and moving it even a few inches is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent -- serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable. (emphasis by Citizen)
Last edited by Citizen; 09-07-2010 at 11:54 PM.
The case you are reaching for is Arizona v Gant.
Gant involved a warrant exception--search incident to arrest. The OPer was not arrested, his search was not a search-incident-to-arrest. Gant does not apply.
You can avoid these embarrassing errors, and misleading readers, by quoting the actual text of the case, and providing a link. I can't tell readers how many times I've caught myself by looking up the case in order to provide a quote and finding out that the court opinion did not say what I thought it said. Had you looked up the opinion in order to provide a quote, you would have discovered the error before posting.
Arizona v Gant:
Held: Police may search a vehicle incident to a recent occupant’s
arrest only if the arrestee is within reaching distanceevidence of the offense of arrest...
of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains
Last edited by Citizen; 09-07-2010 at 11:56 PM.
I had a discussion with a former MO ST about a similar situation. My question to him was, in his understanding, if a LEO asked to search my car for his safety, could I simply offer to exit the vehicle and allow him to pat me down. My point being if I left my vehicle would that remove his cause for search. The former ST replied that, yes, it should.
If the officer had already removed you from your vehicle, how could he justify searching through it to take your firearm?
I understand Citizen's point as well that a CC permit holder possessing a gun not meeting the standard of RAS.
I am not sure I agree with the responses to this point.
There is case law, I will grant it is PRIL case law where a couple of guys were pulled over and the driver used his FOID card for ID as he had misplaced his drivers license. His drivers license was indeed good he just did not have it on his person.
Well the troopers used the FOID card as PC to search the vehicle. They found stuff, I think it was weed I do not recall, I was reading the SCOIL opinion on it. While the motion to suppress was IMHO valid, the court ruled otherwise across all stages of apeal.
I do not recall the case name or number or even the final opinion all that well but it was something to the effect that while the position of the officers having PC was not relevant, but the owner volunteering that he was a firearm owner aka FOID card holder, it gave the officers the authority to search the persons and vehicle for officer safety and the weed was discovered from a plain sight portion when they opened the trunk to inspect for weapons.
I can not speak directly to MO law, but it does not seem that the officer went outside his authority since the OP volunteered he was a weapons permit holder and he indeed told him he had a firearm readily accessible. I am just not sure it qualifies as a search at all in contrast to "officer taking control of the weapon for his safety during a routine traffic stop"
In other words, no I do not think it was really necessary, but I do not think the courts would find that the officer over stepped his authority or violated any ones rights, as usual this is just an opinion and carries no special validiity.
If you want to review the foid card case law, google "foid card identification search" and I think you will find it quickly, if you do not and really want a cite I will bother looking it back up.
I agree that no court here would go apeshit over this officers actions.
But they're still wrong. Cops love rooting around through people's ****. This guy had no (good) reason to search your vehicle. I would have told him no deal on the search. I also wouldn't have mentioned the firearm (unless requested).
I don't think the OP's courteousness helped him at all in this sitcheeation.
If he would have found drugs while searching around they would clearly have been fruit of the poison tree and inadmissable. IMO, the search was unlawful under the preponderence of case law. You were not in the vehicle, he had no RAS in the first place, so it violates Terry clearly. The other citations are based on the Terry premises. If you had the gun on you, it could by reaching be removed for so called (and BS) 'officer safety.' In no event did a gun in your car when you weren't qualify as any danger to him.
I would like to see the case in the PDR of IL referenced. If true, it's the only case I can think of where an unlawful search finding contraband has stood up.
Last edited by Gunslinger; 09-08-2010 at 11:20 AM.
L vs FELIPE D. PARRA
Finally, defendant's FOID card indicated only that he owned a firearm, and the mere ownership of a firearm is not illegal. The card did not indicate that defendant was illegally carrying a firearm in the vehicle. Thus, Russell's observation of the FOID card did not warrant a reasonable suspicion of criminal activity. We also note that, because an individual must possess a FOID card in order to acquire or possess a firearm (see 430 ILCS 65/2(a)(1) (West 2002)), allowing an officer to question a driver and search his or her car based on the observation of a FOID card would penalize the driver for complying with the law.
HOWEVER..... People v. Ross, 289 Ill. App. 3d 1013 (1997)
There, two officers stopped the defendant for a traffic violation, and the defendant exited the car and met the officers at the back of his vehicle. The officers asked for identification and the defendant produced a FOID card. The officers asked the defendant if there was a gun in the car, and the defendant responded that there was. The officers searched the car, located the gun, and arrested the defendant. On appeal from the denial of the defendant's motion to suppress, the reviewing court held that the questioning of the defendant was not a fourth amendment violation. It reasoned that based on safety concerns, it was reasonable for the officers "to be concerned about the whereabouts of that gun and to question [the defendant] regarding it." Ross, 289 Ill. App. 3d at 1018
So it seems more of a thing where if you show them the card and admit you have a gun, for the officers safety, they can search. If they just happen to see the card, it does not allow automatic search nor indicate criminal behavior.
Did you miss that part? The op said he identified his self as CCW and when asked he indicated a weapon in the car, the officer searched the car only where the OP stated the gun was located for officer safety almost EXACTLY like people vs ross though it was indeed PRIL and when challenged it was upheld.
If the OP had had a bag of weed next to the gun, it would NOT be poison fruit as the search for the gun was 100% legal per case law.
I have neither the time nor the inclination to try and find a case in the state of Missouri that parallels it just to satisfy a lazy internet user.
Your misapplication of Terry does not apply, it was NOT a "stop and identify" it was a legal stop for a traffic infraction, the op was not required to say a word, he CHOSE to say a word and when he said he indeed had a gun, since the stop was 100% legal, the officer taking control of the weapon was 100% legal.
If he had said "I am not answering any questions officer" since the gun was not in plain sight, the officer never would have had a reason to look for it but since the op told him it was there, the officer can most certainly take control of a weapon during a legal stop if he is alerted to the presence of one.
1) I kinda doubt Gunslinger is all that lazy. I'll explain in a moment.
2) Gunslinger has a JD after his name--Juris Doctor, meaning he is an attorney.
2a) He can probably run circles around most of us in the legal research department.
2b) The federal cases dealing with car searches for weapons for officer safety that I have read are progeny of Terry. Meaning their logic supposedly depends on the principles articulated in Terry. And, they cite Terry internally, or cite back to a case that itself cites back to Terry.
So, for Gunslinger to cite Terry and analyze based on Terry at worst shows he maybe missed a case in between, if he is only arguing law. If he is arguing principle, he may be closer than we think.
Personally, I think his analysis is reasonable. He may not be accurate legally speaking; but, I can see his point. The only thing I might add would be that an uncuffed detainee outside the car is still able to quickly retrieve and use a gun inside the car. There is a federal district court opinion to that effect floating around somewhere. It was about a knife, not a gun.
I have never heard of this happening. I don't know why he felt it necessary to get the gun out. If you were polite and always had hands visible, there is no threat.
The few times I have been stopped, I told them about the CCW and gun, they just said "Okay" and left it at that. If it was a new boot then I understand the issue. Just trying to error on the side of caution i guess.
At least contact the police department and ask. It maybe something as simple as misinformation. You may be doing them a favor.
This situation illustrates why disclosing your currently armed status is not always going to work out to your benefit. Bottom line: If you disclose (volunteer) information to a LEO during a traffic stop, you should expect it to be used against you. Mind you, I am not saying that volunteering information may not be the best possible course of action at some point, but it should be given serious thought and consideration BEFORE you do it. Once you open your mouth, you can't take your statements back.
Last edited by cshoff; 09-10-2010 at 09:11 PM.
It is VERY close to exactly what happened in this discussion. Once the OP TOLD the police there was a gun in the car, courts have indeed found that:
On appeal from the denial of the defendant's motion to suppress, the reviewing court held that the questioning of the defendant was not a fourth amendment violation. It reasoned that based on safety concerns, it was reasonable for the officers "to be concerned about the whereabouts of that gun and to question [the defendant] regarding it."
He may be a lawyer he may not, I have no idea myself, but I mentioned a case in Illinois that was similar, I made it clear that I was quoting it from reading it a long time ago, I recalled as much of the details as I could and gave terms one could use to try and find it themselves if they wished to confirm. Instead he was lazy and asked for a cite. I googled it up, found it, posted it, and he ask for a cite again.
All he has said is any decent lawyer should be able to get one out of it and this case clearly defines that a lawyer did not get someone out of it in PRIL, nor did a lawyer win suppression on appealing it either.
Now while he may have convinced you he is a lawyer, you may even know it completely for 100% fact, that does not impress me one little bit and under no circumstances would it have any effect on whether or not I decide to be rude to him, which I was not. If he is indeed a lawyer then I can assure you he would agree, I have a whole family full of them and a firm bears my name, there are good ones and there are some really pathetic ones and some make you wonder how they ever passed the bar, the only think almost all lawyers share is that they like to argue.
Any lawyer worth their salt would have opted to explain why the cited case that is nearly identical did not apply, just like they do on appeal.
I called it lazy behavior because it was lazy behavior and while you may feel that is not polite, I do not think it is polite to be lazy so not unlike yourself, I was feeling all warm and fuzzy trying to correct inappropriate behavior.
Any more questions?
So... the bottom line, really, is contact the police department and see what one of them says. Preferably someone relatively high up to get an official explanation, and see if it's satisfactory.
So are we sure that this temporary gun seizure was legal??? I'm still confused as to whether or not it was.
I know that IMHO it should not have gone that way, but at the same time, it came about solely because of consent. This is another aspect of the discussion that will likely lead to more fussing and I am not going to bother trying to "cite" it, but if you give consent you can indeed revoke it. Since the op did not object it might be an interesting debate if the officer could have decided since he told them he had it and where it was, he gave consent for them to take possession of it as he never objected or revoked consent. A huge stretch.
Bottom line, the cop is going to win this argument 100% of the time. He took the gun for officer safety, sounds like he did not even really bother inspecting or unloading it let alone running the serial.
I think the overall lesson is simple, don't tell em squat, your not supposed to and had he followed that simple rule, none of it would have happened at all. When you do tell them anything, you are inviting harassment, both legal and questionable. The result of any complaint to the department will be moot and a "thank you sir we will be sure and follow right up on that" will be the only thing you hear before it is posted on the wall of shame in the hallway by the locker room.
You should have told that county brown you were making a citizens arrest for his violation of Fenton Ordinance "SECTION 205.245: WEAPONS -- CARRYING CONCEALED -- OTHER UNLAWFUL USE" and specifically subsection 6. "Openly carries a firearm or any other weapon readily capable of lethal use except in Hunting Heritage Protection Areas as defined in Section 252.243, RSMo.;"
They have still yet to fix the law in order to exempt law enforcement. If he had a gun on his hip, he was breaking the law.
Your quote "The op said he identified 'his self' as CCW..." Maybe before you bash someone as too lazy, you should take the time to learn English grammar. There has to be some special circumstance in this case since it violates established doctrine. Until I can read the whole thing, I consider it an out of the mainstream . As to you, don't throw stones in a glass house.
Last edited by Gunslinger; 09-12-2010 at 12:32 PM.
"In Ross, the defendant was stopped for running a red light. The only identification that the defendant could produce was a FOID card. Based upon the presentation of this card, the officer asked the defendant if there was a gun in the vehicle. The defendant said that there was, so the officers searched the vehicle and found a pistol in the backseat. The defendant moved to quash the arrest and suppress the evidence. The appellate court affirmed the trial court's denial of the defendant's motion, finding that the production of the FOID card as identification created an independent basis to continue and expand the initial Terry stop.
The court reasoned that the officer's safety during the stop justified the gun-related questioning and search. It was only reasonable for the officers to be concerned about the whereabouts of any weapons especially since a passenger, who was sitting inside the vehicle during the stop, would have access to whatever weapon was inside."
As I suspected, LMTD is full of it. This has nothing whatsoever to do with the OP, and clearly shows Terry--despite his attacking me for referencing it, as a defining citation. His "name" may be on a shingle of lawyers, but that doesn't mean dick as to his knowledge, such as it is. Good at personal attacks for no reason; sucks at grammar; and full of crap at citing cases. Ross violated the law in IL in this case and it had nothing to do with Silo's encounter. I rest mine.