Detained & Disarmed By Clark County Sheriff

Citizen · Jan 31, 2011

I don't understand why I'm reading a thread where there are un-cited statements about the law. Nor, has anybody else requested a cite from the the un-citer(s).

5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

http://forum.opencarry.org/forums/misc.php?do=showrules

tombrewster421 · Jan 31, 2011

deanf said:
Legal.

All passengers in a car stop are detained. As such, the officer has the authority to direct their conduct to ensure his safety.

As much as people here may not like it, officers do have the legal authority to disarm, pat down search, and cuff during a detention. Morally, it is another question . . .

Read this: http://www.tdcorg.com/download/Passenger_in_a_Carstop_is_detained-10-01-07.pdf

I believe that he didn't have to answer a single question. Here is some case law from WA that someone posted on my Starbucks thread.

Under article I, section 7, however, passengers are unconstitutionally detained when an officer requests identification “unless other circumstances give the police independent cause to question [the] passengers.” State v. Larson, 93 Wash.2d 638, 642, 611 P.2d 771 (1980).

This court reversed the Court of Appeals, concluding
that the police officer who detained the petitioner for the purpose of requiring her to identify herself did so in violation of the fourth amendment to the United States Constitution and Const. art. 1, § 7, because none of the circumstances preceding the officer's detention of petitioner justified a reasonable suspicion that she was involved in criminal conduct.

Although in Larson we referred to the officer's interaction as a “demand” in some sections of the opinion, the decision must be read in light of the facts of that case, which were that the officer merely “asked” the passenger for the identification.1 Id. at 640-41, 611 P.2d 771. Moreover, we determined that the officer's request for identification amounted to a “detention” of the passenger for investigative purposes. Id. at 645, 611 P.2d 771. As noted above, all investigative detentions 2 constitute seizures. Armenta, 134 Wash.2d at 10, 948 P.2d 1280.

They were most likely pulled over because of the suspended license. When I did a ride along in Sumner a few years ago the cop was just running license plate numbers hoping for things like that.

FMCDH · Jan 31, 2011

Venator said:
My question was does a passenger have to give ID or answer questions? I understand if he sees the gun he can demand a CPL to confirm if the concealing of the firearm is lawful

Understood,

Washington is not a stop and identify state, which means normally, you do not have to give ID when asked unless you are doing something that requires a specific ID, such as driving, carrying concealed, hunting, etc. You DO however have to identify yourself verbally I believe with name, birth-date and address at a minimum, and failure to identify yourself to at least that extent when officially being detained can result in arrest for obstruction.

As for demanding your drivers license when your not driving, no I don't believe they can, as you are not required to have it on your person in the first place.

That being said, its not uncommon for LEOs to request a picture ID of some sort to help cross reference and validate a CPL to a person, since a WA CPL does not have a picture, from most localities.

As to such an act's legality, I am not aware. Perhaps another member or one of our attorney members can chime in and shed some light, and or correct anywhere that I am mistaken.

As to speaking up,
You ALWAYS have the right to remain silent, but you must weigh that against the probable gains if remaining silent will simply make the LEO more suspicious and probe harder, and detain you longer. If you are truly fearful of a LEOs intentions, it may be the best course of action to simply refuse to speak to him except to say that you do not consent to...anything.

As to what to say in such a situation when you don't want to let them know you are carrying, I personally cant say as it has never been an issue. The few times the question has been asked, I answered truthfully, and I was simply told to keep my hands visible and not reach for anything without telling the officer first, or words to that effect.

That portion highlighted in dark red above cannot be substantiated after research.

FMCDH · Jan 31, 2011

Citizen said:
I don't understand why I'm reading a thread where there are un-cited statements about the law. Nor, has anybody else requested a cite from the the un-citer(s).

5) CITE TO AUTHORITY: If you state a rule of law, it is incumbent upon you to try to cite, as best you can, to authority. Citing to authority, using links when available,is what makes OCDO so successful. An authority is a published source of law that can back your claim up - statute, ordinance, court case, newspaper article covering a legal issue, etc.

http://forum.opencarry.org/forums/misc.php?do=showrules

Well, then by all means, jump in and start citing.

In truth, all of this has been covered before, and some simple searching would probably bring up the threads that have covered these questions. All my posts that lack cite are my personal opinion based upon personal research, and is worth exactly what the asking party paid for it.

KBCraig · Jan 31, 2011

I'm of two minds about Brendlin v. California.

http://www.supremecourt.gov/opinions/06pdf/06-8120.pdf
http://en.wikipedia.org/wiki/Brendlin_v._California
http://www.patc.com/weeklyarticles/traffic-stops-and-control-of-passengers.shtml

First, I think it's actually a good thing that it clarifies that passengers are "seized within the meaning of the 4th Amendment" during a traffic stop. This provides protections they would not enjoy if there presence there was voluntary.

But, I think the court should have clarified the scope of the seizure -- i.e., is a passenger free to be "unseized" by walking away from the scene?

tombrewster421 · Jan 31, 2011

Here it is again. Case law from WA.

tombrewster421 said:
I believe that he didn't have to answer a single question. Here is some case law from WA that someone posted on my Starbucks thread.

Under article I, section 7, however, passengers are unconstitutionally detained when an officer requests identification “unless other circumstances give the police independent cause to question [the] passengers.” State v. Larson, 93 Wash.2d 638, 642, 611 P.2d 771 (1980).

This court reversed the Court of Appeals, concluding
that the police officer who detained the petitioner for the purpose of requiring her to identify herself did so in violation of the fourth amendment to the United States Constitution and Const. art. 1, § 7, because none of the circumstances preceding the officer's detention of petitioner justified a reasonable suspicion that she was involved in criminal conduct.

Although in Larson we referred to the officer's interaction as a “demand” in some sections of the opinion, the decision must be read in light of the facts of that case, which were that the officer merely “asked” the passenger for the identification.1 Id. at 640-41, 611 P.2d 771. Moreover, we determined that the officer's request for identification amounted to a “detention” of the passenger for investigative purposes. Id. at 645, 611 P.2d 771. As noted above, all investigative detentions 2 constitute seizures. Armenta, 134 Wash.2d at 10, 948 P.2d 1280.

They were most likely pulled over because of the suspended license. When I did a ride along in Sumner a few years ago the cop was just running license plate numbers hoping for things like that.

Phssthpok · Jan 31, 2011

FMCDH said:
Understood,

Washington is not a stop and identify state, which means normally, you do not have to give ID when asked unless you are doing something that requires a specific ID, such as driving, carrying concealed, hunting, etc. You DO however have to identify yourself verbally I believe with name, birth-date and address at a minimum, and failure to identify yourself to at least that extent when officially being detained can result in arrest for obstruction.

As for demanding your drivers license when your not driving, no I don't believe they can, as you are not required to have it on your person in the first place.

That being said, its not uncommon for LEOs to request a picture ID of some sort to help cross reference and validate a CPL to a person, since a WA CPL does not have a picture, from most localities.

As to such an act's legality, I am not aware. Perhaps another member or one of our attorney members can chime in and shed some light, and or correct anywhere that I am mistaken.

As to speaking up,
You ALWAYS have the right to remain silent, but you must weigh that against the probable gains if remaining silent will simply make the LEO more suspicious and probe harder, and detain you longer. If you are truly fearful of a LEOs intentions, it may be the best course of action to simply refuse to speak to him except to say that you do not consent to...anything.

As to what to say in such a situation when you don't want to let them know you are carrying, I personally cant say as it has never been an issue. The few times the question has been asked, I answered truthfully, and I was simply told to keep my hands visible and not reach for anything without telling the officer first, or words to that effect.

Not true.

LED EDITORIAL COMMENTS:

In State v. White, 97 Wn.2d 92 (1982), the Washington Supreme Court invalidated parts of the former “obstructing” statute at RCW 9A.76.020, discussing, but not resolving, some of the Fourth Amendment issues that were addressed in Hiibel. The White majority opinion primarily focused on the unconstitutional vagueness of the former obstructing statute and on the Washington constitution’s exclusionary remedy barring admission of the fruits of an arrest made under an unconstitutional statute. It is not clear whether, over two decades later, the Washington Supreme Court would come out differently from the U.S. Supreme Court’s Fourth and Fifth Amendment constitutional rulings in Hiibel based on “independent grounds” under the Washington Constitution. However, at this point, we think that is an academic question. That is because Washington does not have a narrowly drawn stop-and-identify statute like the Nevada statute that was before the Supreme Court in Hiibel.

Because Washington State does not have a stop-and-identify statute like Nevada’s statute requiring identification during Terry stops, we think that Washington officers lack statutory authority to arrest for “obstructing” or for any other current Washington crime in this circumstance. Washington officers are, however, free to ask suspects in Terry stops to identify themselves or to show ID documents, and also may do so when conversing with pedestrians during non-Terry “citizen-contacts” (however, as to requesting ID from non-violator MV passengers, see the Washington Supreme Court’s Rankin decision digested below in this month’s LED at 7-13).

FMCDH · Jan 31, 2011

Phssthpok said:
Not true.LED EDITORIAL COMMENTS:

In State v. White, 97 Wn.2d 92 (1982), the Washington Supreme Court invalidated parts of the former “obstructing” statute at RCW 9A.76.020, discussing, but not resolving, some of the Fourth Amendment issues that were addressed in Hiibel. The White majority opinion primarily focused on the unconstitutional vagueness of the former obstructing statute and on the Washington constitution’s exclusionary remedy barring admission of the fruits of an arrest made under an unconstitutional statute. It is not clear whether, over two decades later, the Washington Supreme Court would come out differently from the U.S. Supreme Court’s Fourth and Fifth Amendment constitutional rulings in Hiibel based on “independent grounds” under the Washington Constitution. However, at this point, we think that is an academic question. That is because Washington does not have a narrowly drawn stop-and-identify statute like the Nevada statute that was before the Supreme Court in Hiibel.

Because Washington State does not have a stop-and-identify statute like Nevada’s statute requiring identification during Terry stops, we think that Washington officers lack statutory authority to arrest for “obstructing” or for any other current Washington crime in this circumstance. Washington officers are, however, free to ask suspects in Terry stops to identify themselves or to show ID documents, and also may do so when conversing with pedestrians during non-Terry “citizen-contacts” (however, as to requesting ID from non-violator MV passengers, see the Washington Supreme Court’s Rankin decision digested below in this month’s LED at 7-13).

Good cite...

Yet the law remains open for interpretation, and I doubt an officer is likely to face much in the way of punishment for making an arrest and letting the court sort it out. Thats just my opinion however.

http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.76.020
RCW 9A.76.020
Obstructing a law enforcement officer.

(1) A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.

(2) "Law enforcement officer" means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020, and other public officers who are responsible for enforcement of fire, building, zoning, and life and safety codes.

(3) Obstructing a law enforcement officer is a gross misdemeanor.

[2001 c 308 § 3. Prior: 1995 c 285 § 33; 1994 c 196 § 1; 1975 1st ex.s. c 260 § 9A.76.020.]

Notes:
Purpose -- Effective date -- 2001 c 308: See notes following RCW 9A.76.175.

Effective date -- 1995 c 285: See RCW 48.30A.900.

Still seems pretty vague to me.

I do however retract my specific statement about being required to give name, address and birth date, as I can find no specific law to support that.

amzbrady · Jan 31, 2011

I thought is was an automatic impoundment of a vehicle being driven by a suspended. http://apps.leg.wa.gov/rcw/default.aspx?cite=46.20.342

How did you get home?

Phssthpok · Feb 1, 2011

RCW 9A.76.020
Obstructing a law enforcement officer.

(1) A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.

(2) "Law enforcement officer" means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020, and other public officers who are responsible for enforcement of fire, building, zoning, and life and safety codes.

(3) Obstructing a law enforcement officer is a gross misdemeanor.

[2001 c 308 § 3. Prior: 1995 c 285 § 33; 1994 c 196 § 1; 1975 1st ex.s. c 260 § 9A.76.020.]

Notes:
Purpose -- Effective date -- 2001 c 308: See notes following RCW 9A.76.175.

Effective date -- 1995 c 285: See RCW 48.30A.900.

Ask yourself this:

Is it "in the discharge of his or her official powers or duties" to compel you to provide testimony that he intends to use against you in direct violation of the fifth amendment?

Silence is golden....don't feed the thugs...er trolls.

FMCDH · Feb 1, 2011

Phssthpok said:
Ask yourself this:

Is it "in the discharge of his or her official powers or duties" to compel you to provide testimony that he intends to use against you in direct violation of the fifth amendment?

Silence is golden....don't feed the thugs...er trolls.

"Compel" by threat of arrest, or....?

LEOs compel by threat of arrest all the time. Remember the part where LEOs can lie in the discharge of his or her official powers or duties? Do they do it, yes. Is it a legitimate practice...depends on which sides attorney you ask. :uhoh:

FMCDH · Feb 1, 2011

Here is another RCW to think about, but I think it would be stretching it to say it applied in the OPs situation.

Then again, if an LEO wanted to try and stretch the legislative intent...

http://apps.leg.wa.gov/RCW/default.aspx?Cite=46.61.021
RCW 46.61.021
Duty to obey law enforcement officer — Authority of officer.

(1) Any person requested or signaled to stop by a law enforcement officer for a traffic infraction has a duty to stop.

(2) Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction.

(3) Any person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself and give his or her current address.

[2006 c 270 § 1; 1997 1st sp.s. c 1 § 1; 1989 c 353 § 7; 1979 ex.s. c 136 § 4.]

Notes:
Effective date -- 1997 1st sp.s. c 1: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [September 17, 1997]." [1997 1st sp.s. c 1 § 2.]

Severability -- Effective date -- 1989 c 353: See RCW 46.30.900 and 46.30.901.

Effective date -- Severability -- 1979 ex.s. c 136: See notes following RCW 46.63.010.

Note: I think this was the RCW I was thinking about before in post #24, but still not the same.

tombrewster421 · Feb 1, 2011

Did no one read my posts?

FMCDH · Feb 1, 2011

tombrewster421 said:
Did no one read my posts?

Yes.

Did you care to comment further on them, or did you want them to stand on their own merits?

bwboley · Feb 1, 2011

amzbrady said:
I thought is was an automatic impoundment of a vehicle being driven by a suspended. http://apps.leg.wa.gov/rcw/default.aspx?cite=46.20.342

How did you get home?

they let me drive it

tombrewster421 · Feb 1, 2011

FMCDH said:
Yes.

Did you care to comment further on them, or did you want them to stand on their own merits?

Just wondering because everyone keeps coming up with more stuff and no one commented on my cite. Even though my cite clearly states that a passenger doesn't have to say jack unless RAS for the passenger exists. Any questions from an officer directed at a passenger without RAS is an unconstitutional detainment.

amlevin · Feb 1, 2011

FMCDH said:
Well, let's look at the facts as we know them.

~~~~~~~~~~~~~~~~~~

Personally, I think the officer went a bit overboard with the handcuffing and digging through the OPs wallet.

The facts we don't know might make the handcuffing more understandable. We do know from the OP that it was 3:30-4:00AM. We don't know what the area was like (well lit urban or unlit and remote). Was the officer alone? What was the overall appearance and demeanor of the parties? An officer alone with two parties, at "O Dark Thirty", on a quiet road might encourage an officer to use the cuffs. Once cuffed, it's hard for the subject to retrieve his own wallet.

Again, the unknowns------

TheQ · Feb 1, 2011

tombrewster421 said:
When asked if there are any guns in the car, in the future say "I don't consent to searches". You were the passenger and he had no RAS to talk to you. If he were to proceed and found your gun, it would be illegal search and seizure.

Laws very from State to State. MI requires immediate voluntary disclosure about your firearm.

sudden valley gunner · Feb 1, 2011

I did Tom and I researched this too, not only is this Washington state case but there are a few federal cases too. Passengers don't have to say or do jack unless there are RAS.

You also don't have to identify yourself to officers, if they don't have PC or RAS. You are not driving you did not commit the infraction. We are not a stop and identify state.

To the OP, next time don't volunteer you are carrying it's not illegal and it's none of their business.

In case those here need some research:

I'd start with the 4th amendment:

” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Key Points from Hiibel:

Decision would only have application in states where there is a statutory requirement that person(s) identify themselves during an investigative detention.ix
The request for identity must be supported by a valid Terry stop.
If the preceding elements are met, the officer may request that the person(s) identify themselves but the case does not allow for an arrest based on a failure to produce “credible and reliable” identification. Hiibel v. Nevada, 542 U.S. 177 (2004).

Key Points from Shufflebeam:

The Unites States Court of Appeals for the 8th Circuit, citing United States Supreme Court precedent concludes that it is not unconstitutional to merely ask for identification. Note, some states would consider this an expansion of the scope of the stop under state constitutions.
The United States Court of Appeals for the 8th Circuit, citing Hiibel concluded that arresting a passenger for refusing to identify himself/herself where the officer has no independent reasonable suspicion to believe that the passenger is involved in criminal activity does violate the Constitution. Stufflebeam v. Harris, 2008 U.S. App. LEXIS 7156 (8th Cir. 2008).

Notice that both these states had stop and identify laws, we do not.

jbone · Feb 1, 2011

fact deficient story

Maybe it was a pretextual traffic stop! And head lights had nothing too do with it? Still lots of what if's in this teasenly fact deficient of a story.

Whren v. United States, maybe the officer was lacking evidence but had suspicion for the stop. The expired license and admitted firearm may have only simply compounded the suspicion of the stop? Completed legit! IMO

Of course still not ascertained if HID head lights was “100%” the reason of the stop.
Front - A maximum of four of the below listed lamps may be on at one time. RCW 46.37.270

- Head lamps - Must meet requirements outlined in FMVSS 108. Note: A halogen headlight system cannot be converted to a high intensity discharge (HID) headlight as replacing a halogen bulb with a HID light would not conform to FMVSS 108.

http://www.wsp.wa.gov/traveler/passequip.htm

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