Clearly you have not observed that I support OC and CCW. But there seems to be a disconnect between your desire of how things should be, in contrast to how things really are. But this is not your fault as you can not see things from the perspective of an LEO until you go through the training and live the reality on the street. Officers do not train for positive citizen encounters, they prepare for the worst case, often based on real life situations which cost another officer his life.
Is carrying a weapon in Alabama and offense in and of itself, the obvious answer is no except in certain conditions.
1. Carrying a handgun in an automobile concealed or openly is an offense, but there is an exception, if you have a permit. The Officer who contacts you during a traffic stop does not have RS to willy nilly begin a Terry stop. But at the moment he observes a handgun, he does have RS to begin a Terry investigative detention to determine if you are committing a felony criminal act. He is not required to determine if you have a permit before he takes positive steps to insure his safety. All he knows is that he has just gone from a run of the mill traffic citation to a possible serious felony offense. Officers are not required “
to explore and eliminate every theoretically plausible claim of innocence,” including affirmative defenses, before making an investigative stop. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also Jocks v. Tavernier, 316 F.3d 128, 135 (2d. Cir. 2003)
2. If you refer back to my first post in this thread, and several subsequent comments, I have tried to impress on our readers that one of the primary reasons for informing the officer at the onset of contact that you are armed, and possess a permit, is that action removes the mere possibility of the officer going into a Terry Stop mode of dealing with you if he suddenly become aware you are armed. He has your DL, He has your valid pistol permit, he has no RS to move beyond this exchange. He can run your DL, He can call the S.O. or the State, to validate your permit is current and not revoked or suspended, but he also knows that absent some other triggering event, that is as far as he can go. The Officer has met a person who is cooperative with the Officer, has volunteered to the Officer that he is armed, and he has proved that he is not committing what is otherwise a felony. Now after doing this, what RS does the officer have to suspect that he is in danger which would justify him even contemplating taking custody of the persons weapon,,,,I sure can not come up with one.
3. "
Just as probable cause may exist although a suspect is in fact innocent, probable cause may exist where the police do not know of the existence or validity of an exculpatory defense.”); Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998)", Once the officer suspects you are committing an offense by carrying a gun in a vehicle, you bear the burden of correcting the officers impression that he is dealing with an armed and potentially dangerous criminal by providing him with proof of the validity of your innocence, That is why you have the permit in the first place.
4. In State v. Timberlake, 744 N.W.2d 390 (Minn. 2008), police officers stopped the defendant’s car based solely on a 911 call from an identified private citizen. The caller said that he had just seen “a black male and black female . . . leaving a gas station in a white Pontiac Grand Prix,” and that, before they left the gas station, he had seen the black male with a gun. Id. at 392. The officers’ stop and subsequent search revealed evidence that was the basis of the defendant’s conviction for felon in possession of a firearm.
Also see United States v. Cooper, 293 Fed. Appx. 117 (3d Cir. 2008),United States v. Bond, 173 Fed. Appx. 144, 146 (3d Cir. 2006); United States v. Collins, Nos. 05-1810, 01-CR-00780, 2007 WL 4463594, at *4 (E.D. Pa. Dec. 19, 2007). Now lets assume you are OCing, no violation of Alabama statute is involved in OC, even at a gas station pump, but if a civilian not knowing Alabama's OC law exception, calls the 911 and tells them he saw you get into your ford explorer and head west, then the police do have RS for a Terry Stop of your vehicle,,,,,they have RS to do so based on the prohibition against carry in a vehicle. When they stop you they will already be in Terry Mode and "felony Stop Mode" and your best resort is to have your DL and permit at the ready.
5. What can trigger the officer having cause to take possession of your weapon during a Terry Stop. The mere presence of a weapon held by a suspect during the stop is the answer. "The officers were entitled to take Raissi’s handgun because they knew Raissi had concealed it on his person and would have easy access to it while they questioned him." Georgia Carry. Org, INC.,et al v. Metroploitan Atlanta Rapid Transit Authority, Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (“The bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer." The manner in which the officer takes possession of the weapon may vary from asking the suspect to hand the weapon to the officer, to much more aggressive tactics....this is a matter of the officers judgment of the totality of the circumstances and the risk involved with dealing with a suspect he judges to be compliant, cooperative, and non threatening, or a suspect he deems to be evasive and nervous though generally compliant, or even such behaviors as exhibiting non-verbal physical indications of entering a "fight or flight" posture.
6. Now you ask a good, really good question, you ask "And upon seizing said property, is he also going to remove that person from his vehicle and conduct a search of a vehicle over which the driver has no control and is incapable of reaching any weapon with which to menace"? Well yes, If you read MICHIGAN v. LONG, 463 U.S. 1032 (1983), you will note that at the time the officer approached and made contact with Long, he was out of the vehicle, in fact it clearly states he was at the rear of the vehicle when officers began their contact. Long then began to walk back to the drivers door and prior to entering the vehicle the officers observed the knife, they stopped Long, frisked him for weapons and found none. Now it is important to note that the court in this case acknowledged that
Long was not arrested for the knife, the search of the vehicle was for other weapons which Long might be able to acquire if he reentered the vehicle, during that search is when the officers found the drugs, and long was arrested for the drugs, not the knife. While the knife was a weapon, obviously it was not illegal for Long to have it or he would have been immediately arrested for the weapon. "when he began walking toward the open door of the car, apparently to obtain the registration, the officers followed him and saw a hunting knife on the floorboard of the driver's side of the car. The officers then stopped respondent and subjected him to a patdown search, which revealed no weapons. One of the officers shined his flashlight into the car, saw something protruding from under the armrest on the front seat, and upon lifting the armrest saw an open pouch that contained what appeared to be marijuana. Respondent was then arrested for possession of marijuana."," Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible".
7. Now lets talk about pure OCing.....If I was off duty or even on duty and observed someone OCing, I know there is no offense being committed. A Citizen can jump up and down until he is red in the face but I am not going to take any action from a LEO perspective. In fact my attention is going to be more directed at the reporting party who is going to get the full lecture (politely given) on Alabama law, as they are clearly in greater need of education than the OCer......Now I may make contact with the OCer to apprise him of the situation, but it will not be in any confrontational manner, nor will I attempt to coerce or even suggest that he cover up.....Lets say that the property owner, say at a gas station or grocery store, asks me to have him cover up, I assure you my approach is going to be humble and almost down right apologetic. I OC and CCW, I have been in this mans same shoes, and I have no intention to confront anyone who is not even remotely breaking the law.
There is a fundamental difference between what a police officer may observe and infer from that observation, versus facts an officer is provided by a person he comes into contact with, observation alone leads to uncertainty, and the other offers the officer unambiguous, and greater clarity of the situation he is really faced with.
The whole point being I have been on both sides of the car door, that or the LEO, and that of the citizen who carries for self protection. My goal is to provide both the perspective of the LEO, and to offer you advise which will influence how officers view us based on their encounters with us.
As Potent Dagger stated... the only reason he has given for handcuffing the individual is his discovery that the individual is
carrying something lawful (a cellular telephone? a beeper? a firearm?)
To the best of my knowledge there is nothing illegal, suspicious, or incriminatory about lawful activity.
It occurs to me, if PD would cuff and stuff someone if he discovers a concealed firearm that he's not told about, what does he contemplate doing with someone who's openly carrying and being stopped?
Is he going to seize the person's effects and handcuff them as well?
And upon seizing said property, is he also going to remove that person from his vehicle and conduct a search of a vehicle over which the driver has no control and is incapable of reaching any weapon with which to menace Ofc. PD?
