imported post
NavyLT wrote:
compmanio365 wrote:
Please, you are far from convincing in your argument. The police officer is not trying to do me or anyone else a "favor" by taking away my gun. They are violating my rights, plain and simple. And a traffic stop is NOT an arrest. Dunno where you are getting such backwards ideas and information. I am being detained in a traffic stop, but until I get dragged out of the car and cuffed, I'm not under arrest. Therefore, they have no right to take my weapon.
And yes, this "police have a right to be safe" is BS. Police do NOT have a right to be safe, they have a right to be armed and protect themselves like everyone else. But I don't get to take away someone else's weapon to insure my safety, neither does that police officer just because he's there.
A traffic stop IS an arrest:
RCW 46.64.015Citation and notice to appear in court — Issuance — Contents — Arrest — Detention.
Whenever any person is arrested for any violation of the traffic laws or regulations which is punishable as a misdemeanor
or by imposition of a fine, the arresting officer may serve upon him or her a traffic citation and notice to appear in court. Such citation and notice shall conform to the requirements of RCW
46.64.010, and in addition, shall include spaces for the name and address of the person arrested, the license number of the vehicle involved, the driver's license number of such person, if any, the offense or violation charged, and the time and place where such person shall appear in court. Such spaces shall be filled with the appropriate information by the arresting officer. An officer may not serve or issue any traffic citation or notice for any offense or violation except either when the offense or violation is committed in his or her presence or when a person may be arrested pursuant to RCW
10.31.100, as now or hereafter amended.
The detention arising from an arrest under this section may not be for a period of time longer than is reasonably necessary to issue and serve a citation and notice, except that the time limitation does not apply under any of the following circumstances:
(1) Where the arresting officer has probable cause to believe that the arrested person has committed any of the offenses enumerated in RCW
10.31.100(3);
(2) When the arrested person is a nonresident and is being detained for a hearing under RCW
46.64.035.
But, our WA State caselaw, and common law do not share the same reality.
The RCW that you quoted is based upon a Probable Cause Standard, not RAS. Notice the word
"May" which means that if the offense commited was based on the certain arrestable traffic offenses under RCW 10.31.100 the officer
"May" arrest, or issue a citation. One, or the other....
"Whether pretextual or not, a traffic stop is a
"Seizure" for the purpose of constitutional analysis, no matter how brief."
It is "NOT" an arrest. You must look at other RCW's to gauge this, along with legislative intent, and caselaw.
It is the legislative intent in the adoption of this chapter in decriminalizing certain traffic offenses to promote the public safety and welfare on public highways and to facilitate the implementation of a uniform and expeditious system for the disposition of traffic infractions.
http://apps.leg.wa.gov/RCW/default.aspx?cite=46.63.010
It is a traffic infraction for any person to violate any of the provisions of this title unless violation is by this title or other law of this state declared to be a felony, a gross misdemeanor, or a misdemeanor.
http://apps.leg.wa.gov/RCW/default.aspx?cite=46.64.050
You might want to read State v Ladson
In State vHehman,
90 Wn.2d 45, 50, 578 P.2d 527 our first postincorporation divergence from federal precedent, we rejected Robinson and Gustafson and the Supreme Court's abandonment of the no-pretext rule. In Hehman the issue was whether a search incident-to-an-arrest for a minor traffic stop was valid. Hehman not only rejected the recent federal cases«7» but reaffirmed the pretext rule in Washington and further held under state public policy minor traffic stops could not support an arrest at all because "'the risk of pretext arrests is heightened.'" Hehman
One consideration in decriminalizing the traffic code was to prevent police from using traffic infractions to arrest the motorist as a pretext to search. On this point the Washington courts and Legislature agree. The police practice of using the decriminalized traffic code to stop motorists for Terry stops is no different. Hehman prohibits it.
We conclude the citizens of Washington have held, and are entitled to hold, a constitutionally protected interest against warrantless traffic stops or seizures on a mere pretext to dispense with the warrant when the true reason for the seizure is not exempt from the warrant requirement. We therefore hold pretextual traffic stops violate article I, section 7, because they are seizures absent the "authority of law" which a warrant would bring. CONST. art. I, § 7.
Based on In STATE v. HEHMAN, 90 Wn.2d 45, 47, 578 P.2d 1527 (1978), the court held as a matter of public policy custodialarrest for a minor traffic violation is unjustified, unwarranted, and impermissible if the defendant signs the promise to appear contained in a citation. SEE former RCW 46.64.015. The court refused to uphold the custodialarrest of Mr. Hehman for driving with an expired driver's license in the absence of other circumstances justifying the arrest.
(Now negated by not having to sign ticket) http://apps.leg.wa.gov/documents/billdocs/2005-06/Pdf/Bills/Session%20Law%202006/1650-S.SL.pdf
Since HEHMAN, the Legislature has decriminalized mosttraffic offenses. It is the seriousness of the offense and the attending circumstances that justify the arrestrather than whether the violation is designated a misdemeanor or a trafficinfraction. As noted in HEHMAN.
The State argues that thearrest may be upheld under RCW
10.31.100(4) which permits an officer investigating the scene of an accident toarrest the driver of a vehicle if the officer has probable cause to believe the driver has committed a violation of a trafficlaw in connection with the accident. We decline to accept this argument. The court in HEHMAN considered the forerunner of this statute, RCW
46.64.017, along with its counterparts, RCW
46.64.010, .015 and .030, when it rendered its decision. It is illogical to uphold thearrest under one section and not another when the violation remains the same.
Here are the cases.
57 Wn. App. 556, STATE v. BARAJAS
138 Wn.2d 343, STATE v. LADSON
90 Wn.2d 45, STATE v. HEHMAN
http://srch.mrsc.org:8080/wacourts/template.htm?view=main
XD
Not that I give a rip; if I was all worried about a serial number being seen, I'd either carry a blackpowder gun, or get one of those 80% finished 1911 frames.... Or a homebuilt AK pistol:shock: