• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

ARS 13-3102(A)1(b) and the 5th Amendment

mlawson

Member
Joined
Sep 7, 2019
Messages
78
Location
Darkside, AZ
13-3102. Misconduct involving weapons; defenses; classification; definitions

A. A person commits misconduct involving weapons by knowingly:

1. Carrying a deadly weapon except a pocket knife concealed on his person or within his immediate control in or on a means of transportation:
(b) When contacted by a law enforcement officer and failing to accurately answer the officer if the officer asks whether the person is carrying a concealed deadly weapon; or

So, If I am stopped for a traffic violation, and invoke my 5th amendment right to remain silent at the start of the traffic stop, (because everyone knows you don't have to answer police questions), does this allow me to not answer the question of, are there any firearms in the vehicle?

I've seen lots of videos on YT where people outright ignore police during a traffic stop so long as that they hand over the required documentation as per law.
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
6,024
Location
Cincinnati, Ohio, USA
Been under the weather. Is 13-3102(A)(1)(b) constitutional? Yes. Are you required to answer? Probably yes. Since carrying a concealed weapon is constitutional (Arizona is a constitutional carry state) the question is not incriminating. On the other hand, if you got stopped for a bank robbery and asked the question, it could be incriminating.

People forget that they have a 1st. Amendment right to speak or not to speak. So, don't speak. This will drive a cop and a judge up the wall.
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
6,024
Location
Cincinnati, Ohio, USA
I don't see how this is considered constitutional if it violates my protection to self-incrimination.

Can you elaborate your reasoning?
There are two legal principles. 1) is the statute constitutional as applied, or 2) is the statute constitutional on its face.

In effect that is what I wrote above. Constitutional on its face is nothing more than is it constitutional, yes or no. Or is it constitutional as applies.

See section "M" of 13-3102 - "Misconduct involving weapons under subsection A, paragraph 1, subdivision (b) of this section or subsection A, paragraph 10 or 11 of this section is a class 1 misdemeanor."

13-3102(A)(1)(b) - "...failing to accurately answer the officer..." What does that mean? Asking the question is constitutional. If the court said you have to answer the question yes or no it would unconstitutional. If the court said exercising your constitutional right(s) not to answer is permissible, then the statute would be constitutional.

Answering I'm taking the 5th would necessarily not apply if you have not committed a gun crime; carrying a concealed weapon is constitutional in Arizona. That is why I say exercise the 1st amendment right not to speak.

Now look at "N."
N. For the purposes of this section:

1. "Contacted by a law enforcement officer" means a lawful traffic or criminal investigation, arrest or detention or an investigatory stop by a law enforcement officer that is based on reasonable suspicion that an offense has been or is about to be committed.
Based in that definition then exercising the 5th. Amendment Right would be appropriate.

Does that muddy-up the water for you?
 

mlawson

Member
Joined
Sep 7, 2019
Messages
78
Location
Darkside, AZ
Ok, we are getting somewhere, but I don't see how the 1st plays into this.

And you raised a question I also forgot to ask..
"..failing to accurately answer the officer..."
What does that even mean? It's a yes/no answer, but leaves room for argument.
Arizona IS a constitutional carry state, why can't LE just 'assume' there are weapons in the car? If the driver simply lies, LE takes it at face value, and could ask to search the car, but the driver being smart declines. So, we are back to square one again.

I've seen videos on YT where someone was open-carrying legally on a public sidewalk and was stopped/weapon removed and patted down. Civilian explained that LE couldn't terry stop because he was within his legal right to open carry and supreme court ruled, a terry stop couldn't be conducted on open-carry alone. I'll have to dig that one up.
So, if a LE can't extend a traffic stop to passenger without RAS, can't the same rule be applied if the person says, yes/no to having a weapon in the car? Weed is legal in AZ, but I don't recall hearing about the same rule here in this case either.
 
Top