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Message
re: officer taking pistol from vehicle
Posted on 11/13/13 at 2:37 pm to UpToPar
Posted on 11/13/13 at 2:37 pm to UpToPar
I have a really long explanation of the particular case but I believe this is the part that is relative:
quote:
Issue One:
Did the officer violate the Fourth Amendment in conducting
the limited search of Vinton's vehicle for weapons?
It is well established that during a traffic stop, an officer can order the driver out of his car and conduct a limited search of the passenger compartment for weapons if the officer has reasonable suspicion that the driver is dangerous and may gain immediate control of weapons inside the car.(i) Thus, based on the totality of the circumstances, the court had to decide if the officer had a reasonable belief that Vinton was dangerous and may gain immediate control of weapons inside the car.
The court then examined the facts of this case in light of court precedent. First, and very significant, is the fact that the officer observed a knife with a five and a half inch sheath in plain view within arm's reach of Vinton. The court noted that, in Michigan v. Long(ii), the United States Supreme Court held that the observation of a large knife in the interior of a vehicle during a traffic stop justified a limited search of the passenger compartment to ensure there were no other weapons in areas that Long would generally have immediate control. Similarly, the D.C. Court of Appeals, in the United States v. Christian(iii) held that an officer's observation of a dagger in the passenger compartment gave the officer sufficient indication that Christian was armed and dangerous to justify a search for of a vehicle for weapons. Thus, in Vinton, the court similarly held that the sheathed knife, which was capable of inflicting serious bodily harm, did provide the officer with a sufficient basis to search the vehicle for other weapons, even after the officer removed the knife from the car and handcuffed Vinton. The court reasoned that this was because the officer may very well have to return Vinton his knife and release him in the car, thereby giving him access again to this weapon, and any other weapon inside.
2
Posted on 11/13/13 at 2:42 pm to UpToPar
In Louisiana, a vehicle that you own is considered to be an extension of your home. If you own the vehicle, and are able to legally own the firearm, you may carry it in any condition, loaded or not, hidden or not, inside your automobile.
That being said, If you have a CCW permit and are carrying the gun on your person in the vehicle and the officer asks if you are armed, you have a duty to inform as soon as the officer greets you because of the CCW.
In either instance you have not submitted to a search of your vehicle.
That being said, If you have a CCW permit and are carrying the gun on your person in the vehicle and the officer asks if you are armed, you have a duty to inform as soon as the officer greets you because of the CCW.
In either instance you have not submitted to a search of your vehicle.
Posted on 11/13/13 at 3:42 pm to Who Me
WhoMe,
I have no problem with that scenario. That is frisking of a motor vehicle or sweeping for weapons within the reach of the occupant(s). Particularly in light of the the plainly visible weapon.
I have no problem with that scenario. That is frisking of a motor vehicle or sweeping for weapons within the reach of the occupant(s). Particularly in light of the the plainly visible weapon.
Posted on 11/13/13 at 3:53 pm to Five0
quote:
WhoMe,
I have no problem with that scenario. That is frisking of a motor vehicle or sweeping for weapons within the reach of the occupant(s). Particularly in light of the the plainly visible weapon.
So you think that's ok but retrieving a weapon that is not in plain view is not ok? So under a seat or in a console next to the seat is less accessible?
The law will back the officer completely when he is securing a weapon for his safety wether it's in plain view or if the violator plainly informs the officer of a weapon in the vehicle.
Posted on 11/13/13 at 3:54 pm to dstone12
I had my truck stolen a few years ago with a postol in the console. While the cop was in my driveway taking the report she got the call that they found my vehicle about 3 miles from my house. (onstar actually found it). She told me to jump in her cruiser, (back seat of course, I felt like a criminal). On the way to retrieve my truck I told her that I had a gun in the console and was hoping they(the thugs) didnt find it. As soon as we pulled up she told me to go look for the gun and see if it was there. To my surprise it was there and so was my radar detector, ipod, etc. As soon as I showed her the gun she had me check to see if any rounds had been fired and to place the gun in her trunk.
I immediately asked her if she was taking my gun from me. She looked at me and, no boo, that's your gun it's just for my safety that I want to know where the gun is and want to make sure it has been recently fired.
She never asked to see a CWP nor did I even have one to show her.
I immediately asked her if she was taking my gun from me. She looked at me and, no boo, that's your gun it's just for my safety that I want to know where the gun is and want to make sure it has been recently fired.
She never asked to see a CWP nor did I even have one to show her.
This post was edited on 11/13/13 at 3:55 pm
Posted on 11/13/13 at 4:01 pm to Who Me
quote:
So you think that's ok but retrieving a weapon that is not in plain view is not ok? So under a seat or in a console next to the seat is less accessible?
My answer is in your original case quote which I have bolded:
quote:
an officer can order the driver out of his car and conduct a limited search of the passenger compartment for weapons if the officer has reasonable suspicion that the driver is dangerous and may gain immediate control of weapons inside the car.(i) Thus, based on the totality of the circumstances, the court had to decide if the officer had a reasonable belief that Vinton was dangerous and may gain immediate control of weapons inside the car.
Vintion did not volunteer the fact that he was armed. A ccp holder telling the officer, "Hey I have a gun in the car, and here is my permit to carry it." I have a very hard time articulating reasonable suspicion that that person is dangerous. Particularly if they do like I have advised on here multiple times, they tell me where the weapon is and NOT SHOW ME. If they seem nervous while doing that then yes I would take them out of the car, pat them down, move us both back to my cruiser, and explain the reason for the stop and ask what else is in the car. How it goes from there is up to a totality of the circumstances.
Posted on 11/13/13 at 4:06 pm to Five0
So if I understand you correctly. You are saying that if I walk up to a car (CCP or Not) and the occupant tells me they have a pistol under their seat. That means they aren't dangerous and is different than if I walk up to a car and see a weapon laying on the seat in plain view before the driver can tell me about it.
So I would be illegally removing/securing the weapon in one instance and not in the other?
So I would be illegally removing/securing the weapon in one instance and not in the other?
Posted on 11/13/13 at 4:08 pm to Who Me
You wouldn't know I have a gun in the vehicle, because it would be (1) concealed, (2) I wouldn't offer up that I have a weapon even if I did, because I don't have to.
This post was edited on 11/13/13 at 4:11 pm
Posted on 11/13/13 at 4:10 pm to Who Me
Changing the facts
We were discussing a pistol in the center console, not in plain sight, and we were discussing a ccp holder that advised the officer of same.
Changing the facts changes the answer.
quote:
CCP or Not
quote:
see a weapon laying on the seat in plain view before the driver can tell me about it.
We were discussing a pistol in the center console, not in plain sight, and we were discussing a ccp holder that advised the officer of same.
Changing the facts changes the answer.
Posted on 11/13/13 at 4:11 pm to swanny297
quote:
swanny297
You are late to the game on this. No one here is arguing if the driver has to tell the officer about it. We know the answer to that.
We are arguing about the legality of the officer being able to secure a weapon for his safety during the duration of the traffic stop. Say if the person doesn't want the officer to get the gun out of his car.
Posted on 11/13/13 at 4:15 pm to Five0
quote:
We were discussing a pistol in the center console, not in plain sight, and we were discussing a ccp holder that advised the officer of same.
Changing the facts changes the answer.
What relevance does it matter if the person has a conceal carry license? In Louisiana a driver can have the gun any where he wants inside of a car. It matters not if they have a CCP.
So you are saying in the center console is not accessible and makes the driver not dangerous because he told me about it?
Posted on 11/13/13 at 4:23 pm to Five0
quote:
That is frisking of a motor vehicle or sweeping for weapons within the reach of the occupant(s).
The glove compartment is literally 2 feet away.
Posted on 11/13/13 at 4:24 pm to Who Me
What case is this?
This language is the language used to describe a search incident to arrest.
quote:
It is well established that during a traffic stop, an officer can order the driver out of his car and conduct a limited search of the passenger compartment for weapons if the officer has reasonable suspicion that the driver is dangerous and may gain immediate control of weapons inside the car.(
This language is the language used to describe a search incident to arrest.
Posted on 11/13/13 at 4:26 pm to UpToPar
quote:
UpToPar
You do realize that Terry searches extend to a vehicle searches right?
And the entire point of a Terry search is for officer safety to check for weapons.
ETA:
and the case I am referring to is
United States v. Vinton, No. 07-3125, 2010 U.S. App. LEXIS 2450 (D.C. Cir. Decided February 5, 2010)
This post was edited on 11/13/13 at 4:28 pm
Posted on 11/13/13 at 4:29 pm to Who Me
What do you mean Terry searches extend to vehicle searches? As in if you have reasonable suspicion a crime has been committed you can search the entire car?
Posted on 11/13/13 at 4:31 pm to UpToPar
On September 9, 2009, at about 9:00p.m., a U.S. Park Police officer was on patrol in Southeast D.C. He observed a Nissan Maxima speeding and also believed that the windows were tinted in excess of D.C. statute. As the officer prepared to conduct a traffic stop, he observed a law enforcement "blue line" sticker on the car.
He activated his lights and the driver, Vinton, pulled over. Vinton lowered all of his windows as the officer approached. The officer asked Vinton if he worked in law enforcement, and he replied "personal security." The officer observed knife with a five and a half inch sheath on the back seat within reaching distance of Vinton. The officer asked Vinton what the knife was for; he replied that he used it when he went fishing with his grandfather. However, the officer observed no other fishing equipment in the car. The officer removed the knife from the car and put it out of reach on Vinton's roof and asked if there were any other weapons in the car. Vinton replied that there was not. The tint meter confirmed that Vinton's windows were tinted in violation of D.C. statute.
The officer returned to his police vehicle to write a citation. Shortly thereafter, a Metropolitan Police Department (MPD) officer drove up and the Park Police officer asked him for back-up. He explained the presence of the knife to the MPD officer.
The officer then returned to Vinton and told him that he was going to search his car for weapons. The officer again asked if there were any other weapons in the car and Vinton replied there was not. The officer asked about weapons again and Vinton replied "not that I know of." The officer had Vinton exit his car and he handcuffed him, while telling him he was not under arrest.
The officer then searched the passenger compartment for weapons. He found two cans of mace in the front armrest, a "butterfly knife" under the front passenger-side floor mat, a bag of Styrofoam earplugs, and a locked briefcase that was on the backseat. The officer asked Vinton about the earplugs and he replied that he used them to sleep. Vinton also said that he did not know what was in the briefcase because it did not belong to him.
Vinton then called an investigator and a supervisor for advice on how to proceed. After a period of time, the officer arrested Vinton for "possession of a prohibited weapon" under D.C. statute. The officer then pried open the locked briefcase and searched it incident to arrest. The briefcase contained three bags of ecstasy, three pistol magazines, a fighting knife, and a loaded .45 caliber semi-automatic pistol.
Vinton was indicted on federal weapons and drug offenses. He filed a motion to suppress the evidence in District Court, which was denied. He was later convicted by a jury and sentenced to prison. He appealed to the D.C. Circuit Court of Appeals.
He activated his lights and the driver, Vinton, pulled over. Vinton lowered all of his windows as the officer approached. The officer asked Vinton if he worked in law enforcement, and he replied "personal security." The officer observed knife with a five and a half inch sheath on the back seat within reaching distance of Vinton. The officer asked Vinton what the knife was for; he replied that he used it when he went fishing with his grandfather. However, the officer observed no other fishing equipment in the car. The officer removed the knife from the car and put it out of reach on Vinton's roof and asked if there were any other weapons in the car. Vinton replied that there was not. The tint meter confirmed that Vinton's windows were tinted in violation of D.C. statute.
The officer returned to his police vehicle to write a citation. Shortly thereafter, a Metropolitan Police Department (MPD) officer drove up and the Park Police officer asked him for back-up. He explained the presence of the knife to the MPD officer.
The officer then returned to Vinton and told him that he was going to search his car for weapons. The officer again asked if there were any other weapons in the car and Vinton replied there was not. The officer asked about weapons again and Vinton replied "not that I know of." The officer had Vinton exit his car and he handcuffed him, while telling him he was not under arrest.
The officer then searched the passenger compartment for weapons. He found two cans of mace in the front armrest, a "butterfly knife" under the front passenger-side floor mat, a bag of Styrofoam earplugs, and a locked briefcase that was on the backseat. The officer asked Vinton about the earplugs and he replied that he used them to sleep. Vinton also said that he did not know what was in the briefcase because it did not belong to him.
Vinton then called an investigator and a supervisor for advice on how to proceed. After a period of time, the officer arrested Vinton for "possession of a prohibited weapon" under D.C. statute. The officer then pried open the locked briefcase and searched it incident to arrest. The briefcase contained three bags of ecstasy, three pistol magazines, a fighting knife, and a loaded .45 caliber semi-automatic pistol.
Vinton was indicted on federal weapons and drug offenses. He filed a motion to suppress the evidence in District Court, which was denied. He was later convicted by a jury and sentenced to prison. He appealed to the D.C. Circuit Court of Appeals.
Posted on 11/13/13 at 4:35 pm to Who Me
quote:
United States v. Vinton, No. 07-3125, 2010 U.S. App. LEXIS 2450 (D.C. Cir. Decided February 5, 2010)
Just looked at it real quick. There are a ton of things present there that are not present in our hypothetical. First being the first knife was in plain view. Second, there were stabbings occurring in the area.
Posted on 11/13/13 at 4:40 pm to UpToPar
quote:
First being the first knife was in plain view.
I don't think that matters. In both scenarios, the LEO was aware of the weapon and the weapon was within reach of the defendant.
quote:
Second, there were stabbings occurring in the area.
I don't see how that's relevant either.
Posted on 11/13/13 at 4:41 pm to UpToPar
quote:
Just looked at it real quick. There are a ton of things present there that are not present in our hypothetical. First being the first knife was in plain view. Second, there were stabbings occurring in the area.
I understand there are a lot of different variables present in this case.
I do believe you are making too much out of the difference of a weapon being in plain view as opposed to being under the seat or in a console. All would be readily accessible as a weapon.
The point is the officer conducted a search of the vehicle just off of seeing a knife, a knife not even a gun, in the car.
It was only a traffic violation. He didn't smell narcotics.
Posted on 11/13/13 at 4:44 pm to boom roasted
quote:
The glove compartment is literally 2 feet away.
Is it locked?
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