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Message
re: officer taking pistol from vehicle
Posted on 11/13/13 at 9:11 am to Five0
Posted on 11/13/13 at 9:11 am to Five0
quote:
No you are not. You are how open carry people successfully sue law enforcement agencies if you are, in fact, an officer.
An open carry individual is, presumably, not breaking any laws so you have no right to perform a Terry stop on him. A person that is stopped for a traffic violation has ALREADY broken the law. I don't write the laws so please don't jump down my throat.
1
Posted on 11/13/13 at 9:11 am to KG6
quote:
I just don't see it like this. You're taught in you CCW class that you have to inform an officer that you have a concealed weapon during an official stop. The officer has the right to disarm the weapon for his/her safety during the official stop. You legally have the right to carry, but during that short period, they have the right to protect themselves. As long as you aren't breaking any laws, you'll get your gun back.
You betterbe protected by statute in your state.
Pat downs or protective sweeps with RS and searches and seizures with PC, warrants, or consent.
Posted on 11/13/13 at 9:12 am to UpToPar
quote:
You can pat down the person and secure any weapons on the person IF you have reasonable suspicion that person just committed, is about to commit, or is in the process of committing a crime. Terry v. Ohio does not give you authority to search the car for a gun and secure it.
Where did I say I was going to perform an illegal search of the vehicle? You are puting words in my mouth. Reread all of my unedited posts.
Posted on 11/13/13 at 9:49 am to DanTiger
[warning tl;dr] WestLaw below,
From:
Oklahoma Law Review
Winter, 2002
Note
CRIMINAL PROCEDURE: UNITED STATES V. HOLT: THE EXCEPTION TO THE EXCEPTION THAT SWALLOWS THE RULEa1
J. Michael Hughes
10th Circuit Decision and discussion of the same.
The Court stated that a Terry search is reasonable if the officer's action was (1) “justified at its inception” and (2) “reasonably related in scope to the circumstances which justified the interference in the first place.”20
The court then balanced its conclusion - that neither those Oklahomans in lawful possession of a gun nor those in unlawful possession have a reasonable expectation of privacy - against the “legitimate and weighty” government interest in officer safety.122 The court found that officer safety wins in every case,123 allowing the officer to take the minimally intrusive step of simply asking the driver if there are weapons in the car.124 The court also held that its balancing test weighs in the government's favor even when there is no particularized suspicion that the motorist is armed and even when the officer does not subjectively fear the motorist.125
The court made it clear that the motorist does not have to answer the officer's question.126 If the motorist chooses to answer, any statement can be used just like any other voluntary admission in a traffic stop.127 The court noted that a refusal to answer, standing alone, may not serve as the justification for a more intrusive search nor may the officer arrest the motorist for refusing to answer.128 But the court's holding allows the officer to take reasonable safety precautions based on a refusal to answer, and the refusal may also “‘alert the officer to the need for continued observation.”’129 The court observed that police are skilled at detecting overly nervous or evasive responses, and so any answer - or no answer at all - may prove valuable to the officer.130 Ultimately, the court held that once the officer has asked the question, he may take no further action without particularized reasonable suspicion.131
Per the Holt case an OK resident must disclose to an officer that he is armed. This applies only to OK residents. This is what I meant by an officer better be protected by statute:
The statute that caught the attention of the court in Holt was title 21, section 1290.8(C).162 The terms of that section require a person carrying a concealed weapon by virtue of an OSDA license to reveal that fact to any law enforcement officer when the licensee “first comes into contact with [the officer] during the course of any arrest, detainment, or routine traffic *718 stop.”163 Failure to comply is a misdemeanor.164 By its very terms, this provision applies only to OSDA licensees and not to the general public.
The provision of the Oklahoma Statutes that most soundly refutes the majority's position is found in title 21, section 1290.8(E), which specifically establishes an expectation of privacy in the possession of a concealed weapon for OSDA licensees. Section 1290.8(E) states that “[n]othing in [the OSDA] shall be construed to authorize a law enforcement officer to inspect any weapon properly concealed without probable cause that a crime has been committed.”167 Although the statute requires the licensee to reveal the presence of the weapon, the officer must have probable cause before ordering the licensee to produce the weapon for inspection. Short of that, the citizen in lawful possession of a handgun expects that possession to remain private. By the terms of the statute, even a reasonable suspicion of criminal activity is not sufficient to enable the officer to inspect a properly *719 concealed weapon.
Not even reasonable suspicion is enough to justify even an inspection of a legally carried (ccp) weapon.
From:
Oklahoma Law Review
Winter, 2002
Note
CRIMINAL PROCEDURE: UNITED STATES V. HOLT: THE EXCEPTION TO THE EXCEPTION THAT SWALLOWS THE RULEa1
J. Michael Hughes
10th Circuit Decision and discussion of the same.
The Court stated that a Terry search is reasonable if the officer's action was (1) “justified at its inception” and (2) “reasonably related in scope to the circumstances which justified the interference in the first place.”20
The court then balanced its conclusion - that neither those Oklahomans in lawful possession of a gun nor those in unlawful possession have a reasonable expectation of privacy - against the “legitimate and weighty” government interest in officer safety.122 The court found that officer safety wins in every case,123 allowing the officer to take the minimally intrusive step of simply asking the driver if there are weapons in the car.124 The court also held that its balancing test weighs in the government's favor even when there is no particularized suspicion that the motorist is armed and even when the officer does not subjectively fear the motorist.125
The court made it clear that the motorist does not have to answer the officer's question.126 If the motorist chooses to answer, any statement can be used just like any other voluntary admission in a traffic stop.127 The court noted that a refusal to answer, standing alone, may not serve as the justification for a more intrusive search nor may the officer arrest the motorist for refusing to answer.128 But the court's holding allows the officer to take reasonable safety precautions based on a refusal to answer, and the refusal may also “‘alert the officer to the need for continued observation.”’129 The court observed that police are skilled at detecting overly nervous or evasive responses, and so any answer - or no answer at all - may prove valuable to the officer.130 Ultimately, the court held that once the officer has asked the question, he may take no further action without particularized reasonable suspicion.131
Per the Holt case an OK resident must disclose to an officer that he is armed. This applies only to OK residents. This is what I meant by an officer better be protected by statute:
The statute that caught the attention of the court in Holt was title 21, section 1290.8(C).162 The terms of that section require a person carrying a concealed weapon by virtue of an OSDA license to reveal that fact to any law enforcement officer when the licensee “first comes into contact with [the officer] during the course of any arrest, detainment, or routine traffic *718 stop.”163 Failure to comply is a misdemeanor.164 By its very terms, this provision applies only to OSDA licensees and not to the general public.
The provision of the Oklahoma Statutes that most soundly refutes the majority's position is found in title 21, section 1290.8(E), which specifically establishes an expectation of privacy in the possession of a concealed weapon for OSDA licensees. Section 1290.8(E) states that “[n]othing in [the OSDA] shall be construed to authorize a law enforcement officer to inspect any weapon properly concealed without probable cause that a crime has been committed.”167 Although the statute requires the licensee to reveal the presence of the weapon, the officer must have probable cause before ordering the licensee to produce the weapon for inspection. Short of that, the citizen in lawful possession of a handgun expects that possession to remain private. By the terms of the statute, even a reasonable suspicion of criminal activity is not sufficient to enable the officer to inspect a properly *719 concealed weapon.
Not even reasonable suspicion is enough to justify even an inspection of a legally carried (ccp) weapon.
Posted on 11/13/13 at 10:22 am to DanTiger
quote:
A person that is stopped for a traffic violation has ALREADY broken the law.
Right, but you have not stopped him to conduct a Terry stop, you have stopped him to write a traffic citation. There's a difference and it is an important difference.
You are also not searching his person, but searching his car.
This post was edited on 11/13/13 at 10:28 am
Posted on 11/13/13 at 10:24 am to DanTiger
quote:
Where did I say I was going to perform an illegal search of the vehicle? You are puting words in my mouth. Reread all of my unedited posts.
quote:
no sir, you do not have my permission to enter my vehicle.
If there is a weapon present and you tell the officer about it he has every right to secure the weapon and protect himself with or without your permission.
Posted on 11/13/13 at 10:25 am to UpToPar
quote:
Right, but you have not stopped him to conduct a Terry stop, you have stopped him to write a traffic citation. There's a difference and it is an important difference,
Traffic stops ARE Terry stops.
Posted on 11/13/13 at 10:28 am to Five0
quote:
The provision of the Oklahoma Statutes that most soundly refutes the majority's position is found in title 21, section 1290.8(E), which specifically establishes an expectation of privacy in the possession of a concealed weapon for OSDA licensees. Section 1290.8(E) states that “[n]othing in [the OSDA] shall be construed to authorize a law enforcement officer to inspect any weapon properly concealed without probable cause that a crime has been committed.”167 Although the statute requires the licensee to reveal the presence of the weapon, the officer must have probable cause before ordering the licensee to produce the weapon for inspection. Short of that, the citizen in lawful possession of a handgun expects that possession to remain private. By the terms of the statute, even a reasonable suspicion of criminal activity is not sufficient to enable the officer to inspect a properly *719 concealed weapon.
That applies in Oklahoma and not in Louisiana. This was a U.S. case but that part of the ruling applices only in that state.
Posted on 11/13/13 at 10:31 am to DanTiger
quote:
Traffic stops ARE Terry stops.
I would go with legal detention. My reasoning is you have have to have probable cause to conduct a legal traffic stop. That is above the reasonable suspicion requirement for a Terry Stop. Now during the traffic stop you can perform a Terry sweep of the area within the reach of the driver or occupants. You better be able to articulate your reasonable suspicion for doing so.
Now using the legal traffic stop to investigate something else (other suspected crimes) is best summed up here:
United States v. Hambrick
This post was edited on 11/13/13 at 10:34 am
Posted on 11/13/13 at 10:31 am to DanTiger
quote:
Traffic stops ARE Terry stops
Not when you are seizing a gun from the glove box. That is way beyond the scope of Terry v. Ohio.
Posted on 11/13/13 at 10:32 am to DanTiger
quote:
That applies in Oklahoma and not in Louisiana. This was a U.S. case but that part of the ruling applices only in that state.
Exactly, I brought up that point. In some states you are not even required to tell an officer that you are legally carrying a pistol with a permit.
This post was edited on 11/13/13 at 10:33 am
Posted on 11/13/13 at 10:38 am to Five0
quote:
Exactly, I brought up that point. In some states you are not even required to tell an officer that you are legally carrying a pistol with a permit.
Pennsylvania vs. Mimms is the gold standard on this issue. The only point I am arguing and have argued here is that any officer is well within the law to unload and store a drivers weapon in the back of the drivers car in the state of Louisiana.
Posted on 11/13/13 at 10:40 am to UpToPar
quote:
Not when you are seizing a gun from the glove box. That is way beyond the scope of Terry v. Ohio.
Have you read any of my postings in this thread? I have not said anywhere that I would conduct a search of any portion of the car that was not in plainview without the drivers consent UNLESS the driver told me there was a weapon and where it was. If you volunteer there is a pistol in your glovebox I am going to take it, unload it, and store it in the back of your car and I am going to be 100% within the bounds of the law in the great state of Louisiana.
Posted on 11/13/13 at 10:41 am to Five0
quote:
Exactly, I brought up that point. In some states you are not even required to tell an officer that you are legally carrying a pistol with a permit.
I am POST certified in Louisiana. I don't know anything about the laws of Oklahoma.
Posted on 11/13/13 at 10:43 am to UpToPar
quote:
no sir, you do not have my permission to enter my vehicle.
If there is a weapon present and you tell the officer about it he has every right to secure the weapon and protect himself with or without your permission.
Posted on 11/13/13 at 10:44 am to DanTiger
Mimms was carry a firearm without a permit. That little change in the fact pattern we are discussing IS A BIG DEAL. That case is the gold standard for ordering occupants out of a legally stopped vehicle.
Defendant was convicted in the Court of Common Pleas, Philadelphia County, 746 October Session, 1970, of carrying a concealed weapon and of unlawfully carrying a firearm without a license, and he appealed. The Superior Court, 314 October Term, 1973, 232 Pa.Super. 486, 335 A.2d 516, affirmed, and defendant appealed. The Supreme Court, 45 January Term, 1976, reversed and remanded, 471 Pa. 546, 370 A.2d 1157, and certiorari was granted. The Supreme Court held that: (1) where police officers on routine patrol observed defendant driving an automobile with an expired license plate and lawfully stopped vehicle for purpose of issuing a traffic summons, order of one of officers that defendant get out of automobile was reasonable and thus permissible under Fourth Amendment, notwithstanding that officers had no reason to suspect foul play from defendant at time of the stop since there had been nothing unusual or suspicious about his behavior, and (2) bulge in jacket of defendant automobile operator, who had been lawfully ordered out of automobile following stop for traffic violation, permitted officer to conclude that defendant was armed and thus posed a serious and present danger to safety of officer thus justifying “pat-down” search of defendant whereby weapon was discovered.
Defendant was convicted in the Court of Common Pleas, Philadelphia County, 746 October Session, 1970, of carrying a concealed weapon and of unlawfully carrying a firearm without a license, and he appealed. The Superior Court, 314 October Term, 1973, 232 Pa.Super. 486, 335 A.2d 516, affirmed, and defendant appealed. The Supreme Court, 45 January Term, 1976, reversed and remanded, 471 Pa. 546, 370 A.2d 1157, and certiorari was granted. The Supreme Court held that: (1) where police officers on routine patrol observed defendant driving an automobile with an expired license plate and lawfully stopped vehicle for purpose of issuing a traffic summons, order of one of officers that defendant get out of automobile was reasonable and thus permissible under Fourth Amendment, notwithstanding that officers had no reason to suspect foul play from defendant at time of the stop since there had been nothing unusual or suspicious about his behavior, and (2) bulge in jacket of defendant automobile operator, who had been lawfully ordered out of automobile following stop for traffic violation, permitted officer to conclude that defendant was armed and thus posed a serious and present danger to safety of officer thus justifying “pat-down” search of defendant whereby weapon was discovered.
Posted on 11/13/13 at 10:49 am to dstone12
What's the issue here?
ETA: Just noticed it was 6 pages in.
ETA: Just noticed it was 6 pages in.
This post was edited on 11/13/13 at 10:51 am
Posted on 11/13/13 at 10:51 am to DanTiger
quote:
I have not said anywhere that I would conduct a search of any portion of the car that was not in plainview without the drivers consent UNLESS the driver told me there was a weapon and where it was.
He is required by law to tell you.
quote:
If you volunteer there is a pistol in your glovebox I am going to take it, unload it, and store it in the back of your car and I am going to be 100% within the bounds of the law in the great state of Louisiana.
And you would be violating his rights by doing so, assuming he does not consent.
Posted on 11/13/13 at 10:53 am to DanTiger
quote:
and you tell the officer about it
This has zero bearing on it being a search or seizure.
Just because he tells you where it is does not mean he consents to you opening the glove box and seizing the gun.
Posted on 11/13/13 at 10:54 am to Five0
quote:
unlawfully carrying a firearm without a license
This is right and if he is carrying with a Louisiana CCW permit this applies:
Informing Law Enforcement of Carry:
The permit shall be retained by the permittee who shall immediately
produce it upon the request of any law enforcement officer. Anyone who
fails to do so shall be fined not more than one hundred dollars.
Additionally, when any peace officer approaches a permittee in an
official manner or with an identified purpose, the permittee shall:
1. Notify the officer that he has a weapon on his person;
2. Submit to a pat down;
3. Allow the officer to temporarily disarm him.
In this state ANYBODY that is carrying a weapon on a traffic stop can have that weapon unloaded and placed under officer control until the stop is over and at the end the officer can place it in the back of the subjects car. This is the law in this state and there is nothing to debate about it. If somebody doesn't tell me they have a weapon and they dont have a CCW AND I have no RS to search the vehicle they are in I will never know. If I know about the weapon because I see it or they tell me I am going to unlead it and put it in the trunk/back of the car until I leave and I am going to be 100% within the boundaries of the law in this state.
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