Posted: 3/2/2003 5:52:23 AM EDT
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Ok, I had a conversation with a Deputy in Lee County NC, which is where I live. He told me he was still a rookie and had been on the force for 6 months. I have a CCW and carry everywhere I am legally allowed. I told him to remember that people such as me with CCW are not the enemy, but a friend, and that not everyone with a gun is a criminal. He told me to remember that if I get pulled over to have my hands in plain sight, preferably out the window. I told him that this is standard procedure for me, and that if I get pulled my driver’s license and CCW permit are in my hand out the window. All this is fine. What surprised me was what he told me next. He told me that it is department policy that if someone with a CCW (or any gun for that matter) is encountered that he is to have them step out of the vehicle, handcuff them, put them in the back of the cruiser, take the weapon, unload it, run the serial number to make sure it isn’t stolen. Now my question is how this is even remotely legal. There is absolutely no probable cause that a crime has been / will be committed. There is absolutely no probable cause that the gun is stolen. I have noticed this a lot more here in NC recently. The claim I hear is it is for “Officer Safety” I thought the whole point of the CCW was so that the Officer knew immediately that someone was legit. Any help from those who know would be appreciated. It is driving me nuts being treated like a criminal simply because I choose to defend myself. |
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It can't be "illegal" since there is no law that says they can't. It may violate your constitutional rights which may give you a civil cause of action, but it would never be criminal (illegal). There are many reported cases that allow a police officer to pat you down for his safety "in the course of an investigation". Once he finds the gun, he is allowed to restrain you until he can properly assess the threat. As far as the gun, he can certainly unload it - for his safety. Running the serial # is a little trickier.... although every time you are pulled over, the police run your tag # to see if the car is stolen. In that situation, there is certainly no probable cause to think that the car is stolen just because you didn't use your turn signal. Bottom line is that it is BS, but doubtful that you can really do anything about it. If they took your gun - that is a different story of course. I too always put my hands outside the car when pulled over. However, I wouldn't give up the permit that quickly. Most cops never ask you to get out of the car. If he does, I would then (with a nice calm voice and with my hands still in plain sight) tell him that "I have a concealed permit, and gun in the holster on my right hip". He can then direct you as he wants to get the gun. Obviously do what you think is the safest. However, volunteering too much too quickly leads to nothing but more trouble. |
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Here's the deal, it's rather simple, to-wit: Your friend is an idiot, along with his whole department. The standard for even an investigative detention is reasonable, articulable suspicion that you have engaged in a crime. And we're not talking about the traffic infraction; that is only justification for the stop of your vehicle. If you are put in cuffs and placed in the deputy's unit, you are, so far as the Constitution is concerned, under "arrest". That moves us beyone an investigative detention; but it does not matter either way. Unless the officer can articulate reasonable facts that would suggest to an objective officer that you have possibly engaged in a crime, this baseless seizure would be constitutionally violative. Having a CCW is not articulable suspicion under Terry or any other standard. In fact, it's almost [i]prima facia[/i] evidence to the contrary. BTW, under Terry, you can only seize somebody (not free to leave) under this test, not search them. In order to justify a search, a Terry search, the officer would further have to articulate objective facts that would lead him to reasonbly believe that you are presently armed AND dangerous (getting back to reasonable suspicion that a crime has taken place OTHER than the traffic infraction). So, the search incident to the arrest (SOP before you are cuffed and stuffed) would also be illegal. There are reams of caselaw that lay out this very elementary threshold test. The 4th Amendment is no joke and this idiot, and his whole department, is basically pissing on it. |
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Steve has, as usual, hit the nail on the head. If this ever happens to you, comply fully and then file a departmental complaint and talk to a lawyer about suing for false imprisonment and/or a 42 USC 1983 action. If this really is dept policy, ask for a copy of it. Then scan it and post it here so we can all see it. Here in VA, our permits are part of our DMV record. I got stopped last year (minor speeding, no cite fortunately) and the LEO came back after running my license and asked if I was carrying. I told him "no", he said "have a good night." That was it. We're not required in VA to tell LEOs if we're carrying. I'm still on the fence about whether to tell them up front. There are pros and cons. |
| Great reply Steve, and again, right on the money. After my incident I did a lot of reading up on this subject for my own protection. I think this is a very important subject and everyone here should try to learn as much as they can about thier rights before they get caught up in this type of situation. Sometimes when the police see or hear the word 'Gun' a simple traffic stop could lead to blatant Constitutional violations against you. Believe me, while I was up to date on my gun laws, I wish I knew more about this subject when my rights were being trampled by the police. |
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Steve had a good reply. I'm a LEO in Va and would never handle a traffic stop in this manner. However, I too have been stopped bu other LEO's and I always notify them there is a weapon in the car. I'm required to ID myself as a Detective (either on or off duty). Usually the LEO just wants to know the location of the weapon and then see my ID. When I was a patrol officer I never felt threatened to see a visible gun in a car (a non concealed handgun is not illegal in most of VA nor was I affected when a CCW informed me they were armed. I asked where the gun was located and asked them not to reach for the weapon. Steve's advice is excellent on how to handle this intrusive and probably illegal detention. Maybe the Sheriff/Chief is unaware of the ramifications his officers may inflict on the department? Good Luck |
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Thanx for the nice replies guys. I would like to make one slight amendment to my post, although it does not change conclusions made. I said that when you are cuffed, you move beyond a Terry detention, also known as an investigatory detention, and into an actual "arrest" so far as the 4th Amendment is concerned. That is not necessarily so, although it is likely. Recent Supreme Court opinions have held that someone [i]could[/i] be cuffed but, because of the brief detention and limited 4th Amendment intrusion, the seizure is still that of a Terry detention/investigatory detention. It's a fine line and really never made much sense to me, but it's out there nonetheless. It does not matter so far as this discussion goes since I was talking about a Terry siezure in the first place; that is, the hypo laid out by ADTECHARMS does not even meet what is required for a Terry detention. A siezure that went beyone this would be an "arrest" and would require even [i]more[/i] suspicion (actually, that's when PC kicks in as a test) than that of a Terry siezure. And, again, a search requires another level of suspicion, to-wit: that the suspect is presently armed AND dangerous. |
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Steve- It occurs to me that in some states, an LEO may (but does not have to) effect a full custodial arrest for some or all traffic violations that are considered "misdemeanors". For example, reckless driving in VA (which as you know, doesn't take much to get cited for). Would this change the analysis at all, assuming that the officer eventually cited and released on the scene? |
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Right, they can arrest and go through all the motions associated with it. That would include a search incident to the arrest, a trip to the magistrate, and impound of the car- which would be searched per an inventory. But, it's one or the other. If they go this route, there is no release on scene- that's only if a summons is issued and, well, see above. |