traffic stop - consent question-

[vontar]

This is only question about traffic stops and consent involving a gun.

This other thread got me thinking about something and instead of hijacking I thought I would try a new thread.
http://www.tngunowners.com/forums/topic/54590-marine-corps-helicopter-pilot-sues-over-wyo-traffic-stop/

Anyways, I have heard from people i that have been stopped with a HCP and pistol. The police seem to always take the pistol back to their car and check it for stolen.

Wouldn't that be a violation of search and seizure under the 4th if one does not consent to a search? I understand sometimes an officer disarms a person for the duration of a stop but can they legally proceed to check the gun on say a simple traffic stop or that going to far?

I am just wondering where the line would be drawn. In a way I feel if they take the gun and disarm you, at that point you have been searched. Even if it was an order from them not a request.

[daddyo]

I've heard stories of people being pulled over for traffic violations and when the LEO was informed that there was a weapon in the vehicle, and it was there legally, he did nothing about it except to ask the driver not to touch the weapon.

Now, if there are LEOs who are not threatened by a citizen lawfully carrying a firearm, why do others feel the need to disarm someone who has committed no crime?

[Parrothead]

I have seen both sides of this. I was pulled over twice and simply told "don't touch yours and i wont touch mine." However, the last stop for my tinting "appearing" too dark (later it was found to be legal-black truck, black interior makes it look dark), the officer took my firearm out of the center console and ran the numbers on it. He asked me if there was one in the chamber. I told him yes. He couldn't get the slide to the rear because he forgot to disengage the safety (Sig 238). I sure felt safe.

I don't think he had cause to do this but that's just my uneducated opinion. I have no record (tickets or otherwise) and a valid HCP. Oh well........

Oh, for what its worth, the officer admitted to being new. He was on permanent traffic duty and apologized for tugging on the slide without flipping the safety out of the way.... Edited November 6, 2012 by Parrothead

[Patton]

Supposedly there is a case in the Supreme Court but don't expect it to be heard. As of right now they have the right to disarm you and whatever they do they do. I will only disarm and check a serial number on a firearm if I feel something other than a traffic violation has occurred, this assuming they have a HCP.
Remember in this state it is against the law to carry a loaded handgun, a HCP is only a defense to that law. Further reason a LEO can disarm you for whatever reason.
There is case law saying that police can not pull a stereo out of a vehicle to check the serial numbers. Supposedly the same goes for a handgun laying in plain sight where the serial number can not be read. I Edited November 6, 2012 by Patton

[runco]

I would think that a reptuable honorable and educated person with money who submits the gun for verification, and the gun is determined stolen, can spend the resources and prove this is a violation of the 4th, and likely win or never see the inside of a courtroom due to crafty lawyer negotiations, and will recover the gun. However, the resources to prove the 4th violation in both time and money as compared to the value of the weapon, may be a critical decision point. On the other hand, the less educated person with no money, who wants the least path of resistance with LEO, and submits the gun for verification, and like the above, determined stolen, will likely surrender it with no hassle, and pay the fine/time. I would assume statisiclaly speaking that the majority of traffic stops are for common rift raft, and likely would follow my 2nd version premise. LEO knows this. My 2 cents.

[Patton]

Possession of or receiving stolen property is an almost impossible case to win for police. I just can't see a HCP holder carrying a gun that the police find as stolen going anywhere unless that person was a suspect anyway from the theft.

[DaveTN]

If the Officer is not violating your rights by disarming you and he has your gun in his hands; it’s in plain view and he doesn’t need a warrant to run the number any more than he needs a warrant to run your license plate.

It’s a crime to carry a gun in this state and the state does not recognize a right to bear arms. If they did you wouldn’t need to buy the privilege. Until that changes you don’t have any rights when it comes to carrying a loaded gun…. Only privileges.

[piercedan]

[quote name='DaveTN' timestamp='1352166392' post='839731']
If the Officer is not violating your rights by disarming you and he has your gun in his hands; it’s in plain view and he doesn’ t need a warrant to run the number any more than he needs a warrant to run your license plate.

It’s a crime to carry a gun in this state and the state does not recognize a right to bear arms. If they did you wouldn’t need to buy the privilege. Until that changes you don’t have any rights when it comes to carrying a loaded gun…. Only privileges.
[/quote]

And that is one thing wrong with this state and this country.

[Hershmeister]

The question remains - if you have a HCP then under what legal authority can the police take your pistol?

[Patton]

Here is one thing that you need to keep in mind; if you have commited a violationno matter how minor( within a statute) you have for the monument been detained. This is really no different than a arrest for the duration of a stop. In every state a citation is issued in leu of arrest so that officer has every reason to disarm you. I'm not saying that an officer should arrest for a simple motor vehicle violation but they could. That LEO would probably end up with a short career.

[monkeylizard]

[quote name='Hershmeister' timestamp='1352211277' post='839955']
The question remains - if you have a HCP then under what legal authority can the police take your pistol?
[/quote]

Under TCA 39-17-1351 ( t )
[quote]Any law enforcement officer of this state or of any county or municipality may, within the realm of the officer's lawful jurisdiction and when the officer is acting in the lawful discharge of the officer's official duties, disarm a permit holder at any time when the officer reasonably believes it is necessary for the protection of the permit holder, officer or other individual or individuals. The officer shall return the handgun to the permit holder before discharging the permit holder from the scene when the officer has determined that the permit holder is not a threat to the officer, to the permit holder, or other individual or individuals provided that the permit holder has not violated any provision of this section and provided the permit holder has not committed any other violation that results in the arrest of the permit holder.[/quote]

It's the "reasonably believes" part that's sketchy.

[Guest ochretoe]

[quote name='Hershmeister' timestamp='1352211277' post='839955']
The question remains - if you have a HCP then under what legal authority can the police take your pistol?
[/quote]

If you are under arrest the officer has the legal right to take your firearm. If there is reason to stop and detain you (probable cause) an officer has the legal right to assure his or her safety by taking your firearm. Your legal right to have the weapon does not superseed his or her right to safety.

Our policy is to have the owner of the gun make it safe and put it in a nuetral place like a trunk deck or hood. We do not run numbers unless something is hinky. I have never run numbers on a person with a CP and we do not take the weapon to our vehicle. I feel safe if the owner has his weapon unloaded and on the dash. Legal gun owners are an officers dream.

[Hershmeister]

Thanks!

[RobertNashville]

I think a LEO taking your firearm at a traffic stop and checking the SN is probably on a fine line; it may even cross the line but I seriously doubt you'll ever get a court to agree with you assuming you took it that far.

Not giving consent (which I would suggest we all do) could help you in your defense should the LEO actually find something to charge you with since if it's later found that he had no authority to search I believe any evidence found would have to be excluded (base on many hours watching Law & Order ).

I've been stopped a couple of times while carrying and I've never had the office take my weapon...the last time, he didn't even mention or ask if I was armed...I suspect what you'll find is that the LEO is going to escalate things the more uncomfortable he is (based on many, many different issues).

I tend to give LEOs the benefit of the doubt given the danger of their jobs and that so many have been killed at a "routine traffic stop"...I guess I'd be pretty damn cautious were I the one walking up to a vehicle and having no idea what I might actually be dealing with.

[TLRMADE]

Been pulled over 4 times while carrying. Notified the officer on two of the times, and he said thanks for letting me know and that was all that happened. I got hit by a woman while I had 5 firearms and over 1,000 rds of ammo. I notified the officer when he got on site. All he said was "Ok".

[101]

[quote name='ochretoe' timestamp='1352214494' post='839990']
Your legal right to have the weapon does not superseed his or her right to safety.[/quote]

This is why our Country is heading down the path it is. Where in the Constitution does it say my rights can be trampled on so someone who knowingly accepted a dangerous job could feel all warm and fuzzy?

Statements like that boil my blood. Cops need to respect the law and follow it, not "suspend" it for their safety.

[mikegideon]

[quote name='Patton' timestamp='1352211643' post='839958']
I'm not saying that an officer should arrest for a simple motor vehicle violation but they could.
[/quote]

This is the main reason why you don't pull some jailhouse lawyer crap when a cop is most likely just trying to do his job. I won't consent to a search either, simply because I don't want anything broken. I don't mind if they run the serial number on any of my guns. I'll find other ways to "protect the constitution".

[RobertNashville]

[quote name='101' timestamp='1352218970' post='840041']
This is why our Country is heading down the path it is. Where in the Constitution does it say my rights can be trampled on so someone who knowingly accepted a dangerous job could feel all warm and fuzzy?

Statements like that boil my blood. Cops need to respect the law and follow it, not "suspend" it for their safety.
[/quote]Based on the above, I wouldn't be surprised if, some day, you have an unhappy traffic stop encounter with a LEO that we'll all read about here.

[mikegideon]

[quote name='RobertNashville' timestamp='1352219318' post='840044']
Based on the above, I wouldn't be surprised if, some day, you have an unhappy traffic stop encounter with a LEO that we'll all read about here.
[/quote]

Handcuffed on Youtube. Quoting lines from the book "Lawyerin' for Dummies".

[TLRMADE]

[quote name='mikegideon' timestamp='1352219060' post='840043']

This is the main reason why you don't pull some jailhouse lawyer crap when a cop is most likely just trying to do his job. I won't consent to a search either, simply because I don't want anything broken. I don't mind if they run the serial number on any of my guns. I'll find other ways to "protect the constitution".[/quote]

Got pulled over when I was 18 in Franklin at the Steak and Shake off 96. I was pulled over bc I had a tinted license plate cover. I also used to drive a 2 door sports car that was all done up. (Didn't help). After he ran all my info everything came back fine. He asked if he could search my car. I told him no and he asked why and I told him bc there was no reason and I was not consenting to a search. He went back to his car and then "backup" pulled in. They both came up to the car and got me and my buddy out of the car and made us sit on the curb. I started laughing and he asked me why I was laughing. I just shrugged my shoulders and said your wasting your time.....The officer then came over and said I'm going to ask you again, can I search your car. I smiled back at him and said get a warrant. We had been there for around 30min by now. I didn't have a jacket on and it was cold outside. We had also been sitting in my car with the windows down and the car off. By this time we were freezing. After sitting on the curb for about 15min my buddy was like come on just let them look so we can go home. I told him they could and I watched him the whole time. They looked in the floor boards(not even under the seats) they ended up breaking my ashtray bc they couldn't get it open....it had a bunch of pennies in it. What's funny is that I could've had 2kilos of crack in my glove compartment behind my seat bc they never checked it!!?

I knew my rights then and know my rights now. Only thing I would do different now? Carry a freaking jacket!!! Know your rights!!!

Another instance: me and a buddy were sitting in a gas station in Coolsprings. A Brentwood cop pulled in and came up to our cars and said I need to see insurance and everybody's license. We had been sitting there for about 10min waiting on a buddy to pull in. I asked why he was getting our info. He said bc I heard squealing tires and know it was y'all. Keep in mind when he pulled in he never had his lights on? After all this happened I called my buddy and told him about everything. He works for Bwood PD. he said to call the supervisor and tell him what happened. He gave me the number. I called the supervisor, explained everything, the supervisor was extremely understanding and said that he needed to get the other side of the story and would call me back. He called me back about 15min later and said thank you for informing me of the situation and everything is being handled accordingly...sorry for the inconvenience.

Just an example of when something like this happens, go up a level and inform somebody. So it won't happen to somebody else!

[101]

[quote name='RobertNashville' timestamp='1352219318' post='840044']
Based on the above, I wouldn't be surprised if, some day, you have an unhappy traffic stop encounter with a LEO that we'll all read about here.
[/quote]

Doubtful. I've been pulled over plenty. I've been carrying everytime. I've never had an issue, or had my gun removed from my possession. Maybe, I'm just lucky enough to have managed to get pulled over by the decent, law following police officers and not some of those "I'm so high on my power trip that I need to feel safe and control you right now" police officers.

Y'all are missing the point. If cops, and most do, follow the guidelines and the law as they should, be respectful and courteous.....even when faced with a idiot citizen then there would be less headaches and more respect for them. Unfortunately the few bad apples give the whole profession a black eye. Police should not have the attitude that they can "suspend " the Constitution because they want to be safe. They need to be safe by being trained and keep their alert status on high.

[TLRMADE]

[quote name='101' timestamp='1352220179' post='840051']

Doubtful. I've been pulled over plenty. I've been carrying everytime. I've never had an issue, or had my gun removed from my possession. Maybe, I'm just lucky enough to have managed to get pulled over by the decent, law following police officers and not some of those "I'm so high on my power trip that I need to feel safe and control you right now" police officers.

Y'all are missing the point. If cops, and most do, follow the guidelines and the law as they should, be respectful and courteous.....even when faced with a idiot citizen then there would be less headaches and more respect for them. Unfortunately the few bad apples give the whole profession a black eye. Police should not have the attitude that they can "suspend " the Constitution because they want to be safe. They need to be safe by being trained and keep their alert status on high.[/quote]

Hit it dead on! Be nice and courteous and you will not have any problems if you are legal! They are there to do their job but the few bad apples on a power trip ruin it for everyone!

[Guest ochretoe]

[quote name='101' timestamp='1352218970' post='840041']
This is why our Country is heading down the path it is. Where in the Constitution does it say my rights can be trampled on so someone who knowingly accepted a dangerous job could feel all warm and fuzzy?

Statements like that boil my blood. Cops need to respect the law and follow it, not "suspend" it for their safety.
[/quote]

If my going home to my wife and kids is "warm and fuzzy" then I'll do what I have to do. And if that boils your blood your blood is pretty thin and probably should be boiled. Lots of crappy folks hide behind the constitution when they know they are wrong, and I don't mind that. But on your same line of thinking, where does it say in the constitution that you have to die just because you have a dangerous job. It would also be nice for the rest of us if we knew what you do for a living, since you are slamming my career.

[RobertNashville]

One of the things I've noticed about some firearm enthusiasts is that some seem to have a chip on their shoulder when it comes to LEOs. We all know there are "bad cops" out there who will stomp all over our "rights" and/or who on on some kind of power trip but whether the LEO is right or wrong, the side of the road is NEVER the place for such things to be decided.

Statements like "[i]Where in the Constitution does it say my rights can be trampled on so someone who knowingly accepted a dangerous job could feel all warm and fuzzy[/i]?" reflect an attitude that will, in my opinion, not serve one well long-term no matter how many times one has been pulled over with no problems...[b][i]yet[/i][/b]. Edited November 6, 2012 by RobertNashville

[101]

[quote name='ochretoe' timestamp='1352220743' post='840060']


If my going home to my wife and kids is "warm and fuzzy" then I'll do what I have to do. And if that boils your blood your blood is pretty thin and probably should be boiled. Lots of crappy folks hide behind the constitution when they know they are wrong, and I don't mind that. But on your same line of thinking, where does it say in the constitution that you have to die just because you have a dangerous job. It would also be nice for the rest of us if we knew what you do for a living, since you are slamming my career.
[/quote]

Your statement is the perfect example of what I'm trying to portray. Thank you for proving my point. If you want to ensure you go home every night then get a new job. OR stop whining about the danger and better prepare your self for the unexpected. You (cops) have no right to piss all over my rights, ever. Follow the law like you should, stop being criminals yourselves and do the right, proper job you're suppose to and expected to.

The gentleman with the post about the franklin and Brentwood encounter was another fine example of how cops trample our rights. They were told no to the search, they should have sent him on his way. But no, they had to push and push and found nothing. Now they have two guys, with trampled rights, pissed off and not liking cops. The chance of finding something to arrest someone for does not outway my rights as a citizen of this free Country. Let them go. If they are criminals, they will get caught soon enough.