Surrendering your weapon

[Regionnus Rattis]

I will hand over my drivers license, but not my LTCH at the same time. If I am asked if I have one, I will respond yes. If asked if I am carrying one or have one in my vehicle, I will respond yes. Depending on what transpires after that, I suppose it depends on circumstance.

 

[finity]

finity

I understand now what you feel were the most important clauses of the case Kirk posted. The case in itself is not directly related to the issues being debated in this thread. Washington was appealing for his motion to supress a marijuana charge. It just so happens that it was via the voluntary admission by Washington of a firearm in the vehicle that the drugs were found.
At the end of that pdf provided by Kirk the judge overseeing the case elicitly states that as long as an LEO can plausibly claim the "officer safety" clause then he is well with in Indiana code to remove your firearm from your possession (if only for the duration of the traffic stop). He goes on to explain that an LEO can claim this clause IF you are within arms reach of it. The LEO has two choices: remove you, or the firearm. I dont understand what is ambiguous or unlawful about that. The judge openly states it at the end of the case report.

As in [FONT=Times New Roman,Times New Roman][FONT=Times New Roman,Times New Roman]Malone[/FONT][/FONT], we conclude that in the absence of an articulable basis that either there was a legitimate concern for officer safety or a belief that a crime had been or was being committed, the search of Washington’s car for a handgun was not justified.

Note the emphasis in the above requote.

Based on that statement alone even if the officer found nothing after his search then the search would still have been illegal.

Until the officer has an ARTICULABLE basis for a LEGITIMATE concern for his safety the handgun (especially one that the person readily admits to having) is no more reasonably confiscated than a cell phone or any other inanimate object the officer decides he wants to take fom you.

 

[hot rod al]

This happened about 5 yrs back when I pulled into Krannert Park over on the West Side to make a u-turn because I passed up my friends street. It was about 9 o' clock at night and both my friend and I were carrying legally at the time. I went in made a quick u-turn and then once I got to the entrance to pull back onto the street, I noticed some red & blues in the rear view. I put the truck in park and waited for the park ranger to walk up to the side of my truck and then gave him my drivers license and stated that both of us were carrying legally. I had mine (Taurus pt145) on my person and my friend had his gun (glock 23) in my glove compartment.

He told me to step out of the vehicle and stand at the rear of my truck. He takes my pistol and lays it on my tonneau cover still loaded and me standing within hands reach of it. He then tells my friend (60 something yr old man at the time) to step out of the truck and stand at the back of the truck next to me. This knucklehead officer then reaches for the glovebox from the drivers side of the cab, belly down on my bench seat, and feet flailing out of the cab.

My friend and I looked at each other like and was wondering if this guy was . After he retrieved the glock from the glovebox he also sets that on on the tonneau cover and then tells us to get back into the truck. About 15 mins or so pass while my friend and I are sitting in the truck b****ing about what the hell is going on when 2 additional squad cars pull into the park.

We wait and wait until the 2 additional squad cars leave and the park ranger finally decides to come back to my truck to hand us our ID's and a freaking court summons on top of that. I then ask him if we are getting our guns back and he told us they were taken to the city county building. He never even told us why he pulled us over.

Anyways long story a tad bit shorter I ended up having to hire a lawyer to get our guns back because this loser decided to make up a crazy story about us doing donuts in the parking lot and harrassing employees at the park. The officer showed up to the court summons only to run off after he found out that my friend and I hired a lawer.

After this ordeal I wouldn't ever want to "surrender" my weapon.

 

[Fargo]

I believe the Washington case from last year controls in these situation. It is availabe here and I urge INGO to read it: http://www.in.gov/judiciary/opinions/pdf/03041001jsk.pdf

Also be sure to read State v. Richardson in which the Supreme Court further analyzed Washington and applied it to a case of a "suspicious bulge". The court held that reasonable suspicion dissapated as soon as a valid LTCH was produced regardless of the presence of a firearm. http://www.ai.org/judiciary/opinions/pdf/06031001fsj.pdf

A point that often gets lost in search/seizure questions is that the 4th Amendment and Article I, Section 11 do not grant any power to Law Enforcement. Rather they are strict limitations.

Even if a search/seizure does comport with those constitutional provisions, that does not automatically make it legal absent some other grant of power.

My question is this: even if seizures of guns on stops are per se permissible under the constitution, what grant of authority makes it legal to begin with? I know of no statutory or constitutional grant of the power to seize guns just based upon legal possession.

If they can seize your gun, why can't they seize your car/kids/clothing etc? But those aren't dangerous you say? There is no statute that automatically allows seizure of dangerous articles.

I'm really curious to get the other attorneys and some LEO's thoughts on this.

Best,


Joe

 

[GuyRelford]

Also be sure to read State v. Richardson in which the Supreme Court further analyzed Washington and applied it to a case of a "suspicious bulge". The court held that reasonable suspicion dissapated as soon as a valid LTCH was produced regardless of the presence of a firearm. http://www.ai.org/judiciary/opinions/pdf/06031001fsj.pdf

Best,


Joe

Exactly. In my mind, Richardson is another reason why I don't mind volunteering my LTCH if I have a firearm in the car.

 

[iChokePeople]

At the risk of being off-topic and completely out of line, that Richardson case is just FULL of innuendo and easy one-liners. Nice find.

I think it's interesting that the court said that under the rules for the seatbelt stop, the police officer was not even allowed to ASK him whether that large bulge in his pants was a handgun, ziplock full of cocaine, or whether he was just happy to see her.

 

[GuyRelford]

There is no statute that automatically allows seizure of dangerous articles.

That's absolutely true. But the "stop and frisk" line of cases under the Terry standard allows a limited search for weapons if the LEO is under a reasonable suspicion that the detainee is "dangerous" or "involved in criminal activity." The presence of a firearm might support the state's argument that such a reasonable suspicion existed, absent the defendant's cooperation and the presentation of a LTCH - as existed in both Washington and Richardson.

And I don't think it's much of a stretch for the state to argue that if a "limited search for weapons," is legal under Terry, Terry also contemplates a LEO taking temporary possession of any weapons discovered - at least during the stop.

 

[Hammerhead]

Even if Terry may allow the temporary possession, doesn't Richardson negate that after the presentation of a valid LTCH? Not only does Richardson say the inquiry into "a bulge" or legal carry is done after presentation, but that removes the dangerous or criminal act from Terry, and Washington adds the cooperating/not making furtive movements.

Seems like Terry can be used, but with Richardson and Washington, if you present your LTCH and are cooperative to that point, seizing temporarily is unlawful.

IANAL, but that seems logical to me. Am I wrong?

 

[Kirk Freeman]

what grant of authority makes it legal to begin with? I know of no statutory or constitutional grant of the power to seize guns just based upon legal possession.

Yes, that's why I have advocated a statute on this ( as in post #32 in this thread, I want a statute, either pro or con, I'm in the con camp) for a very long time and I think that it is arguably Criminal Conversion if they do take a pistol(s) now.*



*Yes, I know no Prosecuting Attorney will file it.

The court held that reasonable suspicion dissapated as soon as a valid LTCH was produced regardless of the presence of a firearm.

I know what Gun Lawyer is saying and I have to agree with the legal reasoning; however, I've had an officer point a gun at me. The first time was free, they have to earn the next time they do that to me. I'm not volunteering jacksquat.

 

[Fargo]

That's absolutely true. But the "stop and frisk" line of cases under the Terry standard allows a limited search for weapons if the LEO is under a reasonable suspicion that the detainee is "dangerous" or "involved in criminal activity." The presence of a firearm might support the state's argument that such a reasonable suspicion existed, absent the defendant's cooperation and the presentation of a LTCH - as existed in both Washington and Richardson.

And I don't think it's much of a stretch for the state to argue that if a "limited search for weapons," is legal under Terry, Terry also contemplates a LEO taking temporary possession of any weapons discovered - at least during the stop.

I see what you are saying but Terry is merely a determination of what is "reasonable" for 4th Amendment purposes; it isn't a grant of power to state LEO's. Just because it is allowed under the 4th Amendment doesn't automatically mean that LE is empowered to do it.


Best,

Joe

 

[Kirk Freeman]

Fargo, relax, it's in the penumbra of Terry, and you know how powerful penumbras are!

 

[Fargo]

Fargo, relax, it's in the penumbra of Terry, and you know how powerful penumbras are!

[/grumble]...damn penumbras with their stinking emanations....Sometimes I just want to kick Bill Brennan* in the nards...[/grumble]


Best,

Joe


*Yes, I know "penumbras" is attributed to someone else. However, that only because Billy boy thought that advocating abortion wouldn't play well with the Church he still pretended to be a part of and so he wouldn't write it himself.

 

[kludge]

Also be sure to read State v. Richardson in which the Supreme Court further analyzed Washington and applied it to a case of a "suspicious bulge".

On page 5 of this decision, last paragraph there is a reference to "Section 11".

What is this Section 11?

 

[gunman41mag]

What if it is not a real officer then you have just gave up your only defense.

When the officers ask me if I have a handgun, I tell him about my CZ-75 9MM, & he takes it to call the numbers & take the mag & ammo out of it. BUT I don't tell him about the 12 GAUGE under the back seat of my truck I used to have a AK-47, but figured if the officers finds it, he would freak out, so I keep the 12 GAUGE there now, so the officers won't have to fear me

 

[Fargo]

On page 5 of this decision, last paragraph there is a reference to "Section 11".

What is this Section 11?

Article I, Section 11 of the Indiana Constitution. Its language mirrors the 4th Amendment but it is interpreted independently by the Indiana courts.

Best,

Joe

 

[GuyRelford]

Even if Terry may allow the temporary possession, doesn't Richardson negate that after the presentation of a valid LTCH? Not only does Richardson say the inquiry into "a bulge" or legal carry is done after presentation, but that removes the dangerous or criminal act from Terry, and Washington adds the cooperating/not making furtive movements.

Seems like Terry can be used, but with Richardson and Washington, if you present your LTCH and are cooperative to that point, seizing temporarily is unlawful.

IANAL, but that seems logical to me. Am I wrong?

No, I think you're exactly right - which is why I don't mind volunteering my LTCH.

I do think we need to consider what "unlawful" typically means in the context we're talking about. It means that - if the LEO decides to search the car, then the results of that search may likely be found to be inadmissible in court. It may also mean that if you're arrested for a crime, you may likely win - assuming the crime was somehow based on your possession of a firearm or the results of an illegal search. If the LEO does not return your gun, it means that you may likely be successul in getting it back. And keep in mind that the common law rule that a citizen may physically resist an unlawful arrest has been abrogated by statute in Indiana.

And in most of those scenarios, it is very likely that there will be handcuffs, nights in jail, publicity, bail bonds, and potentially tens of thousands of dollars in legal fees involved.

In my mind, I'm looking for the simplest and easiest solution that allows me to sleep in my own bed the night after the traffic stop (or at least the bed of my choosing), without sacrificing my safety or my rights - to any significant degree. To me (and that doesn't mean I'm advising anyone else what to do), that is most likely if I hand my LTCH to the LEO at the beginning of the traffic stop and follow his/her instructions regarding the firearm.

You can believe that if my firearm is not promptly returned in its original condition (assuming it's "seized" - which it never has been), then I'll be squawking about the illegal nature of that action. And, depending on what happens next, somebody may get sued. But I don't mind handing my LTCH to the officer voluntarily and I don't mind the LEO taking reasonable steps to ensure his/her own safety during the stop.

Just my $.02.

Guy

 

[GuyRelford]

I see what you are saying but Terry is merely a determination of what is "reasonable" for 4th Amendment purposes; it isn't a grant of power to state LEO's. Just because it is allowed under the 4th Amendment doesn't automatically mean that LE is empowered to do it.


Best,

Joe

I agree - but as you know, states don't need Terry for a general grant of police powers. The 10th Amendment does that. Terry then says that the 4th Amendment doesn't stand in the way of the states' ability to exercise that police power through a "stop and frisk" under defined circumstances.

 

[Hammerhead]

Gunlawyer, you may be right, however, why give up something for nothing? Offering your pink slip at the beginning may put the officer at ease. It may be just the opposite and cause the officer to freak out (a common story even on here). Why offer it willingly and add the gun to the mix, either yours or his? Is the officer's safety compromised if he doesn't know you're carrying and you don't bring it up? Is it compromised any more if you bring it up and he says fine, leave it? It is compromised, as is yours, if he gets a bug up his six and requires you to disarm. Why chance it?

I won't inform because it's not going to solve anything, and may put me at risk. As many officers on here who say they don't care and tell citizens to keep it where it belongs, there are just as many if not more that willfully disarm citizens, forcefully even. Sometimes they're observant of our rights and realize we're not the problem. Sometimes, they're the jack booted thugs so many of us hate.

Why chance it? Why give them any reason to continue fishing? You're rolling the dice, but I won't.

 

[whoismunky]

What I can't understand is how an officer comes to the conclusion that someone legally carrying a handgun is a potential threat.
Officer: Any drugs or weapons?
Civilian: Yes sir, I have a license to carry a handgun and my blah blah is on my hip.

At this point, why would anyone feel the civilian was dangerous? As far as I can tell, he has surrendered. Even if we assumed that the person was a bloodthirsty cop-killer who had obtained a LTCH, I would think there is a .00001% chance he would notify the policeman he was carrying, wait for a later time, and THEN draw on the officer. It isn't impossible, but it is so unlikely that he would do it, and even less likely it would be successful.
The way I see it, lunatic criminal cop-killers are out there...they are NOT going to tell an officer they have a gun on them. From the lunatic perspective, even if they DO disarm him for the duration of the traffic stop, what would keep him from pulling out the other gun he DIDNT mention? He's a cop-killer for Christ's sake...
I'm legal, so when he asks, I tell him. Does it really seem like a safer measure for one or two guns to clear leather so the officer THINKS he won't go bananas as he comes back to the car with his license..?

 

[GuyRelford]

Gunlawyer, you may be right, however, why give up something for nothing? Offering your pink slip at the beginning may put the officer at ease. It may be just the opposite and cause the officer to freak out (a common story even on here). Why offer it willingly and add the gun to the mix, either yours or his? Is the officer's safety compromised if he doesn't know you're carrying and you don't bring it up? Is it compromised any more if you bring it up and he says fine, leave it? It is compromised, as is yours, if he gets a bug up his six and requires you to disarm. Why chance it?

I won't inform because it's not going to solve anything, and may put me at risk. As many officers on here who say they don't care and tell citizens to keep it where it belongs, there are just as many if not more that willfully disarm citizens, forcefully even. Sometimes they're observant of our rights and realize we're not the problem. Sometimes, they're the jack booted thugs so many of us hate.

Why chance it? Why give them any reason to continue fishing? You're rolling the dice, but I won't.

I completely understand your position and you make some very good points. My policy may in fact create an issue when otherwise the gun would never become part of the equation - as you say. But my basic premise is that if the gun is going to become part of the conversation, I'd prefer to be the one who brought it up - voluntarily. And just handing the LEO my LTCH is a non-threatening way to do that.

So far, it's worked flawlessly. The LEOs even thanked me and let me go without issuing any tickets for the speeding/seatbelt infractions that caused them to pull me over in the first place.

Of course you're right - the next time I could very well run into one of the jerks that we've all encountered or heard about in the past, but I guess I'm confident enough in my ability to manage that situation that I'm willing to run that risk. And if my rights truly get trampled upon, without justification, then I'm in a very good position to assert those rights in a legally appropriate manner.

Again, all of this is just my personal policy and I fully understand and respect the opposite point of view. As you say, there is no legal obligation to inform the LEO of the presence of the firearm voluntarily.

Guy