Surrendering your weapon

[ElsiePeaRN]

the reasoning for me asking you out of the vehicle is that you will be reaching for the same area as your firearm. this is my only reason to remove you from the vehicle- i can observe the location of your firearm, and your motions.

But this statement seems completely inconsistent with your previous post where you handcuffed me and put me on the curb to wait for your back-up after you took my firearm. I still don't get why you think the handcuffs are necessary.

Edited to add: Actually, I think maybe I misjudged your first post. Maybe you're not power-tripping, but maybe you are just an inexperienced LEO who hasn't actually DONE what you said in your first post, but that was your plan. Is it possible that this thread has helped you think that through and realized that your original plan needed adjustment? Since your second post is so inconsistent with your first, I'm going to apologize for my jumping to the conclusion that you are "in it for the power trip" and hope that you've actually learned someting from this exchange. If that's the case, as I hope it is, I do apologize.

 

[Frank_N_Stein]

That's easy. I just flee at a high rate of speed. If 37 more units and a helicopter join the high speed chase, I've confirmed that it's a real police officer. Problem solved!!

IMPD doesn't currently have a helicopter available, so if you are anywhere in Marion County you are probably being chased by 38 imposters!

 

[GuyRelford]

IMPD doesn't currently have a helicopter available, so if you are anywhere in Marion County you are probably being chased by 38 imposters!

LOL. Nothing's easy.

 

[Pocketman]

That's easy. I just flee at a high rate of speed. If 37 more units and a helicopter join the high speed chase, I've confirmed that it's a real police officer. Problem solved!!

I know an ISP pilot (now retired) who couldn't get a road unit to assist so he followed the speeding Corvette until it stopped, then dropped in and cited the driver. Do you drive a Vette GunLawyer? LOL

 

[GuyRelford]

I know an ISP pilot (now retired) who couldn't get a road unit to assist so he followed the speeding Corvette until it stopped, then dropped in and cited the driver. Do you drive a Vette GunLawyer? LOL

Sorta!! (I drive a Cadillac with a LS2 Corvette motor!)

And now I must stop the thread-jack!

 

[finity]

Oh, where do I begin?...

How about make it easy & just start at the beginning.

i find it simple- put yourself in the officer's shoes...

No.

We don't have to see it from your side.

You volunteered & knew the risks. You are limited in what you can do by the document that you swore to uphold. If you don't like that THEN FIND ANOTHER JOB!

you ask the person you stop if s/he has a firearm. "yes"
where is your firearm located? "on my hip"
WHAT DO YOU DO?
my reaction- "step out of the car, hands behind your back"

First off it's very unlikely that someone who is legally carrying will tell you they have a handgun without also telling you they also have a LTCH but on the off chance that they do...

Why don't you just ASK THEM if they have a LTCH before you go all ape- & start dragging people out of cars at gun-point (you know for "leaning too far") & cuffing them?

I know that wouldn't be as exciting & not as good of a story to tell your buddies back at the station but it might just allow one less persons rights to be violated.

my reasoning- where are you going to grab your license from? typically your back pocket. ... where is your gun? beside your license. so where do i see you reaching? your hip/back pocket area. how do i know what you are reaching for?

Well, if I just told you that I had a gun on me (most likely along with telling you that I have a LTCH) do you really think I'm now going to grab the gun I just told you about & shoot you?

Also when you tell me to put my hands behind my back where the hell do you think my hand is going to end up? Right beside my wallet, which according to you is right beside my gun, which, according to you, I will now pull out after I told you I legally had it & try to kill you with it.

So do you want me to put my hand near my gun or not? I'm so confused...

my reaction- cuff you, take firearm, place it on MY vehicle (in front of where i will run license AND LTCH), and sit you on the curb still handcuffed. call for backup. when backup up arrives, i will have already called for status of LTCH. if it comes back valid, the other officer will uncuff you. after license checks out and paperwork is done, your firearm will be placed in your back seat, and you will be allowed to return to car. with paperwork and be on your way.

And how does this scenario change if it is pouring down rain? Do you still pull the person out & make them sit on the curb for 15-20 minutes waiting for back-up for a broken tail-light? What if it's a pregnant woman & it's 5 degrees outside?

Do you change anything at all?

If so, then why are you not as concerned for your safety as you would be in milder weather? If not, then you are one JBT.

if your original response to "where is it located" is "underseat/backseat", you will be removed from vehicle and all further conversations will be done outside the car (uncuffed).

If it's in the backseat do you think the person is going to be able to make a mad leap backwards into the backseat while sitting in the front seat behind the steering wheel to grab a gun (that you already know about) without you seeing all the commotion & realizing that they might be going for the gun (which you already know about)?

if response is "in trunk", you can stay in your car.

Oh thank you, mastah!

so to give my view of "surrendering your weapon". it is for my safety and yours.

There is nothing about my having a gun that is going to be "unsafe" for me that won't be directly caused by YOU. I'm not the dangerous one here, you are. I've informed you I have a gun. I've (most likely) informed you that I have a LTCH which makes me COMPLETELY LEGAL. I've fully cooperated & have given no other PC for you to believe I'm a threat to you. But you say that you will pull me out, hand-cuff me & put me on the curb OR if I happen to lean too far forward you will draw & point your gun at me. FOR A FRICKING BURNT OUT TAIL-LIGHT!

Really, who does it sound like the unstable one might be?

I hate to break it to you but, like I said before, my rights trump your safety every time. If you can't handle that then FIND A DIFFERENT JOB!

i don't know you. i don't know where you are reaching, and i don't know what is there. if you say you have a weapon, and i feel that a "quick reach", or you leaning "too far forward to grab wallet" gives impression you may have other thoughts, my gun will be drawn.

So...

What will be different about any of the above if I DON'T tell you I have a weapon on me? Hm?

Will it be business as usual? Stay in my warm car, in my dry comfy seat without my hands uncomfortably cuffed behind me (...I'm still really trying to see the incentive for me to tell you about my legally carried hangun here...) while you walk non-chalantly back to your car dreaming of rainbows & flowers? I suggest that since you don't know me that you will most likely be in way more danger from the gun you don't know about than the one you do.

You see now, that poses a dilemma, doesn't it?

You now have to either treat every person as a hardened criminal out to murder you on the side of the dark scary highway by pulling EVERY SINGLE PERSON out of their cars until you verify they aren't armed (which you can't legally do without PC but from your post I'm not sure you really care about that small detail) or treat everybody with respect within the limitations of the Constitution while being aware of the situation. The second option is called professionalism.

You see, I, too, really want you to go home safely at the end of your shift. But I want you to respect peoples rights in the process. If you can't do both then I will choose you not going home over you violating someone's rights EVERY SINGLE TIME.

i'm sorry if i offend you. talk to my supervisor about how i hurt your feelings. in the end, we both go home without extra holes. wanna take me to court? hey, then there will be court precedent to answer this question. but in long run, we still go home without holes.

I'm sorry if I offend you. Talk to your supervisor about how I hurt your feelings. He'll probably care more than I do. Then I suggest you GO LOOK FOR A DIFFERENT JOB!

If you do that then more of us will go home with our rights intact & neither of us will have any more holes than by you doing what you say you will do.

 

[semperfi211]

A couple questions

This thread brings a couple questions into mind that I don't know the answer to. In all these scenarios you are stopped for minor traffic violation and hand over drivers license, registration, proof of insurance and ltch.

In a traffic stop and LEO asks if you have a gun in vehicle do you have to answer him at all? Can you just say I will not answer any questions without an attorney and I do not consent to any search? Then what would the LEO's next move be?

What if you lie and say no. They search your vehicle and find gun under seat. Is lieing to LEO against the law?

What if they search your vehicle and find your gun vault closed and secured to the vehicle. They tell you to open it or ask for combo. Do you have to open it? What if I just say no or I forgot the combo?

 

[Hammerhead]

This thread brings a couple questions into mind that I don't know the answer to. In all these scenarios you are stopped for minor traffic violation and hand over drivers license, registration, proof of insurance and ltch.

In a traffic stop and LEO asks if you have a gun in vehicle do you have to answer him at all? Can you just say I will not answer any questions without an attorney and I do not consent to any search? Then what would the LEO's next move be?

No. You do not have to answer. You can say "I'm exercising my right to remain silent" or "Am I being detained? Am I free to go?"

What if you lie and say no. They search your vehicle and find gun under seat. Is lieing to LEO against the law?

You lie, and they search your vehicle...why again? "I do not consent to any search of my person or my vehicle." I don't know about lying being against the law, so I'll let someone else answer that. It's been discussed here before, and I believe that there's no statute saying you'll go to jail for lying to the police. I could be wrong.

What if they search your vehicle and find your gun vault closed and secured to the vehicle. They tell you to open it or ask for combo. Do you have to open it? What if I just say no or I forgot the combo?

Why are they searching your vehicle again? "I do not consent to any search of my vehicle or my person. Am I free to go? Am I being detained?" You don't have to give them consent to search, and no, they can't force you to open it. They must get a warrant. I'd suggest searching for the videos on Youtube about not speaking with the police and how to handle a traffic stop. They've been posted here numerous times and have good info.

My .

 

[whoismunky]

Here's a more realistic one:

You ask the person you stop if s/he has a firearm. "Why am I being detained, officer?"
uh...
WHAT DO YOU DO?

L
O
L

 

[grizman]

Oh, where do I begin?...

How about make it easy & just start at the beginning.



No.

We don't have to see it from your side.

You volunteered & knew the risks. You are limited in what you can do by the document that you swore to uphold. If you don't like that THEN FIND ANOTHER JOB!



First off it's very unlikely that someone who is legally carrying will tell you they have a handgun without also telling you they also have a LTCH but on the off chance that they do...

Why don't you just ASK THEM if they have a LTCH before you go all ape- & start dragging people out of cars at gun-point (you know for "leaning too far") & cuffing them?

I know that wouldn't be as exciting & not as good of a story to tell your buddies back at the station but it might just allow one less persons rights to be violated.



Well, if I just told you that I had a gun on me (most likely along with telling you that I have a LTCH) do you really think I'm now going to grab the gun I just told you about & shoot you?

Also when you tell me to put my hands behind my back where the hell do you think my hand is going to end up? Right beside my wallet, which according to you is right beside my gun, which, according to you, I will now pull out after I told you I legally had it & try to kill you with it.

So do you want me to put my hand near my gun or not? I'm so confused...



And how does this scenario change if it is pouring down rain? Do you still pull the person out & make them sit on the curb for 15-20 minutes waiting for back-up for a broken tail-light? What if it's a pregnant woman & it's 5 degrees outside?

Do you change anything at all?

If so, then why are you not as concerned for your safety as you would be in milder weather? If not, then you are one JBT.



If it's in the backseat do you think the person is going to be able to make a mad leap backwards into the backseat while sitting in the front seat behind the steering wheel to grab a gun (that you already know about) without you seeing all the commotion & realizing that they might be going for the gun (which you already know about)?



Oh thank you, mastah!



There is nothing about my having a gun that is going to be "unsafe" for me that won't be directly caused by YOU. I'm not the dangerous one here, you are. I've informed you I have a gun. I've (most likely) informed you that I have a LTCH which makes me COMPLETELY LEGAL. I've fully cooperated & have given no other PC for you to believe I'm a threat to you. But you say that you will pull me out, hand-cuff me & put me on the curb OR if I happen to lean too far forward you will draw & point your gun at me. FOR A FRICKING BURNT OUT TAIL-LIGHT!

Really, who does it sound like the unstable one might be?

I hate to break it to you but, like I said before, my rights trump your safety every time. If you can't handle that then FIND A DIFFERENT JOB!



So...

What will be different about any of the above if I DON'T tell you I have a weapon on me? Hm?

Will it be business as usual? Stay in my warm car, in my dry comfy seat without my hands uncomfortably cuffed behind me (...I'm still really trying to see the incentive for me to tell you about my legally carried hangun here...) while you walk non-chalantly back to your car dreaming of rainbows & flowers? I suggest that since you don't know me that you will most likely be in way more danger from the gun you don't know about than the one you do.

You see now, that poses a dilemma, doesn't it?

You now have to either treat every person as a hardened criminal out to murder you on the side of the dark scary highway by pulling EVERY SINGLE PERSON out of their cars until you verify they aren't armed (which you can't legally do without PC but from your post I'm not sure you really care about that small detail) or treat everybody with respect within the limitations of the Constitution while being aware of the situation. The second option is called professionalism.

You see, I, too, really want you to go home safely at the end of your shift. But I want you to respect peoples rights in the process. If you can't do both then I will choose you not going home over you violating someone's rights EVERY SINGLE TIME.



I'm sorry if I offend you. Talk to your supervisor about how I hurt your feelings. He'll probably care more than I do. Then I suggest you GO LOOK FOR A DIFFERENT JOB!

If you do that then more of us will go home with our rights intact & neither of us will have any more holes than by you doing what you say you will do.

I agree.
I am still waiting on one person be it LEO or Lawyer to post an IC or an example of case law in IN that supports the doctrine of Officer Safety, and that said doctrine makes it acceptable for a LEO to decide to revoke all of the bill of rights at his/her discretion even for a second.
If neither of these qualifiers exist then the actions described by chicken89 are rights violations, therefore illegal under Constitutional law and doesn't make them a federal offense?
Why do you feel we must see it from your POV? We see it for what it is, a VIOLATION of our rights and an attempt to Heckler's Veto us into disarming because you need to feel safer.
As others have said you chose this career, you knew the job was dangerous and swore an oath. Now you practice things as SOP that spit in the face of the Constitution and the people you swore that oath to.
We get called Bashers and Haters for standing up and pointing out the failings of LEO's, whether that be in your actions or attitudes, we are neither! We simply demand that all obey the law including LEO's!

 

[GuyRelford]

I am still waiting on one person be it LEO or Lawyer to post an IC or an example of case law in IN that supports the doctrine of Officer Safety

Actually, both the U.S. Supreme Court and multiple Indiana decisions, including the Washington and Richardson cases cited above, recognize that officer safety is a legitimate concern and allows for a limited search under some circumstances. That is what led to the conclusion of the USSC in Terry v. Ohio, that allows a limited "stop and frisk" under some circumstances, without violating the detainee's 4th Amendment rights.

However, an officer's ability to conduct a legal search is only triggered under the Terry exception to the protection of the 4th Amendment (and Section 11 of the Indiana Constitution), if the officer has a "reasonable belief" that the person being detained: 1) is engaged in criminal activity (other than the basis for a traffic stop), or 2) presents a danger to the officer.

Here is how the Washington court discussed the need to balance officer safety against the constitutional rights of the detainee (quoting an earlier decision in Malone v. State):

"Officer safety is of paramount importance. Police officers are daily placed in difficult and dangerous situations, some of which are life threatening. The law has to provide protections for such officers. At the same time, in a free society there must be a reasonable basis for a warrantless search of our persons and homes; hence, our constitutional protections against unreasonable searches and seizures. Between these extremes, courts engage in a very difficult undertaking balancing these competing values and determining where the line separating the reasonable and unreasonable should be drawn."

The point of the Washington case is that a motorist who admits to the presence of a firearm within the vehicle, presents a valid LTCH to to officer, and is otherwise cooperative - is not subject to a search of his person or the vehicle for the firearm, because there was no basis for the "reasonable belief" required for such a search. Therefore, the officer's search of the vehicle for the firearm was illegal under those circumstances.

 

[gunman41mag]

chicken, why the cuffs??? It seems to me that once you separate me from my firearm, you should feel safe. I have just presented you with a LTCH, and in a traffic stop, you most likely have no reason to suspect I am a danger to you. It seems all your actions are based on an assumption that I am a criminal with a forged LTCH. This sort of response is an example of why I've decided not to present my LTCH to you up front as a courtesy.

I guess chicken is worried about me, cause I have a CZ 75, but I also have a MAVRICK 12 GAUGE shotgun under my rear seat

 

[guns_up]

Just my experience...I was pulled over(speeding). Officer approached. I handed over Driver's License, LTCH, Military ID. I was on my way less than 2 minutes later. Granted, Military ID is a basic get out of speeding tickets card. However, he didn't even ask to see the gun let alone want to take it from me. just my $.02

 

[GuyRelford]

Just my experience...I was pulled over(speeding). Officer approached. I handed over Driver's License, LTCH, Military ID. I was on my way less than 2 minutes later. Granted, Military ID is a basic get out of speeding tickets card. However, he didn't even ask to see the gun let alone want to take it from me. just my $.02

That is exactly how I've handled two stops myself (minus the military ID), and I also have had very positive experiences. That is what has surprised me so much about some of the bad experiences folks have described here - and in other similar threads.

BTW - I'm glad you avoided the ticket - and THANK YOU for your service!!!!

 

[grizman]

Actually, both the U.S. Supreme Court and multiple Indiana decisions, including the Washington and Richardson cases cited above, recognize that officer safety is a legitimate concern and allows for a limited search under some circumstances. That is what led to the conclusion of the USSC in Terry v. Ohio, that allows a limited "stop and frisk" under some circumstances, without violating the detainee's 4th Amendment rights.

However, an officer's ability to conduct a legal search is only triggered under the Terry exception to the protection of the 4th Amendment (and Section 11 of the Indiana Constitution), if the officer has a "reasonable belief" that the person being detained: 1) is engaged in criminal activity (other than the basis for a traffic stop), or 2) presents a danger to the officer.

Here is how the Washington court discussed the need to balance officer safety against the constitutional rights of the detainee (quoting an earlier decision in Malone v. State):

"Officer safety is of paramount importance. Police officers are daily placed in difficult and dangerous situations, some of which are life threatening. The law has to provide protections for such officers. At the same time, in a free society there must be a reasonable basis for a warrantless search of our persons and homes; hence, our constitutional protections against unreasonable searches and seizures. Between these extremes, courts engage in a very difficult undertaking balancing these competing values and determining where the line separating the reasonable and unreasonable should be drawn."

The point of the Washington case is that a motorist who admits to the presence of a firearm within the vehicle, presents a valid LTCH to to officer, and is otherwise cooperative - is not subject to a search of his person or the vehicle for the firearm, because there was no basis for the "reasonable belief" required for such a search. Therefore, the officer's search of the vehicle for the firearm was illegal under those circumstances.

This seems to reaffirm that once a LTCH is presented the officer is no longer able to under the guise of safety to search for and therefore not legally allowed to remove the weapon from the vehicle or the person? Or legally able to run the serial# as that would be a search?
Is this correct?
I understand they can check the validity of the LTCH and can if it is revoked or suspended then confiscate the weapon. Barring any other facts like active warrants or plain sight evidence suggesting criminal activity it seems the law states once the LTCH is presented the weapon in not considered a reasonable threat then.

 

[ElsiePeaRN]

The point of the Washington case is that a motorist who admits to the presence of a firearm within the vehicle, presents a valid LTCH to to officer, and is otherwise cooperative - is not subject to a search of his person or the vehicle for the firearm, because there was no basis for the "reasonable belief" required for such a search. Therefore, the officer's search of the vehicle for the firearm was illegal under those circumstances.

I wonder about two differnet scenarios here:

1) In a traffic stop, after presenting my LTCH and informing the LEO (or not) that I do have a firearm in the car, the LEO has asked me to step out of the vehicle. I comply. I understand this decision to mean that according to Washington, he can NOT then go into my vehicle to retrieve my firearm, or, if the firearm is on my person, he cannot frisk me and take my firearm. Yes?

1a) I imagine if it is plain sight, though, he can indeed reach in and take it?

2) In a traffic stop, after presenting my LTCH and informing the LEO that I do have a firearm in the car, the LEO has asked me to hand him my firearm. Hmmm... this is not a search, but it certainly is a seizure. Am I correct to assume that Washington doesn't really cover this situation?

 

[jdhaines]

Great thread to all. Boo to chickenwing89. This should be a sticky...some extremely good legal thoughts and questions/answers in here as well as relevant legal links. These are the kinds of things everyone and their mom want to know. Keep it up.

 

[finity]

I wonder about two differnet scenarios here:

1) In a traffic stop, after presenting my LTCH and informing the LEO (or not) that I do have a firearm in the car, the LEO has asked me to step out of the vehicle. I comply. I understand this decision to mean that according to Washington, he can NOT then go into my vehicle to retrieve my firearm, or, if the firearm is on my person, he cannot frisk me and take my firearm. Yes?

That's the way I see it.

1a) I imagine if it is plain sight, though, he can indeed reach in and take it?

Why?

Can he reach in & take anything else that you legally possess?

There was a Arizona SCOTUS case that said if a person is seperated from the vehicle then the officer can't use "officer safety" to justify a search of the vehicle. I would think that would extend to seizing a gun (or anything else) that was in plain sight, as well.

The case is Arizona v Gant.

http://www.thenewspaper.com/rlc/docs/2009/us-gant.pdf

2) In a traffic stop, after presenting my LTCH and informing the LEO that I do have a firearm in the car, the LEO has asked me to hand him my firearm. Hmmm... this is not a search, but it certainly is a seizure. Am I correct to assume that Washington doesn't really cover this situation?

I would think that it would be as unreasonble to take your firearm as it would be to take your cell phone, wallet, purse, or any other legally possessed item.

 

[ElsiePeaRN]

Why?

Can he reach in & take anything else that you legally possess?

Yes, of course you must be right, I had a momentary brain fart from overthinking I guess!

I would think that it would be as unreasonble to take your firearm as it would be to take your cell phone, wallet, purse, or any other legally possessed item.

Yes, I agree, but I was wondering if there is a clear legal precedent saying this. Since Washington addresses search, I just wonder if it can apply to seizure as well or if there might be some other case law that addresses this. I know they can order you out of the car to conduct the traffic stop for "officer safety" but I seem to hear alot of stories about the just asking for the weapon and taking it back to their car instead. Just wondering if a clear factual answer to this exists.

I think this was actually the OPs original question, so maybe I'll go back and read the whole thread again, because while I've learned alot from this thread, I still am not sure of the answer

 

[ElsiePeaRN]

so maybe I'll go back and read the whole thread again, because while I've learned alot from this thread, I still am not sure of the answer

OK, so I guess I should have re-read the thread first. A somewhat flimsy answer to it can be found in the Richardson case posted earlier:

"... And even if the facts were such that Officer Eastwood‟s questioning about the bulge was proper, the fact remains that Richardson's production of a valid gun permit should have resulted in the termination of any further questioning."

So I guess if it should terminate questioning, it should terminate any thought of seizure unless of course, the officer had reasonable suspicion that a crime was about to occur. Flimsy, but this seems to be the closest we'll get to answer until someone outright challenges a LEO when they ask for the weapon and it ends up going to court. OK, who's first?