Traffic stop - trooper asked about guns

[j706]

If it makes someone feel better to say that they are not giving up their gun, that's fine. Everyone likes to be warm and fuzzy. They are going to give it up anyway, one way or another. The side of the road is not a courtroom, nor is it a 2nd Amendment think tank meeting. There is no reason to verbally refuse to temporarily surrender a firearm if you are not going to follow through with your refusal. If a police officer has you stopped for a violation of the law, and is conducting an investigation pursuant to that violation, the stupidest thing in the world that you can do is tell the officer that you are armed, and you are not giving up your gun.

Carrying a handgun in public is a crime in Indiana. People who hold an LTCH are excepted from the prohibition. That's the way it is, regardless of what anyone thinks about rights. Unless you want to be a test case, it's better to act according to real world considerations instead of opinion and theory. No court in the US is going to ever rule that a person who is the subject of an investigatory stop in the field can refuse to disarm. In Indiana particularly, if it was an absolute right, you wouldn't have to purchase a license from the state to do it.

Speaking of reality, in over 12 years in LE, I've never seen or heard of anyone with an LTCH refusing to disarm on a traffic stop. I suppose people are quite a bit braver on the internet than they are in real life.

The best post I have read on this subject. While I stop citizens often that tell me that they have a permit and that they are armed, as a general rule,I could care less. I try to go about my duties with the assumption that everyone is armed. I do not disarm people on infraction stops unless there is something more to the stop. But there are always the select few that think they know our job better than us. They act like card carrying members of the ACLU. Totally unreasonable and unrealistic attitudes about the police being out to get them and out to violate their civil rights.

My advice? If you become a target of a LEO,for what ever reason,do what your asked. And if you fail with number one, most defiantly do what you are TOLD. Usually after those two steps, the third step can get ugly. If you disagree with your interaction, cooperate and then argue your case latter through the proper channels.

 

[finity]

If a police officer has you stopped for a violation of the law, and is conducting an investigation pursuant to that violation, the stupidest thing in the world that you can do is tell the officer that you are armed...

'nuff said.

Carrying a handgun in public is a crime in Indiana. People who hold an LTCH are excepted from the prohibition. That's the way it is, regardless of what anyone thinks about rights. Unless you want to be a test case, it's better to act according to real world considerations instead of opinion and theory. No court in the US is going to ever rule that a person who is the subject of an investigatory stop in the field can refuse to disarm. In Indiana particularly, if it was an absolute right, you wouldn't have to purchase a license from the state to do it.

I think the SCOTUS has ruled that the mere possession of a gun is not grounds for reasonable suspicion or PC of a crime to justify an investigatory stop.

Speaking of reality, in over 12 years in LE, I've never seen or heard of anyone with an LTCH refusing to disarm on a traffic stop. I suppose people are quite a bit braver on the internet than they are in real life.

I'm just disappointed that LE actions have caused us to have to be "brave" in the first place just to assert our rights.

I really try to not lump all officers into the same power-tripping group but it gets more difficult when almost every officer, even here, displays some kind of disdain for people who only try to maintain their (& others) rights. Instead of basically saying "I dare you, because you know the courts are on my side so there's nothing you can do about it" why not say "you're right, it's wrong that citizens rights get violated by our actions at times & I will do my best to stop it when I see it, as I have taken an oath to do". I know it's just too much to ask, isn't it.

 

[ocsdor]

 

[Agent 007]

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[Blue Tile Spook]

Thank you, officers, posting here on INGO with what appears to be your honest opinions on this particular situation. Thank you for being civil on a potentially inflammatory topic that I hold dear - my personal rights, in theory and in the real world.

The dialogue on both sides of this issue (civilian and LEO/ex-LEO) has prompted me to contemplate this issue at length and discuss it with my wife, a fellow firearm owner, to garner her input and feelings to see if we feel/think similarly about what has been written in this thread.

Again, thank you for being open and forthright.

 

[Indy317]

I think the SCOTUS has ruled that the mere possession of a gun is not grounds for reasonable suspicion or PC of a crime to justify an investigatory stop.

You think wrong. Some state and lower federal courts have ruled this, based solely on various state/territory laws. State laws differ greatly, and no Indiana or federal court has ruled on if there is reasonable suspicion to stop someone in Indiana if the officer sees a person carrying a handgun, or if a reasonable person reports such.

....why not say "you're right, it's wrong that citizens rights get violated by our actions at times & I will do my best to stop it when I see it, as I have taken an oath to do". I know it's just too much to ask, isn't it.

Cops don't want to get shot. If you want traffic laws enforced, criminal laws enforced, then don't you agree that those we ask to enforce those laws be allowed a little space to protect themselves. Traffic stops are supposed to be quick, unless they end up becoming something else. I believe the standard time limit is 20 minutes. What I find really ironic is that pro-carry folks always say they want to carry because "the police can't be everywhere." To me, this means if cops were everywhere, folks wouldn't feel the need to carry. As such, why the need to carry when there is a cop right in the immediate area?

Another thing, would anyone here think it is wrong for someone who is stopped to carry their gun in their hand when dealing with the cop? Carrying a gun in your hand is not illegal, so we should be able to do that with no problems as well....right? I mean what is different about holding the gun in your hand, while getting your license and registration? As long as one doesn't point the firearm, no law has been broken.

 

[finity]

You think wrong. Some state and lower federal courts have ruled this, based solely on various state/territory laws. State laws differ greatly, and no Indiana or federal court has ruled on if there is reasonable suspicion to stop someone in Indiana if the officer sees a person carrying a handgun, or if a reasonable person reports such.

I admit I was wrong that the case was a SCOTUS case BUT the case was decided in the US District Court of Southern Indiana. The case is US v Dudley. I can't find a link to the case because for some reason the insd.gov search website isn't working but I have found several references to it in other opinions. Here's one cite from a recent case in the District Court for the Southern District of Georgia that the state of Georgia lost in which a LEO stoppped someone & confiscated his firearm for the only reason that he had an exposed firearm, which, like IN, is illegal unless you have a permit:

http://www.georgiacarry.com/county/richmond_carry/Doc 11 Consent Order.pdf

Although the Eleventh Circuit has given no instruction on this particular issue, district courts in other circuits have addressed this issue, and the cases are instructive. In

United States v. Dudley, 854 F.Supp. 570, 580 (S.D.Ind.1994), the court held that a radio call alerting police to the presence of two people in a vehicle with firearms did not provide reasonable suspicion of a crime justifying the stop, because possession of firearms is not, generally speaking, a crime. The court discussed in more detail the issues of firearms licensing and whether possession of the firearm itself was a crime:

​

​

[Officer] Martin's impetus to investigate the Dudleys was a radio call alerting him
to the presence of two people at the truckstop in possession of some guns. Of
course the possession of firearms is not, generally speaking, a crime unless you
happen to be a convicted felon, the firearms are otherwise illegal, or you are not
licensed to possess the gun. Martin, presumably not clairvoyant, could not have
known, and did not know, the Dudleys and their guns met all three of these
criteria. In fact he testified he had absolutely no knowledge, or suspicion, that the
Dudleys were engaged in any criminal activity until he discovered the first sawedoff
shotgun. A telephone report of citizens possessing guns or merely engaging in
"suspicious" activity, standing alone, cannot amount to reasonable suspicion of
crime.​

The court further noted that "if the stop itself is unlawful, neither ​

Terry nor Michigan v. Long authorizes the police to search the suspects or the suspect's vehicle for weapons, even if the officers reasonably fear for their safety."​

I'd have to say that the district court there (& I assume here since I can't find the case to read the specifics again) pretty much got it right.

You can't stop someone based solely on the fact that you see someone carrying a gun or if someone reports such.

Even if you stop someone for a traffic infraction you can't search them or their vehicle without at least RAS of another crime, correct? If you don't have RAS to justify a search then based on the Southern District of Indiana Federal Court ruling above you can't claim that just the fact that having a gun is illegal which justifies disarming them. You can ask for a LTCH but not disarm someone for nothing more than carrying a handgun (CC or OC).

Another thing, would anyone here think it is wrong for someone who is stopped to carry their gun in their hand when dealing with the cop? Carrying a gun in your hand is not illegal, so we should be able to do that with no problems as well....right? I mean what is different about holding the gun in your hand, while getting your license and registration? As long as one doesn't point the firearm, no law has been broken.

Why should you be any different than me. I can't do anything about someone interacting with me with a gun in their hand, even if we are in a heated debate. It's not illegal. Is your safety more important than mine? I'm not sure how you can justify the special privileges you claim. If no law is broken you should have no power over another individual - at all.
​

 

[PapaScout]

I was stopped at a sobriety check point (No, I had not been drinking) a few years ago in a community near Indianapolis at around 2:00am. I was asked to pull off to the side and wait. A couple of minutes later I was approached and they told me that I could go.

I've wondered since then if they ran my plates and knew that I had my LTCH. Could this be the reason why they let me go without even checking me out? The roads were pretty clear at the time and I was the only one they had stopped.

 

[thompal]

If you don't have RAS to justify a search then based on the Southern District of Indiana Federal Court ruling above you can't claim that just the fact that having a gun is illegal which justifies disarming them. You can ask for a LTCH but not disarm someone for nothing more than carrying a handgun (CC or OC).

Except what happens in other federal districts doesn't affect us at all. Until a situation like this is addressed in the 7th Circuit, OR the Supremes address it, nothing will change here, unless we can get an actual law passed which speaks to this issue.

 

[zebov]

I've come to the conclusion after this thread as well as a lot of previous research and my very few encounters with law enforcement that my responses at traffic stops (or any other time speaking with LEOs when I am not directly a victim) will be a very cordial, "Sir, I desire to exercise my rights and only answer questions I am legally required to. Am I legally required to answer that question?"

If I'm pulled over, I most likely deserve the ticket. In such a case case, if my response "assures" me a ticket as opposed to a warning, that's fine with me... I for one support giving out less warnings and more tickets when a violation has actually been committed (I feel like the "warning" system is actually quite unfair and bring a whole lot of prejudice, conscious or subconscious, into the system). If I feel like I do not deserve the ticket, I'm also fine with being cited. I will then take the case to court and argue it there, not on the side of the road.

If a police officer desires to disarm me (even though, from my previous responses, he shouldn't know that I posses a handgun), my first response will be, "Am I legally required to do so?" If he says "Yes" then I will hand over my sidearm (though I may ask if I can unload it first for safety reasons as I absolutely hate handing off loaded firearms). I will take the matter up with the local police department the following day. Depending on how the department reacted and how much I felt my rights were violated I may seek council.

In general I think it is perfectly "fair" for the police officers to ask if you posses a firearm. I also think it is perfectly "fair" for them to request you give it to them. I also think it is perfectly "fair" for you to refuse to answer questions and to let them know you won't give up your property for seizure unless you are legally required to do so.

EDIT: And for the argument/discussion earlier about whether "not talking" could be used as probable cause, the answer has already been given by the SCOTUS in Brown vs. Texas 1979.

THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn't want to talk to you, you put him in jail for committing a crime."

"MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant's statement in his motion that the First Amendment gives an individual the right to silence."

"THE COURT: . . . I'm asking you why should the State put you in jail because you don't want to say anything."

"MR. PATTON: Well, I think there's certain interests that have to be viewed."

"THE COURT: Okay, I'd like you to tell me what those are."

"MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction, and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual's interests in

Page 443 U. S. 54

this respect, as far as simply asking an individual for his name and address under the proper circumstances."

"THE COURT: But why should it be a crime to not answer?"

"MR. PATTON: Again, I can only contend that, if an answer is not given, it tends to disrupt."

"THE COURT: What does it disrupt?"

"MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes."

"THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?"

"MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it's presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual's name and address, and to determine what exactly is going on."

"THE COURT: I'm not questioning, I'm not asking whether the officer shouldn't ask questions. I'm sure they should ask everything they possibly could find out. What I'm asking is what's the State's interest in putting a man in jail because he doesn't want to answer something. I realize, lots of times, an officer will give a defendant a Miranda warning ,which means a defendant doesn't have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don't confess, you can't put them in jail, can you, for refusing to confess to a crime?"

 

[Indy317]

I admit I was wrong that the case was a SCOTUS case BUT the case was decided in the US District Court of Southern Indiana. The case is US v Dudley. I can't find a link to the case because for some reason the insd.gov search website isn't working but I have found several references to it in other opinions. Here's one cite from a recent case in the District Court for the Southern District of Georgia that the state of Georgia lost in which a LEO stoppped someone & confiscated his firearm for the only reason that he had an exposed firearm, which, like IN, is illegal unless you have a permit:

http://www.georgiacarry.com/county/richmond_carry/Doc 11 Consent Order.pdf

With Dudley, the reported crime didn't involve a report of _carrying_ a _handgun_ within the state of Indiana. Actually, no one really knows exactly what was said from the complainant to the dispatcher, to the cops. Dispatcher only wrote on their run log that there was a complaint of people with guns in their vehicle, that a person saw guns only in the vehicle. However, the officer claims he was told they were selling firearms. The discrepancy is huge, as without specific information on what _type_ of firearm, there may or may not be any laws being broken. Dudley never discussed handguns and the IN handgun carry law. It was all about felons in possession and a sawed off shotgun, and mostly about if the detainment of those individuals were proper given the information it is believed the officers had.

From the case:

Of course the possession of firearms is not, generally speaking, a crime unless you happen to be a convicted felon, the firearms are otherwise illegal, or you are not licensed to possess the gun. Martin, presumably not clairvoyant, could not have known, and did not know, the Dudleys and their guns met all three of these criteria. In fact he testified he had absolutely no knowledge, or suspicion, that the Dudleys were engaged in any criminal activity until he discovered the first sawedoff shotgun. A telephone report of citizens possessing guns or merely engaging in "suspicious" activity, standing alone, cannot amount to reasonable suspicion of crime.

I feel that there was no argument on the handgun issue because as I recall, there were no handguns in the vehicle. Maybe the state tried to argue in general that "firearm" should mean handguns, but that would be a stretch. What they should have done is meet with the complainant, get more specific information, and go from there.

You can't stop someone based solely on the fact that you see someone carrying a gun or if someone reports such.

No court has ruled on the carrying. Even the Dudley ruling doesn't hit on "carrying", but rather "possessing." Not only that, the ruling gives itself an out right in the first sentence: "generally speaking." Well, a report and/or witnessing, of a person OCing isn't general to me, that is a much more specific incident than Dudley.

 

[mainjet]

If I was a trooper and while approaching the car noticed that the woman was a redhead I would immediately aske the following -
1. Do you have any weapons.
2. Do you have long fingernails
3. Are you angry at anything right now.
4. Do you have any thoughts right now that you want to hurt me or scream at me.

Just joking. My wife is a redhead also and she is super sweet. Just don't **** her off

 

[Glock21]

Thank you, officers, posting here on INGO with what appears to be your honest opinions on this particular situation. Thank you for being civil on a potentially inflammatory topic that I hold dear - my personal rights, in theory and in the real world.

The dialogue on both sides of this issue (civilian and LEO/ex-LEO) has prompted me to contemplate this issue at length and discuss it with my wife, a fellow firearm owner, to garner her input and feelings to see if we feel/think similarly about what has been written in this thread.

Again, thank you for being open and forthright.

I once again point out on INGO that ALL POLICE ARE CIVILIANS (while acting as police officers - sure some are military reserve, etc.) They are civilian police, NOT military.

Not yelling or anything, I just think it is an important distinction, especially for police officers themselves to understand.

 

[rhino]

I once again point out on INGO that ALL POLICE ARE CIVILIANS (while acting as police officers - sure some are military reserve, etc.) They are civilian police, NOT military.

Not yelling or anything, I just think it is an important distinction, especially for police officers themselves to understand.

Amen, sir.

 

[finity]

With Dudley, the reported crime didn't involve a report of _carrying_ a _handgun_ within the state of Indiana.

Since I can't find the specifics of the case could you tell me what state the case was in that it would have been heard in the federal court for the Southern District of Indiana?

No court has ruled on the carrying. Even the Dudley ruling doesn't hit on "carrying", but rather "possessing."

There is no difference, in IN, between "possessing" a handgun in a vehicle & "carrying" it. You know that. Word games aren't necessary.

Not only that, the ruling gives itself an out right in the first sentence: "generally speaking."

The "generally speaking" they were speaking of was in contrast to the specific conditions they stated directly after that (i.e. "unless you happen to be a convicted felon, the firearms are otherwise illegal, or you are not licensed to possess the gun").

IOW, there is no 'blanket' or 'general' restriction on firearms, only the specific restrictions they gave as examples.

Well, a report and/or witnessing, of a person OCing isn't general to me, that is a much more specific incident than Dudley.

A guy OC'ing is more specific than 2 guys sitting in a car "possessing" guns? I guess you can interpret it however you like.

 

[Indy317]

Since I can't find the specifics of the case could you tell me what state the case was in that it would have been heard in the federal court for the Southern District of Indiana?

To my knowledge there hasn't been any case, based on the Indiana law, about if an officer in Indiana has reasonable suspicion to stop someone based solely on that officer's observation of the person carrying a handgun. There was recently a court finding that said a man, in another state (New Mexico), had his rights violated when officers detained him for OCing in a movie theater. New Mexico has no law that bans OCing, as their state law specifically outlaws only concealed carry.

There is no difference, in IN, between "possessing" a handgun in a vehicle & "carrying" it. You know that. Word games aren't necessary.

I disagree. Under Indiana law, people w/o permits can possess their unloaded handguns, under very specific rules, in their vehicles. However, these people cannot carry their handguns if they are loaded. They can't even possess them by placing them in the car loaded, they _must_ be unloaded if you don't have a permit.

A guy OC'ing is more specific than 2 guys sitting in a car "possessing" guns? I guess you can interpret it however you like.

Dudley didn't have anything to do with handguns, it had to do with long guns. If a person calls into 911 and says "There are two people possessing firearms." to me, that isn't as specific as someone calling in and saying "There are two people carrying firearms." Maybe it is just me, but in my opinion, possessing doesn't equal carrying. Carrying to me means you either have a gun in your pocket, tucked in a waist band, or have it in your hand (or somewhere on your body). Possessing to me means the person has readily control of a firearm, but it could be in their vehicle or home. I would be meeting with the complainant and asking the specifics on the "possessing" part. Basically I would ask "What do you mean by possessing?" That could be anything from "I saw them carrying a gun in their hand." to "He opened up his trunk and I saw a gun."

 

[Kirk Freeman]

There is no difference, in IN, between "possessing" a handgun in a vehicle & "carrying" it. You know that. Word games aren't necessary.

Well, um, maybe, it depends.

Doesn't it always. I believe it always in your best interest to get the pink card that way we don't have problems later.

However, I believe Indy is referencing the Walker case.

Walker v. State, 631 N.E.2d 1 (Ind. Ct. App. 1994).

 

[finity]

To my knowledge there hasn't been any case, based on the Indiana law, about if an officer in Indiana has reasonable suspicion to stop someone based solely on that officer's observation of the person carrying a handgun. There was recently a court finding that said a man, in another state (New Mexico), had his rights violated when officers detained him for OCing in a movie theater. New Mexico has no law that bans OCing, as their state law specifically outlaws only concealed carry.

Yes but there was a case (US v. Dudley) in a local federal court & another in a different federal court (the Georgia case) in which both cases deal with states that require permits for OC. In both cases they found against the officer & the state.

You ignored the question about the jurisdiction of the Dudley case. Was that originally an IN case or not? It was tried in the federal district court for southern IN.

I disagree. Under Indiana law, people w/o permits can possess their unloaded handguns, under very specific rules, in their vehicles. However, these people cannot carry their handguns if they are loaded. They can't even possess them by placing them in the car loaded, they _must_ be unloaded if you don't have a permit.

i think you're reaching here by differentiating between "possess" & "carry" because IN law doesn't say anything about "possession" in the law about the exceptions to needing a LTCH. It only says "carry".

But let's just assume it does to continue the debate:

Ok, that wasn't the point I was trying to make but thank you for making my original point for me. People in IN can carry...sorry..."possess" a handgun in their vehicles (or even "possess" it walking down the sidewalk under those same conditions as IN law doesn't make a distinction between "possession" in a vehicle & "possession" on the sidewalk).

So again to state my point:

You don't know & can't tell that the person is committing a crime by "possessing" a gun off their property or fixed place of business. So according to the above case (Dudley) you have no PC or RAS to stop someone for an investigatory stop for the sole reason that you observe them carrying a handgun therefore you have no right to seize their weapon even for your own safety.

Dudley didn't have anything to do with handguns, it had to do with long guns.

Not that I don't believe you but I'd like to read the case first for myself - which I can't because the court web search is still not working. (If anybody has a link I would appreciate it). The OP is not about handguns specifically but about ANY gun, anyway. Would you not sieze a weapon from someone "for your safety" if it was a long gun?

If a person calls into 911 and says "There are two people possessing firearms." to me, that isn't as specific as someone calling in and saying "There are two people carrying firearms." Maybe it is just me, but in my opinion, possessing doesn't equal carrying. Carrying to me means you either have a gun in your pocket, tucked in a waist band, or have it in your hand (or somewhere on your body). Possessing to me means the person has readily control of a firearm, but it could be in their vehicle or home. I would be meeting with the complainant and asking the specifics on the "possessing" part. Basically I would ask "What do you mean by possessing?" That could be anything from "I saw them carrying a gun in their hand." to "He opened up his trunk and I saw a gun."

& in neither case do you have RAS or PC of a crime to justify stopping them because it's 'generally' not illegal to 'possess' a "firearm" or even to carry one except for under certain specific conditions which you have no way of knowing that they are violating unless you stop them first, which you can't do.

Besides, do you really think someone would call in and say they saw someone "possessing" a gun & if they did the dispatcher is just going to pass that on with no other questions asked?

 

[finity]

Well, um, maybe, it depends.

Doesn't it always. I believe it always in your best interest to get the pink card that way we don't have problems later.

No argument there.

However, I believe Indy is referencing the Walker case.

Walker v. State, 631 N.E.2d 1 (Ind. Ct. App. 1994).

Do you have a link? I couldn't find it in the Ct of Appeals archives.

 

[Blue Tile Spook]

ALL POLICE ARE CIVILIANS

Yep, they are. I meant to write CITIZEN and ended up with "civilian". I apologize.