Cops Can Search For & Seize Guns During Traffic Stop

Discussion in 'Off-topic' started by gunsmoker, Mar 26, 2006.

  1. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    A new case has come down from the Court of Appeals of Georgia, saying that whenever a cop pulls over a motorist, if anyone in that vehicle has a gun or if a gun is somewhere in that car and this is made known to the cop, the cop is within his rights to detain all the occupants of the car and then search the vehicle to seize any weapons. This is allowed for "officer safety," even if the pull-over was for a minor traffic violation like speeding, and even if there is no suggestion that the weapon is an illegal one or being unlawfully carried or transported contrary to any law.

    This is actually more 4th Amendment related than Second Amendment, but everybody who packs a gun regularly needs to know their rights, or lack thereof, when encountering law enforcement on the roads.

    The case I'm referring to is MEGESI v. STATE, Court of Appeals docket # A05A1915, decided 2/15/2006. The motorist, Megesi, had a marijuana joint in his car that the cop found while searching for the firearm that Megesi said he had, in response to the cop's question about possible weapons in the vehicle (the cop didn't have any reason to think there was a weapon in the vehicle-- some officers just make a habit of asking that question). The Court of Appeals ruled that since the officer was properly searching for a gun, and that the motorist did not have any 4th Amendment right not to have his car searched for weapons at that point, any drug evidence found "in plain view" was admissible and not subject to being suppressed.
     
  2. AV8R

    AV8R Banned

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    Could this just be that the cop smelled pot and when the dumbass mentioned he had a weapon the cop saw that as his way around probable cause?

    While I do not have anything to hide, I would never consent to a search. But, if by mentioning that I have a weapon results in a search that is beyond my control, then luckily for me the only thing to be found is only a poor taste in music and maybe a booger on the floorboard.

    Is there anything in Georgia State law code that says the vehicle can be searched without consent if I tell the cop I am armed (and holding a GFL)?
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    "When the officer approached the vehicle, he smelled burned marijuana inside the vehicle. Megesi informed the officer that he possessed a handgun in the car, for which he had a lawful permit.

    The officer then instructed Megesi to exit his SUV so that he could take possession of the weapon for his safety. Once Megesi was outside of his car, the officer could see the weapon, a 9 mm pistol, between the driver's seat and the center console. He then reached into the vehicle and took possession of the pistol."
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    "The officer testified that he did not feel he was in jeopardy from or apprehensive of Megesi, and that Megesi made no sudden moves and did not make him feel uncomfortable or threatened. He further testified that his training directed him, for his safety, to take possession of any handgun present until he finished with the traffic stop." (emphasis added)
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    "Even though Terry and its successors authorized searches for weapons only when the officers had the reasonable belief that the suspect was potentially dangerous, the officer's actual knowledge that a weapon was present alters the basic formula. The presence of an unsecured weapon creates an inherently dangerous situation that authorizes the officer to take protective measures to secure the weapon."

    . . .

    "Moreover, even if the officer had assumed that Megesi had a lawful gun permit, the U.S. Supreme Court has expressly rejected the view that the validity of a Terry search depends on whether the weapon is possessed legally."
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    "Therefore, we hold that when an officer is informed during a traffic stop that a weapon, licensed or otherwise, is in the vehicle, the officer may secure the weapon for his protection. Regardless of whether this particular officer felt personally threatened, a reasonably prudent man in the officer's position would be warranted in believing that, because of the weapon's presence, his safety was in danger while he executed the roadside stop."
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Another reason not to talk at traffic stops . . . :| :-#
     
  8. EagleEye920

    EagleEye920 Member

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    yep. :-$

    Question though. If a cop asks whether you have a weapon or not, do you have to answer? Or can you just stick to why he pulled you over?
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Translation -

    "Armed and dangerous" really means, well, just "armed."
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Yes, you are required to answer "Sir, am I free to leave?" :D

    Good question.

    After this case, I assume your refusal to answer will get you removed, handcuffed, and your car searched.

    Any different opinions?

    I still won't answer. If I get stopped, I'll let you know what happens. :jail: (after I get out) :lol:
     
  11. ber950

    ber950 Active Member

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    Malum I was waiting with baited breath for your analisys.

    Another incident of bad case law because judges hate to set guilty people free.

    However, I still don't see a requirement to answer the officer. The right to remain silent does not have to be announced.:cantsay:
     
  12. kkennett

    kkennett New Member

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    Appeal to the GA Supreme Ct. has been filed, case #S06C1203 Nothing yet from them on whether they will grant cert.
     
  13. GAGunOwner

    GAGunOwner Active Member

    Seems to me the best course of action is to not tell the police that you have a weapon on you or in the car, legal or illegal, GFL or not since you are not required to in Georgia.

    If it is a minor situation why offer up more than you need to? If the police officer asks you if you have a gun, then you have to think is it worth lying to him. If you have actually broken for something else you lying can be the difference between getting a warning/ minor ticket and going to jail.

    This month I have had to deal with the police twice, once because I was in a accident and the other because I got a new car and didn't get a tag yet.

    Each time I was packing and decided that I did not need to tell the police. They did not ask, I did not tell.

    If I had to reach somewhere near the gun or if I was going to be arrested I would tell the police though, but I would not tell one at a road block or routine traffic stop in Georgia.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I've never had an officer ask me!

    In 12 years of policing, I was not in the habit of asking.

    My fear is that this decision will cause it to become commonplace - a part of every traffic stop and roadblock. So, the officer asks, and you have a client in the car with you that you either know or strongly suspect of being anti-gun. Or maybe you have no idea how your client views firearms?

    Sort of puts you in a bind, doesn't it?

    Let's face it - it is impossible to avoid doing anything during the course of a week that would justify a traffic stop, if the officer is so inclined.

    I hate being treated like a criminal. I believe in showing respect for police officers, but it would be more difficult if the officer is asking me about guns when there is no reasonable justification and even more difficult once he starts rummaging through my car without my permission.
     
  15. EagleEye920

    EagleEye920 Member

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    Lying I don't think is the issue. I will not lie if I have to answer. However, if I can do what MP said and just say something along the lines of "Sir, am I free to go" , then I will do that. Not lying. Just not answering the question if that's doable.

    I've been pulled over lots of times and only really had 1 guy be a jerk to me. So, I'll just keep my mouth shut and just hand them the license and registration.
     
  16. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    No registration. Just license. :wink:
     
  17. AV8R

    AV8R Banned

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    If I were a cop, pulled someone over for a traffic violation, and asked them if they had any weapons and they replied with another question like, "Am I free to leave?", I would be suspicious. No, you are not lying, but you are dodging and that will create some friction it seems. Cops are trained fairly well and wouldn't be distracted that easily.

    I think that if you are respectful and polite when stopped, it won't matter if he asks you or not. If he asks, tell him. If he doesn't ask, zip it. Oh yeah, don't blaze a joint while cruising with your loaded gun beside the seat, no matter what. :twisted:
     
  18. GAGunOwner

    GAGunOwner Active Member

    If you are asked and you offer up a response of "Am I free to go?" The officer will probably take that as being rude to him. That response could easily turn a verbal or written warning into a ticket.
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Gunsmoker, having re-read the case, what bothers me about it is the fact that the "gun" portion of the holding, that "armed and dangerous" really means just "armed," is completely unnecessary to the case.


    The guy was doing 97 in a 55 at 3:35 a.m. while smoking a joint and gets caught. The officer smells the marijuana in the car as soon as he approaches the door to ask for a license. Megesi tells the officer that he has a firearm, and the officer asks him out of the car.

    Does anybody have a problem with an officer, suspecting drug use, asking a guy to step away from his gun?

    I mean, an arrest is coming in this circumstance . . . It was no secret at that point to anybody but the oblivious driver.

    Does anybody think the smell of burning marijuana does not constitute probable cause to search the vehicle?

    I know Megesi's attorney argued the "gun" stuff, and because of this the court wanted to address it as justified so they could reach the conclusion that the marijuana was in plain view when the officer reached into the car, but I think at this point the officer has probable cause to search the vehicle without reference to seizing the weapon, and, because of the drug involvement, the authority to separate Megesi from his firearm, even if Megesi had a firearms license.

    The court really did not have to make a blanket rule that police can disarm anybody they stop.

    This is going to result in the question being asked more frequently at traffic stops. "Do you have any weapons?" This question will inevitably be followed by disarming.



    UPDATE: Not knowing whether the smell of Marijuana emanating from a vehicle constitutes "probable cause" for a search (most of these pot heads consent anyway - just like this guy), I resolved to look it up. Footnote 4 of this decision - See State v. Charles, 264 Ga.App. 874, 876(2), 592 S.E.2d 518 (2003). ("Georgia appellate courts have clearly held that the odor of marijuana emanating from a car, in and of itself, provides a law enforcement officer with a reasonable suspicion that marijuana is present.").

    UPDATE TO THE UPDATE: The footnote does not go far enough. In the context of a car, such odor is probable cause for a search. "The State is correct that this Court has previously held 'that a trained police officer's perception of the odor of burning marijuana, provided his ability to identify that odor is placed into evidence, constitutes sufficient probable cause to support the warrantless search of a vehicle.' State v. Folk, 238 Ga.App. 206, 209, 521 S.E.2d 194 (1999)." Quote is from the State v. Charles case, above.

    So, my initial opinion is correct, at least in the context of a traffic stop - probable cause to search existed. So none of this gun stuff mattered. And yet, the court felt compelled to hold that officers have carte blanch authority to seize firearms anytime they stop a car.

    Don't think this won't get expanded to other contexts. Since the Court quoted Terry, and held that it was "altering" the rule on the basis that the officer knows the subject is armed, what do you think this case holds for the future of open carry????

    I can guess . . .

    "Hands in the air!"
     
  20. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Judge Ruffin's concurrence:

    Although I agree with the result reached, I am unable to agree with the analysis employed. I do not think law enforcement officers should be given carte blanche authority to "secure" all weapons during a routine traffic stop. Where, as here, the suspect was outside of the car, beyond the reach of the weapon, and the arresting officer testified that he did not feel threatened by the suspect, I see no need to permit the officer to enter the car to retrieve the gun.

    Nonetheless, I believe the trial court properly denied Megesi's motion to suppress. When the law enforcement officer approached the car, he smelled marijuana which, at a bare minimum, gave him reasonable suspicion to question Megesi about the presence of drugs. And although the officer reached into the car to retrieve the gun, he did not seize the marijuana cigarette at that point. Rather, after observing the contraband, he asked Megesi "if there were any drugs inside the vehicle." In response, Megesi indicated there were no drugs in the car, and he invited the officer to search the car. It was only then that the officer retrieved the marijuana cigarette from the car. By issuing the invitation to search his car, Megesi consented to the officer's conduct. Since I see this as clearly a consent case, I see no need to expand Fourth Amendment jurisprudence in the manner advocated by the majority.