questions about temporary seizure at a traffic stop

Discussion in 'General GWL Questions' started by 70755, Oct 6, 2010.

  1. 70755

    70755 Guest

    New member here. Georgia resident.

    I have been reading court cases linked on this site and still have a question or two. I am considering carrying in my vehicle more regularly, but have a question or two should I be pulled over for a traffic violation or such

    I know that if not asked there is no requirement to simply volunteer you are carrying or have a weapon in the car.

    But, it seems that US Supreme court decisions have held that it is reasonable and allowed at any traffic stop for an officer to ask you to leave a vehicle at their discretion, and when so doing to also pat you down for his/her safety in case you might have a weapon. By extension, if you tell them you have one on you (you might as well if they ask you to leave the vehicle, because they will pat you down and find it) and/or they find one on you, even if you are carrying legally on your person or within your vehicle, then are they allowed to presume you are some potential danger and thus they can retain your weapon and search your vehicle, for weapons only of course, at that point?

    I find all of this a bit confusing, because it seems to presume that legal carry, in the context of a traffic stop at least, somehow presents an undue danger to officers that warrants temporary seizure of weapons. The courts have held this to be the case it seems.

    I don't understand why legal possession of a weapon, in the context of a traffic stop, is presumed to be particular hazard, but carrying/possession during other non-traffic stop related non-detention realted encounters with police (standing in line at the fast food restaurant, walking down the street and passing a cop, sitting at the doughnut shop sipping coffee...) are not deemed (to my knowledge) as authorizing police to seize your weapon "for their safety".

    What am I "missing" in this rationale?
     
  2. CountryGun

    CountryGun New Member

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    Welcome aboard!

    It's true there is no duty to inform in Georgia. That said, and if asked to exit your vehicle, or asked to do anything that exposes your firearm (reaching for registration, opening a compartment, etc.) it would probably be wise to inform the officer that you are carrying, and ask him what he wants you to do. There have been posts where officers decide to leave you in the vehicle, or thank you and ask that you just not touch the firearm. Still others are more comfortable taking control of your firearm. None of the options are wrong. Each LEO has his/her own comfort zone, and a lot depends on how you present yourself. There is no one best answer, and there are no two people who will respond in kind.
     

  3. 70755

    70755 Guest

    Like most, I have been pulled over a few times in my life (only actually ticketed once, for 9mph over on the interstate in VA). Other times simply let of with a verbal. Never had a weapon in those cases nor was I asked. In all cases I would have to say I was rationale and respectful of the officers, and I was never asked to submit anything more that license, insurance, registration. My natural instinct is to be cooperative and respectful, as that is what has served me well, including times such as when police have had to come out when next-door relatives house alarm was going off due to wind blew door in or cat set off alarm. For my protection and the cops I have tried to make sure they knew who I was and why I was there. The said, if I were to be asked about possessing any weapons at a traffic stop, I would likely try an intelligent response like I am legally carrying and I also have a license to do so as well. I am not someone that has something to hide from the law, and so, for me, if asked directly, not lying about something that is legal anyway seems like a logical thing to do.
     
  4. RedDawnTheMusical

    RedDawnTheMusical Well-Known Member

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    You will receive a wide variety of responses from people here as to how we prefer to handle these situations. Personally, I don't volunteer the information that I'm carrying; there is no requirement or other reason to do so. If directly asked, I won't lie and will advise them of the firearm.

    Seizure is where it gets tricky. My understanding is that the LEO (officer) is supposed to have RAS (reasonable articulatable suspicion) or PC (probable cause) for the seizure of the weapon and the mere possession of the weapon is insufficient RAS or PC for seizure. He would need additional information, such as a report that I was threatening people with the gun. Depending on the LEO, he may or may not agree with my assessment and failure to comply with his seizure request could result in being charged with obstruction, which hopefully would be dropped or dismissed later, but that's rolling the dice.
     
  5. GAGunOwner

    GAGunOwner Active Member

    Even if asked you have the right to remain silent.
     
  6. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Three comments:

    1-- See the case of State v. Jones, which basically says that
    an officer does not have "carte blanch authority" to secure all weapons at a traffic stop.
    In order to justify a search of a vehicle for weapons, some conduct on the part of the occupants such as furtive movements or other indications of danger to the officer must be shown,
    and the officer must have an "objectively reasonable" belief that the occupants of a vehicle are "potentially dangerous."

    This is from the Court of Appeals of Georgia, 2008. However, in that case the cop admitted he felt no fear from the man or his rifle that was being transported in his vehicle. The cop only seized the gun and ran the serial numbers to see if it was stolen, because in the past he (and other officers in his department) have found a lot of stolen guns that way.

    2-- I have read other cases from other jurisdictions where the cop cited "officer safety" as the reason for searching a vehicle for weapons (based on reasonable suspicion the driver did have a gun within reach) and temporarily seizing them. This was justified on the theory that any time a cop stops you for a traffic violation, you're a criminal. You are in an adversarial confrontation with the cop. So it's reasonable to think you might be upset and act irrationally. Plus, the cop doesn't know if you are committing other crimes at the time or have just fled the scene of a more serious crime. So it's OK to take the gun first, then get your ID and run your name through the computer to see if there's a BOLO for you, or an active warrant, etc.

    Look at it this way: You know the cop pulled you over for speeding, and that's the only thing you did wrong. You know you're not going to kill a cop and go on the run over a speeding ticket. But the cop wants to be sure you're not a wanted fugitive from Texas with warrants on you for murder and kidnapping. So if the cop sees your gun before he's had a chance to confirm you're not a bad guy.... the cop will want to take your gun and hold it for a few minutes.

    In Georgia this is not allowed per State v. Jones above, but other courts have approved it. Sometimes Georgia's laws and constitution give our people greater protection than the Supreme Court says the U.S. Constitution alone would give us.

    3--- Did you see the list of caselaw about guns here at GeorgiaPacking.org? If you click on "Gun Laws" at the top of the page, you can choose to view statutes, or caselaw, or a plain English summary of our gun laws. It's a great resource, and the owner and admins at this site (not me) have put a lot of work into it.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    True enough.

    Whoa! =; I do not think so! Where are you getting that?
     
  8. 70755

    70755 Guest

    I'll have to double check. I thought it (the presumption of officer endangerment at any and all traffic stops and from that, the allowance of looking for weapons via pat down upon your being requested to exit a vehicle) was in one or more of the U.S. supreme court decisions I scanned over yesterday.