Questioning and temporary confiscation of CCWs during routine traffic stops?

[JAFO]

<snip>

Again, you are back to "reasonable suspicion." You are talking about crime, not traffic infractions. Show me any law, or case, where someone was stopped for a traffic infraction and got arrested, detained, charged, found guilty, found not guilty, etc. for not surrendering their handgun at the request of a police officer (where crime wasn't involved).

You may think it is not worth it to stand up for what you believe or to face a few days in jail just to help educate those who need educated. I do.

If a police officer is paranoid over cautious then he needs to find a new line of work.

 

[JAFO]

I got into quite a pickle one night because I did refuse to surrender my weapon to a Seattle officer. The dispatch told them I had a CWP (back then!). I was polite, he was not. He called for back up. In all seven officers and a canine unit responded. I still refused to surrender anything other than my driver's license and CWP. As things heated up I gave the whole lot of them a tongue lashing and the sargent told them he did agree with me, gave me back my papers and sent me back on my way.

I had a burned out license plate light..... Must have been a really slow night.

Glad to hear you stood your ground. The more folks that cave in to unreasonable requests the more it is expected from everyone.

 

[el gringo loco]

JAFO, the traffic stop is because of a violation or infraction. That is not in question.

With regard to Bates, the "reasonable suspicion" does not refer to a crime, but rather to the easily articulated belief that (1) a subject is armed and (2) that the officer believes the subject presents a danger. The court is saying that the officer does not have to prove that a crime occurred to take action (this means use force, detain, or lawfully order). All that is necessary is that the stop is lawful and then that the other two conditions are met. The court is also saying that it will set an extremely low bar for these requirements to be met. Fail to obey a lawful order would be:

162.247 Interfering with a peace officer or parole and probation officer. (1) A person commits the crime of interfering with a peace officer or parole and probation officer if the person, knowing that another person is a peace officer or a parole and probation officer as defined in ORS 181.610:
(a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or
(b) Refuses to obey a lawful order by the peace officer or parole and probation officer.
(2) Interfering with a peace officer or parole and probation officer is a Class A misdemeanor.
(3) This section does not apply in situations in which the person is engaging in:
(a) Activity that would constitute resisting arrest under ORS 162.315; or
(b) Passive resistance. [1997 c.719 §1; 1999 c.1040 §7; 2005 c.668 §1]

I don't think you are going to find case law with an exact fit to this topic because if (1) a person cooperates, no case would come to trial (2) Not too many CHL holders are going to try to fight this battle and (3) Only a handful of cops are tactically deficient enough ask someone to remove a holstered weapon.

Even if I buy your argument-which I don't-why would I choose this as my place to make a stand? I have a 1st Amendment right to cuss in front of old ladies and children...but I don't. Why? Because I understand that there are factors other than "my right to be able to do something" at play....and I think the Oregon State Supreme Court would agree with me.

 

[ZeroRing]

Good topic. I am enjoying the education on the subject.

 

[JAFO]

JAFO, the traffic stop is because of a violation or infraction. That is not in question.

With regard to Bates, the "reasonable suspicion" does not refer to a crime, but rather to the easily articulated belief that (1) a subject is armed and (2) that the officer believes the subject presents a danger. The court is saying that the officer does not have to prove that a crime occurred to take action (this means use force, detain, or lawfully order). All that is necessary is that the stop is lawful and then that the other two conditions are met. The court is also saying that it will set an extremely low bar for these requirements to be met. Fail to obey a lawful order would be:

<irrelevant info removed>

I don't think you are going to find case law with an exact fit to this topic because if (1) a person cooperates, no case would come to trial (2) Not too many CHL holders are going to try to fight this battle and (3) Only a handful of cops are tactically deficient enough ask someone to remove a holstered weapon.

Even if I buy your argument-which I don't-why would I choose this as my place to make a stand? I have a 1st Amendment right to cuss in front of old ladies and children...but I don't. Why? Because I understand that there are factors other than "my right to be able to do something" at play....and I think the Oregon State Supreme Court would agree with me.

What were the factors in Oregon v. Bates other than suspicion of a traffic infraction violation? You are leaving those out.

We won't find any cases that fit because there would be no charges to press. In the OP's case the officer 'requested' and he complied. If the officer 'ordered' it then it would not be a lawful order. The court might say officers have some leeway, and that the court will set a low bar, but there does have to be a reason to feel they may be in danger.

From State vs. Miglavs:

A search conducted to ensure a police officer's safety fits within an exception to the warrant requirement "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). To satisfy that standard, an officer's safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer's safety. State v. Reinhardt, 140 Or App 557, 562-63, 916 P2d 313 (1996), rev dismissed, 327 Or 521 (1998).

Simply having a concealed handgun license, or concealed pistol license, and volunteering the affirmative answer when asked if armed is simply not enough to warrant the concerns for safety. I would think volunteering this information would help the jury to see quite the opposite. Of course it would likely never go to a jury because the officer's supervisor would likely be involved with deciding what, if any, charges to press when a law abiding person declined to hand over their weapon.

You may not be worried about your "right to be able to do something" but some of us are worried about our right not to follow unlawful orders. I doubt I am the only one willing to "make a stand" for that right. I'm not saying it should be done in any belligerant way. It should just be done. Every order given by an officer isn't necessarily an order that should be followed, especially if you are not involved in a crime or anything that a reasonable person would suspect is criminal in appearance. People thinking that gun owners are inherintly dangerous is not reasonable and we should not play into that stereotype by complying with orders that just don't sit right with most of us.

I may not be a reasonable person but I'd venture to guess that a reasonable person would agree that an unhandled firearm is less a threat to everyone's safety than a handled firearm.

 

[el gringo loco]

JAFO, I think we are going to have to agree to disagree.

What were the factors in Oregon v. Bates other than suspicion of a traffic infraction violation? You are leaving those out.

I am assuming the stop was lawful. The other factors specific to Bates do not matter. It is the statement that the court gave in Oregon vs. Bates that established the standard by which the actions an officer takes to protect his or her own safety will be judged. The standard was low and broad. Can you think of any other court decision pertaining to police powers that the court used the phrase "considerable latitude" or expressed "it is not our function to uncharitably second-guess an officer's judgment?" I doubt you will because, ON ANY OTHER TOPIC, the court is going to establish boundaries that RESTRICT not BROADEN police powers.

From State vs. Miglavs:
Quote:
A search conducted to ensure a police officer's safety fits within an exception to the warrant requirement "if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present." State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). To satisfy that standard, an officer's safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer's safety. State v. Reinhardt, 140 Or App 557, 562-63, 916 P2d 313 (1996), rev dismissed, 327 Or 521 (1998).
Simply having a concealed handgun license, or concealed pistol license, and volunteering the affirmative answer when asked if armed is simply not enough to warrant the concerns for safety.

I think this is where our opinions truly begin to be at odds. As I previously stated, the officer can articulate things such as: distance from cover, multiple subjects, isolated location, low light, divided attention, etc. to establish a perceived threat. But, from Miglavs: "our inquiry in this case is limited to whether the precautionary patdown was reasonable under the circumstances as they reasonably appeared at that time"
The question in Miglavs is not whether or not the officer may take safety precautions, AFTER IT IS KNOWN THAT A SUBJECT HAS A WEAPON, as set out in Bates. The question in Miglavs is whether the officer, prior to having this knowledge, had the authority to check for one.


Also from Miglavs:

Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary patdown of defendant that occurred in this case and did not violate defendant's protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

In other words, the court sided with the cops.

Every order given by an officer isn't necessarily an order that should be followed, especially if you are not involved in a crime or anything that a reasonable person would suspect is criminal in appearance.

I am beginning to doubt that you recognize that a police officer has the authority to take certain actions at all. Assuming that you do, understand that a police officer's authority does not just stop and start with criminal conduct. You do not have to be engaged in criminal conduct for a police officer to give you a lawful order.

People thinking that gun owners are inherintly dangerous is not reasonable and we should not play into that stereotype by complying with orders that just don't sit right with most of us......I would think volunteering this information would help the jury to see quite the opposite.

Couple of issues with this statement.

Remember that the "reasonableness" standard is not what you or I would find reasonable, but what the AVERAGE POLICE OFFICER would find reasonable in the same situation. NOTE: This is not the same as what the average police officer would do, only that the average cop would find the request reasonable. The jury instructions will reflect this. A jury will have to take into account the testimony of several police officers, all of whom likely testified that the actions taken were reasonable to them, when determining if the officer's actions were reasonable. You will be risking your freedom on the hope that a jury will ignore the judge and decide to engage in jury nullification.

Second, I think you are placing way too much faith in the jury system. Trusting 6 people pulled at random from the general population (actually, mostly public employees and retirees who suffer no financial impact by wasting a few days at the court house) to view the world the same way you do is a dangerous prospect at best. But, feel free to be a martyr.

 

[Joe Link]

Great job keeping this civil guys, keep up

 

[coloneltim]

Oh man, I was just ready to start calling people names!

TS

 

[coloneltim]

I'm glad JAFO showed up because he hit it right on the nose. Cops should spend more time trying to build good relations with the community instead of going out of their way to try and jack some innocent Citizen everyday. this would go a long ways towards ending the adversarial relationship we now have with the police.

Tim

 

[Stomper]

I hate you.

 

[coloneltim]

I hate you.

I hate me too!

 

[JAFO]

JAFO, I think we are going to have to agree to disagree.



I am assuming the stop was lawful. The other factors specific to Bates do not matter. It is the statement that the court gave in Oregon vs. Bates that established the standard by which the actions an officer takes to protect his or her own safety will be judged. The standard was low and broad. Can you think of any other court decision pertaining to police powers that the court used the phrase "considerable latitude" or expressed "it is not our function to uncharitably second-guess an officer's judgment?" I doubt you will because, ON ANY OTHER TOPIC, the court is going to establish boundaries that RESTRICT not BROADEN police powers.

The other factors do indeed matter. The court didn't make just that one little statement that you posted. 'Considerable latitude' and 'uncharitably' does not mean the ruling is giving the officers complete and full latitude to make a personal judgement call without any guidelines at all. Without seeing the full ruling I don't even know if it is the same topic. I couldn't find it so help a brother out and post a link please.

I think this is where our opinions truly begin to be at odds. As I previously stated, the officer can articulate things such as: distance from cover, multiple subjects, isolated location, low light, divided attention, etc. to establish a perceived threat. But, from Miglavs: "our inquiry in this case is limited to whether the precautionary patdown was reasonable under the circumstances as they reasonably appeared at that time"
The question in Miglavs is not whether or not the officer may take safety precautions, AFTER IT IS KNOWN THAT A SUBJECT HAS A WEAPON, as set out in Bates. The question in Miglavs is whether the officer, prior to having this knowledge, had the authority to check for one.

A perceived threat that would give an officer a lawful reason to disarm someone most definitely cannot come from a police officer's being any distance from cover, with any number of subjects, at any location, at any time of day or with any amount of daylight or darkness, no matter how attentive he is if there are not other factors to make him believe there is a criminal threat. If your requirements were the case then the police could walk up to anyone at all, at night, on MLK (or any other road that a crime ever took place), and frisk them for fear they are in danger. This is not the case and the OP did not state he was in any crime ridden area, any specific distance from cover, etc. etc. etc.

Also from Miglavs:

Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary patdown of defendant that occurred in this case and did not violate defendant's protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

In other words, the court sided with the cops.

Of course the court sided with the cops. THERE WERE OTHER FACTORS. For instance, the subject was wearing 18th street emblazoned clothing, had tattoos that were common among 18th street gang members, was in a parking lot openly drinking alcohol, was with a minor who was also drinking, etc.

I am beginning to doubt that you recognize that a police officer has the authority to take certain actions at all. Assuming that you do, understand that a police officer's authority does not just stop and start with criminal conduct. You do not have to be engaged in criminal conduct for a police officer to give you a lawful order.

Your doubts don't really affect me in my day-to-day life at all. I doubt that you fully understand that police officers don't have a blank check to do whatever they wish. I love da cops. Without them life wouldn't be bearable in the city. However, they do have to have a reasonable suspicion that a crime has happened or will happen to have the authoritah to disarm someone. Someone possessing a firearm does not a reasonable suspicion make.

The ORS that you cited previously does indeed indicate an authority that STARTS WITH CRIMINAL CONDUCT:

&#167; 131.605&#185;

Definitions for ORS 131.605 to 131.625
1 Legislative Counsel Committee, CHAPTER 131&#8212;Preliminary Provisions; Limitations; Jurisdiction; Venue; Criminal Forfeiture; Crime Prevention, http://&#173;www.&#173;leg.&#173;state.&#173;or.&#173;us/&#173;ors/&#173;131.&#173;html (2007) (last ac&#173;cessed Feb. 12, 2009).

As used in ORS 131.605 (Definitions for ORS 131.605 to 131.625) to 131.625 (Frisk of stopped persons), unless the context requires otherwise:

(1) "Crime" has the meaning provided for that term in ORS 161.515 ("Crime" described).

(2) "Dangerous weapon," "deadly weapon" and "person" have the meaning provided for those terms in ORS 161.015 (General definitions).

(3) "Frisk" is an external patting of a person's outer clothing.

(4) "Is about to commit" means unusual conduct that leads a peace officer reasonably to conclude in light of the officer's training and experience that criminal activity may be afoot.

(5) "Reasonably suspects" means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 (Definitions for ORS 131.605 to 131.625) to 131.625 (Frisk of stopped persons).

(6) A "stop" is a temporary restraint of a person's liberty by a peace officer lawfully present in any place. [1973 c.836 &#167;30; 1997 c.866 &#167;2]

&#167; 161.515&#185;

"Crime" described
1 Legislative Counsel Committee, CHAPTER 161&#8212;General Provisions, http://&#173;www.&#173;leg.&#173;state.&#173;or.&#173;us/&#173;ors/&#173;161.&#173;html (2007) (last ac&#173;cessed Feb. 12, 2009).

(1) A crime is an offense for which a sentence of imprisonment is authorized.

(2) A crime is either a felony or a misdemeanor. [1971 c.743 &#167;66]

A traffic infraction/violation/offense usually is not a crime.

But, feel free to be a martyr.

It would never make it to court let alone me becoming a martyr. My objective isn't to become a martyr. My objective is to live freely in a free country.

 

[JAFO]

Great job keeping this civil guys, keep up

Go back in your cave and keep working on your plot to take over the world, troll.

 

[Stomper]

yeah... you troublemaker. LOL!!

 

[el gringo loco]

OK, I am spending way too much time doing research for his thread but....I can't seem to quit. My intent was never to say that there should be no limit on police powers. I simply wanted to to express that, in this case, there is sufficient case law and standard police practice to allow an Oregon officer to take custody of firearm, legally carried or otherwise, during a stop. This is not about whether the officer was right or wrong in making the stop or if the officer had a right to search for weapons or if an officer had the right to inquire about weapons. This was simply about whether or not a police officer, once he knew that firearms were present, had a right to make special requests, including taking custody of the weapons, during the stop. I still contend that, yes, he does. I only make this point because I believe that most members of this forum are law abiding citizens that wish to keep the legal ability to own a firearm. I also believe that most of us try to function as ambassadors of the firearms community, attempting to leave an overall good impression of concealed carriers and gun owners with everyone we encounter, including the police.

I have based my arguments on case law. The case law, unfortunately, is search and seizure law, which tends to muddy the waters a bit because I think people focus too much on the details of individual cases and not the standards cited by the court as the basis for their decision. Those standards are applicable to other cases even if the details of the case are not.

Case law is established when one contests a ruling or takes a case to court. Courts often add statements to rulings that apply to completely dissimilar cases. Miranda was not about whether or not someone was read their rights. Miranda was about whether a suspect's statement were admissible or not and whether a conviction should be overturned. The Supreme Court was petitioned repeatedly with cases arguing whether or not suspect's confessions were coerced. The Supreme Court could have simply decided whether or not the conviction should have been thrown out. Instead it decided, "while we are at it, we will establish a standard that, if followed, would ensure the admissibility of a suspect's statements." The Supreme Court spelled out the standard in its decision. No one else much cared what happened to Miranda or his conviction, only how the standard for lawfully obtaining a custodial statement would be applied with regard to admissibility. The same with Bates. The OR Supreme Court was discussing search and seizure and said, while we are at it, we are going to spell out the standard by which an officer's actions taken to protect himself will be judged.

I couldn't find it so help a brother out and post a link please.

I am trying to find it, it is an old case and it might only be available in hard copy or with a subscription to a case law web publisher.

A perceived threat that would give an officer a lawful reason to disarm someone most definitely cannot come from a police officer's being any distance from cover, with any number of subjects, at any location, at any time of day or with any amount of daylight or darkness, no matter how attentive he is if there are not other factors to make him believe there is a criminal threat. If your requirements were the case then the police could walk up to anyone at all, at night, on MLK (or any other road that a crime ever took place), and frisk them for fear they are in danger. This is not the case and the OP did not state he was in any crime ridden area, any specific distance from cover, etc. etc. etc.

My point was that not all factors that make this decision for the officer need be or will be known by the person being stopped. The person being stopped is not the person who evaluates whether or not the officer perceives a threat. I was trying to express that the officer only needs to articulate one or two facts, facts the person being stopped may or not be privy to, to meet the low standard set in Bates. I was simply offering some examples. I am not trying to argue whether, in the case that started this thread, a pat down is called for. I am arguing that once a weapon is determined to be present, an officer has great latitude in deciding how to handle it.

A "stop" is a temporary restraint of a person’s liberty by a peace officer lawfully present in any place. [1973 c.836 §30; 1997 c.866 §2]

I don't have time to finish this, but a stop can occur for a violation, not just a crime. That is why we can't just walk away when our car is pulled over or when we jaywalk. In the case in question, the car is pulled over. A stop has occurred.

 

[BUZO71]

I've been driving all day (Rushmore to Yellowstone) so I may have fallen asleep during some of the responses... but taking the OP's word on objectivity (not saying he/she wouldn't), this seems to be a case that the officer asked for the weapons and the OP obliged. Now the way he did that may not seem the safest but bottom line, he was stopped for a valid reason, the officer asked for consent and got it.

If, for whatever reason, the officer could articulate officer safety concerns, that would get him reason to take the guns during the stop. The articulation of officer safety concerns are different for every officer. Some are valid some are not so much. Regardless, it only matters if it goes to court.

If this was a consent search, then he got consent from the OP and took the weapons to check them. Next time, say no if you don't like it. Or, even better ask if you HAVE to allow the search.

On a personal note, I have disarmed CHL holders during traffic stops, but only during criminal investigations. BTW, they lost their CHL for menacing....

 

[JAFO]

I don't have time to finish this, but a stop can occur for a violation, not just a crime. That is why we can't just walk away when our car is pulled over or when we jaywalk. In the case in question, the car is pulled over. A stop has occurred.

Not in the context of the ORS that you posted, 131.605-131.625, which would allow frisking and search and seizure of specific items... in the context of a crime the officer believes has happened or is about to happen, not just in the context of a stop whether traffic or otherwise.

I have yet to see any case law that backs up the removal of a firearm from someone not suspected of a crime.

Let me know if you find Oregon v Bates (the whole thing). Just like Miranda, there has to be more context. An officer doesn't have to just give the Miranda warning. An officer does have to give the Miranda warning if... and if... and if... (other factors are involved - much like I suspect is the case with Bates).

I don't have a problem with an officer asking as long as he doesn't have a problem with me declining. Some folks won't mind door to door inspections of their lawfully obtained firearms. That is how much of an ambassador they would like to be.

 

[beararms5000]

Just to alleviate a couple questions that have come up:

The stop was on I5, probably somewhere between Seattle and Lacey, though I do not fully recall where exactly we were. We didn't make a single stop (other than the police stop) until getting to one of the rest areas just north of Longview/Castle Rock so I'm not really positive where we were. Cover for the officer was not really available (we were just stopped along a barren stretch of I5) other than the ditches that are customary along the sides of freeways.

I realized that the officer was certainly exposed in some ways; I just didn't think that asking people to voluntarily disarm actually made him or anyone else present any safer. Anyone planning to shoot him would have already done it as he walked up or, as has been mentioned, while he was trying to watch two people handle firearms a few feet from him. Meanwhile, he exposed all of us to the threat of an accidental discharge.

I also still question the legality of this particular seizure but was not in a position to be a martyr. I was, at the time, driving my girlfriend to a doctor's appointment later that morning for a herniated disk and inviting delays or complications just wasn't in the cards. I also don't have the means to be spending a lot of money on attorneys. Despite this, I still have an academic desire to figure out whether a Washington Highway Patrol Officer really has the right to ask for what he did. If I had just said "yes we have guns but we'd rather not hand them over," did he have grounds to seize them by force, given the situation described? What would have made that a lawful or unlawful order? Oregon law and how it differs from Washington law is of interest as well, as we plan to acquire our Oregon permits soon.

 

[JMH1969]

I have read through this entire thread and here is what I am adding:

First of all keep your CWP seperate from your license. I learned this many years ago when I used to keep it right behind my license. When I pulled out the license the officer saw the CWP and it went from there.

In Washington, you are do not have to inform an officer that you have either a CWP or handgun on your person. That said though, if asked to step out of your vehicle it might be a wise decision to inform the officer that you have a CWP and let him direct you from there.

If asked if you have any weapons on you reply by saing, "I have a CWP." Let the officer take it from there.

If asked to hand over your handgun politely say, "I do not feel comfortable being disarmed and you are unfamiliar with my handgun. It is perfectly safe in its holster." I handed my handgun over once and the office dropped it causing quite a bit of damage. The gun cost me $400, the quote to repair was $150 and the PD lawer tells me that the blue book value on the gun was $110 so they offered me $110 even though I showed them several similar guns for sale for $325.

If the officer wants to push the issue of him taking possesion of your handgun ask if it is a request or a lawfull order. Then you take it from there.

Always stand up for your rights! I will take any ticket an officer wants to write. I have beaten every ticket issued to me ever since I learned about a certain point of law. One judge even responded to me, "Based on your arguement, you can get out of any ticket issued to you." I played dumb and responded with, "I never thought about that. Thanks for pointing that out!" LMAO

JMHO

 

[ZeroRing]

Always stand up for your rights! I will take any ticket an officer wants to write. I have beaten every ticket issued to me ever since I learned about a certain point of law. One judge even responded to me, "Based on your arguement, you can get out of any ticket issued to you." I played dumb and responded with, "I never thought about that. Thanks for pointing that out!"

You can't just that hang... What is this arguement that gets one out of any ticket issued??