Legality of frisk/disarmed during traffic stop.

[okiebryan]

I've been trained as a LEO by CLEET on how to deal with SDA's...twice. Once was sixteen years ago when we were all trying to figure out what we were supposed to be doing with this relatively new law. The other time was later in my career because I needed the training hours. The DA's office just ran a refresher course on the topic to include open carry. All of this is to make sure that we jack boots don't overstep our bounds when dealing with the lawfully armed public.

Nothing in this section shall be construed to authorize a law enforcement officer to inspect any weapon properly concealed without probable cause that a crime has been committed. That's important. This is black letter law. It trumps case law when it specifically restricts LE actions against citizens. Forget about case law for a second. What do you think that means? NO, speeding is NOT a crime. Speeding goes on your traffic infraction record held by Dept. of Public Safety. Crimes goes on your criminal history held by OSBI. An officer can make a physical arrest for a crime committed in his presence. He must offer signed Personal Recognizance for routine traffic infractions like speeding.

Speeding is justification for a traffic stop and detention of the driver. It's not a free-for-all to search the persons in the vehicle who you know to be legally carrying a firearm. Of course, during a normal detention when an officer has reasonable suspicion that criminal activity is afoot, he may stop and frisk. In this case, that does not exist. Once the SDA makes proper notification, the scope shrinks back to only the traffic stop. If speeding was enough cause to stop and frisk an individual with an SDA, it would be enough to stop and frisk an individual- period. Our officers handle this by keeping people in the vehicle just like we always would and asking where the firearm is. OHP has been handling it by asking the person to leave the gun in the violator vehicle and come back to the trooper's car. NOBODY I know of is pulling everybody from their vehicle and disarming and frisking them solely based on their traffic infraction.

Now, I keep hearing Terry. That case was later applied to motor vehicle stops by other cases but does not exactly apply here. The vehicle in this case was stopped for a traffic infraction, not suspicion of criminal activity afoot. Again, it comes down to scope. If you don't know what the legal term "scope" means, you should research it. It's imperative in understanding traffic stops and how they relate to search and seizure.

It's also important to know that detaining a person is a seizure under the 4th amendment. Detaining someone outside the scope of your PC/RS is a violation of the 4th amendment. Next time, you take a legal update class from CLEET, ask the instructor about the "Officer Safety" exemption to the fourth amendment.

So, guys. That's not just my opinion. That's the way I've been trained repeatedly in over 16 years of law enforcement by the agency responsible for doing so. Not that it was necessary since the statute makes it abundantly clear.

I won't participate in any more disagreements on this topic.

Thanks for posting this. I agree completely with all of the legal aspects of what you posted. I hope that some are able to read and understand this exact concept.

 

[Just Don't]

This is the crux of the argument. Nobody is talking about all cops pulling everyone with a permit out of their vehicles. We are discussing a single case, in the original post, wherein an officer temporarily disarmed an individual during a traffic stop.

What were the rest of the factors during the stop? Driving erratically, reckless speeding? Were the officers "spidey senses" kicking in? Did he observe things that created reasonable suspicion (or gave him the excuse to claim RS)? Nothing is mentioned about that. The simple fact is, by your own admission that if an officer has reasonable suspicion, the law allows for a temporary removal of the weapon, SDA permit or not.

You are correct it is black letter law, but since the officer is not removing the weapon in order to conduct an inspection of the weapon, that paragraph is not operable. I'm am not alone in this opinion, but it's only worth a cup of coffee or a beer if we ever should meet.

(I appreciated your thoughtful response....arguing isn't a bad thing, as long as we are keeping it civil. Some folks are too thin skinned.)

I appreciate your civil and thoughtful post. If it's okay with you, I'd like to address a few of your points. "Reasonable Suspicion" is short for "reasonable articulable suspicion. "Spidey Sense" doesn't cut it. It must pass the reasonable man test. Granted, the scenario presented by the OP lacks details and frankly, I thought it likely was hypothetical. We could speculate all day on what we don't know.

The "Inspection" issue is a non issue. Officers aren't trained in checking the correct air pressure of your Hogues, making sure your TLR-1's are operable or ensuring that your night sights are visible from 500 feet behind in normal light. (The traffic cops will get that). "Inspection" just means to look at. Again, all of this comes from training by CLEET.
I'd appreciate to hear from the OP as to some details about this incident or whether it's an actual incident or not.

 

[mons meg]

FWIW, The one time I was actually stopped while carrying was an OHP on hwy 33 between Langston and Guthrie. I handed him my card and informed, etc and without blinking he declared he was writing me a warning and he'd be right back. Completely chill, took like 3 minutes. So, it's my impression based on this one data point that LEOs aren't in the habit of doing this kind of thing

Now, if we want to clarify how/when an Oklahoma sworn LEO may or may not disarm based solely on a traffic stop, I suggest contacting your state legislators and convincing him/her to put it in a bill or amendment.

 

[Jack T.]

Enid:

Yes, it is an actual incident. . .happened to a gentleman who took the concealed carry course with us. He and his wife are drafting a formal complaint and since it's not my place to divulge that info yet, I can't add many more details. Once the letter is sent I'll be happy to add details!

It was a routine traffic stop, same as most of us have had many times. The gentleman is in his late 30s/early 40s. Not a suit and tie type, but always dressed well and I've never known him to be anything but polite.

 

[deerwhacker444]

Enid:

Yes, it is an actual incident. . .happened to a gentleman who took the concealed carry course with us. He and his wife are drafting a formal complaint and since it's not my place to divulge that info yet, I can't add many more details. Once the letter is sent I'll be happy to add details!

It was a routine traffic stop, same as most of us have had many times. The gentleman is in his late 30s/early 40s. Not a suit and tie type, but always dressed well and I've never known him to be anything but polite.

How did this turn out.?

 

[Jack T.]

Nothing happened. Chief LEO said "he (officer) can do that." End of story.

They dropped it. Which left a really bad taste in their mouths.

 

[gerhard1]

I've been trained as a LEO by CLEET on how to deal with SDA's...twice. Once was sixteen years ago when we were all trying to figure out what we were supposed to be doing with this relatively new law. The other time was later in my career because I needed the training hours. The DA's office just ran a refresher course on the topic to include open carry. All of this is to make sure that we jack boots don't overstep our bounds when dealing with the lawfully armed public.

Nothing in this section shall be construed to authorize a law enforcement officer to inspect any weapon properly concealed without probable cause that a crime has been committed. That's important. This is black letter law. It trumps case law when it specifically restricts LE actions against citizens. Forget about case law for a second. What do you think that means? NO, speeding is NOT a crime. Speeding goes on your traffic infraction record held by Dept. of Public Safety. Crimes goes on your criminal history held by OSBI. An officer can make a physical arrest for a crime committed in his presence. He must offer signed Personal Recognizance for routine traffic infractions like speeding.

Speeding is justification for a traffic stop and detention of the driver. It's not a free-for-all to search the persons in the vehicle who you know to be legally carrying a firearm. Of course, during a normal detention when an officer has reasonable suspicion that criminal activity is afoot, he may stop and frisk. In this case, that does not exist. Once the SDA makes proper notification, the scope shrinks back to only the traffic stop. If speeding was enough cause to stop and frisk an individual with an SDA, it would be enough to stop and frisk an individual- period. Our officers handle this by keeping people in the vehicle just like we always would and asking where the firearm is. OHP has been handling it by asking the person to leave the gun in the violator vehicle and come back to the trooper's car. NOBODY I know of is pulling everybody from their vehicle and disarming and frisking them solely based on their traffic infraction.

Now, I keep hearing Terry. That case was later applied to motor vehicle stops by other cases but does not exactly apply here. The vehicle in this case was stopped for a traffic infraction, not suspicion of criminal activity afoot. Again, it comes down to scope. If you don't know what the legal term "scope" means, you should research it. It's imperative in understanding traffic stops and how they relate to search and seizure.

It's also important to know that detaining a person is a seizure under the 4th amendment. Detaining someone outside the scope of your PC/RS is a violation of the 4th amendment. Next time, you take a legal update class from CLEET, ask the instructor about the "Officer Safety" exemption to the fourth amendment.

So, guys. That's not just my opinion. That's the way I've been trained repeatedly in over 16 years of law enforcement by the agency responsible for doing so. Not that it was necessary since the statute makes it abundantly clear.

I won't participate in any more disagreements on this topic.

Basically, this is the way it was explained to me in my SDA class. In a traffic stop, LE has to have an articulable reason to fear for his/her safety or that a crime has been committed before an SDA holder can be disarmed.

 

[SMS]

It's all mental masturbation. If you end up on the side of the road and a cop tells you to hand over your pistol, most of us will. I doubt anyone here is willing to be the test case.

 

[tRidiot]

It's all mental masturbation. If you end up on the side of the road and a cop tells you to hand over your pistol, most of us will. I doubt anyone here is willing to be the test case.

Which is why it is still unclear and is free and open for interpretation by any and all jackwagons who want to d**k-measure on the side of the road. It really irks me to think that an officer might ask me to remove my legally-carried firearm just because he doesn't like the way I am dressed or the way I look and it makes him "nervous". I understand the concept of officer safety and have had acquaintances and friends who have been shot and both injured and killed in the line of duty... but that doesn't mean I think it's reasonable to automatically disarm lawful permit holders for a simple "uncomplicated" traffic stop for a minor infraction. A CIVIL infraction, as pointed out above - I'm glad the "speeding is a crime" argument went by the wayside. That's bullspit.

Yes, I am with an officer depending on his instincts. I am also with a citizen standing up for their rights and not being targeted for a more thorough search and/or detainment simply based on their permit status - which, as several have pointed out, is, if not a "completely good guy card," at least an indicator that there isn't a significant history of illegal behavior, more recent events notwithstanding.

Just my opinion - multiple sides to every situation, and in this one, I can see more than just my own.

 

[SMS]

I mostly agree with you. I don't understand how any LEO could think that an otherwise lawfully armed citizen pulled over on the side of the road for a traffic violation could be a threat. The safest place for my pistol is in its holster or in my pocket. Pulling it out and handing it over loaded is just plain dumb.

But I'm not fighting that battle on the side of the road.