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Old May 18, 2010, 09:12 AM   #1
Bartholomew Roberts
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Terry Stop Hypothesis for Lawyers

You are in a jurisdiction where statute requires concealed handgun license holders to notify law enforcement if they are carrying a firearm. However, there is no penalty for failing to do this, although it remains a violation of statute.

An officer pulls over a vehicle during a routine traffic stop. He takes the driver's license of the driver; but the driver does not volunteer that he is a CHL holder or that he is carrying a firearm. Running the driver's license, the officer discovers that the driver is a CHL holder.

Does the officer have the reasonable suspicion necessary to search both the car and the driver under the Terry doctrine (and Michigan v. Long)?
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Old May 18, 2010, 10:52 AM   #2
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Yes, I would think that it would be search incident to arrest.

Plus, bad form in willingly violating the law. I am sure that your responsibilities in this circumstance are clearly delineated in your CCW training.
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Old May 18, 2010, 11:22 AM   #3
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Yes, I would think that it would be search incident to arrest.
I may be misremembering, and it might vary from state to state, but I believe that the police cannot arrest you for a crime that carries no potential for jail time - those offenses are to be handled by written citation only. And a traffic stop isn't enough to trigger a "search incident to arrest".

I also don't believe that a CCW holder not telling a police officer that he holds a CCW permit is grounds for anything - notification is only required if you're actually carrying, and many CCW holders are frequently without their firearms.

Take me for an example - I'm active-duty military, and personal weapons are not allowed on the base where I'm stationed. So any time I'm driving to or from work, I'm unarmed. If I were to be stopped for speeding on the way to work, I wouldn't mention my CHL to the officer, because there's no reason or requirement to do so. When he runs my license, he'll find out I have a CHL, but the fact I didn't mention it shouldn't be reason enough for him to search me or my car.
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Old May 18, 2010, 11:24 AM   #4
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Yes, I would think that it would be search incident to arrest.

If there is no penalty for failing to inform the officer what would they arrest him for?



But he is not asking about a search incident to arrest he is asking if the possession of a CCW permit provides enough reasonable suspicion to justify a pat down of his person (Terry v. Ohio) and search of the passneger compartment of his car (Michigan v. Long).

I would argue that the mere possession of the CCW permit does not meet the requirements.

Under Long they have to have specific and articulable facts that the suspect:

1. Is dangerous, and

2. May gain access to weapons.

I believe Terry requires that the officer believe that the person is both armed and dangerous.

I don't see how a CCW permit establishes any sort of dangerousness.
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Old May 18, 2010, 12:10 PM   #5
Brian Pfleuger
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The way the scenario is presented does not assume that the CHL holder actually IS carrying, only that the officer is made aware of the permit by record check rather than by the CHL holder.


I can't see how this could possibly be grounds for a search. If it were, anyone applying for a permit would essentially be giving permission for police searches of their vehicles on all future traffic stops.
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Old May 18, 2010, 12:18 PM   #6
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I am assuming that (a) it it against the law to not inform. (b) said CHL holder was in fact carrying a weapon without informing the Copper.

I do not know if failure to notify is an arrestable offense or not. I assume it is akin to a traffic violation.

This seems to be a jurisdiction specific question.
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Old May 18, 2010, 02:34 PM   #7
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When I took my concealed class, the instructor told us plainly that, here in North Carolina, we are required to inform, but ONLY when we are carrying. If not carrying, no informing required. He mentioned that by not informing when we are carrying, and the officer discovers this, we will lose our permit---he mentioned no other penalties. Each state probably handles this in their own way, I'm sure.
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Old May 18, 2010, 10:18 PM   #8
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Under Terry, police have to have a reasonable and articulable suspicion that the suspect has committed or is committing a crime and that the suspect may be armed. They may then conduct a pat down type search.

The verification that the driver has a CCL gives reasonable suspicion the traffic violator is armed; this is a lower standard than probable cause. Since a traffic violation is a crime, there would be grounds for a Terry search. It does not matter that violation carries no jail term. The Supreme Court decided this a few years ago.

Now, the question is whether police can search the passenger compartment of the car. A very recent Supreme Court case called Arizona v. Grant said that once a suspect was in custody, police could not do a search incident to arrest because there was no longer the realistic possibility of the suspect grabbing a weapon from the car. This overturned a number of cases, the most famous being Belton.

But, under the facts, we don't have a search incident to arrest. We have a Terry safety search. Until the Gant case, I would have said the search of the passenger compartment was okay. Now, I would say its okay only if the traffic violator is inside the car or is not within control of the police officer.
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Old May 18, 2010, 10:31 PM   #9
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The verification that the driver has a CCL gives reasonable suspicion the traffic violator is armed; this is a lower standard than probable cause. Since a traffic violation is a crime, there would be grounds for a Terry search.
You're mixing and matching like a Chinese menu. In your example, the reasonable suspicion (that the subject might be legally armed) is unrelated to the crime (the traffic stop).

But is a reasonable suspicion that the subject is *legally* armed a basis for a search in the first place? (even if mere possession of a CHL satisfies reasonable suspicion, which I'm not convinced it does - many CHL holders don't carry regularly.)

Possession of a CHL doesn't give reasonable suspicion that a crime has been committed, because the possession of a handgun wouldn't be a crime. The crime that's already taken place (the traffic violation) is a completely separate issue. If the cop couldn't search your car on the basis of the traffic stop alone, possession of a CHL doesn't give reasonable suspicion of any additional crime, so it can't be used to justify a search where a search wouldn't otherwise be warranted.

As peetzakilla said earlier, if mere possession of a CHL were reasonable suspicion that a crime has been committed or that a subject were armed illegally, than we would in essence be forced to submit to a search of our vehicle any time we're stopped for an infraction, whether we're carrying or not. I can bet you that wouldn't fly in court.

Heck, it would mean that even if we're stopped on foot, we'd have to submit to a pat-down once the cop found out we have a CHL (even though finding a gun in the pat-down wouldn't be a crime anyway.)
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Old May 18, 2010, 10:41 PM   #10
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It is reasonable to make the assumption that the driver is in fact carrying. Since the driver made no notification, the officer may assume the statute applies and a crime may have been committed (over and above the traffic stop itself).

It would be reasonable for the officer to ask the driver to step out of the vehicle and proceed to "Terry Frisk" the driver.

Because you have a carry permit, a reasonable man would assume you were carrying. You didn't notify the officer. Again, a reasonable man would assume the notification statute was just violated. That is more than enough articulable reasonable suspicion (ARS) that a crime has been committed, you are the person who committed the crime, and you are armed.

That is the answer, as far as I understand the law. The following paragraph might be more realistic than you think:

Assuming the officer actually asks the driver why he didn't notify and the driver simply says he wasn't carrying, this may well be the end of that part of the contact. The officer may or may not want to instruct the driver to tell an officer, in the future, that while he has a permit, he is not carrying at this time. This would most likely have not escalated to a "Terry Frisk" to begin with.

For those that think nothing happened that could cause an arrest, I've got news for you. In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held in a 5-4 decision that violating any law can subject a citizen to custodial arrest.

So you can be a jerk about the officer conducting a frisk, and he can simply haul you off because you violated the statute, the traffic stop, or both. This, regardless of any penalty attached to the statute(s).

Bart? In this case, I fail to see how Michigan v. Long prevails for a more extensive search than what I described above, barring any further suspicious activity from the driver.
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Old May 18, 2010, 10:43 PM   #11
KyJim
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You're mixing and matching like a Chinese menu. In your example, the reasonable suspicion (that the subject might be legally armed) is unrelated to the crime (the traffic stop).
There is no requirement that person armed must be armed only for the crime being investigated. This does nothing to protect officers which is the whole reason for Terry. Lots of time police investigate one suspected crime but end up charging another.
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Old May 18, 2010, 10:46 PM   #12
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In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held in a 5-4 decision that violating any law can subject a citizen to custodial arrest.
Yes, this is the case I was thinking about. I believe it was a seat belt violation (and a smart mouth on a woman).
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Old May 18, 2010, 10:50 PM   #13
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Since the driver made no notification, the officer may assume the statute applies and a crime may have been committed (over and above the traffic stop itself).
Except that the statute expressly gives the driver the option of not notifying if he's not carrying. You say it's reasonable for the officer to suspect that a CHL holder is carrying at any time, but flip it the other way - would you say that it's unreasonable to assume that a CHL holder is not carrying? You can't make one claim without believing the other.

If not notifying the officer that you have a CHL when you're not in fact carrying will subject you to a search, why does the statute allow you that option (at least in my state)?

What you're basically saying is that holding a CHL subjects you to a Terry frisk at any time, at any place, because you either admit to the officer that you're carrying, or you don't say anything and he assumes you are. I really don't think that's the case.
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Old May 18, 2010, 11:03 PM   #14
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After reading Atwater and re-reading Terry, I concede that police officers have more discretion than I originally thought, especially regarding arrest for non-jailable offenses.

I still believe that the idea that mere possession of a CHL justifies a Terry frisk is going to come up in court sooner or later if officers actually attempt to use the possession of a CHL permit in that manner.
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Old May 18, 2010, 11:04 PM   #15
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Under Terry vs. Ohio the officer only needs a reasonable suspicion to intervene with a subject. There is no need to establish probable cause. The reasonable suspicion legal standard does not equate to a mere hunch but is right there with "...In my expirience Judge..." The legal standard for a Terry stop is ridiculous. To top it off, an officer can do the stop and conduct a patdown for weapons if he fears for his safety during a stop. Do you have any idea how easily an officer can establish that in a courtroom?

Wether the facts are enougth to warrant a Terry stop, not in theory. The officer would do a patdown and find everything in order. It would be up to the officer to file a charge or not. Although there is no criminal penalty, it is an infraction that may interfere with your cc permit renovation. If the subject is nice to the officer, an "my appologies officer. I became distracted and complitedly forgot to inform you of my cc permit. As you can see, everything is in order" should let you go with a warning.
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Old May 19, 2010, 08:08 AM   #16
Al Norris
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Quote:
Originally Posted by KyJim
Yes, this is the case [Atwater] I was thinking about. I believe it was a seat belt violation (and a smart mouth on a woman).
Actually, the woman is lucky the officer didn't call CPS. The language the woman used (in front of her children), was tantamount to abuse.

Scott, thank you for the concession.

I agree with Maromero that the threshold for Terry is extremely low. This is changing, as we can see with Az v. Grant. Also in flux is the almost nationwide standard of Terry, as it applies to permit holders.

There are several jurisdictions that have now resolved that an officer can not assume criminal/hostile/suspicious activity simply because a citizen has a permit.

Yet, they still must respond to "Man with a gun" calls. Barring any other information, most officers will approach such a situation with prejudice. Officer safety and safety of the general public demands that they do things in this manner.

That will only change when/if 911 operators are instructed to gather further details from the complaining caller.

To the point of the OP. Traffic stops are the #2 most dangerous activity an officer can be involved in. Given this, and given the officer knows nothing about you, why would you create any kind of scene that would detract from you being a law abiding citizen?
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Old May 19, 2010, 08:47 AM   #17
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I don't think it's reasonable to assume that a person with a carry permit is automatically carrying a gun.

Almost no one I know with a carry permit actually carries. Most people have it as a convenience, so it's not a pain in the butt if they stop at a grocery store on the way home from hunting or the range.

I think it's more reasonable to assume, if we assume anything, that the person is NOT carrying if they do not inform. After all, it would have been part of the permitting process that they were made aware of the requirement to inform and the very fact that they were issued a permit is (supposedly) an indication of their character. It should be assumed that they would inform, if an assumption is made.

The more reasonable thing to do, it seems to me, would be for the officer to ask.
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Old May 19, 2010, 09:51 AM   #18
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I don't think it's reasonable to assume that a person with a carry permit is automatically carrying a gun.
I'll disagree with that, not only do I disagree, I'll go one step further. When I was on the Job, I assumed EVERYONE had a gun, as an FTO I pushed that point to my trainees. YOU ALWAYS ASSUME EVERYONE IS CARRYING.

That dosnt mean you drag everyone out of the car for a search, it means you should be prepared.

Never heard of a cop who got hurt because he assumed someone was armed and they weren't.

Sorry, I realize this is a bit off topic.
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Old May 19, 2010, 10:01 AM   #19
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Originally Posted by kraigwy
I'll disagree with that, not only do I disagree, I'll go one step further. When I was on the Job, I assumed EVERYONE had a gun, as an FTO I pushed that point to my trainees. YOU ALWAYS ASSUME EVERYONE IS CARRYING.

That dosnt mean you drag everyone out of the car for a search, it means you should be prepared.

Never heard of a cop who got hurt because he assumed someone was armed and they weren't.

Sorry, I realize this is a bit off topic.

That's all well and good but it means nothing for the likelihood of a person carrying a gun because they have a permit.

I know a guy who has NO permit and carries a gun. I know MANY people who have a permit and DO NOT carry a gun. The permit does not equal gun. Plus, if the permit holder IS carrying a gun there is a VERY, very high likelihood that they are your ALLY not your enemy.

You can't search every car for weapons because you make the assumption that every person is armed and you can't search a permit holders car because you make the assumption that they are armed.

Permit is not equal to gun.

Like I said, the permit is issued on the presumption of good character. Why would an officer assume that the person is now NOT of good character because they have a permit and did not inform of a gun that they may or may not be carrying? It's antithetical.

Logic dictates that the person is presumed to be of good character and would inform the officer if they were carrying.
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Old May 19, 2010, 10:15 PM   #20
maestro pistolero
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It is reasonable to make the assumption that the driver is in fact carrying.
Disagree. Many people have permits but don't carry all the time. Failure to notify could just as easily mean no weapon is present, therefore no notification needed.
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Old May 20, 2010, 09:17 AM   #21
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Unless, I am mistaken the issue is the fact that the CHL failed to inform and he did in fact have his CCW with him in a jurisdiction that requires notification. in which case I would think that depending on totality of circumstances would earn him a custodial search.

In the issue of having a CHL and not carrying it's a little murkier. However, speaking as a Cop the lie of omission irritates the bejeezus out of me. You may be right in the courtroom but you failed real life and that might contribute to a bad hair day.

disclaimer: This is from someone who works in a state that prohibits CCW
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Old May 20, 2010, 10:41 AM   #22
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I'm still curious how Michigan v. Long raises a legal issue after Az v. Grant?

Anyone? Bueller?
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Old May 20, 2010, 11:26 AM   #23
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I'm still curious how Michigan v. Long raises a legal issue after Az v. Grant?

Anyone? Bueller?
In AZ v. Gant is dealing with searches incident to arrest. Requiring that an officer prove a continuing threat or a need to preserve evidence. The suspect was arrested then his car was searched. The court said you can't search a car unless there is a continuing threat or evidenceneeds to eb preserved.

Michigan v. Long didn't deal with a search incident to arrest but was an extension of a Terry search to include automobiles. But it requires that the officer believe the suspect be armed and present a threat.

The two decisions are not incompatibel and they deal with two distinct scenarios.
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Old May 20, 2010, 12:41 PM   #24
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Unless, I am mistaken the issue is the fact that the CHL failed to inform and he did in fact have his CCW with him in a jurisdiction that requires notification. in which case I would think that depending on totality of circumstances would earn him a custodial search.

In the issue of having a CHL and not carrying it's a little murkier. However, speaking as a Cop the lie of omission irritates the bejeezus out of me. You may be right in the courtroom but you failed real life and that might contribute to a bad hair day.
Agree complitely Wagonman.
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Old May 20, 2010, 01:02 PM   #25
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Originally Posted by WagonMan
In the issue of having a CHL and not carrying it's a little murkier. However, speaking as a Cop the lie of omission irritates the bejeezus out of me. You may be right in the courtroom but you failed real life and that might contribute to a bad hair day.

What "lie of omission". Where is the requirement (or even logic) requiring notification that I am NOT carrying a gun.

Personally, I would think that's just weird. "Officer, I'd like you to know that I'm not carrying a gun."

There's no sense in that. My thought process would be "Why is this guy mentioning a gun out of the blue?" It would make me think that he WAS hiding something, otherwise I would not expect the "absent" gun to even cross his mind during a routine traffic stop.
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