Did I somehow waive my rights?

Did I somehow waive my rights?

This is a discussion on Did I somehow waive my rights? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Thanks to a trailer with no running or brake lights, I managed to get myself pulled over for swerving tonight. The stop was pretty standard; ...

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  1. #1
    Member Array JerryRushing's Avatar
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    Did I somehow waive my rights?

    Thanks to a trailer with no running or brake lights, I managed to get myself pulled over for swerving tonight.

    The stop was pretty standard; the whole license and registration bit. LEO was even nice enough to lend me his flash light to rummage through my glove box (no interior lights in my old truck).

    After scooting around my bench seat and digging through my glove compartment , the LEO decided to ask if I had any weapons in the car. "Yes, sir. I have a firearm tucked under the seat."

    He politely asked me to step out of the vehicle, which I did, seeing no reason to complain about potentially freezing to death.

    Well... Before I could close the door the LEO ducked right in and snagged my firearm, told me to wait at the back of my vehicle, and took my ID and pistol back to his squad car.

    Shortly after, I was instructed to re-enter my truck. He handed me my ID and walked around to place my firearm, in a zip lock bag, on the passenger side of the bench.

    I was too tired and too angry/shocked to really make a fit of it and decided just to be on my way..................... But I really can't help but feel like I missed something here.


  2. #2
    Member Array Hubs's Avatar
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    Sounds like the LEO did the right thing. He had to secure the weapon which entails removing you from the vehicle, despite the cold weather.
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  3. #3
    Member Array loboleather's Avatar
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    I see that you are in Phoenix, Arizona. My understanding is that current law allows anyone not prohibited from possessing a firearm to carry one, either on your person or in your vehicle, with no special permits or licenses. I am not aware of any requirements to respond to such questions when involved in contact with law enforcement personnel, if such may exist under Arizona law.

    The officer involved in this situation seems to have used a "pretext" approach, asking if you had any weapons as a means of getting you to admit that you had, thereby "justifying" a search of the vehicle and securing the firearm "for his own safety" during a routine traffic contact. Your resulting wait, under uncomfortable conditions it seems, was then "reasonable" while he ran your identifying information and the firearm's information through NCIC and state data bases to determine if any wants, warrants, etc existed.

    Under such circumstances (traffic stop, officer asks if I have any weapons in the vehicle), my response would be something like "Why would you ask such a question, sir?", or "Is it unlawful for me to have a weapon in my vehicle, sir?". You have indicated that the officer behaved politely (which is what most officers learn to do when pursuing a "pretext"), but if an officer had rubbed me wrong my response might be something more like "That is neither material nor is it relevant to any alleged traffic violation, and what I have in my vehicle is none of your business, sir, unless you can show me a warrant issued by a court of record having jurisdiction. I wish to call an attorney now".

    But, that's just me, 11th generation American, Vietnam combat veteran, retired police chief, grandfather of nine, great-grandfather of one fine young American. I don't like "pretext" approaches. I don't like the heavy-handed, we-know-what's-best-for-you, don't-argue-with-me, I-am-the-Man-and-you-don't-count-for-squat approach that seems to be taking over among the young bloods with badges and attitudes. I keep a couple of attorneys' phone numbers on speed dial.

    If you check your lips and gum line you will probably find the spot where the nice officer set the hook after he got you to rise to the fly. Part of the learning experience, I suppose. Maybe next time you can avoid standing in the freezing cold while another nice officer imposes himself on you. Of course, next time you might not meet another nice young officer, but have to deal with one that takes your honest and helpful response as an excuse to prone you out on the pavement with his gun in your ear.

    Just like in the Army, be careful about what you volunteer for.
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  4. #4
    Member Array JerryRushing's Avatar
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    Just read a similar thread...

    I guess it's not uncommon for LEO's to inspect firearms but I don't understand how entering my vehicle, and removing property from it, does not constitute an unlawful search...?? Does simply possessing a firearm in the vehicle constitute probable cause for a warrantless search?

  5. #5
    Member Array JerryRushing's Avatar
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    Good golly... I need to refresh and read a bit before I post. Sorry.

    thanks lobo

  6. #6
    Member Array loboleather's Avatar
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    Quote Originally Posted by JerryRushing View Post
    Good golly... I need to refresh and read a bit before I post. Sorry.
    Jerry:

    I think we were both typing at the same time.

    Best regards.
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  7. #7
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    Quote Originally Posted by JerryRushing View Post
    Just read a similar thread...

    I guess it's not uncommon for LEO's to inspect firearms but I don't understand how entering my vehicle, and removing property from it, does not constitute an unlawful search...?? Does simply possessing a firearm in the vehicle constitute probable cause for a warrantless search?
    Because it is not a search. LEO has every right to secure weapons and do a cursory search in the immediate area of a violator. You already said the stop was lawful, and you were being detained for a legal violation and the contact was for a lawful purpose.
    Had the "search" gone further, you might have a legit complaint. As it stands, nothing was done wrong.
    "Just blame Sixto"

  8. #8
    Member Array loboleather's Avatar
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    Quote Originally Posted by SIXTO View Post
    Because it is not a search. LEO has every right to secure weapons and do a cursory search in the immediate area of a violator. You already said the stop was lawful, and you were being detained for a legal violation and the contact was for a lawful purpose.
    Had the "search" gone further, you might have a legit complaint. As it stands, nothing was done wrong.
    With all due respect, I would suggest that while nothing was done "illegally" that doesn't mean "nothing was done wrong". Issues of right and wrong involve moral judgements. Issues of legality involve nothing more than determining whether or not there is a law preventing a certain action, or providing the potential for punishment of a chosen act.

    While the history of civil rights, and judicial oversight of law enforcement actions, has developed a significant trend toward protection of individual liberties against unwarranted and/or unreasonable governmental interference, there has also been an identifiable and easily understood trend among law enforcement personnel toward developing situations in such a way that warrantless detentions and searches can be justified under certain circumstances; thus the tendency to attempt to intentionally manufacture such circumstances.

    Much like the fisherman who casts his fly onto the surface of the waters to see which fish will rise to take it, there are law enforcement officers who have learned how to cast a bit of bait by means of a pleasant comment or question during an otherwise innocuous contact, then sink the hook and proceed under cover of settled case law that permits "reasonable" precautions such as cursory searches of the immediate surroundings, securing dangerous objects, etc.

    Hence, my use of the term "pretext" in describing the actions of the officer involved in this situation.

    Tail light bulb burned out? Pull the vehicle over, check license/registration/insurance, etc, issue a warning or citation. Add in "Do you have any weapons in your vehicle?", and all of a sudden you have a warrantless search and seizure and, in this case, a citizen forced to wait outdoors in freezing temperatures while the nice officer continues with his "reasonable" precautions and further investigation.

    Car crosses over a lane line without signalling? Pull the vehicle over, check license/registration/insurance, etc, issue a warning or citation. Add in "I think I smell alcohol on your breath", resulting in the driver replying that he had a beer two hours ago with lunch, and you have justification for further detention, roadside sobriety tests, horizontal gaze nistagmus, breathalyzer exam, etc, followed by handcuffs, towing and storage costs for your vehicle, bail bondsman, attorney, and explaining to your boss why you need another day off from work to spend at the courthouse (whether or not the blood alcohol test supports a conviction).

    "Pretexts" are part-and-parcel of modern law enforcement procedures. Seemingly innocuous comments and/or questions, cast upon the waters to see if the fish will rise and take the bait. Then, and only then, otherwise unconstitutionally invasive methods and procedures become "reasonable", and the results may rise to the level of probable cause for an (otherwise unconstitutional) detention and/or arrest. There are any number of training programs for LEO's that teach such methods, and how to employ these methods without running afoul of settled case law.

    There is a very good reason why the courts consider any warrantless search and seizure to be an unconstitutional violation of individual rights, until such time as probable cause and exigent circumstances have been clearly articulated. Government officials, right down to the beat cop level (yes, even the clerk at DMV), will readily assume as much power and authority as they can get away with, and use that power at every opportunity. This explains the need for our Constitution, our Bill of Rights, and our access to judicial oversight of government operations.

    Once again, for emphasis, just like in the Army you have to be careful what you volunteer for.

    Best regards from a retired cop, training officer, investigator, supervisor, and chief.
    Last edited by loboleather; December 30th, 2010 at 06:48 AM. Reason: spelling
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  9. #9
    Senior Member Array youngda9's Avatar
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    Now what if the cop found a big old bag full of illegal drugs leaning up against the pistol? (Hope this isn't a threadjack, but I think the OP's question has been answered)
    Speak softly, and carry a big stick.

  10. #10
    Member Array loboleather's Avatar
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    Quote Originally Posted by youngda9 View Post
    Now what if the cop found a big old bag full of illegal drugs leaning up against the pistol? (Hope this isn't a threadjack, but I think the OP's question has been answered)
    Interestingly enough, I know of a case involving a gentleman who purchased a vehicle at a police impound lot sale. Car was towed after being reported abandoned, no one ever claimed it. Guy bought it at auction and drove it home.

    Several months later the gentleman was stopped on the highway, trooper's dope dog alerted on the vehicle, trooper asked permission to search the vehicle, permission granted, and a pretty good quantity of dope was seized.

    Of course, Mr. Citizen ended up in jail, had to hire a lawyer to defend himself and spent many months jacked around in the system.

    All over a load of dope left in a vehicle, reported abandoned on a residential street, towed by the cops to the impound lot, then sold at public auction.

    Gosh, I wonder why no one ever went to the POLICE IMPOUND LOT to claim their abandoned car with a load of dope in it?

    On point; permission to search was given by the owner. No search warrant. No judicial review prior to arrest, etc.

    Right and wrong? Tell me who was right and who was wrong.
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  11. #11
    Member Array Chirpy72's Avatar
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    In AZ you must inform police if asked.

  12. #12
    VIP Member Array Sticks's Avatar
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    Given that you had been rummaging around in your vehicle having difficulty locating said paperwork, at night, with the LEOs flashlight, I'd say you got lucky.

    I'd guess from a LEO perspective that he was getting a bit nervous about a person who he does not know if he is an everyday law abiding citizen looking for misplaced paperwork, or a BG stalling to get to his weapon (stolen vehicle, person up to no good...). LEO may have come to the conclusion that loaning out his light was not the best plan.

    Since he still had not verified your identity, legal status, or the vehicle ownership, and now there is a gun in the mix...
    Sticks

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  13. #13
    VIP Member Array Old School's Avatar
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    Cool

    Quote Originally Posted by loboleather View Post
    With all due respect, I would suggest that while nothing was done "illegally" that doesn't mean "nothing was done wrong". Issues of right and wrong involve moral judgements. Issues of legality involve nothing more than determining whether or not there is a law preventing a certain action, or providing the potential for punishment of a chosen act.

    While the history of civil rights, and judicial oversight of law enforcement actions, has developed a significant trend toward protection of individual liberties against unwarranted and/or unreasonable governmental interference, there has also been an identifiable and easily understood trend among law enforcement personnel toward developing situations in such a way that warrantless detentions and searches can be justified under certain circumstances; thus the tendency to attempt to intentionally manufacture such circumstances.

    Much like the fisherman who casts his fly onto the surface of the waters to see which fish will rise to take it, there are law enforcement officers who have learned how to cast a bit of bait by means of a pleasant comment or question during an otherwise innocuous contact, then sink the hook and proceed under cover of settled case law that permits "reasonable" precautions such as cursory searches of the immediate surroundings, securing dangerous objects, etc.

    Hence, my use of the term "pretext" in describing the actions of the officer involved in this situation.

    Tail light bulb burned out? Pull the vehicle over, check license/registration/insurance, etc, issue a warning or citation. Add in "Do you have any weapons in your vehicle?", and all of a sudden you have a warrantless search and seizure and, in this case, a citizen forced to wait outdoors in freezing temperatures while the nice officer continues with his "reasonable" precautions and further investigation.

    Car crosses over a lane line without signalling? Pull the vehicle over, check license/registration/insurance, etc, issue a warning or citation. Add in "I think I smell alcohol on your breath", resulting in the driver replying that he had a beer two hours ago with lunch, and you have justification for further detention, roadside sobriety tests, horizontal gaze nistagmus, breathalyzer exam, etc, followed by handcuffs, towing and storage costs for your vehicle, bail bondsman, attorney, and explaining to your boss why you need another day off from work to spend at the courthouse (whether or not the blood alcohol test supports a conviction).

    "Pretexts" are part-and-parcel of modern law enforcement procedures. Seemingly innocuous comments and/or questions, cast upon the waters to see if the fish will rise and take the bait. Then, and only then, otherwise unconstitutionally invasive methods and procedures become "reasonable", and the results may rise to the level of probable cause for an (otherwise unconstitutional) detention and/or arrest. There are any number of training programs for LEO's that teach such methods, and how to employ these methods without running afoul of settled case law.

    There is a very good reason why the courts consider any warrantless search and seizure to be an unconstitutional violation of individual rights, until such time as probable cause and exigent circumstances have been clearly articulated. Government officials, right down to the beat cop level (yes, even the clerk at DMV), will readily assume as much power and authority as they can get away with, and use that power at every opportunity. This explains the need for our Constitution, our Bill of Rights, and our access to judicial oversight of government operations.

    Once again, for emphasis, just like in the Army you have to be careful what you volunteer for.

    Best regards from a retired cop, training officer, investigator, supervisor, and chief.
    What an excellent answer from a qualified source. Thank you sir.
    "Violence is seldom the answer, but when it is the answer it is the only answer".

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  14. #14
    VIP Member Array Rollo's Avatar
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    I have to agree with the people that have said that it wasn't a search it was the officer securing the weapon for his own safety.
    -It is a seriously scary thought that there are subsets of American society that think being intellectual is a BAD thing...

  15. #15
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    If you didn’t get cited I’d say all is well. Yes, there was some line crossing by the LEO. Based on your description, the LEO went specifically to where you said the gun was located and not on a fishing expedition. Now, I’m not siding with the LEO but he did have justification to separate you from the weapon. You could still file a written complaint to the agency, and this does get attention and helps to keep officers from overreaching. As a former LEO I know to make note of the officers name during any contact although it’s been a few decades since I’ve had to do so. Fact is, not many people take the time to submit 'written' complaints and some officers’ become complacent as to how far they can push before getting their hand slapped.
    “Monsters are real and so are ghosts. They live inside of us, and sometimes they win.”
    ~ Stephen King

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