State v. Jones, officer does not have "carte blanch authority" to secure all weapons

This is a discussion on State v. Jones, officer does not have "carte blanch authority" to secure all weapons within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; This thread is in relation to the closed thread about http://www.defensivecarry.com/forum/...c-stop-mo.html A lot of the posters kept saying that a LEO can basically seize and ...

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Thread: State v. Jones, officer does not have "carte blanch authority" to secure all weapons

  1. #1
    Senior Member Array tmoore912's Avatar
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    State v. Jones, officer does not have "carte blanch authority" to secure all weapons

    This thread is in relation to the closed thread about Refusing to hand over firearm at a traffic stop - MO

    A lot of the posters kept saying that a LEO can basically seize and momentarily hold any firearm for "officer safety" during a basic traffic stop, but no one was citing any case law with regards to what the courts have said on the issue. I'm posting case law from Georgia from a Appellate Court ruling in 2008. This is currently how Georgia Courts look at the issue of traffic stops and armed occupants.


    State v. Jones 289 Ga. App. 176 2008

    So viewed, the evidence shows that a City of Cedartown police officer stopped Jones's vehicle because its tag light was out. The officer later added on cross-examination that he observed Jones weaving, but he acknowledged that once he spoke with Jones he concluded he was not under the influence.(fn1) The officer asked for and received Jones's license, but he did not check it immediately because he saw a hunting rifle in the cab of Jones's pickup truck. Instead, for that reason, he asked Jones to step out of the vehicle.

    Although the officer testified that Jones consented to a pat-down of his person, Jones testified that the officer did not ask permission but simply began to pat him down. The officer acknowledged that he found nothing in the pat-down search. The officer then told Jones he "had to look at the gun." Jones, feeling that he did not have "any choice at that point," told the officer, "Do what you've got to do." Although he did not need to do so to reach the firearm, the officer entered the truck and moved some clothes partially covering the rifle, exposing the contraband that forms the basis of Jones's motion to suppress.

    The officer did not testify to any suspicious conduct or furtive movement on the part of Jones at any time, and he testified repeatedly that he was not in fear of any aggressive action. The officer candidly stated that he had a "standard procedure" of securing any firearm he saw in a vehicle during a traffic stop, because "several times" he had found a stolen gun in a vehicle. He had, however, no reason to believe that this particular hunting rifle was stolen.

    The trial court granted the motion to suppress from the bench, explaining that the State had failed to show any legal justification for the officer's insistence on seizing Jones's firearm. We agree.

    At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief "stops" or "seizures" that require reasonable suspicion; and "arrests," which can only be supported by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly "stops" or "seizes" a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity.

    (Citations omitted.) Brittian v. State, 257 Ga. App. 729, 731 (572 SE2d 76) (2002). Here, the officer had taken Jones's license and did not return it until after he had asked Jones to step out of the truck and completed the search. This therefore was a second-tier encounter. Ward v. State, 277 Ga. App. 790, 792 (627 SE2d 862) (2006). In such a case, the officer must have a "particularized and objective basis for suspecting the persons are involved in criminal activity. The officer's action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Citation, punctuation, and footnote omitted.) Id.

    Those facts are lacking here. The officer asserted that he stopped Jones because he suspected he might be DUI, but he quickly concluded that Jones was not intoxicated. The officer also testified that he did not fear for his safety, but asked to look at the rifle in the truck purely as a standard practice to see if it might be stolen. The officer therefore lacked justification to detain Jones, and his subsequent search was likewise unjustified. Id. at 793.

    The State argues that Megesi v. State, 277 Ga. App. 855 (627 SE2d 814) (2006) (physical precedent only), justifies the seizure of the rifle. But, as the trial court noted, that decision is physical precedent only. In fact, the special concurrence in Megesi explicitly disclaims the notion that the presence of a visible firearm in a vehicle, without more, justifies a search. Id. at 860. This comports with the United States Supreme Court's directive:

    [T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant" the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
    (Citations and footnote omitted; emphasis supplied.) Michigan v. Long, 463 U. S. 1032, 1049 (103 SC 3469, 77 LE2d 1201) (1983).(fn2)

    Georgia decisions agree that 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." Silva v. State, 278 Ga. 506, 508 (604 SE2d 171) (2004) (driver leaned under seat as if to conceal weapon and drove recklessly while in that position, then offered implausible explanation for his conduct.) Here, no evidence was presented of furtive movements or danger; in fact, the officer candidly acknowledged that the search was merely his standard procedure because any firearm might be stolen. On its face, as noted by Jones, this policy justifies the search of any vehicle occupied by hunters or sport shooters with their firearms, or any pickup truck with a rifle or shotgun on the rear window rack. This is precisely the danger of "carte blanche authority to `secure' all weapons during a routine traffic stop," noted by the special concurrence in Megesi, supra, 277 Ga. App. at 860.

    The State also argues that Jones consented to the seizure of his rifle. But "[i]t is well settled that acquiescence cannot substitute for free consent. [Cits.]" Corley v. State, 236 Ga. App. 302, 306-307 (1) (b) (512 SE2d 41) (1999). Accordingly, we conclude that the trial court properly granted Jones's motion to suppress.

    Judgment affirmed.

    Barnes, C. J., and Miller, J., concur.
    Georgia Firearm Caselaw on GeorgiaPacking.org

    After an officer seized a rifle from plain view and ran the serial number to see if it was stolen, the Court of Appeals ruled 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."
    Essentially overrules Megesi v. State. Megesi was a physical precedent only (meaning it is persuasive, but not binding on lower courts). Jones is a binding precedent (meaning all judges concur). The rule in Jones is that stopping someone (Tier 2 or higher) and seizing a weapon for inspection is not permissible, unless there is reasonable articulable suspicion of a crime based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
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  3. #2
    VIP Member Array suntzu's Avatar
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    Thanks for the post. It is very intersting. But, it does not apply to the thread you are referring to. In that case the officer did nothing other than ask the OP to change the location of the firearm. The LEO did not ask for it. Changing the location of the firearm should not have done anything to affect the OP's safety. There was no request for the firearm and IMO did not put the OP in any danger.

    I also do not see the relvance to an officer asking to secure a weapon if he does not examine it or run the serial numbers. If the officer was asking that he remove the wepaon from the console then I can see where that applies since it would be similiar to the case you stated.


    But again, good post.
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    VIP Member Array Brad426's Avatar
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    Yeah, I agree with Suntzu... this case seems to be more about whether a LEO can search for weapons "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.".

    I'm not saying you are wrong, I'm just not sure this case shows that an officer cannot temporarily get a weapon out of the reach of the person being stopped if he/she wants to. It is a good post, though.
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    Distinguished Member Array Dan060's Avatar
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    A hwy patrolman pulled me for speeding a couple of years ago.I gave him my D.L. and CCP.He told me,he needed to see the gun.He was as nice as could be.I asked him,if i could unload it first,and he said yes.I'm guessing he ran the serial number.He even gave me a break on the speeding.
    Everyone has their opinions on things which they should.That said,none of what he asked bothered me a bit.I often wonder,at times,do some people do things,to piss off a LEO.?
    I could have asked why he wanted to see it,or acted like a jerk,but,he didn't act like one and neither did i.
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    VIP Member Array dukalmighty's Avatar
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    Had nothing to do with Officer safety and everything to do with an Illegal search,once the LEO removed the subject from the vehicle and away from the firearm it was no longer an Officer safety issue
    Badey, atctimmy, 9MMare and 3 others like this.
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    VIP Member Array Brad426's Avatar
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    Quote Originally Posted by Dan060 View Post
    A hwy patrolman pulled me for speeding a couple of years ago.I gave him my D.L. and CCP.He told me,he needed to see the gun.He was as nice as could be.I asked him,if i could unload it first,and he said yes.I'm guessing he ran the serial number.He even gave me a break on the speeding.
    Everyone has their opinions on things which they should.That said,none of what he asked bothered me a bit.I often wonder,at times,do some people do things,to piss off a LEO.?
    I could have asked why he wanted to see it,or acted like a jerk,but,he didn't act like one and neither did i.
    So you voluntarily gave away your rights, which is, well... your right. It's still good to know what your rights are so you can decide if you want to assert them or not. I've never in my life been a jerk to a LEO, but understanding your rights isn't being a jerk.
    9MMare and atctimmy like this.
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    Senior Member Array tmoore912's Avatar
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    I'll have to disagree with it not being relevant in Georgia. Before this ruling it was quite routine for LEO in Georgia to secure any known firearm during routine traffic stops for officer safety and to also run the serial numbers of those secured weapons. This was routine procedure even when a LEO stopped a Citizen who was no threat like the OP in the other thread.

    Georgia Courts are saying "Hands Off" law abiding citizens firearms during traffic stops unless 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."
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    VIP Member Array Brad426's Avatar
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    Quote Originally Posted by tmoore912 View Post
    I'll have to disagree with it not being relevant in Georgia. Before this ruling it was quite routine for LEO in Georgia to secure any known firearm during routine traffic stops for officer safety and to also run the serial numbers of those secured weapons. This was routine procedure even when a LEO stopped a Citizen who was no threat like the OP in the other thread.

    Georgia Courts are saying "Hands Off" law abiding citizens firearms during traffic stops unless 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."
    It says the bold part "In order to justify a search of a vehicle for weapons"... if the weapons are declared (as was the case in the other post you reference) can not the officer request the weapon be moved out of the reach of the person being stopped? I agree there is no reason to run serial numbers unless there is a reasonable suspicion the person has committed a crime.
    I have a very strict gun control policy: if there's a gun around, I want to be in control of it.
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    Distinguished Member Array lionround's Avatar
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    Potentially dangerous is such a nebulous term. I think we all have the potential to be dangerous. I have to believe that terminology will be challenged in court. It means nothing as written.
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    Don't restart closed threads. Thats not good forum manners. I'll leave it up for those who wish to read half of the story.
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