The vehicle you’re driving can invite a police search
April 1, 2010

by Joseph P. Tartaro
Executive Editor

Can you really mind your own business on the road—always? And do it successfully enough to avoid major and costly problems?

Whether you’re driving for business or pleasure, going on a vacation or to the neighborhood store, or taking the kids to the dentist, you’d be surprised how a number of minor failings can lead to big problems, especially for gunowners—with varying degrees of risk, depending on state and local laws and the attitude of a particular member of the law enforcement community.

Forget about major traffic violations like speeding and going through a red light. Those will almost always invite police attention and bring you face to face with the constabulary. But even small things can bring you to the scrutiny of police and, depending on a number of other factors you may not be able to control, a minor problem can soon become a major one, if the scrutiny becomes more thorough.

Of course, in some states, having a pro-gun bumper sticker on your car can be enough to bring you to the attention of the police, and usually in those states, you can count on the police operating under a policy that is hostile to gunowners. New Jersey is the best example, according to my sources.

But let’s consider an example of as routine stop for a minor reason: if one of your brake lights doesn’t work, even a single bulb in those little rear window arrays in many passenger vehicles, the police will have cause to stop you. Once you are stopped, other things can come to the attention of the office, deputy or trooper.

If you are carrying a loaded firearm on your person or in your vehicle, even if you are doing so legally, that can pose a problem. In some states and jurisdictions, you are required by law to announce to a law enforcement officer that you are armed. In others, only if you are asked.

Once a policeman knows he has stopped a person who is armed, the dynamic of the encounter changes—no matter how pro-gun the officer may be. Now, he or she knows for sure that they have stopped and are in close proximity to a stranger who is armed or has a firearm within easy reach. The officer doesn’t know anything about you—the stranger he or she has stopped, but they are likely to suddenly get edgy—certainly more wary about their own life.

Forget about getting argumentative or raising your voice. If there is just one of you and one of him or her, a change in the atmosphere has already taken place. A very routine traffic stop has suddenly become risky.

Needless to say, with courtesy and respect on both sides, the stop doesn’t have to be anything but routine. You may think you have been stopped without cause, but give the officer a chance to tell you why he stopped you. There may be other reasons why you were pulled over.

Perhaps the officer is on an alert you don’t know about. Maybe looking for a car or truck the same color, make and model as yours—or maybe there’s been a crime in the near vicinity—suddenly the officer is especially alert and likely to want to discuss more than your driver’s license and vehicle registration.

The minor, routine traffic stop can suddenly morph into something more serious, even if you think you are innocent of all fault. If that individual officer, deputy or trooper has had a particularly difficult shift or has had a bad day for personal reasons, he or she may push the envelope with respect to a routine stop. Getting a ticket or citation is only the smallest part of such an encounter.

A visit to the pokey can result. And innocent or not, you are going to have to spend money on a lawyer.

This column is not designed to discourage you from exercising your right to the means for self-defense under the laws governing the state in which you might be traveling. Rather it is a reminder that it is your obligation to know the law, particular if you are traveling through a state other than the one in which you are a legal resident.

From time to time, Gun Week has come across stories in which people who thought they were legally armed suddenly found themselves with court problems that persisted for years. The latest example involves a decision in an Indiana Appeals Court related to suppression of evidence for an illegal substance that escalated from a stop for a burned out headlight. The final decision of the appeals court is welcome and reassuring, but the trouble and expense it cost the driver that was stopped is something that is not easily forgotten—especially because it could happen again in any other state.

The early March Indiana Appeals court story’s headline was: “Concealed carry not a license to be searched.” Here are the details.

Police may not search a vehicle merely because its driver has been issued a valid concealed carry permit, the Indiana Court of Appeals ruled on Mar. 4. A three-judge appellate panel weighed the actions of Indianapolis Police Officer Danny Reynolds who pulled over Melvin Washington for driving with a burned-out headlight on Sept. 17, 2008 at 12:30am.

On that morning, Reynolds first asked Washington whether he had a gun, and Washington said he had one under his seat. Washington also carried a valid concealed carry permit. At this point, Reynolds ordered Washington out of the car and handcuffed him so that he could conduct a search under the seat of Washington’s vehicle. Reynolds spotted a small bag of marijuana and issued Washington a court summons for possession of the marijuana and a ticket for the defective headlight. Washington was then released with his handgun placed in the trunk of his vehicle, unloaded.

Washington moved to have the evidence against him on the drug charge suppressed because the warrantless search, he argued, violated the Fourth Amendment protection against unreasonable searches. A lower court disagreed, insisting that “officer safety” justified the search. But the court of appeals did not agree.

“In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety,” Judge James S. Kirsch wrote for the majority. “Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer’s questions, and showed no disrespect to the officer. At the time he searched for the handgun, Officer Reynolds had no information that any crime or violation of law had been or was about to be committed, except for the inoperable headlight infraction. Further, at the suppression hearing, Officer Reynolds did not testify that he had any specific concern for officer safety during his traffic stop of Washington.”

Because no legitimate safety exception to the Fourth Amendment applied in this case, the court ruled the search was improper. Judge Melissa S. May added in a concurring opinion that the majority’s ruling created a subjective element—cooperation—that could serve as a loophole allowing searches. To solve this problem, May cited the US Supreme Court case Arizona v. Gant where a warrantless vehicle search was overturned because the suspect had no access to his car.

“While we are dealing here with a traffic stop, rather than an arrest, the fact remains that Washington, like Gant, was removed from his car and handcuffed,” May wrote. “Accordingly, Washington’s statement there was a gun under his seat simply could not justify a search of his car based on concern for officer safety.”
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