Legal for cop to disarm you?

**Forklift** · February 7th, 2012, 09:41 PM

Traffic stop, on foot, whatever. Is it legal for the police to take your firearm out of your holster, clear it, and bring it with them back to their car while they do paperwork?

Then when they bring it back they wanna put it in the trunk or glove box. WHAT??? I dont think so. (Yes the example has a LTCF)

This is a 4th amendment violation.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Now the question. Is there a law or a ruling on this matter. My apologies if this has been asked before.

I was always taught to state verbally "I do not consent to any searches or seizures but will comply" My Dad brought up a good point though. 1st that he would not comply because the 2A is to protect us from the Gov and powers of authority like the police (Katrina is the example). So his point is if he gives up willingly and unlawfully his protection he has given up his rights. 2nd is once the gun leaves his sight he doesnt know what the cop is doing to it or with it. Scratches, removing the firing pin, bending the ejector... whatever. Its his property and he is not unlawfully relinquishing it.

I dont wanna hear any whiners talking about officer safety and they have a right to be safe. They only have the rights afforded them by the constitution, just like us. I dont feel comfortable with you legally having a gun so Im taking it from you is outside their bounds!

I read so many posts stating they had a "good police encounter" and that they were disarmed and gun taken out of their sight. What is wrong with this picture!

**twency** · February 7th, 2012, 11:16 PM

Originally Posted by Forklift

Traffic stop, on foot, whatever. Is it legal for the police to take your firearm out of your holster, clear it, and bring it with them back to their car while they do paperwork?

Then when they bring it back they wanna put it in the trunk or glove box. WHAT??? I dont think so. (Yes the example has a LTCF)

This is a 4th amendment violation.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

Now the question. Is there a law or a ruling on this matter. My apologies if this has been asked before.

I was always taught to state verbally "I do not consent to any searches or seizures but will comply" My Dad brought up a good point though. 1st that he would not comply because the 2A is to protect us from the Gov and powers of authority like the police (Katrina is the example). So his point is if he gives up willingly and unlawfully his protection he has given up his rights. 2nd is once the gun leaves his sight he doesnt know what the cop is doing to it or with it. Scratches, removing the firing pin, bending the ejector... whatever. Its his property and he is not unlawfully relinquishing it.

I dont wanna hear any whiners talking about officer safety and they have a right to be safe. They only have the rights afforded them by the constitution, just like us. I dont feel comfortable with you legally having a gun so Im taking it from you is outside their bounds!

I read so many posts stating they had a "good police encounter" and that they were disarmed and gun taken out of their sight. What is wrong with this picture!

[video]

(Off the top of my head, so take this for whatever it's worth.)

The Supreme Court explicitly affirmed the right to surface-frisk a detainee for dangerous objects in Terry v. Ohio, with at least the clear implication if not explicit statement in that case and others following that the officer had the right to disarm the detainee for the duration of the detention. In order to have enough suspicion to perform a Terry stop the officer must have a reasonable suspicion based on specific articulable facts that the detainee is/was/is about to be committing a crime and may be armed and dangerous.

Some later cases seem to have reduced or eliminated the requirement for "armed and dangerous" suspicion, so now any time police have grounds to perform a stop in which you are not free to go, including traffic stops (I believe a relevant case is Mimms v. PA which also affirmed the right of police to order you out of a vehicle), there seems to be no question in the Court's mind that the police are not violating the fourth amendment by searching and disarming you for the duration of the stop.

I don't like it, but that's my understanding of how it is.

As for not complying, I suggest refusing consent to any search or seizure, but it's a BAD idea to in any way physically resist (is that what you're implying you might do when you raise the issue about a gun being out of your sight?). All manner of bad juju may legally flow from physically resisting the actions of an officer, even in many cases when their actions are nonetheless unlawful. You may state clearly your non-consent, but do nothing to try to interfere with the officer. Whether or not the search is constitutional, you're infinitely better off fighting with words in a court than fighting with fists or guns on the side of the road.