Uechi-Ryu.com

We have been through this dicussion before, but here is something interesting I found, worthy of some attention. Any comments?

“We at NCRF were lucky enough to meet Evan F. Nappen, who is most likely, the greatest personal firearms attorney in the country. It was refreshing to find a lawyer who did not believe in giving away our rights & who deeply believed in our Second Amendment right to bear arms. He gave advice for all gun owners on what to do if the police stop you.

First, remain silent. You are only required to give your name, address, & drivers license (only if driving) to the police. Do not volunteer information or answer any questions.

Mr. Nappen's advice when asked if you have guns in the car is to reply by saying, "Why are you asking me that question?" You see the police can only search if there is something in plain sight or if they have probable cause. If there is nothing in plain sight & you refuse to answer any question, the police will lack the cause to search you or your car.

The only way of giving police probable cause is to answer their questions, which are designed to trap you. Do not consent to a search!

As Mr. Nappen puts it, "Men & women died for our rights, the least I can do is to exercise my rights." Second, ask for your attorney. You have a right to have an attorney present during any questioning. By asking for your attorney, you may not be interrogated. Third, do not consent to giving up your rights. Do not consent to a search without a warrant or sign statements without an attorney's advice.

A right given up is a right lost. If the police stop you; do not resist physically, give your name & address only (license if driving), you do not have to answer questions or consent to a search without a warrant. If arrested say, "I want my attorney." Do not be tricked, threatened, or persuaded into giving up you rights.

Without a warrant or probable cause, evidence against you will most likely be thrown out in a criminal court case. For the many who are wrongly arrested for not consenting to police searches, Mr.Nappen will sue the police because they have violated your civil rights.

Police departments who wish to settle civil rights cases need to pay up $3,000 per hour that you were wrongly in jail or risk a federal suit $! “


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Van Canna

I don't disagree with esteemed counsel's advice - for years I've been preaching much the same about the virtues of silence and invoking your right to counsel early and often - but take the advice in context:

This will not necessarily keep you from being searched, hassled, or arrested.

What this will do will make it more difficult for an honest LEO and an honest prosecutor to prosecute a case against you successfully.

And most LEOs and prosecutors are honest.

But what if the ones who confront you are not?

("But...but...but that's against the RULES!!!")

Exactly.

So is ground fighting or weapons' use in most karate tournaments - but for reality, you prepare for the opponent who does not care about rules.

The same advice still applies; just be prepared for the fact that it is not a legal cure-all panancea and that Officer Friendly will not always play by the rule book, and you may have a struggle in court to prove to the judge what actualy transpired in this illegal search.

My Deadlier-Than-Your-Boshiken-Of-D*O*O*M-Sidekick doesn't work in all situations, either....

Sigh.
More training.

student

[This message has been edited by student (edited October 14, 2000).]

Student,

Good response. The question is whether by refusing to agree to a search of your vehicle you trigger the officer's suspicions and give rise to "probable cause" in the eyes of a judge.

Then again, what would be the legal definition of "weapons" ?

Do you know what's in your car at all times that won't come back and bite you in the a**?


What if you are carrying a knife and you just gave the LEO consent to find it on you?

How about a club like weapon, or anything that will not pass as a "tool" ?

What if you have a carry permit but absent mindedly you crossed the State line?

Consider the following from another forum:

" I appreciate WHAT NationalCCW said regarding interaction with a LEO during a traffic stop. I was a little taken back by HOW some of the things were said. I know some Officers who are on a ride to pension, I know more who are out trying to do the right thing.
Lets look at a hypothetical situation:

You are tooling down the highway late at night and are pulled over by LE for 55 in a 50, rolling through a stop, expired tags, etc, etc. Sitting with both hands on the wheel, interior lights on, window down, You wait for the officer to approach.
LEO "Lic & Reg please."
You "yes sir."
LEO "Any illegal weapons in the car?"
You "no sir."
LEO "Mind if I take a look inside your car?"
You "yes I do, no thank you."
LEO "Got something to hide?"
You "no sir."
LEO "Sir, please step out of the vehicle."

To all of you LEO's here, doesn't denying the search request put the thought in your head that that means there is something being hidden? Doesn't it make you a little uneasy?

Just curious. [ JK] "

[snip]

Any thoughts on how to comport ourselves with the officer?




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Van Canna

Apparently my son was up way too late on the computer and has only now (10:45 AM EDT) arisen. It's too late to get to Sukkot/Shabbat services...but there's also a stickfighting seminar today being taught by my Wing Chun sifu. So while I wait for him to have breakfast so that we may attend....

(I am aware that there are contradictions in my life, thank you very much.)

[QUOTE]Originally posted by Van Canna:
Student,

Good response. The question is whether by refusing to agree to a search of your vehicle you trigger the officer's suspicions and give rise to "probable cause" in the eyes of a judge.

IMHLegalO, no. If so, then any time anyone asserted a right, statutory or constitutional, probable cause would be triggered and those rights would be meaningless. In certain jurisdictions, and before certain judges, they are anyway. Grumble....

Then again, what would be the legal definition of "weapons" ?

Statutory; changes from jurisdiction to jurisdiction.


Do you know what's in your car at all times that won't come back and bite you in the a**?

You have O*B*V*I*O*U*S*L*Y never seen my car, sir! I couldn't answer "yes" if the question is to be construed legally or literally!

What if you are carrying a knife and you just gave the LEO consent to find it on you?

Then if there is something illegal about the knife or its carry it may be entered into evidence against you.

But remember, this does not preclude other defenses - "How did THAT get there?" "This is my buddy's jacket; I never looked in the pockets." There are also defenses like choice of evils in most jurisdictions that allow a minor crime to be committed if it is the only alternative to prevent a more major evil. I witnessed an attorney (Oh, 30 years ago, WAY before I took the bar myself) try a CCW case by claiming the defendant needed the knife at work but there workplace was rife with theft; therefore, he carried the knife upon him when he left the workplace and claimed the carrying of it concealed to be the lesser of the evils.

He lost.

How about a club like weapon, or anything that will not pass as a "tool" ?

See last answer. Additionally, the chances of a "club-like" instrument being concealed are somewhat less and "plain view warrantless searches" come into play. Of course, if they are NOT concealed there may be no problem....

What if you have a carry permit but absent mindedly you crossed the State line?

Depends on the neighboring state. Indiana recognizes Kentucky permits, vice versa, so I suppose the penalty would be less - just that for not having your permit on your person.

Ohio, OTOH, has no permit for private citizens (When I had an Ohio permit I was a licensened security guard with training for the permit. My Pennsylvania permit just required the Sheriff to say "yes."); in Ohio I might be guilty of illegal CCW - were I to do that, which I am most careful not to do. Actually, that reminds me to call and bug my Deputy Sheriff friend (again!) who is going to hold a CCW permit class so that I can get mine in Kentucky....


Consider the following from another forum:

" I appreciate WHAT NationalCCW said regarding interaction with a LEO during a traffic stop. I was a little taken back by HOW some of the things were said. I know some Officers who are on a ride to pension, I know more who are out trying to do the right thing.
Lets look at a hypothetical situation:

You are tooling down the highway late at night and are pulled over by LE for 55 in a 50, rolling through a stop, expired tags, etc, etc. Sitting with both hands on the wheel, interior lights on, window down, You wait for the officer to approach.
LEO "Lic & Reg please."
You "yes sir."
LEO "Any illegal weapons in the car?"
You "no sir."
LEO "Mind if I take a look inside your car?"
You "yes I do, no thank you."
LEO "Got something to hide?"
You "no sir."
LEO "Sir, please step out of the vehicle."

To all of you LEO's here, doesn't denying the search request put the thought in your head that that means there is something being hidden? Doesn't it make you a little uneasy?

Just curious. [ JK] "

[snip]

Any thoughts on how to comport ourselves with the officer?

Respectfully but firmly.
"Officer, am I being detained?"
"May I leave?"
"If you are asking me, then, respectfully,sir, no, I intend to remain here."
"Have I the right to decline this order, sir?"
"Sir, understand that I am not voluntarily consenting; what I am doing is not disobeying your orders!"
"My attorney is_____ and I wish to call him now."

You want to make it crystalline that your are NOT voluntarily consenting to searches; any search that is accomplished by the officer is by force majeure.

This is not guranteed to make your life easier; far from it!

In fact, a smart and experienced officer will simply arrest you for whatever infraction you committed that made him stop you, (i.e, speeding, expired tags - but often he doesn't have the authority to arrest you for minor infractions, which will make it an illegal arrest and could make the search suppressible...) and then conduct a Terry (case law) pat down for his safety, search incident to arrest, and, if especially cunning, will impound the car and then do an inventory search.

You always tread a tightrope when you assert your rights.

Panther? Rory?


Okay, we're off to the seminar, so don't expect quick responses to further posting.

student

[This message has been edited by student (edited October 14, 2000).]

[This message has been edited by student (edited October 14, 2000).]

Why bring me into this? I'm just a dumb ol' Corrections sergeant.

The one thing that bugs me, Student,is the number of people who try the "It's not my jacket" on to the point of absurdity. When we find a friggin' shank in your drawers "How did that get there?" really doesn't make any friends.

As an aside, before a pat search most LEO's will ask if you have anything sharp on you. Please answer truthfully.

One thing that will score big points if you have a permit is to leave your hands on the wheel, wait to be asked for ID and reg, and say "Yes sir, but before I reach for them I want you to know that I have a permit to carry (or, 'am carrying my off duty weapon')and it is (location)." They really respect the courtesy, and enough are interested in RTKBA that it often will open a dialog. Consider it VSD for traffic tickets.

Rory

A perspective from a police officer:

“Just a side note. While the national lodge of the Fraternal Order of Police is certainly no friend of gun owners , local and state lodges vary greatly. Here in Kentucky the state lodge of the FOP as well as the majority of local lodges supported the bill that eventually became our shall-issue CCW permit law.
I personally couldn't care less what most people here on the internet think about us, that is why I don't post here as much as I used to. Fact is, I will treat you how you treat me. It's legal to have a gun in your car here whether you have a permit or not. I would only ask for personal safety reasons (and I don't care if my safety isn't important to you) If you don't want to give me a break then you shouldn't expect one from me. If you are stopped for a traffic violation and admit you have a gun, we will probably end up talking about guns instead of you getting a ticket, but if you want to be a jerk then I will try to run my pen out of ink.” [ Lewis]

How about this one?

" My home state, NJ, is Gestapo HQ. Example: I was involved in a car accident and taken to the hosp. Cops found 1 spent .45 acp casing.
They found a judge, got a warrant and SEARCHED my home. Nothing found and left. I am not holding any details back.I never talked to the officers.
on another occasion,cops ran a criminal check on me for tgt shooting on parents rural proptery, they were very hostile.
NJ is what CCW was writing about." [Gabo]

And this one:

"Let me share with you all a true story about inquiring about weapons for officer safety.
An old man takes a 500 mile round trip bus ride to Denver to see the governor about a matter regarding his grandchildren. This old timer knows he will be arriving in town in the middle of the night and by far not the friendliest part of town. He also knows that in the preceding weeks at least seven old men have been beaten to death on Denver streets and many more severely beaten who barely survived, all within a few blocks of his destination. One poor fellow even lost his head, literally. Must have been a trophy, because they never found it. Anyway, being a reasonably prudent man, he brings his Colt Mustang .380 stowed deep in his backpack. He waits out the hours of the night, then heads up to the capitol building and politely waits outside for it to open. Once it does, he waits outside the govenors office, again, very patiently and causing no concern to anyone. A sheriff's deputy escorts him to a more accomodating waiting area, and noticing the backpack, inquires about weapons. Of course, this gentlemen who has never been in any trouble of any kind in his scores of years in this troubled world tells the truth and admits he has a pistol in his backpack due to the aforementioned circumstances. He was promptly arrested.

Officer safety? Gimme a friggin' break!"

[Ol timer]

Here is more:

"OK, you can hear this from a former cop. Maybe that will mean more...
You have NOTHING to gain by "running your mouth" to answer any cop's nosy questions. You have NOTHING to gain by giving "consent" to a search of yourself or your property, if asked.

Here's why...

IF a cop is asking nosy questions, and by that I don't mean questions for his personal safety - I mean NOSY questions, he is digging for probable cause to search or detain you, both of which might lead to your arrest. If he is asking for "consent" to search, he does not have your best interests at heart. He is trying to find something to arrest you for. It's just that simple. Who are we kidding here? I DID drug interdiction work, and I know the game.

It's not that the cop has it out for you personally - he is just doing his job. It's your job (and in your best interest) to keep your answers to a bare minimum, to politely deny "consent" to search your vehicle, and to try to get on your way as quickly as possible.

Think about it. If you cooperate with questions but are "tight lipped", a cop will have no legal reason to detain you based on his questions alone.

If a cop is asking you for "consent" to search, he most likely has no probable cause. And you have every right to say "No thank you." If a cop finds nothing on a "consent" search, he will just send you on your way. He won't even help you put your "stuff" back. If he finds something he doesn't like, you go to jail... What have you gained by giving him a free search? Nothing!

I advise all my friends and family to politely answer question with a "yes-sir" or "no-sir" if possible, or with the bare minimum of words otherwise. I also advise them to politely refuse a "consent to search" request. It's just good common sense." [ BKD]

This is why I get so pissed when people diss lawyers. The cops and prosecuters have a tremendous amount of power (which waxes and wanes, depending on who is sitting on the Supreme Court). If a cop tricks you into a search, or tricks you into allowing him to do something he wouldn't be allowed to do in the first place, who do you think is going to get you out of the pickle you just got yourself into?

I fully support a strong, benevolent police force. But...

My best friend in collge is a deputy sheriff in Maryland. He HIMSELF doesn't trust nosy cops at traffic stops!

This is also why I try to stay current on what the afroementioned nine wise in Washington do. Their case law changes all the time, and it is who of us to keep abreast. That is good civics.

Good discussion, Sensei Van!

Gene

Rory,

You wrote, “"Yes sir, but before I reach for them I want you to know that I have a permit to carry (or, 'am carrying my off duty weapon’) and it is (location)." They really respect the courtesy, and enough are interested in RTKBA that it often will open a dialog. Consider it VSD for traffic tickets. “

I agree! It is common courtesy that appeals to the officer’s emotions, respect, and sense of fairness.

And if we are carrying a legal firearm under a ccw permit, and in your State of issue, no problem!

But what if he then asks:

“ Do you have any other weapons?”

Now you are thinking…gee, I have a mean looking folder knife on me as well, [Emerson Commander] _ a combat cane down in the back seat, A baseball bat in the trunk, and an eight inch hunting knife in my bag, a gift from a fellow martial artist just handed to me at summer camp I am returning from.

You know some of the stuff, if not all may well be illegal and not covered by your ccw permit.

Now what’s your answer to the LEO?

What if you stupidly crossed the State line and get pulled over? [ccw not recognized] __ Now what!



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Van Canna

Here we go again... All of this is based on you being pulled and you aren't a "bad guy"(tm), aren't carrying some currently un-PC contraband, have no intention of harming the officer, and just want to go home to see your family like most LEOs.

First of all, if an officer has probable cause, (s)he doesn't need any stinkin' warrant to search your vehicle! If an officer is asking for your consent to search, then (s)he does not have probable cause and can not search your vehicle! The Supreme Court of the United States has already ruled that refusing to give up your Consitutionally recognized 4th Amendment Rights does not constitute probable cause!

Many LEOs use the trick that they will just call for a warrant and make you wait. Then when they get in court, it comes out that you "waited voluntarily". Fact is that when the officer pulls you over for a traffic violation, (s)he can ask you for your license and registration and should give you the reason that you are being pulled over (if they don't ASK). Once the citation/warning/whatever has been issued, then the traffic stop is concluded... PERIOD. If the officer asks questions at that point, you have the RIGHT to remain silent and it does not give the gesta, ummmm... officer probable cause. If (s)he tries to get you to wait, you must ask the officer if you are being detained... if they reply "yes", then they are screwed in court for false arrest. (Being detained IS being arrested without being Mirandized... Supreme Court says so.) If they answer "no", LEAVE!

Any line of questioning that is not relevant to the initial reason for being stopped OR to your license/registration is... well... not relevant!

Sorry if "offends" Officer Lewis or Officer Miller, but the only time I'll tell an LEO that I'm CCW is if 1) they ask me to get out of the vehicle for some reason, or 2) some movement that I will be making will expose my concealed personal-defense tool. Then and only then will I say to the officer:

(With hands firmly on the steering wheel) "Officer, I'd be happy to get out of the car. First I need to tell you that I am lawfully licensed to carry and am currently legally carrying a firearm. I want you to feel completely safe and comfortable, so how would you like for me to proceed." And then follow his/her directions.

If the officer doesn't need to know, then there is no reason to upset the officer and confuse a simple traffic stop... (given the fact that the officer is in no danger from me OR my personal-defense tool.) And in the Commonwealth of Massachusetts there is NO legal obligation to tell the officer. (NOTE: In other jurisdictions there are legal requirements to tell the officer, check local laws.) This also leads to going into other States... It not only helps, but is advisable to obtain CCW permits in any State that you are likely to travel in... as a resident of MA, NH, ME, FL non-resident permits for CCW are easy to obtain with the proper MA LTC. VT is a non-issue. CT & RI are more difficult, but not impossible. NY, NJ are basket-cases... PA, VA, SC, GA require you apply and return in person for the entire process. NC and MD (IIRC) have no provision for non-resident CCW permits. NM has no CCW (resident or non)... AZ & NM allow for open carry, so you don't even need a CCW.

I do everything from the start to make the officer feel comfortable and at ease... even the one who yelled at my wife and the one who literally threatened me during a stop. I always remain polite and respond with "yes sir/ma'am" & "no sir/ma'am"... I figure the LEO is just doing their job and wants to go home at the end of the shift to see the family same as me.

However, I will not give up my rights because an officer is 1) a facist with a badge, 2) is having a bad day and wants to take it out on me, or 3) has Officer Lewis' "I don't care what you think" attitude. If you want to know why so many people have quit giving LEOs a break, think about that "us vs. them" attitude that makes all of "us" automatically beneath you... Go ahead, write for all your worth, still the same amount of time in court for me and it's just more evidence of your poor ability to control your temper. Wouldn't be the first time I've had an officer reprimanded for mistreatment of lawful citizens. I know that it is a very easy thing to do and very difficult to stop doing, but you really need to understand that not everyone is a bad guy... I have more than a few LEOs that are friends and they've gotten into calling me for sanity checks when they start getting to... well, jaded. When you deal with low-lifes most of the day, it's hard to realize that most people are just decent people.

A badge does not create a diety!
LEOs are human, just like lawful citizens...

Doesn't offend me in the slightest, Panther. If there is any chance whatsoever that reaching for my wallet will expose a weapon, I want the officer to hear it from me first. I do not want him to see it, especially with my hand moving towards the back pocket next to it, and have to make a quick decision.

That's just the way I calculate the odds.

Rory