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Old 07-28-2011, 02:16 PM   #21
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A police officer can ask anything he or she wishes. I was specifically replying to the assertion that an officer may sieze my legally carried weapon during a traffic stop without being able to articulate that I am not simply armed, but armed and dangerous.

OP's statement they merely ASKED him if he had any weapons. "They pull up and tell me they are gonna board my boat and do a safety check...and......DO I HAVE ANY WEAPONS???"

In your first post you stated that you'd have called their supervisor to complain about them violating your rights if the same thing had happened to you. (Sorry, but I haven't figured out a way to post multiple quotes).

Last edited by Davo45; 07-28-2011 at 02:18 PM. Reason: I mistakenly hit enter before I was finished.
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Old 07-28-2011, 02:20 PM   #22
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Er. No idea if this has been hashed out here already as it has been on my home board, and I don't know your State's requirements, but "for officer safety" is not a good enough excuse to violate my rights.

I may have to swallow it at that time - obviously, I'm not going to resist - but the officer's agency will be hearing from me shortly thereafter.
Here's where you said that you said a LEO merely asking if there were any weapons on your vessel was "violating your rights".
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Old 07-28-2011, 02:36 PM   #23
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Default SCOTUS Summary of New Mexico vs. Ketelman

The issue presented in this appeal was whether a police officer could temporarily remove a visible firearm from a vehicle to prevent immediate access to it by an occupant during the short duration of a lawful traffic stop. In November 2008, officers from the Hobbs Police Department stopped a GMC Jimmy with expired temporary tags. On his approach towards the vehicle, an officer saw a black nine millimeter handgun lying on the back seat floorboard. The officer asked Defendant Gregory Ketelson to step out of the vehicle, and his partner retrieved the firearm from the back seat floorboard. Neither Defendant nor his passenger was in the vehicle when the officers retrieved the firearm. After the firearm was removed, Defendant signed a card consenting to the search and admitted that the firearm belonged to him. Officers ran a background check and found that Defendant had a prior felony conviction. Officers then arrested Defendant as a felon in possession of a firearm. Prior to trial, Defendant moved to suppress the firearm and statements made to the police regarding its ownership. The State responded that the entry into the vehicle and removing the firearm were lawful as a "minimal intrusion" necessary for officer safety while the officers determined that Defendant was a felon. The district court found that the State did not make a showing sufficient to support exigent circumstances. Rather, the court found that both Defendant and the driver of the car were "at all times cooperative, and they created no apparent threat or imminent danger to life or serious damage to property." Accordingly, the district court granted the motion to suppress, noting that non-felons may legally carry loaded handguns in private automobiles, and thus, the State must make some showing beyond the mere presence of a firearm in the car before officers effect a warrantless "seizure." Upon review, the Supreme Court concluded that with respect to the Fourth Amendment, the officers had a reasonable articulable suspicion permitting them to remove the weapon. Furthermore, the Court concluded that the officers' removal of the firearm was a minimal intrusion, which was reasonable given the grave need for officer safety during traffic stops. The Court reversed the judgments of the Court of Appeals and the district court and remanded the case for further proceedings.

Sorry FatPat, but the SCOTUS trumps any state court in the U.S. LEOs have every authority to take possession of any firearm(s) in your vehicle for the duration of a traffic stop. This case was ruled on earlier this year. Their reasoning was that officer's safety outweighed a citizen's 4th Amendment right during a traffic stop.

The SCOTUS makes rulings that I don't always like too, but I still have to abide by them, as does everyone else including you.
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Old 07-28-2011, 02:57 PM   #24
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Davo45, is that a reference to SCOTUS or the Supreme Court of the State of New Mexico?

From what I searched online I only found references to the New Mexico Supreme Court ruling on May 20,2011.
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Old 07-28-2011, 03:12 PM   #25
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Stupid google search, after looking further you're right it was a New Mexico Supreme Court ruling. I entered "U.S. Supreme Court Rulings containing "Officers safety." Go figure.
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Old 07-28-2011, 03:16 PM   #26
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Interesting scenario...who has jurisdiction? Are coastal waters under state, local or federal control? Do maratime laws trump local laws. I have always interpreted the "fields and waters" clause of most states gun laws as permitting possession of guns while aboard a boat. Is this incorrect?
As a professional mariner, let me say that the definitions of "coastal waters" are many and varied. If you are inside the ILD (International Line of Demarcation), either state or USCG people can mess with you depending on what the infraction is. Outside that line, it's USCG only unless they request assistance from a state entity or you have committed a felony and move from inland to offshore waters. And then there's DNR, which can mess with you anywhere as well but only about hunting and fishing related things.
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Old 07-28-2011, 03:31 PM   #27
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It was however, a USSC ruling in Marlyland vs. Wilson that a LEO could order the driver and occupants out of the vehicle and pat them down for weapons for officer's safety in 1997. That goes beyond simply asking if there are any weapons in the vehicle and taking possession of them until the stop is over.

I suppose that since a GA officer can't legally take possession of any firearms that may be in the vehicle they've lawfully stopped they can order all of the occupants out one at a time starting with the driver and pat them down. This seems to be a lot more intrusive as well as time consuming to me.

http://www.law.cornell.edu/supct/html/95-1268.ZO.html]
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Old 07-28-2011, 04:11 PM   #28
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It took me a bit to do the necessary research, but I see that you've realized New Mexico V. Ketelson is a New Mexico State Supreme Court decision, and has no bearing on Georgia case law.

The SCOTUS decision in Terry is very clear:

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person "may be armed and presently dangerous." (392 U.S. 1, at 30.)

That whole, pesky, RAS thing...

It would appear to me, given my admittedly limited understanding, that the New Mexico decision could be successfully challenged.

You and others have mistakenly siezed on the impression that I believed the simple act of asking questions was a violation. That is obviously not the case. In my origional post, I quoted armsmaster270 thusly:

Quote:
Originally Posted by Armsmaster270
The reason for the question is officer safety<snip>They may take possesion while doing their Safety check and return it when they finish. No conspiracy
Quote:
Originally Posted by FatPat
Er. No idea if this has been hashed out here already as it has been on my home board, and I don't know your State's requirements, but "for officer safety" is not a good enough excuse to violate my rights. I may have to swallow it at that time - obviously, I'm not going to resist - but the officer's agency will be hearing from me shortly thereafter.
I did not bold the portion that I did in this posting and that may be part of the confusion. However, after being questioned by you, Davo45, I clarified:

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Originally Posted by Davo45
Sorry, but you'll have to cite a statute or case law to back your belief.

I've been stopped before while driving through Georgia and was asked if I had any weapons or drugs in my car. I've seen dozens of dash videos of Georgia Highway Patrol Officers making traffic stops on I-75 during training seminars and every single one of them asked the driver if there were any drugs or weapons in the vehicle. That was over 10 years ago.

If the Georgia Legislature has passed a law which makes it illegal for a LEO to ask the driver/operator of a vehicle or vessel if there are any drugs or weapons in the vehicle/vessel please post it for us. Even if they have, it would not apply to federal LEOs like the USCG or any other federal LEO.
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Originally Posted by FatPat
A police officer can ask anything he or she wishes. I was specifically replying to the assertion that an officer may sieze my legally carried weapon during a traffic stop without being able to articulate that I am not simply armed, but armed and dangerous.
In that same post I included the relevant Georgia case law you requested.
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Old 07-28-2011, 04:34 PM   #29
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Your assertion that the decision in Maryland v. Wilson has bearing on this discussion is, I believe, in error. While Pennsylvania v. Mimms is discussed in the decision (and was used in argument), it is the question of the legality under the 4th of ordering passengers from a legally stopped vehicle that is at issue, not pat-downs or other searches.

Even if the legality of a search had come into question, I believe, due to the observed behavior of the occupants that a pat-down or limited search of the vehicle would have been permissible under Terry.
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Old 07-29-2011, 01:14 PM   #30
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I did believe you were referring to the OP's original post FatPat and I do thank you for clarifying and posting the GA case. I disagree with you about Maryland vs. Wilson not being relevant because when added to Terry vs. Ohio I assert that since a traffic stop falls into an "unknown risk", and since an officer may order all occupants (not talking about children here) out of the vehicle for the officer's safety, then I believe it's reasonable for the officer to also pat them down for weapons.

I have asked every adult in a vehicle if they're armed or are there any weapons in the vehicle on every traffic stop ever since a friend of mine was shot (in the face) and killed in December 2009 on a traffic stop. His murderer was a Pharmacist with a CHL and had a brother who was a, officer for another agency. He had no record other than minor traffic charges and murdered a police officer because of receiving a speeding ticket (80/55).

Had my friend have asked the man to allow him to take possession of his pistol until after he'd completed the stop he may be alive today as the man sounded cooperative and amiable until he'd signed the ticket. At least he'd have had a fighting chance if the man had to load his pistol before shooting.

It is a sad fact that more officers are being shot now than at anytime in U.S. history. There is no such thing as a "low risk" traffic stop, only unknown risk. I support law abiding, responsible citizen's right to carry a gun for their protection. I also believe it's a reasonable request to ask a CHL holder to let me take possession of their handgun(s) until we've concluded our business promising to return it unloaded. I do ask, not order and I treat them with the same respect I expect to be given to me. To date, I've never had anyone refuse.

Yes, the NM case could be appealed in the federal courts, we'll have to wait and see.
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