Know Your Rights: If You Disclose You Are Carrying Do You Consent to be Searched?

In a previous article, we examined whether you should disclose you are carrying a firearm when a law enforcement officer detains you for a traffic stop.  Generally, the advice was that you should voluntarily disclose you are carrying even if the law does not require you to do so.  A logical follow-up question is: If you voluntarily disclose that you are carrying, have you given permission for the police officer to search you or your car?

The question is not an easy one to answer due to the current state of the law.  There is a split among the different jurisdictions in the United States with respect to whether someone who is carrying a gun is automatically considered “dangerous” and subject to search if a law enforcement officer reasonably believes the person is engaged in criminal activity.  In order to understand the issue, it is important to briefly discuss the history of the law related to an officer’s ability to “stop and frisk.”

The History of “Stop and Frisk”

The Fourth Amendment provides that citizens have a right to be free from unreasonable searches and seizures.  The standard used to be fairly cut and dried.  A search was reasonable if law enforcement had a warrant, and a warrant was issued only when there was evidence sufficient to demonstrate probable cause that a crime had been committed.  Then, in 1968, the U.S. Supreme Court issued its decision in a case entitled Terry vs. Ohio. As a result, an officer could seize a person and subject him to a limited search for weapons on nothing more than reasonable suspicion.  The right to “stop and frisk” was born.

The problem with the “stop and frisk” standard is that it is nearly impossible to apply with any precision.  The U.S. Supreme Court explained in the Terry decision than an officer may (1) seize an individual for a brief investigatory stop upon “reasonable suspicion that the suspect was involved in, or is about to be involved in criminal activity,” and (2) frisk the outer clothing of the individual for weapons if he has “reason to believe that he is dealing with an armed and dangerous individual.”  The “reasonable suspicion” standard is low, less than what is necessary for probable cause.

Due to the low standard of proof required for “reasonable suspicion,” the scope of allowable stop and frisk by law enforcement officers has expanded since the Terry decision. Terry involved the stop of a would-be robber casing an establishment with a gun bulging from his coat. Since that time, the Court has allowed officers to stop and frisk in much less obviously criminal situations.  So now, an officer has the ability to frisk individuals stopped for minor traffic violations who are suspected of carrying weapons.  The scope of the search can include compartments within the “lunge area” of the stopped individual.  Suspects can be arrested for refusing to identify themselves during the stop, and officers can initiate a stop based upon a mistake of fact or law.

Interestingly, what has stopped the continued expansion of the “stop and frisk” powers has been Court decisions related to an individual’s Second Amendment rights. The U.S. Supreme Court’s decision in District of Columbia v. Heller, in which the Court recognized an individual’s right to keep and bear arms for personal protection, along with the increase in the number of states authorizing concealed and open carry of firearms in public, is forcing law enforcement to take a new view of when “stop and frisk” is appropriate for people carrying firearms.

Before the Court’s decision in Heller, there was an assumption that any person carrying a concealed weapon was engaged in the crime of unlawful weapons possession. There was a further assumption that anyone who was armed was necessarily dangerous.  Those two assumptions gave law enforcement off

icers the right to stop and frisk anyone who was carrying a firearm.

After the Court’s decision in Heller, and with more than forty states having little or no restrictions on the public concealed carry of firearms, law enforcement officers can no longer assume that public firearm possession is unlawful.  Further, legal holes have started to appear in the former assumption that anyone who carries a firearm is necessarily dangerous under the law.

The change in the legal landscape has created a split in the legal jurisdictions across the United States.  In some areas of the country, people are presumed to be dangerous when carrying a firearm. In those areas, a law enforcement officer can frisk a person for weapons if he possesses a firearm.

In other areas of the country, people are not automatically presumed to be dangerous just because they possess a firearm. In those areas, officers need to be able to identify facts beyond firearm possession that allow them to conclude a person is dangerous before they may frisk and search.

Stop and Frisk Q & A:

• What is a frisk? A frisk is a limited search for weapons, generally of the outer clothing, but also of those areas which may be within a person’s control and pose a danger to an officer.  It is sometimes referred to as a “pat down” of a person’s outer clothing.

• When can an officer frisk? An officer can frisk when he has reasonable suspicion that a person is armed and dangerous.  In our situation, the officer knows you are armed.  You told him when you disclosed you are carrying.  The issue then becomes, are you dangerous?

• Are all armed persons considered dangerous? Not every armed person is automatically a risk to law enforcement.  For example, a Fish & Game Officer stopping hunters to make sure they have the necessary license and tags is not likely to frisk every hunter he encounters because the hunter is armed with a large caliber rifle. The armed hunter in the situation is not reasonably considered dangerous to the Fish and Game Officer.

• Where can an officer frisk? The officer can frisk a person by patting down his clothing and feeling for weapons.  He can also frisk/search the “lunging area.”  The lunging area is any area from which a person could retrieve a weapon.  In our traffic stop example, the lunging area would include under the seat and under a coat on a front or back seat with reach.  It would also include containers as long as the container could reasonably contain a weapon and the container is unlocked.

• Can the officer order me out of the vehicle while he frisks? The officer can order you and/or your passengers out of the vehicle for officer safety while performing the frisk/search.  If you do not comply, the officer has the right to use reasonable force to overcome resistance to a lawful frisk.

Here is what this generally means for those who carry:

• A police officer can no longer detain you just because you are carrying.

• If you are stopped by a police officer for a reason other than firearm possession, the officer cannot legally frisk/search you unless he has a reasonable belief that you are armed and dangerous.

If you Disclose, Be Prepared for a Frisk/Search

So back to our original question. If you are stopped by the police and voluntarily disclose that you are carrying, have you given the officer permission to search you or your car?  The answer is no.  However, even if the office does not have your permission to search, you need to be aware that the officer may frisk/search you if he believes that you are dangerous.  And remember, in some jurisdictions, just having possession of a firearm is enough to make you dangerous.  Your best course of action is to have reasonable expectations and be mentally prepared.

For those who find themselves detained by an officer during a traffic stop:

• If you disclose that you are carrying a firearm, you need to be prepared for the officer to frisk you and/or search the “lunge area” of the vehicle you are in.

• If the officer requests that you and/or your passengers get out of the car for the frisk/search you will need to comply.  The officer has the right to ask if he reasonably believes you are armed and dangerous.  He also has the right to use reasonable force should you try and resist.

We should be allowed to enjoy each and every one of our constitutional rights without restriction.  However, the reality is that there has been a balance struck by the courts between our Fourth Amendment right to be free from unreasonable searches and our Second Amendment right to possess firearms.  If you understand your rights and are mentally prepared for the possible actions of law enforcement as outlined in this article, you should be able to conclude a traffic stop with a minimal amount of infringement on your constitutional rights.

As a last and final point, never ever consent to a search. This doesn’t mean resist. It means don’t give consent. If you are searched unlawfully let an attorney sort it out afterward.

About the author: John Thomas is a U.S. Navy veteran, and a former prosecutor and defense attorney with over 20 years of experience in state and federal courts. He has handled everything from traffic tickets to first-degree murder cases and is a long-time supporter of Second Amendment rights and the rights of individuals to defend themselves, their families and their property.

Author: Alfred E. Neuman

71 year old geek, ultra-conservative patriot.