In a thread on another, nationwide forum, a poster told the story of how a LEO had taken the poster's sidearm during a traffic stop, unloaded it, and returned it unloaded at the conclusion of the stop with an order to leave it unloaded until the LEO's car was out of sight. While it seems fairly clear that, at a minimum, the parting order did not carry the force of law, the question that remains is: what is the actual authority an LEO has under the law during a traffic stop, or similarly, during a Terry stop involving someone on foot?

- Does an LEO have the authority to seize weapons that are lawfully carried absent probable cause or consent, when no arrest is imminent?

- Given that the purpose of a Terry frisk is to determine whether a person stopped is armed, can a Terry search be conducted when the answer is self-evident (e.g. open carry)

- Does an LEO have the authority to unload a weapon that was lawfully carried after seizing it?

- If there is no evidence of any crime, must the LEO return any seized weapon? Can the LEO insist that the weapon remain unloaded, e.g. until the LEO departs the area?

- While there are court cases that establish the authority of a peace officer to control the environment of a traffic stop (e.g. where to park, requiring driver and passengers to exit the car), there must be limitations. What are they?

It's funny that you should ask. My boss just sent us a a US Appeals court decision, which references a passenger who had a handgun in his waistband, and was asking that it be suppressed. This is a MN case.

This was sent to me as a PDF, so I can't link it. Sorry.

US of A v. Oliver

Here are a couple of relevant quotes: (bold added by me)





If the officer can articulate the reason he took the gun, and it is reasonable, I would imagine that there would be no recourse for the carrier. If the officer can reasonably articulate why he unloaded the gun, same result. If he didn't give it back, then maybe recourse (Ask Macx how well it works in Hennipen Co.)

When the traffic stop ends, so does the officer's authority. Until then, he's pretty much running the show.

Man, I had a great post all typed out and got logged off & lost it.

If Hennepin Co had taken my knappy old bolt actions, I'd be happy. I'd have them back long ago because they actually seem to follow the law. MPD on the other hand .. . . Well, not sure if Khang got his shotgun back or not, but the city attorney seems sure that state law doesn't mean squat if MPD might be on the hook for another settlement.

I did a line by line expansion of the theme, but it all boils down to

By way of illustration:

If a person is nude or open carrying, a Terry search can't be conducted under the Terry v Ohio. The extent of a Terry search is a pat down of the outside of clothing to detirmine if a weapon is present. How that plays out though is this: An officer pulls you over while you are roller blading and conducts a Terry on you, he feels an object in your pocket that might be a ___________. Now under Terry he can't go in your pocket to find out what that is, if it doesn't feel like a weapon. It will play out in one of three ways: A. The officer will exceed Terry and go in you pocket anyway. B. You will consent to his probing your pocket and he will find that it is a cleaning dohicky out of an AK buttstock cleaning kit and not a weed pipe . . . It'll thread onto a cleaning rod, but you couldn't possibly smoke out of it. C. He arrests you based on the probable cause that it feels like paraphernalia & he takes you down to the hokie and as they are checking you in, they find your cleaning rod dohicky and although they have no clue what it is, can tell it isn't paraphernalia so you waste your time . . . have an arrest that shows up on your LEO record checks even though you weren't prosecuted . . . . . so it haunts you. Shoot, that is if you are lucky. If you aren't, they won't bother to confirm it isn't paraphernalia and you'll actually have to stand in front of a judge and explain why you only had part of your cleaning kit and none of the other related stuff. Meanwhile you get to spend time in unpleasant company and wear underwear that doesn't fit right or belong to you under scrubs that don't fit either.

Is it right? eh. . . . it is the way it is.


Now folks I wrote something like that out for each of those line items & I am not apt to try and recreate the whole thing. There is a taste anyhow. It boild down to: If you are lucky you'll get a bright cop and he won't handle firearms more than the situation warrants . If you are unlucky you'll get someone stupid or ego-maniacal. . . . but ultimately. . .

IANAL however I do have a Bachelor of Science in Criminal Justice. Very little of what I have seen in MPD resembles what we learned at one of the best law enforcement schools in the country. Reality and the actual laws are different topics to varying degrees in varying places.