Traffic Stop Scenario

[EMNofSeattle]

RCW 46.64.070
Stopping motor vehicles for driver's license check, vehicle inspection and test — Authorized — Powers additional.

I was wrong about any time, it is daylight hours only, WSP only.

To carry out the purpose of RCW 46.64.060 and 46.64.070, officers of the Washington state patrol are hereby empowered during daylight hours and while using plainly marked state patrol vehicles to require the driver of any motor vehicle being operated on any highway of this state to stop and display his or her driver's license and/or to submit the motor vehicle being driven by such person to an inspection and test to ascertain whether such vehicle complies with the minimum equipment requirements prescribed by chapter 46.37 RCW, as now or hereafter amended. No criminal citation shall be issued for a period of ten days after giving a warning ticket pointing out the defect.

I think that law is unconstitutional and non-enforceable.

The U.S. Supreme Court ruled in Delaware v. Prouse that probable cause is required for a motor vehicle stop.

an excerpt from the ruling

2. Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the fourth amendment

 

[Jeff Hayes]

I think that law is unconstitutional and non-enforceable.

The U.S. Supreme Court ruled in Delaware v. Prouse that probable cause is required for a motor vehicle stop.

an excerpt from the ruling

Well since RCW 46.64.070 has not been challenged it is still Constitutional. All laws are assumed Constitutional until ruled otherwise. Prouse does not address random stops for vehicle inspections.

 

[hermannr]

No, I am going to bet that if a Cop sees you CCing a firearm he can ask you for your CPL and if he does you must produce it. I base this on

"(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.".

As soon as a Cop becomes aware that you are carrying he has all he needs to ask for a CPL, if he is not aware of a CC firearm or your are OC he has no right to ask for your CPL.

You are also wrong in Washington any Cop anytime can stop your car and ask for your DL, registration and proof of insurance. I will try to find the cite. I was shocked not too long ago to discover this. They can do road blocks but they can stop any car any time.

Jeff! The reason a cop cannot just ask for your dirvers license, CPL, or any other thing unless you are suspected of committing a CRIME....is US Supreme Court Ruling in Delaware V Prouse. Random stops for license checks are not legal. EOD. As carry of a firearm is a legal activity, the carry itself (even though you may be carrying illegaly) is not sufficent for RAS. (read Delaware V Prouse)

Secondly, if you are out and about, and you are not suspected of committing a CRIME, but you have been stopped for a traffic violation (civil offense, not a CRIME) they have no reason to ask for you CPL, or demand your weapon. That has to do with Washinton Constitution Article 1 section 7, and all of the ruling had to do with random DUI checks, but if you are look for WA supreme court decisions, that is where they will be. If I remember correctly, there are three of them and all V seattle.

In fact there is absolutely no time or place in WA the you MUST present a CPL if ask to by LE, UNLESS you are being detained for a crime.

 

[rapgood]

I'll try and look up the cite when I get to a computer. My understanding is that the state supreme court has ruled that an officer removing your firearm for officer safely does not violate the 4th.

I think that misstates the general trend of holdings by the State Sup. Ct. on the topic.

I believe you do not have it all here. You may be searched, and any weapons siezed, IF you are being detained for a CRIME, or suspecian of a CRIME.

A traffic stop is not a crime under normal circumstances. It is a civil violation and NO they cannot disarm you under those conditions, just as they cannot detain you and sieze your weapon for walking down the street with an openly carried weapon.
Anyway, in WA, the cops need to worry more about Article 1 Section 7 than the 4th.

Correct.

I don't know about Washington state law; but I do know two federal cases that apply:

Pennsylvania vs Mimms says in so many words that a cop may temporarily seize for officer safety a gun. No reasonable suspicion about the dangerousness of the driver or passengers is required. Gun = danger.

Michigan vs Long says in so many words that a cop may search the passenger compartment of the vehicle for a weapon. The classic description is anywhere within reach of the driver, but don't focus on how long the driver's arms are. Read the case for the details.

Washington's Constitution limits this ability substantially. Michigan v. Long is inapposite.

I know. But, where is the Washington state case, if any, that prohibits or authorizes the car search and gun seizure? That was the OP's question.

For limitations, see below.

This is just the information I was looking for, but there is something I have not seen. I would assume that a cpl would have to be handed over if LEO asked or "demanded" it correct.

Correct. Subject to RAS or PC being present.

So what would stop them from demanding your firearm?

They can demand, but Washington Constitution. Art. I, section 7 substantially limits your duty to do so.

Yes you must display your CPL upon demand by any Cop.

When CC or carrying loaded in an automobile.

Nothing would stop them from temporarily seizing your firearm at that moment in time.

Incorrect.

You must display only when you are CC.

Correct. Or carrying loaded in an automobile.

(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so.
This refers to the CPL does it not?

Correct.

also when does the law require you to?

When you are CC or carrying loaded in an automobile.

If you are pulled over for a traffic infraction the officer has no right to disarm you and no requirement to pull you out of your vehicle. If I were in the same situation and the officer isn't having me step out of the vehicle yet wanted to disarm me I would respectfully decline and request he get a supervisor out. Unless he has RAS that a crime has been committed that would permit him to search my person or the vehicle he has no right to take the firearm.

Correct.

The downside with this is that per officer mentality the only way they are safe in this world is if they have all the guns and everyone else has nothing. If the officer wants to disarm you he will and he will use the excuse of "officer safety". They don't always do it, but it is done.

But, it isn't necessarily permitted.

Does anyone know if "officer safety" has been tested post Heller/McDonald?

In Washington, it doesn't matter if it has been tested post Heller/McDonald.

Hold on fella's. They still need RAS or PC to demand your CPL.
Cops can not just walk up to people and ask for their CPL they have to have a reason. If a Cop were to see your CC pistol, find it during a pat down or you volunteered that you were carrying then he could ask to see your CPL.

Correct.

Until you provide the CPL you are unlawfully carrying a firearm concealed.

Incorrect.

Now if you are OCing he has no right to ask for your CPL because you are not required to have a CPL on your person when OCing.

Correct. Unless you are OCing loaded in an automobile.

I am going to bet that if a Cop sees you CCing a firearm he can ask you for your CPL and if he does you must produce it.
<snip>
As soon as a Cop becomes aware that you are carrying he has all he needs to ask for a CPL, if he is not aware of a CC firearm or your are OC he has no right to ask for your CPL.

Generally correct.

Although SCOTUS has held that it is unreasonable to prevent the police from taking reasonable steps to protect their safety. Mich. v. Long, 463 U.S. 1032, 1052 (1983), WA Const. Article I, section 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision differs from the Fourth Amendment in that article I, section 7 "clearly recognizes an individual's right to privacy with no express limitations." State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982). See also Ferrier, 136 Wn.2d at 111. Accordingly, while article I, section 7 necessarily encompasses those legitimate expectations of privacy protected by the Fourth Amendment, its scope is not limited to subjective expectations of privacy but, more broadly, protects "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Myrick, 102 Wn.2d at 511. See also State v. Mendez, 137 Wn.2d 208, 219, 970 P.2d 722 (1999); State v. Johnson, 128 Wn.2d 431, 446, 909 P.2d 293 (1996); State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990).

The Washington Supreme Court long held the right to be free from unreasonable governmental intrusion into one's "private affairs" encompasses automobiles and their contents. See, e.g., Mendez, 137 Wn.2d at 217, 219; Hendrickson, 129 Wn.2d at 69 n.1; City of Seattle v. Mesiani, 110 Wn.2d 454, 456-457, 755 P.2d 775 (1988); State v. Kennedy, 107 Wn.2d 1, 4-5, 726 P.2d 445 (1986); State v. Gibbons, 118 Wash. 171, 187-88, 203 P. 390 (1922).

More than 90 years ago, in Gibbons, the Washington Supreme Court explicitly recognized the citizens of this state have a right to the privacy of their vehicles. "We note that the case before us does not involve a search . . . in the home of appellant; but manifestly the constitutional guaranty that 'no person shall be disturbed in his private affairs, or his home invaded, without authority of law,' protected the person of appellant, and the possession of his automobile and all that was in it, while upon a public street of Ritzville, against arrest and search without authority of a warrant of arrest, or a search warrant, as fully as he would have been so protected had he and his possession been actually inside his own dwelling; that is, his "private affairs" were under the protection of this guaranty of the constitution, whether he was within his dwelling, upon the public highways, or wherever he had the right to be." Gibbons, 118 Wash. at 187-88 (quoting WASH. CONST. art. I, § 7).

In Mesiani, WA Sup. Ct. reiterated the holding of Gibbons and subsequent cases, stating that "from the earliest days of the automobile in this state, this court has acknowledged the privacy interest of individuals and objects in automobiles." Mesiani, 110 Wn.2d at 456-57. "We expressly adopted the reasoning of the United States Supreme Court into our article I, section 7 analysis: "An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. . . ." Mesiani, 110 Wn.2d at 457 (quoting Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). State v. Parker, 139 Wn.2d 486, 493-495 (Wash. 1999).

The authority to conduct a full blown evidentiary search cannot constitutionally derive from the need to secure officer safety alone, although, indisputably, the search incident to arrest exception functions primarily to achieve this purpose. Rather, despite the inevitable danger an officer may face in the field, the authority to search following an arrest stems directly from the fact of the arrest itself and the concomitant lessening of the arrestee's privacy interest. E.g., State v. White, 44 Wn. App. 276, 278, 722 P.2d 118 (1986) (once arrested there is a diminished expectation of privacy in the person of the arrestee). It is precisely because the privacy interest of a nonarrested individual remains largely undiminished that full blown evidentiary searches of nonarrested individuals are constitutionally invalid even where officers may legitimately fear for their safety. State v. Parker, 139 Wn.2d 486, 499 (Wash. 1999)

 

[hermannr]

The the question was: When do you need to produce a CPL on demand.

Rapgood's answer was:

When you are CC or carrying loaded in an automobile.

I disagree here. There are many exceptions to loaded carry in a Vehicle, and CC that do not require a CPL. See RCW 9.41.060(8) for the one I would use the most often. I have also used (6) and (7).

I lived without a CPL from 1970 to 1994, I am quite familure with the exemptions, and also, the requirement has changed over time. I still OC almost exclusively, but IMHO...without a reasonable suspician of a CRIME they cannot ask for your CPL. Just possession of a firearm is not a valid basis for RAS.

Reason? Two:

First: Random license checks for a licensed activity are illegal per the US Supreme Court in Delaware V Prouse. In the case of Prouse it was a DL check that led to the discovery of MJ. The evidence was "poisoned" by the manner in which it was obtained. This ruling speaks to any "licensed" activity.

Second: "when required by law" There is no specific place in the law that states you must produce a CPL under "this" condition.

An illustration of what I mean is in ORS 166.360-380. In Oregon there IS a specific instance, in law, that says, under this circumstance, if asked, you must produce you CHL. There is no equivilant in WA law. At one time (just after 1994) there may have been, but it went away, either by court ruling, or legislation...anyway, such a requirement does not exist any more.

 

[B. Reddy]

Don't expect much....

Here is an email I sent off to the AG to gain clarification on this issue.

Free- if your state Attorney General is like Virginia's, and from his website, it appears likely, he will only respond to inquiries from "designated public officials", not private citizens. You might have luck getting your elected officials to ask him.

"The Washington Attorney General, as the chief law officer of the state, provides official opinions on questions of law at the request of designated public officials on issues arising in the course of their duties. " http://www.atg.wa.gov/AGOOpinions/default.aspx#.URh0NWfTLvw

 

[hermannr]

Free- if your state Attorney General is like Virginia's, and from his website, it appears likely, he will only respond to inquiries from "designated public officials", not private citizens. You might have luck getting your elected officials to ask him.

"The Washington Attorney General, as the chief law officer of the state, provides official opinions on questions of law at the request of designated public officials on issues arising in the course of their duties. " http://www.atg.wa.gov/AGOOpinions/default.aspx#.URh0NWfTLvw

You are correct. The AG is the STATE'S personal attorney. If you want an AG's opinion, ask, say, Senator Bob Morton to ask the AG. (or whomever YOUR state senator is, Bob Morton is mine.)

 

[BigDave]

The the question was: When do you need to produce a CPL on demand.
Rapgood's answer was: When you are CC or carrying loaded in an automobile.

Reason? Two:

• First: Random license checks for a licensed activity are illegal per the US Supreme Court in Delaware V Prouse. In the case of Prouse it was a DL check that led to the discovery of MJ. The evidence was "poisoned" by the manner in which it was obtained. This ruling speaks to any "licensed" activity.
• Second: "when required by law" There is no specific place in the law that states you must produce a CPL under "this" condition.

An illustration of what I mean is in ORS 166.360-380. In Oregon there IS a specific instance, in law, that says, under this circumstance, if asked, you must produce you CHL. There is no equivilant in WA law. At one time (just after 1994) there may have been, but it went away, either by court ruling, or legislation...anyway, such a requirement does not exist any more.

I know we have discussed this issue before and vary on interpretation.

I contend 9.41.050(1)(b)"shall display the same upon demand to any police officer or to any other person when and if required by law to do so." and we read in 9.41.050(2)(a) "A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol" so when it becomes known one is carrying a concealed or loaded pistol in a vehicle an officer can require you to produce your CPL. Of course then with the exceptions in 9.41.060 is a different matter as it does not require a CPL.
We then deal with the exception in 9.41.300(2)(b) and if the City or County has an ordinance prohibiting firearms in a stadium or convention center and it becomes known you are carrying can be required by law to produce your CPL.

RCW 9.41.050 Carrying firearms.
(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.
(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.
(2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee's person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.
​

RCW 9.41.060 Exceptions to restrictions on carrying firearms.
The provisions of RCW 9.41.050 shall not apply to:
(6) Regularly enrolled members of clubs organized for the purpose of target shooting, when those members are at or are going to or from their places of target practice;
(7) Regularly enrolled members of clubs organized for the purpose of modern and antique firearm collecting, when those members are at or are going to or from their collector's gun shows and exhibits;
(8) Any person engaging in a lawful outdoor recreational activity such as hunting, fishing, camping, hiking, or horseback riding, only if, considering all of the attendant circumstances, including but not limited to whether the person has a valid hunting or fishing license, it is reasonable to conclude that the person is participating in lawful outdoor activities or is traveling to or from a legitimate outdoor recreation area;
​

 

[sudden valley gunner]

The the question was: When do you need to produce a CPL on demand.

Rapgood's answer was:



I disagree here. There are many exceptions to loaded carry in a Vehicle, and CC that do not require a CPL. See RCW 9.41.060(8) for the one I would use the most often. I have also used (6) and (7).

I lived without a CPL from 1970 to 1994, I am quite familure with the exemptions, and also, the requirement has changed over time. I still OC almost exclusively, but IMHO...without a reasonable suspician of a CRIME they cannot ask for your CPL. Just possession of a firearm is not a valid basis for RAS.

Reason? Two:

First: Random license checks for a licensed activity are illegal per the US Supreme Court in Delaware V Prouse. In the case of Prouse it was a DL check that led to the discovery of MJ. The evidence was "poisoned" by the manner in which it was obtained. This ruling speaks to any "licensed" activity.

Second: "when required by law" There is no specific place in the law that states you must produce a CPL under "this" condition.

An illustration of what I mean is in ORS 166.360-380. In Oregon there IS a specific instance, in law, that says, under this circumstance, if asked, you must produce you CHL. There is no equivilant in WA law. At one time (just after 1994) there may have been, but it went away, either by court ruling, or legislation...anyway, such a requirement does not exist any more.

Here is a case in Florida, who has a present on demand law too, it was ruled unconstitutional laws must be compatible with the constitution Just because a law says you must present your permit,ID does not mean you have too.There has to be other factors present. A legitimate traffic stop may be one.

Regalado v. State, 25 So. 3d 600 - Fla: Dist. Court of Appeals, 4th Dist. 2009

"Despite the obvious potential danger to officers and the public by a person in possession of a concealed gun in a crowd, this is not illegal in Florida unless the person does not have a concealed weapons permit, a fact that an officer cannot glean by mere observation. Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment."

 

[hermannr]

I know we have discussed this issue before and vary on interpretation.

I contend 9.41.050(1)(b)"shall display the same upon demand to any police officer or to any other person when and if required by law to do so." and we read in 9.41.050(2)(a) "A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol" so when it becomes known one is carrying a concealed or loaded pistol in a vehicle an officer can require you to produce your CPL. Of course then with the exceptions in 9.41.060 is a different matter as it does not require a CPL.
We then deal with the exception in 9.41.300(2)(b) and if the City or County has an ordinance prohibiting firearms in a stadium or convention center and it becomes known you are carrying can be required by law to produce your CPL.

RCW 9.41.050 Carrying firearms.
(1)(a) Except in the person's place of abode or fixed place of business, a person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol.
(b) Every licensee shall have his or her concealed pistol license in his or her immediate possession at all times that he or she is required by this section to have a concealed pistol license and shall display the same upon demand to any police officer or to any other person when and if required by law to do so. Any violation of this subsection (1)(b) shall be a class 1 civil infraction under chapter 7.80 RCW and shall be punished accordingly pursuant to chapter 7.80 RCW and the infraction rules for courts of limited jurisdiction.
(2)(a) A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to carry a concealed pistol and: (i) The pistol is on the licensee's person, (ii) the licensee is within the vehicle at all times that the pistol is there, or (iii) the licensee is away from the vehicle and the pistol is locked within the vehicle and concealed from view from outside the vehicle.
​

RCW 9.41.060 Exceptions to restrictions on carrying firearms.
The provisions of RCW 9.41.050 shall not apply to:
(6) Regularly enrolled members of clubs organized for the purpose of target shooting, when those members are at or are going to or from their places of target practice;
(7) Regularly enrolled members of clubs organized for the purpose of modern and antique firearm collecting, when those members are at or are going to or from their collector's gun shows and exhibits;
(8) Any person engaging in a lawful outdoor recreational activity such as hunting, fishing, camping, hiking, or horseback riding, only if, considering all of the attendant circumstances, including but not limited to whether the person has a valid hunting or fishing license, it is reasonable to conclude that the person is participating in lawful outdoor activities or is traveling to or from a legitimate outdoor recreation area;
​

Hej Dave:

I will repeat one thing, and add another..experience.

US Supreme Court, in Delaware V Prouse, states that LE cannot randomly demand a license for a licensed activity. They must have a reason, and they must be able to state that reason. Loaded OC in a Vehicle MAY be a licensed activity WA.

So, Officer stop you for a traffic violation...let's say something petty...you have a headlight out. He come to the side of your car, again, let's say it's a two lane road and he comes to the passengers side. You are OCing, on the right hip, very obvious to a patrolman approaching from the passenger's side...no? Let's also say you do not have a CPL.

Does that patrolman have the RIGHT to ask for your weapon so he can inspect it to see if it is loaded? I say he does not, and my experience has been he will not even ask.

Been there (not the headlamp, but traffic stopped for whatever reason) when I did not have a CPL, and when I have had a CPL. The OC pistol was a non-issue, and never even spoken about. Granted, I get stopped very rarely, but I have been stopped. On time it really was a random stop...the WSP officer was pushing the limits looking for DWI, even said so in the end. (02:00 in the morning). Never asked for my CPL, never asked to look at the pistol.

 

[BigDave]

Hej Dave:

I will repeat one thing, and add another..experience.

US Supreme Court, in Delaware V Prouse, states that LE cannot randomly demand a license for a licensed activity. They must have a reason, and they must be able to state that reason. Loaded OC in a Vehicle MAY be a licensed activity WA.

So, Officer stop you for a traffic violation...let's say something petty...you have a headlight out. He come to the side of your car, again, let's say it's a two lane road and he comes to the passengers side. You are OCing, on the right hip, very obvious to a patrolman approaching from the passenger's side...no? Let's also say you do not have a CPL.

Does that patrolman have the RIGHT to ask for your weapon so he can inspect it to see if it is loaded? I say he does not, and my experience has been he will not even ask.

Been there (not the headlamp, but traffic stopped for whatever reason) when I did not have a CPL, and when I have had a CPL. The OC pistol was a non-issue, and never even spoken about. Granted, I get stopped very rarely, but I have been stopped. On time it really was a random stop...the WSP officer was pushing the limits looking for DWI, even said so in the end. (02:00 in the morning). Never asked for my CPL, never asked to look at the pistol.

We can express what has and not has not occurred as to our experiences but when it comes down to it, it does not mean that it was lawful or not for that matter.

I have been pulled over (rarely) and have never been disarmed though one time I had a young officer state that he could disarm me if he wanted, yeah okay

As to what an officer or another in a position as working in restricted areas requiring a license or identification lets look at bars or taverns that check ID, while there is no RAS or PC they still can demand one to produce it and when it comes to our discussion here about CPL in certain circumstances I feel applies as well.

As for your question an officer having a right to inspect your weapon, only where there is RAS or PC though we are not always privy if they have it or not but nothing preventing them in asking.