During a Terry stop, an officer who has reasonable suspicion that a suspect is armed and dangerous may frisk the suspect and may confiscate any weapons that the officer finds. Does an officer have the same authority during a traffic stop? In other words, if an officer reasonably suspects that a driver is in possession of a gun, even lawfully, may the officer confiscate the gun for the duration of the stop as a safety precaution? What about during a consensual encounter between an officer and a pedestrian?
Terry stops. It’s helpful to start with a review of the law regarding Terry stops. When an officer has reasonable suspicion that a person has just committed, or is about to commit, a crime, the officer may briefly detain the person to investigate. Terry v. Ohio, 392 U.S. 1 (1968). If the officer has reasonable suspicion that the person is armed and dangerous, the officer may also frisk the person for weapons and may confiscate any that the officer finds. Id.
In the Terry stop context, it doesn’t matter whether the suspect is legally entitled to possess the weapon. If a person is reasonably likely to be involved in criminal activity and is armed, the person is dangerous even if not prohibited from possessing a weapon, and the officer may seize the weapon at least temporarily on that basis. In Terry itself, the Court upheld a frisk and the officer’s decision to “reach[] for and remove[] the [suspects’] guns” without regard to the possibility that the suspects could have been legally armed. See United States v. Rodriguez, 739 F.3d 481 (10th Cir. 2013) (ruling that a New Mexico officer was entitled to seize a citizen’s gun during a Terry stop even though New Mexico law allows concealed carry with a permit and under certain other circumstances; the officer did not need to “wait[] to find out” whether the suspect’s possession was lawful). Cf. United States v. Pope, 910 F.3d 413 (8th Cir. 2018) (citing Terry and other cases for the proposition that “the Supreme Court has already authorized police officers to frisk a suspect reasonably believed to be armed even where it could be that the suspect possesses the arms legally”).
Consensual encounters. Terry stops are inherently tense because they are forcible seizures based on suspicion of criminal activity and frequently lead to arrests. By contrast, consensual encounters are not compulsory, may involve no suspicion, and relatively rarely result in arrests. I noted the split of authority regarding whether officers may frisk citizens during consensual encounters in this prior blog post. Since then, the Sixth Circuit has addressed the issue in Northrup v. City of Toledo Police Dept., 785 F.3d 1128 (6th Cir. 2015). In that case, the court denied qualified immunity to an Ohio officer who approached a citizen carrying a handgun openly and “temporarily took possession of his firearm.” The court reasoned that open carry was lawful in Ohio, so the fact that the citizen was carrying a gun did not provide the officer with reasonable suspicion that the citizen was armed and dangerous: “all [the officer] ever saw was that [the citizen] was armed—and legally so.” Bottom line, although the issue is far from settled, I’m skeptical of the idea that an officer may seize a lawfully possessed gun during a consensual encounter, at least absent specific indicia of danger. In any event, a citizen who doesn’t want to hand his or her weapon over to an officer during a consensual interaction is free to terminate the encounter.
Traffic stops. I’ve been asked many times whether an officer may take a motorist’s gun away during a traffic stop. An officer conducting a traffic stop may learn that the driver has a gun because the officer sees all or part of the weapon in the vehicle or on the driver’s person, or because the driver says something about the weapon. Indeed, if the driver holds a concealed handgun permit, he or she must notify the officer if the driver is armed. See G.S. 14-415.11(a).
When the officer knows that it is unlawful for the driver to possess the gun – for example, because the driver has a felony conviction – the officer certainly may seize the weapon. Likewise, if there are specific facts establishing that the driver poses a danger to the officer, the officer may seize the weapon. See Arizona v. Johnson, 555 U.S. 323 (2009) (holding that an officer may frisk an occupant of a stopped vehicle based on reasonable suspicion that the occupant is armed and dangerous, and finding sufficient evidence of danger where an occupant was wearing gang colors and had recently been released from prison).
But what if those circumstances are not present? May an officer take control of a driver’s gun in the interest of officer safety even though, as far as the officer knows, the driver is entitled to possess it and isn’t doing anything threatening? As a matter of practice, some officers do so routinely, while others prefer to instruct the driver to leave the weapon in place and not to touch it. Some officers go so far as to remove the magazine, unload the gun, or even partially disassemble it before returning it at the end of a stop. Here’s a Florida story describing an officer who confiscated and disassembled a gun. Here’s a national story discussing the range of practices that different officers employ.
I don’t think this is an easy question to analyze. Traffic stops are analytically similar to Terry stops, but they often involve reasonable suspicion only of infractions – minor, non-criminal violations of the law. In this regard, traffic stops may have lower stakes than Terry stops and may involve a reduced risk of danger. Nonetheless, the most relevant case suggests that an officer may seize a motorist’s gun during a traffic stop. In United States v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc), the Fourth Circuit ruled that “an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.” The court reasoned that a “danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon,” even if the gun is possessed lawfully and even if the encounter is based on a traffic violation. Essentially, the court concluded that an armed citizen is a dangerous one in this context.
Although Robinson doesn’t explicitly address what an officer may do if he or she finds a weapon during the frisk, it seems certain that the court would allow an officer to seize any weapon he or she found. Otherwise, what’s the point of the frisk? And if an officer may conduct a frisk and seize any weapons that he or she finds, it follows that an officer could also achieve the same end through the less intrusive means of ordering a person to produce his or her weapon without actually putting hands on the person to locate it.
Former School of Government faculty member Bob Farb wrote about the en banc opinion in Robinson here. Bob notes that the ruling isn’t binding on North Carolina’s courts, but Fourth Circuit cases often carry a great deal of persuasive authority here. The closest case we have in North Carolina may be State v. Bullock, 370 N.C. 256 (2017), which I discussed here. One reading of Bullock is that during a traffic stop an officer has the discretion to order a driver out of his or her own vehicle, frisk the driver as a safety measure, and order the driver into the officer’s patrol car. As I explained in the linked post, I’m not sure that reading is correct, and even if it is, it doesn’t necessarily follow that an officer can frisk a driver who isn’t going to be placed in a law enforcement vehicle. Still, the generous frisk authority arguably granted in Bullock may provide some indirect support for the holding of Robinson.
If an officer were uncomfortable relying on Robinson, an alternative to ordering a driver to hand over a weapon would be asking a driver to hand over a weapon. A consensual transfer of possession would seem to remove any Fourth Amendment concern.
Can an officer ask a driver whether the driver is armed? The discussion above has assumed that an officer has reason to believe that a driver has a gun. But if an officer doesn’t have reasonable suspicion about that, may the officer ask the driver whether he or she has a weapon? There are a smattering of opinions from across the country pointing in different directions on different rationales. Compare, e.g., United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (en banc) (ruling that “[d]uring a routine traffic stop, an officer may ask the stopped motorist whether there is a loaded firearm in the car even in the absence of particularized suspicion of the existence of such a firearm”), and Lockett v. State, 747 N.E.2d 539 (Ind. 2001) (not unreasonable for an officer to ask a driver whether he had any weapons; “[t]he question was justified by police safety concerns”), with, e.g., People v. Garcia, 983 N.E.2d 259 (N.Y. Ct. App. 2012) (“a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot”).
As I see it, Rodriguez v. United States, 575 U.S. __ (2015), frames the analysis as follows. If the officer can ask the question without extending the stop – for example, while the officer is waiting for a computer license check to come back – then there is no Fourth Amendment problem because asking questions itself is neither a search nor a seizure, and while the stop is a seizure, it is not prolonged by the question. If the question extends the stop, then there is a Fourth Amendment problem unless a court views the question as an appropriate officer safety precaution. There are a few out-of-state post-Rodriguez cases that bear on the issue, but I don’t think that they come close to settling it. See United States v. Jackson, 321 F.Supp.3d 1223 (D. Or. 2018) (officer improperly extended stop by asking driver “about drugs and guns”). Cf. State v. Pearson, 323 P.3d 994 (Or. Ct. App. 2014) (applying a Rodriguez-type analysis in a case decided before Rodriguez and ruling that an officer improperly extended a stop by asking a driver twice about weapons). I can imagine a court ruling that a question of this kind is an appropriate officer safety measure, but a cautious officer may want to pose such a question only when doing so does not extend a stop.
Acknowledgements. SOG research attorney Chris Tyner and USC law professor Seth Stoughton helped me research and think through this post. I appreciate their assistance. They’re not to blame for any remaining errors or omissions.
What am I missing? Whenever I write about police procedures and interactions with citizens, I learn something about how things go in the real world. So officers and others, what am I overlooking? Officers, what’s your normal way of dealing with citizens who are “packing”?
I am wondering how this would apply to officers responding to a domestic call at a private residence. If one of the parties is “open carry” on his private property does the officer have the right to seize the firearm until the completion of the call. I know there could be numerous different scenarios involving this question but wanted your general opinion and any relevant case law. Thank you for the informative updates.
What about an officer conducting a vehicle stop for a minor traffic violation. The driver is a valid CCH permit holder and is lawfully in possession of his handgun. The officer walks up to the vehicle and asks for his license and registration. The driver presents those and also presents his CCH permit and tells the officer he is carrying. There is no other criminal activity afoot that the officer knows of. The driver is also cooperative. Are you saying the officer has the authority to take that handgun for “officer safety” when there’s no articulable reason to do so?
That’s what Robinson says. I can imagine a different court analyzing the issue differently. For example, some of the language in the Northrup case cited in the post suggests that merely being armed doesn’t equate to being dangerous. But because Robinson is a Fourth Circuit case and because it is in the traffic stop context, I think it’s reasonable authority unless and until the North Carolina appellate courts or the Supreme Court of the United States tackles this issue directly.
But in Robinson, Robinson was not a CCH holder, was in a known drug location, and seen loading a handgun. I feel under those conditions reasonable suspicion exists that an officer can articulate all day long to ask about weapons and take any weapons for the duration of the stop, and also to continue to investigate. I really feel this case law is a poor comparison to taking a weapon from a valid CCH holder that has done anything except violate a traffic law other than a DWI. With a DWI, a CCH holder would be in violation of the law due to carrying while alcohol remains in the system.
The NCJA teaches the Comcealed Carry Insrructors Course and they say that it is improper to take a weapon from a CCH holder unless you can articulate a true danger. The book given to citizens taking the class also tells them the same thing. I instruct my students to comply with the officer and to complain tonthr agency of the officer takes the weapon from them and there’s no true danger to do so.
I think the NC AG’s office needs to issue an opinion for the State of NC before an officer makes bad case law regarding concealed carry laws.
Jeff, there is a “Totality of Circumstances” when it comes to traffic stops, “Terry Stops”, and even consensual contacts. Each is unique in and of itself, the conduct of which depends upon the officer’s “articulable suspicions” and generally gut feelings during such occurrences in concert with the way the officer operates. When I was a police officer, there were times that I would handle a situation one way and days later conduct the stop(s) differently in another situation. My concern was not to conduct the stops as “routine” because there really is no such stop as routine. Each had a life all its own. Once the officer becomes “routine” it lends itself to the dangerousness of being such which I equate to complacency. Circumstances such as time of day or night, the area and frequency of crimes committed therein, and also (believe it or not) the hairs on the back of the officer’s neck that stand up when you encounter someone, all were factors in how I treated each situation. Most folks believe we were granted 5 senses when actually MOST of us have been granted a sixth sense. We must learn to heed that sixth sense because there is a reason we are feeling paranoid. In law enforcement safety ALWAYS comes first.
I guess another question would be what if the encounter is neither consensual nor based on a reasonable articulable suspicion — i.e. — a traffic checkpoint.
I thought officers always asked if the driver had any machine guns, cannons or hand grenades in the car. When told no he would then ask: “Do you mind if I search?”
It has been my practice when dealing with a legally armed person to seperate them from the weapon. But, not by taking the gun. In cases where the gun is on the seat of a car, I instruct the driver to exit the car and stand on the shoulder of the road, leaving the gun behind. If the weapon is holstered I instruct them to keep their hands on the wheel, all windows down and all interior lights on.
I figured this would be the most consistent acts with NC case law and cases like Pennsylvania v Mimms.
I think you are doing the smartest thing buddy. I tell officers to basically do the same thing.
I’ve been a LE Trainer (Firearms, Use-of-Force, Officer Survival, etc) since 1982 and I can tell that ANY unnecessary handling of a firearm “administratively” is creating a problem that doesn’t otherwise exist. Collectively, COPS are as bad any group when it comes to unintentionally putting holes in things. So, unless an Officer can clearly articulate a lawful (well established) and practical reason to do so, bringing the Permit Holder’s gun into the mix is a mindless practice in my opinion.
And besides, absent any extenuating circumstance, a permit holder who is legally armed shouldn’t be of special concern for an Officer anyway. Statistically speaking (unless something has changed recently), they exercise better discretion with their guns than LEO’s do.
“a permit holder who is legally armed shouldn’t be of special concern for an Officer anyway.”
Really? I’ve recovered stolen weapons off of CCW holders. I’ve charged CCW holders with menacing. Btw in that case the person tried to justify pointing a loaded weapon at a minor in the back seat of another vehicle. The CCW holder was eventually arrested on a warrant for the incident. I’ve encountered CCW holders in possession of a pistol with illegal contraband in the vehicle.
That’s called complacency and complacency kills. Having a CCW means absolutely nothing to me in terms of trust. That’s like saying just because someone has no criminal charges should be trusted. Just because someone has no charges or convictions doesn’t mean they are any less dangerous. It could mean they haven’t been caught yet for crimes that they have committed.