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”?