Charlotte Criminal Lawyer Blog
Charlotte DWI Lawyer Brad Smith answers the question: “Can the police search my car without a warrant?”
The Second Amendment to the United States Constitution gives citizens the right to bear arms. This is not to say that a person is lawfully permitted to carry a weapon at all times or own any type of weapon that he or she wants. There are rules and regulations that dictate who can possess a firearm, what types of firearms are permitted, and when and where those weapons can be carried. What happens when a person with lawful possession of a gun is stopped by the police during a routine traffic stop? This is a complex issue and it depends on the situation and context of the police encounter. Different situations and circumstances often lead to different reactions.
Terry Stops
Terry stops, otherwise known as “stop and frisk,” came about from the monumental Supreme Court case of Terry v. Ohio. In Terry, the Court stated that when police have reasonable suspicion that a person has committed a crime, they are able to “briefly” detain that person to investigate.
If you think about a traffic stop under the guidance of the Terry case, it seems like it would not matter if an individual legally possessed the gun. If law enforcement has reasonable suspicion that the defendant was involved in criminal activity, police could seize the weapon if the suspect is believed to be dangerous. However, Terry stops are often contentious and tense because they can lead to the seizure of property based on reasonable suspicion. These stops also often lead to arrests.
Application to a Traffic Stop
Seizure of a gun during a traffic stop is slightly different than stopping a person because of suspected criminal activity. There are many ways that an officer can see that there is a gun in a car. An officer can see part of the gun, all of it, or the driver may tell the officer it is there. North Carolina law requires that a driver notify the officer if they have a concealed weapons permit and if they are armed.
If the officer knows a driver is illegally holding a weapon, they can seize the weapon. Additionally, if the driver is posing a safety risk to themselves, the officer, or those around them, the officer can seize the weapon.
Traffic stops can seem to be a similar to Terry stops, but there are differences that can not be ignored. In order to detain a person under Terry, there needs to be suspicion of criminal activity. A traffic stop usually involves some type of minor infraction, not criminal activity. Therefore, it is entirely situational whether law enforcement has the right to seize the gun in question, or if you can inform them of its existence and the legality of carrying it.
If your gun was seized in a traffic stop, the criminal defense attorneys at Arnold & Smith, PLLC can help. Our attorneys know that your constitutional rights are important and we work hard to fight against any type of violation. It can be confusing and difficult to determine if your gun was taken in a violation of your rights. Let us examine the situation and advise you on the appropriate legal actions to take. Contact us today for a consultation. If you find yourself facing criminal charges and need the help of an experienced criminal defense attorney in or around Charlotte, Lake Norman, or our new office in Monroe (by appointment only until 2019), please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
The criminal defense attorneys at Arnold & Smith, PLLC make it their mission to zealously defend their clients on a wide range of criminal matters at both the state and federal levels. These matters may include any charge from traffic offenses; DWI/DUI; drug charges (from simple possession to possession with intent to distribute and trafficking); gun permit denials; weapons offenses; and property crimes (larceny, breaking and entering, robbery, fraud, embezzlement, white collar offenses); to sexually related offenses (indecent exposure; sexual assault, crimes against nature, removal from sex offender registry); and violent crimes (domestic violence; assault; manslaughter; homicide, murder). Other legal issues that Arnold & Smith, PLLC criminal clients may be facing include restraining orders, restraining order and probation violations, expungements; appeals; and immigration issues related to criminal charges. Our criminal defense attorneys are passionate about ensuring that individuals empower themselves by being informed about their constitutional rights, and stand at the ready to fight in the defense of those facing criminal charges.
Source:
https://www.oyez.org/cases/1967/67
https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_14/GS_14-415.11.pdf
Image Credit:
https://www.freeimages.com/photo/tactical-equipment-1312297
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