Discuss your case!

Do You Waive Your Fourth Amendment Rights by Carrying a Concealed Weapon?

Revolver and Bullets and Concealed Weapon Permit

By: Alex Lindvall

Introduction. 

If you have a permit to carry a concealed weapon, you should familiarize yourself with the Terry doctrine.  The Terry doctrine, in short, allows a police officer to “stop” a person if there is “reasonable suspicion” to believe they are involved in criminal activity.  It further allows the officer to “frisk” that person if they have reasonable suspicion to believe the suspect is armed.  This doctrine has serious implications when it comes to the rights of gun-carriers.

Background.    

The Terry doctrine’s name derives from the 1968 Supreme Court Case Terry v. Ohio.  In Terry, a police officer observed two men pacing back-and-forth in front of a store; they walked identical routes approximately one dozen times.  After observing the men for several minutes, the officer suspected the men of “casing” the store for a potential robbery.  The officer then approached one of the men (Terry), spun him around, and frisked his clothes for a weapon.  The officer discovered a .38 revolver in Terry’s front pocket.  Terry was then charged with illegally carrying a concealed firearm.

Terry argued the weapon should not be allowed into evidence because it was obtained by way of an illegal search.  In deciding whether to allow the weapon into evidence, the Supreme Court was forced to interpret the Fourth Amendment, which provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   

The Court determined that because the officer had “reasonable grounds to believe that [Terry] was armed and dangerous, it was necessary for the protection of himself and others” to search Terry for weapons.  This is now often called “reasonable suspicion.”

To illustrate what is meant by reasonable suspicion, consider the hierarchy of proof:

  • Beyond a reasonable doubt—The highest standard of proof.  This is the standard that must be met before the State may imprison someone (usually thought of as almost 100% certain).
    • Clear and convincing evidence—A not-too-often-used standard.  It is sometimes used in important civil cases (usually thought of as around 75% certain).
      • A preponderance of the evidence—The standard used in the majority of civil cases. It means that it is more likely than not that the incident occurred (51% certain).
        • Probable cause—The standard police must meet before they may make an arrest or receive a warrant (no definite percentage, depends on the totality of the circumstances; but it is certainly less than 50%).
          • Reasonable suspicion—The lowest standard of proof (no definite percentage, but it is probably somewhere around 25%).

When viewed in this light, Terry seems like a reasonable decision—we would want a police officer to stop and frisk a person if there was a 25% chance they were armed and dangerous.  Fast-forward, however, to Michigan v. Long, a case that evolved from Terry.

In Long, a police officer stopped a vehicle on suspicion of drunk driving.  When the officer approached the vehicle, he observed a hunting knife inside the vehicle.  The officer frisked the driver for weapons; he found none.  He then searched the interior of the driver’s car.  The issue in Long was whether this search of the vehicle’s interior violated the Fourth Amendment.

The Court held that Terry extends not only to the outer clothing of suspects, but also to “those areas in which a weapon may be placed.” After Long, you are left with a rule close to the following: Once a police officer has reasonable suspicion to believe a person is armed, he may search the outer clothing and surrounding area of that person.  This rule may have significant consequences for those who carry guns legally.

“Duty to inform” jurisdictions. 

In several jurisdictions, those stopped by the police have a “duty to inform” the officer if they are carrying a firearm.  For example, Nebraska statute § 69-2440 reads:

Whenever a permitholder who is carrying a concealed handgun is contacted by a [police] officer…the permitholder shall immediately inform the…officer…that the [he] is carrying a concealed handgun.

During contact with a permitholder, a [police] officer…may secure the handgun…during the duration of the contact… The permitholder shall submit to the order to secure the handgun.

Apply, then, the following scenario to the holding in Michigan v. Long: A driver is pulled over for speeding; the officer approaches the vehicle; as per state law, the driver informs the officer that he is carrying a concealed handgun.

To reiterate the ruling in Long, once an officer has reasonable suspicion to believe a person is armed, he may search the person and the area surrounding that person.  Here, carrying a firearm (a perfectly legal activity) may give police the power to search you and your vehicle—a power they would not have if you were unarmed.

Arizona Law: 

Arizona is a “quasi-duty-to-inform” jurisdiction.  This means that those stopped by police only have a duty to inform if the officer asks.

Conclusion.

If you are carrying a gun while you drive, you may have fewer rights than you think.  Police normally need probable cause to search your vehicle.  If, however, the officer discovers that you have a weapon, he may be allowed to search you and your vehicle without suspicion of any crime.