“So, I get stopped by a law enforcement officer while I am transporting my long-range rifle to the range… Do I need to tell her that I have it in my trunk?”
“A law enforcement officer stopped me, and asked me if I had any weapons; I told him no…. but I now realize that I had my folding knife in my pocket… Should I have told him yes?”
“I don’t want to register my AR with the State because I don’t want to give it probable cause to search my home.”
“I do want to register my AR with the State because I want to deny the State probable cause to search my home.”
“If the State wants to come into my home and search it, who cares? It’s not like I have anything to hide.”
I get these questions, or hear these statements, weekly. Many CCW holders are passionate about being legally compliant, not because they are trying to build arguments or thwart prosecutions… it’s because they are legitimately good people who want to follow the law.
The intersection between the law and the private citizen involves certain Constitutional rights that need to be protected. More importantly, the contact between law enforcement and the private citizen is not an event that takes place in a vacuum between two emotionally-devoid robots. Implicit in that contact is the belief that the law enforcement officer is a professional, rational actor, and that the citizen is aware and educated in how to interact with an officer, and that the encounter is governed by a Constitutionally-mandated constraint on when, where, and under what circumstances the encounter can take place.
Unfortunately (and I really do mean unfortunately), we have adopted an adversarial approach to the trying of fact, as well as the ministering of justice.
What I mean by this: A defendant in a criminal case can challenge the underlying facts of the case. The State claims A + B = C. The defendant claims A + B = D. It is up to a jury to decide which of the above statements is “correct.” Once that determination is made, the adjudicated “fact” can be applied to the governing law. It is up to the State to make its case first. If defendants believe they failed to prove that A + B = C, they are are under no obligation to challenge it at all. Since the State failed to prove the proposition, the prosecution automatically fails. Alternatively, the defendant could demur, essentially saying “yeah… so what?” We are all agreed that A + B = C… The thing, though, is that there is nothing illegal about “C”… so why are we here?
Since this is an adversarial process, the fight ends up not being about the formula at issue… rather, it is about admitting and excluding evidence that tends to prove or disprove the State's case.
The first step in this adversarial process is that initial contact with law enforcement.
(If you have arrived here from our newsletter, continue reading here…)
Typically, but not always, the State needs to have some level of probable cause before it can initiate a search of a citizen’s property. This is an evidentiary event. The purpose of a search is to gather evidence that can be used to support the contention that the individual committed an illegal act. Many times the purpose of the search is oriented towards a singular suspected crime. During the course of the search, however, evidence is discovered that may exonerate the individual of the suspected crime, but implicates the individual in an entirely different criminal act. Assuming that the evidence was obtained through a “reasonable” application of the initial sanctioned search, it is admissible at trial.
The most common application of this is something called the “plain view doctrine.” If the court issued a search warrant for a person’s home under the probable cause that illegal firearms were being sold, and during a search for guns and transaction records, the officers stumbled upon some unrelated, but unhidden, criminal activity they don’t have to ignore it. They can seize it and amend the complaint to include the new charges.
In the movies, this is usually under the scope of the police coming in to search under a warrant for narcotics and, suddenly, when they are in the person’s home, they find 20 dead bodies.
In the real world we have Lawn Darts.
Most law-abiding citizens are not overly thrilled about the idea of the State coming into their homes or searching their personal effects. Yet, the common refrain I hear is, “Well, I have nothing to hide anyhow.”
Perhaps… but, perhaps not.
Cosmo and I use the term “Lawn Darts” as a generic metaphor.
Growing up, lawn darts were a popular backyard game, like horseshoes. People would buy lawn dart sets at Kmart and leave the box in the garage. For those of you who have no idea what I am talking about… rejoice in your youth… then Google image them. These things were fun, aerodynamic, and, to be completely honest, spectacularly dangerous. They could easily be launched a hundred yards and came down with such force they easily could (and did) kill people.
They were eventually outlawed, and the possession of lawn darts became a felony.
Unfortunately, there are many people out there who legally bought them, and kept them without ever getting the memo that they became illegal.
What about the possession of expired drugs that the suspect still maintains or has possession of from a roommate who no longer lives at the address? Yeah… that is a crime too… a federal one.
There are a lot of people out there who are “law-abiding” who, when put to deep scrutiny, are inadvertently committing felonies.
Yet, these same people… me included… have a deep love for our law enforcement officers. The last thing we would ever want is to become distrustful or antagonistic to them. Quite the opposite, we want to assist them in whatever manner we can.
By understanding our Constitutional rights, and also understanding the potential liability that exists in unfettered statements and access, we can protect ourselves both physically as well as legally.
Rich, one of our Artemis instructors, who in the real world works as a Lieutenant for the Sheriff’s Department, has developed a class that I encourage all of you to take, “What to Do When Stopped by Law Enforcement”. This is both a practical, as well as legal, course (I will be there to talk about legal culpability implications). I think that anyone who legally carries a gun, or is interested in understanding the Constitutional protections and philosophical underpinnings of those protections, should take this course.