Update on Open Carry Law

Update on Open Carry Law
By Dee Wampler

         An open carry or constitutional carry state does not abate the danger associated with a forced encounter with law enforcement officers.  Police may frisk a suspect when they have made a lawful stop and the “officer reasonably suspects that the person is armed and therefore dangerous.”

[1]  Police may frisk a lawfully stopped automobile passenger that they reasonably believe to be armed even in states that grant conceal carry permits.[2]

          A police department received an anonymous 911 call that a described individual was in a described vehicle and was armed and dangerous, the caller having observed this matter on a quick shop market parking lot.

An officer may make a lawful traffic stop if he has a reasonable suspicion that one of the automobile’s occupants is armed.  He may frisk that person for the officer’s protection and the safety of everyone on the scene.  The Fourth Amendment does not require police to take unnecessary risks in the performance of their duties and it is inconsequential that the person thought to be armed is a passenger[3] or that the passenger may have a permit to carry the concealed firearm.[4]  One study from selected police shootings (1959-1961) shows that nearly thirty-five percent (35%) of officer shootings involved officers “attempting to investigate, control, or pursue suspects who were in automobiles.”[5]

Whenever police lawfully stop a vehicle for a traffic violation or other reasons, passengers may always be directed to exit the vehicle.[6]

Anonymous tips received by the police department may be sufficiently reliable to justify the officer’s reliance on it.  An anonymous 911 call may have bore adequate indicia of reliability for the officer to credit the caller’s account in large part because the caller (1) claimed eyewitness knowledge of the alleged conduct, and (2) the call was a contemporaneous report, and (3) made under the stress of excitement caused by the startling event.

Do not become confused with the standard for making auto stops which requires a “reasonable suspicion that a crime or other information has been or is being committed,” the same standard for conducting a stop and frisk only that there is a reasonable suspicion that the person stopped is armed and dangerous.[7]  A traffic stop can be “inherently dangerous” for police and when officers use their authority to affect a stop, they always subject themselves to a possible risk of harm.  Of fifty-one law enforcement officers killed in the line of duty in 2014, eighteen percent were fatally injured during traffic pursuits or stops.[8]

[1] Terry v. Ohio,  392 US 1 (1968); Pennsylvania v. Mimms, 434 US 106 (1977).

[2] U.S. v. Robinson, 100 Crim Law 374 (4th Cir. 2017).

[3] Maryland v. Wilson, 519 US 408 (1977).

[4] Adams v. Williams, 407 US 143 (1972); Michigan v. Long, 463 US 1032 (1983).

[5] Pennsylvania v. Mimms, 434 US 106 (1977).

[6] Whren v. U.S., 517 US 806 (1966).

[7] Arizona v. Johnson, 552 US 323 (2009).

[8] “FBI, Officers Feloniously Killed,” Uniform Crime Reports (2014).

By | 2017-11-05T19:00:25+00:00 March 8th, 2017|Legal News|0 Comments

About the Author:

Dee Wampler

Dee Wampler has practiced law for 50 years has received many awards and honors. As Greene County’s youngest elected Prosecuting Attorney at the age of 29, Wampler’s reputation was quickly established as a leading trial attorney. Dee was an original organizer and first president Crimestoppers.

Wampler has published over 250 articles for Law Enforcement Journals, and authored six books: Missouri Criminal Law Handbook; The Trial of Christ; The Myth of Separation Between Church and State; Standing on the Front Line; Defending Yourself Against Cops in Missouri, and other Strange Places; and One Nation Under God. His knowledge of criminal law and trial tactics is widely recognized.

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