Can a Police Officer ask me if I have a weapon in my car?

Can a Police Officer ask me if I have a weapon in my car?

Here’s the scenario: A police officer stops a motorist for a legitimate traffic infraction – the officer approaches the car –asks the driver for their license, registration and insurance card – then the officer asks the driver if there is weapon in the car – and the driver says, yes. The weapon is seized and the driver is arrested.

Seems like a good arrest and a pretty tight case, right? Well, maybe not.

In People v. Garcia, the NYS Court of Appeals said, it depends on whether the officer has a reasonable basis to suspect criminal activity on the part of the occupants of the car. An officer simply can’t ask a motorist if they have a weapon in their car in order to satisfy his curiosity or because the occupants of the car look suspicious. In order to ask that question, the officer must have a reasonable ground to believe some crime is taking place.

In the Garcia case, the police stopped a car carrying 5 people. The officer asked the occupants if anyone had a weapon, and a rear seat passenger admitted that he was carrying a knife. The officer ordered that person to put the knife on the floor, and ordered everyone out of the vehicle. The officer entered the car to seize the knife and, in addition to the knife, found a pellet gun between the seats. A further search revealed an air gun in the trunk.

The Court of Appeals held that all of the items were seized illegally and could not be used as evidence, since the officer did not have grounds to ask the first question – Does anyone have a weapon – because the officer did not have reason to believe a crime was being committed before he asked the question. Keep in mind that the car was stopped for a basic traffic infraction – in this case, a defective brake light. The officer was only able to say that a couple of the occupants of the car seemed to be acting nervous.

Nervousness, upon being stopped by a police officer is a common reaction; and, the police are not allowed to jump to the conclusion the occupants of the car must be committing another crime simply because they seem a little nervous.

While the Garcia case dealt with weapons, the same would certainly seem be true if the officer asks if the occupants of a car possess drugs – the officer would still need reasonable ground to believe that criminal activity was going on.

These otherwise insignificant details can mean the difference between a conviction and a dismissal. If you’ve been charged with a crime based upon evidence seized from your car in a similar situation, your attorney should have discussed this matter with you. If they haven’t, then you should call Anthony M. Battisti, Criminal Defense Lawyer at 718-846-5843.

Disclaimer: The information in this blog is not intended to replace the advice of an attorney.

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