CWFL Holder’s Disarmed at Traffic Stops

On a firearms group Facebook page, I was asked, “under what legal authority do police officers search and disarm lawful gun owners who possess a CWFL during routine traffic stops?”  I wrote a brief answer, which is expanded on here.

Under Florida law, there is absolutely no statutory authority for a police officer to disarm the driver or occupants of a car that has been stopped for a routine traffic violation.  However, our courts have found that an officer may search if they have a reasonable suspicion that a firearm is in the area surrounding the “suspect”. One such case, State v. Toussaint, from Florida’s 5th District Court of Appeals states,

The United States Supreme Court has articulated the following principles regarding protective searches of the passenger compartment of a vehicle:
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise *312 from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry [v. Ohio], 392 U.S., [1] at 21, 88 S.Ct., [1868] at 1880 [, 20 L.Ed.2d 889 (1968) ]. “[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., at 27, 88 S.Ct., at 1883. If a suspect is “dangerous,” he is no less dangerous simply because he is not arrested. If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971); Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978); Texas v. Brown [460 U.S. 730, 739 744] 103 S.Ct. 1535, 1541, 1544, 75 L.Ed.2d 502 (1983) (plurality opinion by Rehnquist, J., and opinion concurring in the judgement.

While decisions like this may have been the basis for the search and confiscation (even temporarily) of a concealed firearm licensee’s weapon during a traffic stop prior to 2015, this argument is even weaker today.  Prior to 2015 carrying a concealed weapon was a crime, an affirmative defense to which was the possession of a valid CWFL according to the Florida Supreme Court. See Mackey v. State, 124 So.3d 176 (Fla 2014).  Thanks in large part to Florida Carry, Inc., the law was changed in 2015.  Now the law is clear that only the unlicensed carry of a concealed firearm is a crime.  Once a CWFL holder produces their license they should no longer be considered a “suspect” unless upon approaching the car, an officer observes evidence of some other crime.  Therefore, in cases where the officer does not notice a firearm but is informed of the presence of one by the occupant of the car who also provides his CWFL, there should be no basis for a valid search or disarmament.

Unfortunately, the reasoning in the Toussaint case is still given weight by our courts and is still being applied to those of us who are not guilty of a crime, even when we are lawful CWFL holders.  Eric Friday, Florida Carry’s Lead Counsel was quoted in an excellent article about this in 2015. http://concealednation.org/…/concealed-carrier-has…/ this abuse will continue until the legislature prohibits disarming lawful gun carriers and penalizes those who continue this behavior.

That said, I often get asked if a person should voluntarily let the police officer who has pulled them over know they have a firearm immediately.  Florida law does not require you to disclose the presence of a firearm to the officer, however, as a personal choice, I have always done so.  Of the three times I have been pulled over, one officer disarmed me while we completed the traffic stop and returned the firearm to me when complete, unloaded.  The other two thanked me for telling them, one requested that I keep my hands on the wheel unless he told me to do otherwise, and the second telling me that I should relax.  He added that he really appreciated me letting him know, because the people that were going to shoot him, did not tell him they had a gun.  In all three instances the officers did not issue me any citations.

The Rockledge Police Department wrote a letter offering suggestions of how to interact with a police officer if stopped for a traffic violation while in possession of a firearm. Rockledge Police Department Suggestions on How to Interact with Police.  Please note, that these are suggestions, and you are not required by law to act in the way this letter advocates, although I personally do many of these things and recommend actions such as those described.

To be clear, a CWFL holder who is in possession of a firearm, must produce his/her CWFL if asked by a police officer.  Failure to do so can result in a non-criminal violation with a $25.00 fine payable to the Clerk of the Court.

David S. Katz

About Expert Firearm Attorney David Katz. David Katz is an Expert Firearm Attorney and has been practicing law for over 14 years. He began his career as a prosecutor in Seminole County, Florida.   There, he gained invaluable experience analyzing how...
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