[Wynder]

Some day, you may be stopped on the street or pulled over by law enforcement -- if you're carrying your weapon it may become an issue for the officer. Below is some intermediate information on your rights, the law and suggestions.

Please bear in mind that I am not a lawyer, nor have I ever been stopped by law enforcement and had my firearm as a point of contention. Please use this information at your own risk and add your own comments and experiences to this thread.

To preface, if you feel it's better to "Go Along to Get Along" that is certainly your prerogative.

Vehicle Stop
If you are stopped in your vehicle, you must provide your driver's license to prove you are licensed by a state agency to operate that vehicle. Also, bear in mind that, if you are near your vehicle, the police may deem that you are in control of your vehicle so, even if you're not driving it, you may be required to provide your license as well.

When you're stopped, quickly pull off to a safe location, roll down your window, turn off the vehicle, turn on the dome light and put your hands on the steering wheel.

In Delaware, there is no duty to inform the officer that you are carrying a firearm. This is always a hot topic of debate on whether you should voluntarily notify the officer, so this is your choice. If you need to retrieve your vehicle documentation or license and you must go near your firearm (glove compartment, center console, pocket on your holster side) you may wish to consider informing the officer.

If you're armed and the officer asks you to step out of the car, you should inform him immediately before exiting your vehicle -- try to do this in a non-alarming manner:

"By the way, officer, I'm licensed by the state of Delaware to carry a concealed firearm and I'm currently armed. My pistol is on my right hip. How would you like me to proceed?"

At that point, follow the officer's directions. If possible (or if you're not carrying), before exiting the vehicle, roll up your window, lock the door as you exit and put your keys in your pocket.

The officer may disarm you for his safety -- and here's where I'm not certain if they require your consent. If the officer asks you for your weapon or that he'd like to disarm you for safety reasons, you may raise your hands and state:

"Officer, I am not resisting, but I do not consent to any search or seizure."

Once again, your level of cooperation with the officer is your prerogative. The officer may look through the window of your vehicle for anything in "plain sight". The seats, floorboards, hatchback area (if exposed), etc. I believe that opening the center console, glove compartment and, most certainly the trunk, requires your consent or a warrant. If the officer tells you that they need to do a quick search of your trunk or vehicle, again, raise your hands and state:

"Officer, I am not resisting, but I do not consent to any search or seizure."

Force them to remove your keys from your person and unlock the vehicle to perform the search.

In order to search your person or your the concealed portions of your vehicle, the police need probable cause. This means that, given the evidence and circumstance, a reasonable person would have probable cause to believe that you are guilty of a crime. If you have nothing incriminating concealed in your vehicle and the police threaten you with a warrant to search your vehicle, let them know that, "That'll be fine." An officer must swear under oath or affirmation to a magistrate that they believe you are in possession of contraband.

If they lie, this is a matter that can be reviewed with their supervisor. If they do obtain a warrant, ask to see the warrant. If they do not show it to you, have the time of the search noted and compare it with the time that the warrant was issued.

During the normal time it takes to conduct a traffic stop, a K-9 unit may be brought on scene and may do a walk-around to detect contraband -- this does not constitute a search. If the dog gets a hit, this gives the officer probable cause to search your vehicle.

If you are arrested:

• Cooperate fully with the officer.
• Even if you are wrongly arrested, do not resist.
• Remain respectful.
• Once you're arrested, you are subject to a search incident to arrest. The police may search you and your vehicle for safety and inventory purposes.
• Keep your mouth shut.
• Keep your mouth shut.
• Keep your mouth shut.
• You have a Fifth Amendment right to remain silent. You always have this right. It is not activated by the police if they read you your Miranda rights (see Common Misconceptions below). If the officer asks you anything, you may reply with, "In the absence of my attorney, I have nothing to say at this time, officer."
• Booking information is not incriminating and is not protected under the Fifth Amendment.
• Physical evidence (height, weight, fingerprints, voice) does not require a warrant to collect.
• Blood samples, only as the result of a suspected DUI stop do not require a warrant to collect and may be compelled by force.
• Don't drink and drive, idiot.

Tips

• Never lie to law enforcement.
• If you are stopped for a traffic infraction and the officer asks you if you know why he pulled you over, say nothing or ask, "How may I help you, officer?"
• If the officer asks if you have any weapons in the vehicle, you may reply with, "I have nothing illegal in my vehicle, officer."
• Keep all encloseable locations in your car closed. For example, if you own a hatchback and have a privacy screen, keep it in place.
• Obey all traffic laws and use your common sense when driving.
• If you're carrying, remember that we need to hold ourselves to a higher standard when it comes to being law-abiding citizens. Defusing aggressive driving situations by yielding right of way is best.

Common Misconceptions

• The police don't have to read you your Miranda rights. If they have enough physical evidence for the arrest, chances are its enough evidence to convict, so you may not be Mirandized. Even still, keep your mouth shut if you're arrested.
• The police don't have to tell you what you're being charged with. At the time you're brought to the magistrate is the very latest that you will have to wait to hear what charges are being laid. Even if the officer tells you you're being charged with Crime A, that can easily be changed to Crime B.
• Being "Arrested" is not defined as going through the booking process. You are arrested when a reasonable person believes they are no longer free to leave (more on this in the Pedestrian version). However, a strong show of armed police force or the use of restraints such as handcuffs or zip ties constitutes an arrest in the eyes of the Fourth Amendment.
• You have no Constitutional right to a "phone call". It is generally department policy.

Final Thoughts & Conclusion
I know most of you. I know that we are reasonable, law-abiding people who are simply taking our own safety and the safety of our family into our own hands. If you believe your rights have been violated, try to do the following:

• Consider purchasing a voice recorder. NOTE: I'm unsure as to the legality of recording another person or law enforcement in Delaware. Any posts clarifying would be appreciated.
• Ask the officer's involved for their business cards. This is more polite than asking for their name and badge number. If they refuse, then ask for their name and badge number.
• During the course of the stop, request that their supervisor be present.
• Do not threaten a law suit. Again, keep your mouth shut.
• Ask for a copy of the police report.
• After the incident has concluded, file a Freedom of Information Act requesting all phone calls, radio traffic, police reports, officer notes, dash cam video and any other information pertaining to your stop. I'm considering finding templates or writing an article on this alone.
• Contact a lawyer to review your case.
• DON'T post the details of your incident until you've spoken with your attorney.

If you have no spouse, family or lawyer to call, I'd suggest that you join the DELOC contact list and call one of us to notify a party you desire contacted.

I hope this document is helpful -- any comments or suggestions on additions, corrections or fixes are welcomed and solicited. Below, I've attached a video from the ACLU. I hate to use this as an example because, in most all cases, the people have something to hide; however, definitely watch it through.

[radnor]

"By the way, officer, I'm licensed by the state of Delaware to carry a concealed firearm and I'm currently armed. My pistol is on my right hip. How would you like me to proceed?"

GREAT point! You've notified then. Now they will TELL you EXACTLY how to proceed.

The officer may disarm you for his safety -- and here's where I'm not certain if they require your consent. If the officer asks you for your weapon or that he'd like to disarm you for safety reasons, you may raise your hands and state:

I DO NOT agree with this. A close friend of mine use to work for the DOC babysitting the cons (prison guard). He said ANYTIME a con raised their hands above the belt they could view it as a threat.

[Wynder]

The officer may disarm you for his safety -- and here's where I'm not certain if they require your consent. If the officer asks you for your weapon or that he'd like to disarm you for safety reasons, you may raise your hands and state:

I DO NOT agree with this. A close friend of mine use to work for the DOC babysitting the cons (prison guard). He said ANYTIME a con raised their hands above the belt they could view it as a threat.

Understandable. My visioning of the scenario is more like, you're raising your hands (up to the shoulders, hands open, palms forward) to allow them to proceed with the search (invariably of your pockets and to seize your sidearm). I'd also suggest that prison duty is a bit different from a civilian/law enforcement encounter in that, if they're going to search you, they're going to put in you in a surrender position anyhow.

Certainly a personal decision though, I suppose.

[George]

§ 2402. Interception of communications generally; divulging contents of communications, violations of chapter.

(c) Lawful acts. -- It is lawful:

4) For a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitutions or laws of the United States, this State or any other state or any political subdivision of the United States or this or any other state.

[George]

Keep your mouth shut. Delaware provides a fishing license to its officers

§ 1905. Validity of arrest on improper grounds.

If a lawful cause of arrest exists, the arrest is lawful even though the officer charges the wrong offense or gives a reason that does not justify the arrest. (Code 1935, § 5343-G; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1907.)

The way I read this we're screwed if not squeeky clean!!

[Wynder]

Keep your mouth shut. Delaware provides a fishing license to its officers

§ 1905. Validity of arrest on improper grounds.

If a lawful cause of arrest exists, the arrest is lawful even though the officer charges the wrong offense or gives a reason that does not justify the arrest. (Code 1935, § 5343-G; 48 Del. Laws, c. 304; 11 Del. C. 1953, § 1907.)

The way I read this we're screwed if not squeeky clean!!

The way I read this is like this...

Officer finds drugs on suspect and tells them he's arresting them with possession with intent to distribute. Gets back to the station and the supervisor determines quantity isn't enough to sustain that charge, so it's changed to a simple possession charge.

From my studies, what the officer tells you or arrests you for doesn't matter as, up until you're brought before the magistrate, that charge can change... That law reinforces that. So, yeah -- if you're flapping your gums and let something slip, that can be used to modify the charge.

However, the officer is still bound by other standards of law. For instance, pretextual stops... officer can't pull over a vehicle because (perhaps of the race of the occupants or the condition of the vehicle) he thinks there's drugs and use the pretext of a traffic violation to confirm his suspicions.

Also as an example, with these illegal park ordinances, if the officer arrests someone because they're carrying a firearm and they find 2 kilos of coke on them, even though a condition exists for a lawful arrest, because the initial arrest was based on the fact they were carrying a firearm in the park, an unenforceable part of the statute, the drugs are now "forbidden fruit" because, were it not for the firearm, the individual would've never been stopped.

Thanks for the cite on the wiretapping/oral communication! Good to know.

[dave_in_delaware]

Here's a video interview of a Police Officer and what he'd like you to do during a traffic stop. Not a Delaware Officer, but still good info. I just thought I'd post this one up here.

Direct link to video file (29 MB):
http://116tuttleave.powweb.com/interview.mpg

[crawfish]

Always keep your mouth shut is the best advice my dad ever gave me.

[KevXD45]

Rob, thanks for starting this thread. Very informative. I don't have time to watch the entire 45 min video right now (especially since the writing and acting in the few minutes I DID watch was so horrible) but I will definitely come back to see the rest when I can.

Dave, thanks for the quick interview clip of the LEO from TN. I'm sure most officers in any department would echo his comments.

I'm going to try to put my feelers out in the LEO community (I know several from different departments and met a few NCCPD guys when I took the CPA last year). I am very interested in starting a dialogue with the PD's in DE about OC.

[David]

You should probably update this post in regards to the Supreme Court "Gant" decision regarding search incident to arrest.