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Can Cops Ask If You Have a Weapon?

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By Christopher Coble, Esq. on July 22, 2015 11:04 AM

When stopped by the police, you can expect to be asked the usual identification questions. Beyond that, the police may begin to ask additional questions to determine if any criminal activity has been taking place

If an officer asks you specifically if you're carrying a weapon, do you have to answer? Is that question even legal? A recent case decided by the Oregon Supreme Court sheds some light on this question.

State of Oregon v. Joseph Lucio Jimenez

In a recent case, the Supreme Court of Oregon ruled that officers must have a specific fear of danger to ask a detainee about weapons.

In State of Oregon v. Joseph Lucio Jimenez, an Oregon State Police trooper stopped Joseph Lucio Jimenez for suspicion of jaywalking. As a routine, Oregon troopers ask everybody they stop if they have a weapon for "officer safety reasons." Jimenez answered yes and confirmed that he was a gang member. Jimenez was then arrested and convicted of possessing an unlawful weapon.

Law Against Unreasonable Search or Seizures

Jimenez appealed the conviction. In support of the conviction, the state argued that stops are inherently dangerous, so officers should always be allowed to ask people about weapons. Despite the court's concession that stops may be dangerous, the court disagreed with the state's argument.

Article I, section 9, of the Oregon Constitution states, "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." The court ruled that routine questions about weapons violates this section of the state's Constitution.

Officers must have reasonable, circumstance-specific concerns that they may be in danger before they can ask about a detainee's weapons. The officer did testify that the area of the stop was a high-crime area. Also, Jimenez confirmed that he was a gang member. However, the officer did not know about Jimenez's gang affiliation until after he asked about Jimenez's weapons. The court found that the officer did not have a reasonable suspicion to believe that he may have been in danger. So, the court of appeals overturned Jimenez's conviction.

The state appealed to the state's Supreme Court. Agreeing with the appeals court, the Supreme Court upheld the conviction's reversal.

Although this specific case only applies in Oregon, it's an important reminder of the power of the laws that protect us against unreasonable search and seizures.

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