Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A driver tells you there is a handgun in the car, and that it is in a locked safe in the center console. You ask him to hand it over. He will not give you the code. What can you actually do, and should you be doing it at all?
So the question is, if a cop stops you and the cop says, hey, do you have any firearms in the vehicle, and you say yes, I have a handgun, and he says, where is it, and you say it’s in my locked safe in the center console. And the cop says, okay, give me the handgun, I want to retrieve it. And the guy says, I’m not giving you my code, I’m not opening it.
What can the cop do?
Is the gun illegal in your state?
So the first question for you is this. Is the gun illegal in your state? Is it illegal to have the handgun in the car under those circumstances?
If the answer is no, then you don’t have probable cause. And if you don’t have probable cause, you don’t have the motor vehicle exception.
Can you do a protective sweep of the car and seize it?
The next question is this. Can you do a protective sweep of the motor vehicle and seize it, if you have reason to believe that the person is armed and dangerous?
The answer is yes. The fact that the gun is in a locked container, in and of itself, is not necessarily going to restrict you from doing a protective sweep and seizing a firearm.
But I’ve got to tell you, if the gun is in a combination lock situation, what are you going to do? Crowbar it open? No, you’re not.
Is a person with a lawfully carried gun automatically armed and dangerous?
The first thing is this. Do you even have evidence and circumstances that the guy is armed and dangerous?
A lot of states do kind of hold that if the person has a firearm you can retrieve it and hold on to it during the duration of the traffic stop, almost as a matter of routine.
What I teach at Blue to Gold is, are you disarming your fellow brothers and sisters on a traffic stop? If you pull an off-duty cop over and he says, yeah, I got a gun in my backpack, are you seizing that firearm? And the cop is like, no. And I’m like, why? Because I don’t think he’s a danger.
So do you think that just because a person is not a police officer, but they’re a yes sir, no ma’am type of person, they have a license, they’re on the up and up, but they just don’t want you touching their gun, is that person now armed and dangerous? Is that your opinion of people who carry concealed and exercise their Second Amendment rights?
The point is, let’s be real here. In 2024 and beyond, 2025 and beyond, just because a person has a firearm, and that’s all they have, why are you considering them armed and dangerous?
So just because they have a gun in the locked compartment does not, to me, make them armed and dangerous. In fact it maybe makes them the opposite of armed and dangerous, because you’ve got a person telling you they have a firearm, they’re being on the up and up, they’re lawfully possessing it for your state, and they have a locked container. Isn’t that how lawful, responsible people hold firearms?
What should you do instead?
So the final thing is this. I do have some cases where cops will open up a glove box, retrieve the firearm with a key, and the court upheld it, because they found that the driver was armed and dangerous.
But at the end of the day, if you don’t have probable cause for a crime, and you don’t have specific facts that they’re a danger to you, then why don’t you just get them out of the car, put them in front of your buddy’s bumper, take care of your business, and release them with their citation or warning? And not harass them and try to break open their safe just because they’re exercising a Second Amendment right.
The short version
- First question: is the gun illegal in your state? “If the answer is no, then you don’t have probable cause.”
- No probable cause means no motor vehicle exception.
- A protective sweep is still possible on armed and dangerous, and a locked container “in and of itself” does not block it.
- But practically: “if the gun is in a combination lock situation, what are you going to do? Crowbar it open? No, you’re not.”
- The real question is whether you have facts showing danger. “Are you disarming your fellow brothers and sisters on a traffic stop?”
- “Just because a person has a firearm, and that’s all they have, why are you considering them armed and dangerous?”
- The locked safe may cut the other way: “Isn’t that how lawful, responsible people hold firearms?”
- “Get them out of the car, put them in front of your buddy’s bumper, take care of your business, and release them.”
Related from Blue to Gold
- Can Police Unload or Disassemble a Lawfully Carried Gun During a Traffic Stop?
- Armed and Therefore Dangerous: Rethinking Terry in Light of Bruen & Rahimi
- What Factors Can Help to Justify a Vehicle Frisk for Weapons?
This article is an edited transcript of Roadside Chat EP#761. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
