...you, during a routine traffic stop, if you have a gun in your car?
How you answer this question is important, irrespective of whether or not you actually are -- or are not -- transporting a firearm.
The following information is provided as a public service. It is not legal advice. Remember, your attorney is your best source for legal advice.
Let's begin with the basics. All of the following describe your rights and responsibilities to owning, possessing and using firearms in Illinois.
The United States Constitution, as amended by the Bill of Rights, states:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (The Second Amendment).
The State of Illinois Constitution states:
"Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." (Article 1, Section 22).
Clearly, owning firearms in Illinois is a legal activity. However, the state code has a number of provisions to regulate the ownership and use of firearms:
- All firearm owners must possess a valid Firearms Owners ID card (Illinois Compiled Statutes section 430 ILCS 65/0.01).
- The wildlife code (Illinois Compiled Statutes section 520 ILCS 5/2.33) covers transport of a firearm and firearm use while hunting.
- Illinois Compiled Statutes section 720 ILCS 5/24-1 covers illegal use of a weapon.
[All these statutes are available on the web from the State of Illinois' ILCS website. Information about the Illinois FOID program (including an application form you can download) can be found at the Illinois State Police's website. It is the responsibility of the gun owner to know and obey the laws concerning firearm ownership and use.]
In addition drivers and other persons have rights guaranteed under both the state and federal constitutions, including the right to not incriminate yourself, the right to an attorney, and the right to have your attorney present when you are being questioned.
When you are stopped by the police for a traffic violation (or for any other reason), you may be asked if you have any guns or drugs in the car. This question is increasingly becoming a routine question that is asked by police during a traffic stop. If you are asked this question, regardless of whether or not you are transporting guns or drugs, you should ask if you are under arrest before responding. You have the right to ask this question and to know if you are or if you are not under arrest.
If the response is "Yes, you are under arrest" then you should say nothing until you have your attorney present. At this point, you have a duty to obey all police orders, except those that violate your Constitutional right of remaining silent, or those that place your life in immanent danger. Do not give the police a reason to charge you with resisting arrest. You have no obligation to respond to police questioning under the Fifth Amendment. Do not waive your "Miranda" rights under any circumstance. It is also important that you do not lie to the police. If you lie, this may be used against you as proof of criminal intent and may be a crime in its own right. Lying to a police officer when you are under arrest is never a "good thing."
If the police ask for permission to search your vehicle, reply "No, not without a search warrant." If the police search your car without a warrant and without your permission anyway, you should formally object to the search. If the police find a locked case in your vehicle, you are under no obligation to open it for them. Whether or not a warrantless search is legal will be determined when your attorney challenges it in court. In any event, you can't do ANYTHING to stop them when standing on the shoulder of the road. Don't even try.
If the response to the question of whether you are under arrest is "No," ask the police if you may leave. If the police officer says yes, then bid him a good day and safely, with caution, proceed on your way. If he says no, then ask him/her why you were stopped and when you'll be allowed to leave. You have the right to know why the police have stopped you and how long they intend to detain you. By law, they cannot detain you indefinitely; sooner rather than later they must either formally arrest you or let you continue on your way. Nevertheless, politely refuse to answer police questions, other than identifying yourself and providing your drivers license and insurance card, until your lawyer is present, even if they do say your are not under arrest. Your answers may give them a reason to arrest you.
At all times, remain civil and polite. Police officers are human beings and -- like you -- deserve to be treated with respect.
Refusing to consent to a search and refusing to answer police questions without your attorney present do not constitute "probable cause" to search you and your car, or to arrest you. Fleeing from, or lying to, a police officer does. The police officers in northern Illinois know and understand these principles. Do not let them "buffalo" you into surrendering your rights.
Photo: Copyright © 1996, James C. Zoes. Text: copyright © 2000, Caroline S. Zoes, JD