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Is it possible to legally have a firearm (handgun/rifle/shotgun) in a vehicle that a person is the driver of, and NOT tell the police in Arizona whether they have a firearm or not?

According Arizona Revised Statute 13-3102 ( https://www.azleg.gov/ars/13/03102.htm ) it says under A-1-b: "(b) When contacted by a law enforcement officer and failing to accurately answer the officer if the officer asks whether the person is carrying a concealed deadly weapon; or"

However, doesn't this violate the person's constitutional rights to NOT answer any questions, or self-incriminate? Would a "I prefer not to answer any questions I am not legally obligated to answer" suffice? Would saying "I don't know" suffice? Would saying "I may or may not have a firearm" suffice? What is the most vague answer you are legally allowed to give, especially when in possession of a firearm? What is the consequence of not answering this question?

Can someone under 21 that has a handgun in luggage in the trunk of a car legally NOT answer that question? Under ARS 13-3102 under A-1 it says: "1. Carrying a deadly weapon except a pocket knife concealed on his person or within his immediate control in or on a means of transportation:", so does that mean if it is in the trunk of a car, or in a lockbox on the dashboard, you don't have to answer that question?

Lastly, is it smarter/wiser to answer the question when confronted by police?

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    If you "legally have a firearm ... in a vehicle," how is it self-incriminating to say so?
    – bdb484
    Oct 8 '20 at 4:09
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    @bdb484 Its not just potential self incrimination, asking if you have something is arguably a search that the 4th amendment protects you against. I expect the law would be upheld though.
    – Matt
    Oct 10 '20 at 2:43
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    I don't think it's arguable that a question is a search. If there's any case law supporting that, I'd be interested to see how the court reached that conclusion.
    – bdb484
    Oct 10 '20 at 6:14
  • I've asked a separate question about the 4th/5th Amendment issues if you admit to having an illegal weapon due to this law. law.stackexchange.com/questions/58077/… Nov 14 '20 at 13:15
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Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 is relevant to this question. Nevada has a "stop and identify" statute which requires persons who are stopped to disclose their identity. Defendant refused to answer the question, was arrested and convicted, and the conviction was upheld. However, there isn't an open-ended police privilege to ask a person's name, it must be accompanied by a reasonable suspicion that the suspect committed a crime. As the court held,

An identity request has an immediate relation to the Terry stop’s purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity.

The court also held that

Hiibel’s contention that his conviction violates the Fifth Amendment’s prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U. S. 591, 598, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used

As the court first states,

Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.”

The courts have repeatedly upheld reasonable actions taken to ensure officer safety in the course of a stop or arrest. Although OP question is framed as a 5th Amendment issue, it is fundamentally a 4th Amendment question, namely whether the stop and brief detention is reasonable, given the "mission" of the stop. Being accurately informed of the presence of a deadly weapon is a reasonable safety precaution (the same safety consideration justifies repeatedly-upheld body searches). If the gun is locked in the trunk, the answer "I have a gun locked in the trunk" should suffice to address the safety concerns and then we're back in the realm of ordinary Terry stop brief detentions. The courts have not, as far as I know, ruled on the parallelism between providing your name during a Terry stop and providing officer-safety related information, but it is hard to imagine that the courts would fail to see the analogy.

Focusing on the self-incrimination aspect, as the court reminds us

Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them

That is, the statement that you have a deadly weapon might indeed have a nexus to a criminal conviction (violation of a felon in possession law), but the statutorily compelled response cannot be used to obtain that conviction. It can be used to alert the officers to the presence of a weapon, which poses a potential safety threat.

Incidentally, the law refers to a concealed weapon which is on your person or within your immediate control in a vehicle: a gun in the trunk is not in your immediate control, but a pistol in your cup-holder would be. This describes exactly the contexts where the safety concern is legitimate (and excludes inferring an obligation to confess to trunk weapons, which the statute does not require).

Hypothetically, Hiibel might have been a wanted criminal suspect, and truthfully providing his name would easily result in his arrest and conviction, although his name is not per se evidence of a crime, it just leads to something that leads to proof of a crime. IMO the court has not fully addressed the subtle interaction between Terry stop law and the Fifth Amendment. This article addresses some of the cracks in the court's application of the law, but it focuses on Fourth Amendment issues. The Miranda-like conclusion that would apply to a weapons question at a Terry stop would be that the confession of having a weapon nearby (when one is a felon or minor prohibited from possessing a weapon) is inadmissible in court.

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  • It does seem that Haynes v United States would be on point here for a prohibited possessor who failed to truthfully answer the question. Haynes was found to be protected by the fifth amendment in his failure to register a firearm as required under the National Firearms Act. How refusing to answer would play out for someone who was not a prohibited possessor would be interesting.
    – Dave D
    Mar 14 at 6:17
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You have to answer the question accurately, which means an affirmative or denial, or a sincere unknown - if you don't know the contents of something you carry for example. So you need to answer correctly and truthfully. Everything else is not accurate for your person. If you are not sure about passengers, the best you could say is "I do/don't, but I only speak for myself, not my passengers/the contents of that box XYZ gave me." Not answering or being vague is not the way to go, as such behavior ticks mental checkboxes for in how much danger a policeman believes to be.

Then, your hypothetical: yes, the trunk is carried, it is even specifically mentioned in section 3 of the paragraph you pointed at (emphasis mine):

  1. A firearm that is carried in: (e) A case, holster, scabbard, pack or luggage that is carried within a means of transportation or within a storage compartment, map pocket, trunk or glove compartment of a means of transportation.

It is always smarter to answer the question correctly, as you put policemen at ease if you show you cooperate and that you have no access to a firearm.

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