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This question describes an Arizona law which requires a person stopped by the police to answer honestly when asked if they have a concealed deadly weapon.

Suppose that someone in Arizona is carrying an illegal concealed weapon. They are stopped by the police and asked this question. They answer truthfully.

  1. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search?

  2. Can the state prosecute this person for carrying the illegal weapon?

  3. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that?

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The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun.

I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally.

They are stopped by the police and asked this question. They answer truthfully.

Then they can be arrested and prosecuted for the illegal possession of the gun.

How does this square with the right not to self-incriminate? Or is asking the question considered to be a search?

Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake.

Can the state prosecute this person for carrying the illegal weapon?

The state can generally prosecute crimes it knows about. So yes, in this case they can.

Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that?

The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted.

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  • Presumably lying would be a bad idea, so it sounds like you would say "I refuse to answer on the grounds that it might incriminate me" and then wait and see what happens. Nov 14 '20 at 21:15
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    @PaulJohnson I agree lying is bad. The problem is when you are in a situation where only those people who are trying to avoid self incrimination reply a certain way. I cant see it going well if the officer points out you are required to answer truthfully but then you reply that you are only required to answer if you arent breaking the law. Seems like just another way of forcing self incrimination. I dont know how this is remedied.
    – Matt
    Nov 14 '20 at 21:36
  • I'd guess there aren't any cases on point. If you take the 5th in response to this question then the officer might guess that you are doing so to conceal something illegal, but AIUI that can't be used as reason for suspicion. So to conduct a search they would have to have some other reason. OTOH this is frequently not an obstacle. Nov 15 '20 at 14:06
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In circumstances in which a person is lawfully carrying a weapon they would be violating the law if they failed to disclose it when asked. If they are carrying an illegal concealed weapon this law would likely be found not to be applicable due to self-incrimination. The only context I am aware of in which you are required to positively say anything is when asked to identify yourself (provided you are being investigated for a crime and reasonable suspicion exists to warrant said investigation). Even then the court left open the possibility that if identifying yourself would incriminate you the 5th amendment could apply.

EDIT -- In response to comments below, I would like to clarify that just because a state can pass a law compelling someone to identify themselves when detained for a criminal investigation does not necessarily mean that they choose to do so. The state of Arizona is one state that does require this:

ARS 13-2412. Refusing to provide truthful name when lawfully detained; classification

A. It is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person's true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime. A person detained under this section shall state the person's true full name, but shall not be compelled to answer any other inquiry of a peace officer.

Curious here is the final sentence specifically conflicts with the law at issue in this question. It would likely be resolved through consideration of the rules of construction, which are a set of rules courts use to interpret ambiguities and resolve conflicts that sometimes arise in statutes.

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    Are you positively stating that Arizona is a state that requires people to identify themselves when detained? Some states defer that requirement to arrest.
    – ErikE
    Nov 15 '20 at 3:38
  • @ErikE No. To clarify, rather that is the only context I am aware of in which a state CAN compel someone to speak as opposed to remain silent. That does not mean that the states necessarily choose to do so.
    – David Reed
    Nov 15 '20 at 4:07
  • So do you object to modifying your answer from "is when asked to identify yourself" to something similar to "is when asked to identify yourself in one of the stop-and-identify states"? Also, since the question specifically asks about Arizona, it seems it would be best for your answer to be tailored to Arizona law, instead of being broadly general, potentially misleading the OP or others about whether self-identification is required in Arizona during detainment.
    – ErikE
    Nov 15 '20 at 4:11
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    Is that specific to this site? Never heard of that on any stackexchange site before. Not sure how removing ambiguity and providing clarity and additional detail would be frowned on by the two upvoters so far.
    – ErikE
    Nov 15 '20 at 4:44
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    @barbecue Okay, I don't doubt you but have never seen that myself, and no matter what meta discussions there are, I have always felt free to edit all my answers, all the time, and plan to continue doing so as long as the updated answer is improved. I can't see how any up-voter would object to an answer being improved if that answer has had material flaws pointed out which the update is addressing.
    – ErikE
    Nov 17 '20 at 0:49

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