TexasCHLforum.com

baldeagle wrote:

RSJ wrote:

AJHutton wrote:Just wanted to say great thread, thanks to the OP for posting it and everyone for lending their advice. I can say now I'm happy to be informed: "I do not consent to searches."

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these videos are about 90% correct IN MY MIND and practice.

If you like the video (I did), go to flexyourrights.org and check it out. These guys appear to be doing great work to get citizens to better understand and stand up for their rights. I'm going to order their videos and get my family to watch them.

Glad I could direct you to a excellent source! Sounds like a great family-educational tool. Just keep in mind, what they say is not Texas specific. Most of the "rights" are constitutional anyways (so no difference state-to-state) but don't take EVERYTHING he says as the absolute final answer.

WildBill wrote:

RSJ wrote:

Rex B wrote:"tort claims act notice"

What is that exactly - telling them you think you have grounds for a lawsuit?

Kind of, yes. It will let this city know you are serious enough to take formal action.

I am not a lawyer nor a lawyer-in-training. My understanding of a tort case is that the party filing the suit has to have suffered some loss or harm. Other than slightly hurt feelings, what loss or harm did the OP suffer that could result in some kind of settlement?

Exactly it is unlikely he could prevail, however he is allowed to send a tort letter to put everyone on notice that this kind of anti-CHL behavior will not be tolerated. My above posts stressed the hardship in prevailing on ANY claim, and particularly this one.

There are cases where a § 1983 (civil rights) or other violation is clear, but damages are NOMINAL (like $1) and awarded.

Sometimes it is the only way to "stop" a behavior. I am not saying this is or isn't what OP should do, I just like to help people and direct them to info.

I'd like to note their is a large difference between a tort claim letter (basically a demand letter) and filing a civil suit.

Rex B wrote:"tort claims act notice"

What is that exactly - telling them you think you have grounds for a lawsuit?

Kind of, yes. It will let this city know you are serious enough to take formal action. Expect 99.9% to be deemed denied, meaning you'd have to sue (and likely lose on motion to dismiss, summary judgment, or qualified immunity). I have worked on several claims that have been granted, and several denied, then sued, then survived motions to dismiss and eventually won or settled. I would bet less than 1% of claims net any judgment or even nominal damages. I can't go into more detail than that but I want to stress how hard (for better or for worse) it is to sue a city, municipality, police,fire,EMS because of tort reform.

AJHutton wrote:Just wanted to say great thread, thanks to the OP for posting it and everyone for lending their advice. I can say now I'm happy to be informed: "I do not consent to searches."

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these videos are about 90% correct IN MY MIND and practice.

If you are concerned with the incident, then file a formal complaint.
You can also try to send a tort claims act notice, but all that will do is get you a denial. However, it will get noticed by the city's legal department. And likely the PD's attorneys, and supervisors.

Reds45ACP wrote:

RSJ wrote:Automobile exception, under which officer may conduct warrantless search of motor vehicle if officer has probable cause to believe vehicle contains evidence of crime, extends to all types of motor vehicles.
--holding from Powell v. State (of TX) 898 S.W.2d 821

It is up to the court to determine if the probable cause was valid.

... Really? I'm relatively new to Texas. That's scary. So if I violate a traffic ordinance then my vehicle is evidence in a crime. So they can search? Does that extend to searching my person as well? This is the first law in Texas that I'm not happy about. That's, as far as I'm concerned, case law that opposes the 4th Amendment.

I'd say if you were pulled over for going 38mph in a 35mph zone, and had no other probable cause (no odor, no visible PC, no statements, etc) that would not give probable cause to search the interior of the car. Keep in mind it is up to the officer to search, but up to your attorney to scrutinize the search.

The automobile exception is present in all jurisdictions, at least that I've come across.

Automobile exception, under which officer may conduct warrantless search of motor vehicle if officer has probable cause to believe vehicle contains evidence of crime, extends to all types of motor vehicles.
--holding from Powell v. State (of TX) 898 S.W.2d 821

It is up to the court to determine if the probable cause was valid.

baldeagle wrote:

srothstein wrote:Correction on search. If the officer asks and consent is denied, he may still search if he has probable cause and a valid exigent circumstance. In most cases, the fact that a car is mobile is enough of an exigent circumstance to justify a search without a warrant.

Wow! I respect your opinion a great deal, but are you sure??? All the officer needs is the fact that you are in a vehicle to justify a search?

There is a lower expectation of privacy in a vehicle than in a home. However, a warrantless search of a vehicle STILL requires probable cause, under normal circumstances.

The Annoyed Man wrote:

Rex B wrote:The fact that you loudly and specifically refuse to give consent for a warrantless search does not mean they won't still search. But you do want it on tape and on the record that it was not consensual. If they find ( or "find") something in a warrantless search without PC or other legal justification, then whatever they find is not admissable.

This. I realize that police can do a warrantless search under exigent circumstances, but you still want it on record that you do not consent, and let's be honest....some police (by no means "all" or "most," but "some") are not above imagining or inventing "exigent circumstances." These are the minority that give the rest a bad name, but they are out there, and so your best policy as a citizen is to have it on record that you do not consent. That does not mean resist, interfere, or otherwise get obnoxious.

You wouldn't believe some of the Probable Cause Affidavits I have seen. Sometimes it is UNREAL.

rl168 wrote:What can happen after you refused consent to search? Can someone point me to where i can learn more about this? Thanks!

LEO can generally search under a few circumstances:
1. Property owner's consent (consent can be withdrawn at any time)
2. Search incident to arrest or inventory search
3. Exigent circumstances (fire, perp runs into house, shootout, someone is screaming/crying etc)
4. Search Warrant signed by a neutral and detached magistrate
5. Plain View (contraband or illegal items are clearly visible prior to search)
6. Other probable cause (K-9 detects drugs, PC is based upon a reasonable suspicion)
7. many other exceptions to the "general warrant requirement" include Open field doctrine, protective sweeps, terry frisks, service provider exception and more.
If you want to be look up a FISA court and Sneak and Peak warrants. Scary stuff.
It is best to say " I do not consent to this/ or any search" rather than fight, resist, or threaten (even with lawsuit)

Edited to add- this is just off the top of my head.. I have an entire Search and Seizure manual at work (900+ pages). 4th Amendment is a highly litigated area in the law.