LEO seizure of a handgun

[flb_78]

I'm having a debate with an LEO on another forum. He claims that after you show him your CHL and then tell him where the gun is, that he then can order you to leave the vehicle and retrieve the gun himself without consent from the driver or a warrant.

I know that an officer can have you surrender your weapon during a traffic stop, but I don't believe an LEO can go into a vehicle with consent or a warrant.

Any opinions will be appreciated.

[Charles L. Cotton]

It is clear that a LEO can temporarily disarm a CHL during a stop. The statute isn't clear as to the geographical scope of this authority, so I believe an officer's authority would be interpreted in light of the cases dealing with what constitutes carrying a handgun "on or about one's person." The case law pretty much holds that anywhere within the passenger compartment of the vehicle is "on or about one's person." So, if the gun is in the passenger area of the car, I believe an officer could retrieve it. If it was locked in the trunk, then I don't believe he officer would have the authority to require you to open it and let him take the gun.

This is just my evaluation of how the law would be interpreted, as I know of no case law directly on point.

Chas.

[DMG]

Charles:

Even after he has had you exit the vehicle? Then it would no longer be in your possession, custody, or control, or not a potential threat to the officer.

DMG.

[flintknapper]

It is clear that a LEO can temporarily disarm a CHL during a stop. The statute isn't clear as to the geographical scope of this authority, so I believe an officer's authority would be interpreted in light of the cases dealing with what constitutes carrying a handgun "on or about one's person." The case law pretty much holds that anywhere within the passenger compartment of the vehicle is "on or about one's person." So, if the gun is in the passenger area of the car, I believe an officer could retrieve it. If it was locked in the trunk, then I don't believe he officer would have the authority to require you to open it and let him take the gun.

This is just my evaluation of how the law would be interpreted, as I know of no case law directly on point.

Chas.

As soon as the person exits the vehicle (of his own volition or by order), he is no longer in close proximity to the weapon, nor is it "readily accessible".

Personally, if ordered from my vehicle...I would immediately lock it behind me.

This whole thing about officers disarming law abiding CHL holders as a matter of "policy" really puts a burr under my saddle.

I recognize in this case it is a matter of "discussion" only, but I have to wonder why a LEO would feel compelled to remove a person from a vehicle AND retrieve the firearm afterward.

[Dave905]

Charles,

If an officer wouldn't have the authority to retrieve the gun from the locked trunk, would that also apply to a locked (and bolted down) valut in the console of a vehicle?

[flb_78]

Charles,

If an officer wouldn't have the authority to retrieve the gun from the locked trunk, would that also apply to a locked (and bolted down) valut in the console of a vehicle?

I don't believe so, if you don't have immediate access to it, it shouldn't be a problem.

[CHL/LEO]

Then it would no longer be in your possession, custody, or control, or not a potential threat to the officer.

Not true- courts have ruled that if it was within reach while you were in the vehicle, then it still can be searched. The reason being is that once the LEOs allow you back into the car then you would have access to the weapon and could thus engage the officer.

[Odin]

For the sake of your Internet debate - the officer can do whatever he wants to do. Depending on your reaction to his actions, you might (a) be disarmed for the duration of the stop, (b) be arrested or (c) be shot. If you feel that your temporary disarming was unlawful, you have the option of taking your case to the courts.

An officer is permitted to disarm a CHL holder while on a stop for the safety of the officer, and if you are not taken into physical custody then the officer would be able to remove the firearm from the area that is immediately accessable to you when in the driver's seat.

My opinion is that if you are in possession of a handgun that is not on your person that the best options is to tell you to leave the weapon where it is, and depending on the situation possibly have you exit the vehicle while leaving the weapon in the vehicle. Taking possession of the weapon means that 2 people will have to handle the weapon in the course of the stop which seems unnecessary to me and creates more potential for problems than leaving the weapon in the vehicle. But not everyone shares that opinion.

[KBCraig]

Then it would no longer be in your possession, custody, or control, or not a potential threat to the officer.

Not true- courts have ruled that if it was within reach while you were in the vehicle, then it still can be searched. The reason being is that once the LEOs allow you back into the car then you would have access to the weapon and could thus engage the officer.

The officer has the option of leaving first. End of problem.

[KBCraig]

An officer is permitted to disarm a CHL holder while on a stop for the safety of the officer,

The law clearly says that an officer may only disarm a CHL holder when he reasonably believes doing so is necessary for the safety of himself, the CHL, or a third party. (Or, as of 9/1/07, when entering a secure area where proper signs are posted and secure storage is provided for the handgun.)

Every time an officer disarms a CHL as a matter of law, he exceeds his legal authority.

My opinion is that if you are in possession of a handgun that is not on your person that the best options is to tell you to leave the weapon where it is, and depending on the situation possibly have you exit the vehicle while leaving the weapon in the vehicle. Taking possession of the weapon means that 2 people will have to handle the weapon in the course of the stop which seems unnecessary to me and creates more potential for problems than leaving the weapon in the vehicle. But not everyone shares that opinion.

I absolutely agree: the less handling, the safer. Especially for officer who have never been trained on anything other than their department-issued Glock -- I really don't like the idea of them clearing a Condition One 1911.

[Odin]

An officer is permitted to disarm a CHL holder while on a stop for the safety of the officer,

The law clearly says that an officer may only disarm a CHL holder when he reasonably believes doing so is necessary for the safety of himself, the CHL, or a third party. (Or, as of 9/1/07, when entering a secure area where proper signs are posted and secure storage is provided for the handgun.)

Every time an officer disarms a CHL as a matter of law, he exceeds his legal authority.

Obviously, when I say "for the safety of the officer" I mean if the officer belives it may be reasonably necessary for his safety. My opinion is that it is rarely necessary, but I'm not the one who makes that decision, it's up to each individual officer.

My point really was that regardless of anyone's opinion on the officer's legal authority that the officer can do as he chooses and the CHL holder is best served by complying and taking the case to court if he feels that the officer was wrong.

If the CHL holder is not wearing the weapon they could simply not advise the officer that they are armed and consider themselves to be carrying under the "travelling" statute. But that could also lead to them being a test case for the distinction between CHL carry and travel carry.

[Mike1951]

(Or, as of 9/1/07, when entering a secure area where proper signs are posted and secure storage is provided for the handgun.)

I must have missed this.

What is the source for this?

[flb_78]

I understand that an officer can take the firearm during a stop, not a problem, that is understood...


What I want to know is, can he ask you to get out of the vehicle and take the handgun from inside your vehicle without consent from the owner or a warrant from a judge? If I am pulled over and asked for ID, I then present my DL and CHL, officer then asks if I am armed, I say yes, it's in the glovebox, officer then says "exit the vehicle", I get out as requested, he then goes into my vehicle and retrieves the handgun. I have not given permission to search my vehicle and he has no warrant to enter my property. I don't believe that is right and that's is not how the law is written. I don't believe it is any different than an officer walking into my house and searching for firearms without consent or a warrant.

[seamusTX]

We need to talk about the meaning of the word can. The fundamental meaning is to be physically or mentally able to do something. Odin has this right. Police officers can do anything that they are able to do. Their actions may be legal or illegal, and they may or may not suffer the consequences of illegal actions later. Usually not.

Courts have given the police the benefit of the doubt when their actions are intended to ensure the safety of themselves, people in custody, or third parties.

Police have never needed a warrant to search a vehicle. The U.S. Supreme Court decided this issue shortly after the first Model T rolled off the assembly line (Carroll v. U.S.). It took me about ten seconds to come up with a recent ruling that illustrates the kind of case you are asking about, Thornton v. U.S.: http://www.law.cornell.edu/supct/html/03-5165.ZS.html

- Jim

[flintknapper]

Then it would no longer be in your possession, custody, or control, or not a potential threat to the officer.

Not true- courts have ruled that if it was within reach while you were in the vehicle, then it still can be searched. The reason being is that once the LEOs allow you back into the car then you would have access to the weapon and could thus engage the officer.

Same thing is true when an officer asks the CHL for his weapon (when on person). If ever there was an opportunity to "engage" the LEO this would be the time. He/She has effectively given you permission to present your weapon.

Also, when the officer returns your weapon (even those that have been unloaded by the LEO), if the "smart" CHL is carrying an extra mag. (SA-Autos), then he could "engage" the officer at this time as well.

The laws are in place to give LEO enough latitude to protect themselves from BG's. That is well and good and I support that.

But...it is time for LEO and/or their departments to figure out that CHL's are NOT the BG's.

My concern about this is: That disarming CHL's will become general "practice" among some LEO or dept's. If we do not question these actions (at the dept. level, NOT on the street) then it might easily get out of hand.

I guess I am fortunate in terms of where I live (small town). The LEO here are reasonable (indeed accommodating) and I foresee no such problems here. When I travel to Houston or Austin however, I would like to be assured that I will NOT be disarmed except "per the law" and not as a matter of dept. policy or personal preference.

I know you feel the same way and my "rant" is not directed at you. Just want you to know that.