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Well, it is a kind of weird situation, TrueFlog. You have to look at the exact wording of the law to see how it works. The first part is under the authority to disarm, which is actually in the Government Code. It says that a peace officer may disarm a license holder under some conditions. None of the conditions say when the person is carrying under the authority of his CHL, just identifies him as a license holder. So, while we most commonly think about traffic stops because that is where 95% or so of the public gets to talk to cops, an LEO has that authority if he happens to be talking to a CHL inside the CHL's own home. I don't see it happening there, but the law gives the LEO that authority. So that is the absolute legal answer to the question.

But more realistically, you have to look at a different section of the law. A CHL is required to identify himself to a peace officer when asked for ID. As a general rule, this combined with the specific authority to disarm means that a CHL is really telling the officer he has a gun. There is a gray area in the law on whether or not the CHL could lie about having it if asked and this has been debated before. But there is no law requiring anyone else to identify themselves as carrying. There is also no law requiring people in general to answer whether they have a gun or not. So, if you don't volunteer the information, how would the officer know to disarm you?

And then you get the really gray area of what happens if a person without a CHL refuses to give the officer his gun. Say that a person is stopped for a traffic offense and has a gun in the car. Under the MPA, he is ok so far. As part of a routine question, the officer asks if the person has a weapon and the guy says yes. He even tells the officers that it is a Colt python revolver in the center console. If the officer asks for the gun and he just says no, what is the LEO going to do?

As a retired officer, I do not have to tell the officer or give him my gun when he asks. I probably would tell him, just as a courtesy. But I am not sure if I would surrender my gun to him. I might offer to exchange guns with him and tell him I don't trust him with a gun if he doesn't trust me with one, just to see what happens. Yeah, I would probably cooperate and let him hold my gun, but I would definitely ask why sometime during the stop. I think I would try to turn it into a learning episode from an old guy to a less experienced cop, but like a lot of other old men, I sometimes get crankier than I should about things. I can see it going bad if I am in the wrong mood or the cop approaches me wrong. The only good sign there is I do know some good defense attorneys who would bail me out.

Bilgerat, the problem with the running of the serial number is if they disarm you just to get the pistol to check. They are legally only allowed to disarm you if they have a reason to suspect there might be some danger to someone because you have the weapon. If they disarm you so they can get the serial number, it is really an illegal seizure and search. Also, the serial number is not in plain sight on all weapons. On many revolvers, it is hidden under the crane or grips, for example. Even opening the cylinder on a revolver would make the serial number not in plain view from a simple possession. So there are legal questions about both the disarming and the actual search.

Add in the fact that they can only disarm the CHL legally, and not anyone else legally carrying a gun, and you might see why a CHL is getting a little upset at things. After all, as a retired police officer, I would not surrender my gun to another officer without reason. And while I suspect that the average person carrying under the MPA would go along, there is nothing in the law to allow it or justify it.

As for the license plates, they are clearly in plain view to the public making running them legal. But, with the advance of technology, there have been quite a few people upset about the use of automated license plate readers. ALPR is a system of cameras connected to computers mounted on the car or wireless connection from the car to the computer. They can run a car in about 10 seconds or so (depending on the computer speed) and allow a police officer to drive down a row of parked cars and run every car there (or run every car he passes in a line of cars as he is driving). I do not see the difference between the individual officer running the plates and the camera doing so, but I am aware that many people do feel this is going too far.

I definitely see and agree that an officer should not be running the serial number of every weapon he gets from a CHL just because. But then, I never saw a need to disarm a CHL at a traffic stop either.

KC5AV wrote:Maybe he was just doing his job, but it still boils down to a potential 4th amendment violation. Some people take that stuff pretty seriously.

Steve, what if the officer had declared that he was disarming the OP for 'safety reasons', and then announced that he was running the serial numbers to determine if the guns were stolen? The officer already has possession of the weapons.

This is the one where you get questionable on the search. Clearly, if he made the correct announcement, he could legally disarm. And there is an old policy that an officer can check anything he can see if he can legally see it. This is the plain view doctrine (if I am in a legal place and I can plainly see something, it is not a search). If I legally disarm him, and the pistols are in my possession, their serial numbers might come under the plain view doctrine.

I don't remember the case citation, but to show how confusing this gets there is also a contradictory case. An officer was making a legal check of a pawn shop. There was a stereo on display he thought might be stolen. He turned it to see the serial number and search it. The court ruled it was an illegal search since the officer had to turn the stereo. If the serial number had been on the front, then it would have been in plain view, but the turning made it otherwise. I use this illustration because the officer was legally where he could be and any customer could legally have turned the stereo to see the back. If the officer disarms you, can he legally turn the pistol to read the serial number to run it? Probably, IMO, but he could not open the cylinder or remove the grips, etc.

And if this officer has a smart sergeant, he would teach him to do it this way. Tell the CHL you want the pistol for safety and run the serial number without telling the CHL. If nothing comes back, the search is never known to the citizen and there is no problem, even though it may still be illegal. If something does come back, you can use that to talk with the CHL and determine if he is a victim (most probable) or the thief. You may not be able to use the search (if the DA says it was illegal) as evidence against the CHL, but you at least recovered the gun for its rightful owner.

Bullwhip, KC5AV, and TAM combined have the correct answer.

The law does not give a peace officer the "general authority" to disarm you. It specifically says he can disarm for safety (yours, his, or others). The officer left the OP in the car with the guns until he decided he wanted to run them for stolen. This is not disarming for safety as the law requires, per the specific statement of the officer.

The officer's statement turns the disarming into a search. Under normal conditions, this should have been prefaced with a request for consent. But, based on the recent SCOTUS decision on Miranda, silence is not an affirmative assertion of your rights. The OP cooperated without declining his consent, so this is now considered consent under the case law. I understand SCOTUS' logic and the prior cases that lead to this, but I still have major problems with the decision and its ramifications. In the case of a search, there might be an argument that the consent was invalid since it was obtained under duress (no request, but an order from an officer to produce in a situation where the OP was clearly not free to leave). The OP could have clearly stated that he did not consent to any searches and not handed the weapons over to the officer. I do not recommend this for a similar situation since I am sure the officer would have reacted badly, possibly by drawing his own weapon and arresting the OP (not a legal arrest, but that is for a different debate). At the very least, a lack of cooperation would almost have guaranteed a ticket for the original stop sign violation.

And finally, the best way to avoid problems like this for the future is to write a letter of complaint to the Chief of Police. If it comes from an attorney and mentions the illegal search and 42 USC 1983 (civil rights violations under the color of law for the non-lawyers and non-cops amongst us), it will have even more effect. The officer will be reprimanded and given further training and the Chief will probably write a letter of apology. But the end result might also be that the next time the officer stops a CHL, there is no longer a presumption that it is a good guy. The officer will know to say he wants the weapons for safety (making the disarming legal) and probably write the CHL a ticket instead of giving him a warning. Some cops, being human, tend to generalize behaviors among groups. If it is a racial group, they get in trouble for profiling but it is not illegal to profile CHLs.