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Mithras,

The trickiness of that question is why it is asked that way. Because the officers know that most people will not clearly enunciate and the SCOTUS has already siad any invocation of rights must be clear and unequivocal. That ruling was in response to questions about when a person asked for a lawyer, but the principle will hold.

I always recommend that people be very clear and explicit when authorizing or declining a search. I have always wanted to see a young rookies face when someone says "Yes, you can look inside the passenger area, but not inside the glove box or trunk." The limits are clearly stated and he is going to die of curiousity trying to find a way inside those areas.

TxFire,

The question of informed consent is not present for LEO's on searches like it is for medical treatment. I don't have to tell them anything about their right to refuse consent under the law, and can use tricky phrasing (like "mind if I look inside?") to get consent. The only requirements so far are that I cannot use force to get consent, including things that might look like force to a confused and innocent crook. I cannot call for the Swat team to be standing there in full gear when I ask if the crook will consent to a search, nor can I stand there hitting my hand with a nightstick or positions like that that are threatening.

But I can mislead people into almost anything. About the only lie I cannot use is the old, I will go down and get a warrant anyway if you do refuse" line, since that has been taken by the courts as coercion now. The easiest way is to act friendly and ask if there is anything in the car I should be aware of that could hurt me. You can even make it joking like asking if they have a machine gun in their pocket or something like that. After they say no, you ask if they mind if you look inside, just to satisfy yourself on it. The suspect will almost always consent thinking you are friendly and just worried about your safety, but by law he has just consented to a search of the car.

txinvestigator wrote:

srothstein wrote:

easttexas wrote:Ok I'll throw this in while talking to my trooper friend said he knows of this officer that pulled me over and he is a new trooper. Interesting enough he said that the DPS has the right to search any vehical once pulled over for a viloation at any time unlike a city cop which might or might not have the right to search. Which is why DPS are called to stops at times for back-up (drug, weapons search).

Let me second Kevin on this. Troopers have very little authority any other peace officer does not (very little as in the only on I can think of offhand is for commercial vehicles, and that is only restricted away from small city departments, large cities and counties have it also). ?).

Troopers have no authority other Texas LEO's don't have.

Imagine the SCOTUS making a ruling and adding; "Except for the Texas DPS Troopers. That bunch is just superior to all other LEOs"

The level of officiousness I hear about from some LEO's is just appalling.

Actually, Troopers do have some authority other LEO's don't have. For example, in Section 14.03 of the CCP, you can see that city and county officers cannot arrest for most traffic offenses outside of the county they are based in.

The other authority I was referring to is the one for troopers, and other officers who are certified properly, to do commercial vehicle inspections. Federal law restricts what agencies can do this, and I think (without checking for accuracy) that no officer from a municipality with a population less than 50,000 can be certified as an inspector.


On the flip side, Game Wardens have some authority that even DPS does not. They have a "right" (well, that is what the law says anyway) to search based on reasonable suspicion for game violations (Parks and Wildlife Code 12.104).

I am curious about if this has ever been challenged out of the municipal court and up high enough. There are a couple of Transportation Code authorities that I think are not constitutional also, such as checking a motorcycle helmet for DOT compliance. Again, no one has challenged it as far as I know, but that is the way the law is written.

But these are written by the legislature, not SCOTUS. So far, SCOTUS has not bought into any agency's line that they are the only REAL police in the area and the others are not really police.

easttexas wrote:Ok I'll throw this in while talking to my trooper friend said he knows of this officer that pulled me over and he is a new trooper. Interesting enough he said that the DPS has the right to search any vehical once pulled over for a viloation at any time unlike a city cop which might or might not have the right to search. Which is why DPS are called to stops at times for back-up (drug, weapons search).

Let me second Kevin on this. Troopers have very little authority any other peace officer does not (very little as in the only on I can think of offhand is for commercial vehicles, and that is only restricted away from small city departments, large cities and counties have it also). And troopers are called as back up for the reason that they are on the road and that is all. When I worked in Luling, I was called for back-up by the troops on a regular basis, and they backed us up. Many nights, it was just one officer in the city, two deputies in the county, and a couple troopers on IH-10. We all backed each other up as needed.

He told me he has done the same thing to numerious people that didnt have CHL's or known weapons and what times it was fought the DPS has won every time so a CHL involved in a similar search does not matter, standard procedure! This is why drugs are found on traffic offences by DPS. He let me know if I fought this I would loose, and be possibly "tagged" by fellow DPS in the area I told him thats wrong and that cant be right in todays Texas he said that is the way it works.

He is lying if he says DPS wins all the cases. They lose quite a few, though they probably win more than they lose. The trick here is in having the lawyers who can handle it, and better report writing skills. Most citizens do not know how to document or testify, and troopers are taught some tricks. The way most troopers find drugs on traffic stops is because the average person does not know he can refuse to search, or doesn't realize he is consenting to a search when the trooper uses slightly different language (like mind if I look inside for a minute?).

txinvestigator wrote:

easttexas wrote:Well I talked to a trooper I know and a retired Longview PD Capt. about this they both said the officer can do this and "not a good idea to pursue this any further." This "is tactics for people under suspicion with criminal records". I asked about a refuse to search and was told that will make you look guilty he might even impound the truck for a search and so on. So lesson learned if they want to search they can.

A LEO cannot legally simply "impound" a vehicle unless the operator is arrested or the vehicle is not registered, expired registration or if the operator has no insurance.

I beg to disagree with this part. A peace officer may impound a vehicle without arresting the driver if the vehicle is evidence of a crime, or for various other reasons. Consider the possibility that a vehicle is involved in a hit and run accident with injuries. I see the vehicle (identified from the front license plate left at the scene matching the rear one still on it) the next day. I impound the vehicle as evidence of the hit and run, gettign the damage before it can be repaired. I do not arrest the driver because I do not have probable cause to believe that person was operating the vehicle at the time of the accident. That is just one scenario.

Also, a peace officer may seize a vehicle to hold it while he gets a warrant for the search. In this case, the vehicle gets impounded (without an inventory if the officer know what is good for him) and pulled to a secure area until a warrant can be walked through. He still needs probable cause for the seizure. This is done a lot when they are looking for evidence of a kidnapping/murder in a car that takes a good evidence tech for the search instead of just the average officer on the street.

A LEO cannot simply impound the vehicle as subterfuge for searching a vehicle.

I do agree it can not be done as a pretext for searching without one of the other authorizing events (like the no insurance or similar).

I will take a stab at answering some of the interesting questions posted in this thread, starting with your rights about searches, when and what an officer can search, and ending with if the officer did anything wrong. All of this is my personal understanding of the law (and that specific stop as related by the poster) and is not legal advice.

First, you always have the right to not consent to a search. Be very careful with this as you cannot resist a search even if it is unlawful. The place to fight this is in court not at the scene. Also, even if you do not consent, it does not mean that a search is illegal or a violation of your rights. As a final caveat, be prepared to be cited instead of warned for whatever you were stopped for. Most cops, wrongly, will consider your lack of consent to be uncooperative behavior. Cops are notorious for reacting badly to someone they see as uncooperative. You may also give a partial or limited consent, which is what i believe happened in the stop under discussion (more on that later).

Second, there are many times an officer can perform a search without your consent. As it applies to traffic stops, an officer may search if he has probable cause, incident to an arrest, as an inventory if the car is being impounded, or as part of a frisk. The SCOTUS has ruled that the mobility of a motor vehicle is in and of itself exigent circumstances that stop an officer from taking the time to get a warrant. He still needs probable cause though, and it has to meet all of the standards for probable cause that he would need to meet if he were applying for a warrant. Many cops forget about this and try for a consent search because it is easier to get consent than probable cause.

A cop may search the car incident to an arrest. There are some limits on this, such as what can be searched. Usually the courts will limit this to the areas easily accessed by the person arrested, such as the passenger compartment. It is important to note here, with an eye on the law of unintended consequences, that in the 2004 Kurtz (sp?) decision, the Court of Criminal Appeals ruled that any traffic stop is an arrest automatically. I am unaware of any officers or lawyers who have used this logic in a case yet, but I am sure it is only a matter of time until someone does. You do not get to consent or decline consent on a search incident to an arrest.

A cop may also frisk you and your car. This is based on the Terry v. Ohio case that SCOTUS decided many years ago. A frisk is a very limited search for only weapons. On a person it is a pat down of their external clothing only. In a car, it is generally acceptable to look under the seats, in unlocked glove compartments, etc. but not in areas out of the reach of the people in the vehicle like a truck. A frisk also has an additional limitation that it is only justified if the officer has a specific and articulable reason why he felt he was in danger from this particular stop. He cannot use a general reason like I frisk everyone at night, and it must be for a danger to himself. A frisk cannot be done for drugs, as one example. Also, I believe Kevin is wrong about one point on a frisk. The officer can frisk the car even if you are out of it, if he can justify the frisk. One of the reasons the court has accepted this is the fact that you will let the bad guy go back into the car if you do not get probable cause, thus putting yourself at risk again. I would think a good prosecutor would be able to use the fact that you locked the doors as part of the reasonable suspicion if the officer brings it up to him. Courts, up to SCOTUS, have ruled many times that a search is legal at almost any point, if it was ever legal, unless the PC disappears.

An exception to the PC requirement is if the car is being impounded for any reason. In this case, the officer may do a full search of the car as a means of inventorying it. The courts have ruled he may look anywhere, including locked compartments, that there may be a valuable item he would be taking responsibility for. This has come about because the police are liable for your car while it is in their possession and they have a reasonable right to protect themselves from false claims of stolen or missing valuables. This can be applied if the car is being impounded, even if the people are not being arrested (think of the cities where you get your car impounded if you do not have insurance for example).

Now, there is only one area that you have given any rights up on when carrying a firearm under the CHL rules. You must notify the officer you are carrying and you must surrender it to him on his demand. There is some unclear language in the law where it says he may disarm you, and some here have taken this to mean the gun in your car and you outside the vehicle. I believe that the law was intended to allow him to actually take possession of the firearm because that section then says he must return the firearm before releasing you. I think even if you are out of the car, the officer can take the weapon from the car. Nothing says you have to let the officer search your car and the law is not clear if you can hand him the pistol or he must be allowed to get it himself. I am guessing that part of the lack of clarity is the assumption that if you are carrying under a CHL, the gun would be loaded and on your person, not in a case in the car. If it is on your person, you are pretty much going to have to do something to hand it to the officer, though I can see lifting the jacket and turning it towards him to get (though I have never seen a reason to disarm a CHL personally, other officers do feel differently).

Now, for this specific incident, I think the trooper did not act legally (and not just outside of policy). When the trooper asked if he could look at the guns, consent was given for a limited search. In this case, specifically limited to the guns in the case, and directions were given as to where the guns were. As such, if the trooper looks anywhere else, he is going beyond the authorized scope of the search. Thus, I think the trooper, as related by the original poster, has violated the poster's civil rights and conducted an unauthorized search.

I would probably not complain if that was all he did myself, but if there were other indicators of potential problems (bad language, rudeness, the cross questioning, etc.) I would probably call the local regional office and file a complaint. Each of us has a different point at which we complain over bad customer service (and that is what this falls under, as well as possible criminal behavior), so that is your individual decision.

LLWatson, I hope my discourse has helped clear up the question in your mind a little bit. You can always decline a search but you must hand over the weapons if asked. You can give a limited authority to him, such as "you may enter the car to get my gun case only, I am not consenting to a search of my property other than the minimum required by law to disarm me".

As I said, I am not a lawyer, and I could have some of this information wrong. Check with the lawyer who will defend you, or failing that, check with the D.A. (if he will answer) on how he would handle the prosecution.