Dac1842, you are almost correct. An officer has the authority for a warrantless search of the car IF there is probable cause to justify the search. An officer cannot stop the car for speeding, order the person out of the car, and conduct a search with no further probable cause.
Even if we go with a Terry frisk of the car (where the within lunging distance of the driver comes from), the decision requires the officer to have reasonable, articulable, suspicion that this stop is somehow more dangerous to his life than other traffic stops. it must be specific to the stop. Many officers forget that part of the Terry case and it applies to all frisks. Frisks are also limited to a check for weapons, though if something else is found during the frisk it might be admissible.
On the original subject, I think the officer can legally disarm the person under the law IF he can say why it is safety related. The only time you get to question this is if you take him to court though, as the law does not give you the right to question it there. Once the officer has the weapon, if he can read the serial number, he can run it under the plain view doctrine. Nothing in the law allows him to remove a cover or dismantle the gun to read the serial number and nothing specifically allows the officer to run the number. Interestingly, nothing in the law allows the officer to unload the firearm either, and this practice is of dubious safety (as an example, there was a San Antonio officer who shot himself recently unloading his own weapon) and legality. The law does say the officer must return the weapon, which can be construed as returning it in the same condition as it was handed to him. I don't see this issue ever going to court though.
Academically, this is a very interesting area to discuss the finer points of search and seizure law. In reality, I doubt anything will ever be decided on this. I don't see most CHLs as the type of people who will sue over this as an infringement of their rights, especially since there is no real damages. And I also don't see any CHLs being arrested for this as a result of the search. This means that this is probably never getting to a court to be decided.
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- by srothstein
- Sun Apr 13, 2014 9:05 pm
- Forum: General Texas CHL Discussion
- Topic: Police want to check your serial #
- Replies: 82
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