Liberty wrote:Once the officer claims he thinks he smells pot, he has gained the right to search the car and temporally seize the weapon so that he can run the numbers. .
We REALLY need to start framing this in terms of
authority and not
rights. Authority means that, under those particular circumstances, at that particular moment, the officer can lawfully do whatever he is going to do. If we say he has the
right to do it, rights are not subject to time, place, and circumstances. For example: we have a 2nd Amendment right, whether or not the Constitution says we do. It is a HUMAN right. Human rights exist independent of governments, and the ONLY question is whether or not any government is structured so as to respect, promote, and protect a human right.
How does that apply to this particular situation? YOU have a right to be safe from unreasonable searches and seizures. The LAW gives the LEO
temporary authority to abrogate your right in the interest of his job safety. When you have informed the LEO of your CHL, the law gives the LEO authority (not a right) to disarm you. IF that gun was on the seat of your car,
and you have exited the car before informing the LEO of your CHL, then his authority to disarm you extends only to your person. It is not illegal for you to have gun in your car, and his
suspicion, that a CHL has a gun in his car in which the CHL is no longer sitting does not constitute grounds to search the car, particularly if the CHL has stated "I do not give you consent to search my car." That statement IS NOT probable cause for a search. MPA establishes your lawful authority to have a gun in your car, and your CHL establishes that you are not a felon in possession of a firearm. So, (A) when an officer has you
already outside your car, and (B)
there is no firearm on your person, then (C)
you are already disarmed.
THAT IS THE FULL EXTENT OF HIS AUTHORITY, unless you give permission to search the vehicle. He or she may confirm that you are disarmed
on your person, but that's as far as it goes without your consent to search the vehicle.
Let's postulate a similar circumstance. You're a woman, and you carry your gun in your purse, and your purse is on the seat next to you. When you exit the vehicle, you grab your wallet containing your ID, but you leave your purse on the seat. You get your two IDs out of your wallet, show them to the officer and he/she asks you if you are armed and if so where your gun is. You tell them it's in your purse, inside the car, on the seat. That fact is not cause to search your car. If you had told the LEO that you had a sack of oranges in your purse,
that would not constitute probable cause for a search—because it is not illegal for you to have a sack of oranges in your car. By leaving your gun in the car,
you are already disarmed, and THAT is the whole reason for having to inform and LEO of your CHL in the first place.
THEREFORE, if (A) you are already outside the vehicle, and (B) you left your gun
inside the vehicle, and (C) the officer searches your vehicle without your consent, then (D) he or she has exceeded their authority, and you should make your concerns known to his/her chain of command after the incident has passed.
Now, ALL of that said, we are never excused from exercising wisdom and discernment in our affairs, whether or not the
other person has chosen to exercise wisdom and discernment. That means that, in any such interaction with an LEO who is acting unwisely and without discernment, then you have an
extra burden of wisdom and discernment so that things go smoothly and everybody goes home safely that day. This is not a lawful burden, but it IS a moral burden. First of all, I am not about to pop out of my car unless the officer has asked me to get out of my car. A good rule of thumb is: do only what the officer asks you to do, no more and no less. Politeness goes a long way. If you are unarmed when you exit the car—at the officer's request—because you left your gun in the car, by all means state that you are not giving consent to search the car. The officer's dashcam will record those words. And, when the officer goes ahead and searches your car anyway,
especially after having made a false claim of smelling pot coming from your car, then you also have THAT on video. Remember that the LEO's dashcam protects you as much as it does him or her. When the officer finds no pot in the car, the dashcam will record
that. The dashcam will record the entire fact of your having been subjected to an unreasonable search. The evidence will support your after-the-fact complaint to his/her superiors.........IF you want to make a big deal out of this and pursue it.
If that same dashcam video shows you as being anything other than cooperative and reasonable and polite, then its value to you is gone. Discretion is often the better part of valor.
However, my own inclination is to recognize that LEOs face daily risks that the rest of us don't face, to show him or her a LOT of grace (as part of my Christian witness), and to NOT pursue this stuff because I view it to be a minor inconvenience to myself. In other words, this is not the hill I want to die on. I do not want to establish a reputation with my local constabulary as a prickly citizen who is known for being difficult to deal with. Your mileage may vary. Unless things go radically sideways, I am always cooperative, even when it grates on me. IF I give consent to search my vehicle, an officer who claims falsely that my car smells of pot is JUST as likely to plant some in my car as he would be even if I didn't give consent. A crooked cop will manufacture a probably cause and manufacture the support for that probably cause. Crooked cops are crooked cops. Your moral indignation is not going to keep you out of jail, and the dashcam will not record a crooked officer planting pot in your car. It WILL record an "honest" officer
finding pot in your car. Consequently, I can't be bothered with worrying about it because I have no control over it. In that situation, I would likely politely state that I do not give consent to search my vehicle, but it is merely a pro-forma objection. The truth is that, 99.9% of the time, the officer is going to see your ID before you get out of the car. He or she will ask you then and then—if they care about it.....many do not—if you are armed, and if so where the gun is. Do what your are asked to do. No more and no less. Don't give the officer ammunition to use against you.
If he or she was inappropriate, write a letter when you get home. Submit a FOIA request for a copy of the dashcam video if you think it will support your case. Use the system to put a stop to injustice. But NEVER give an LEO the reason or opportunity to make your day harder than it needs to be. I still want to believe that most cops are good guys who understand my rights and are as interested in protecting them as I am. A small number are not worthy. The system will
eventually grind them up and spit them out. I have places to go, people to see, and things to do. I want the stop to take as little time as possible so that I can get back about my business.