TexasCHLforum.com

seamusTX wrote:

i8godzilla wrote:Could the 'searching' of the weapon be a violation of the Fourth Amendment?

Not in my amateur opinion.
--snip--

Atwater v. City of Lago Vista: http://en.wikipedia.org/wiki/Atwater_v. ... Lago_Vista" onclick="window.open(this.href);return false;

Or, as they say in Chicago, you're punked.

- Jim

- Jim

Thanks for the comments on my posting. I truly enjoy discussing the Constitution of our Republic! When you get other individuals opinions you can begin to understand why it is called, "Practicing Law"

(There is a full text version of the Constitution here: http://www.flyahangglider.com/constitution.html" onclick="window.open(this.href);return false; This page is setup to format with any browser including a hand-held device or cell phone.)

I did read Atwater. My understanding of Atwater is that it is permissible to arrest someone for what would normally be a simple citation. The LEO my use their judgment in deciding whether or not to arrest or issue a citation. If there was an arrest, there would not be any question that the 'searching of the weapon' would be allowed. In neither of the incidents posted here about running the serial number was there an arrest. That is why I believe that Knowles is applicable.

seamusTX wrote:Possessing a handgun while one has a CHL is not a crime, so there is no issue of finding probable cause for a search for criminal evidence. That is mostly what 4th-amendment law boils down to.

The Fourth Amendment is a Right not to be confused with a law. Laws must not violate the Rights granted Constitution. I do not believe that the Fourth Amendment is solely related to searching for criminal evidence. The 4th protects us from ANY unreasonable search without a warrant or probable cause.

United States Constitution wrote:Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Do not really understand the Chicago punked comment.

Could the 'searching' of the weapon be a violation of the Fourth Amendment? The court has numerous cases involving a search during a traffic stop. (http://supreme.justia.com/constitution/ ... rches.html" onclick="window.open(this.href);return false;). However, in Knowles v. Iowa, the ruling seemed to narrow the ability to search absent an arrest or probable cause. You can read the case here: http://supreme.justia.com/us/525/113/index.html" onclick="window.open(this.href);return false;

In this case, a simple traffic citation was issued. After the citation was issued, without further probable cause, the LEO conducted a search of the automobile and found an illegal substance. This type of search was allowed at the time under the then current Iowa law. The case was finally decided by the Supreme Court. Chief Justice Rehnquist issued the unanimous opinion of the court, "No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car."

Texas law allows the disarming of a CHL "at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual." Notice that the statute states, for the protection. The statute nor the law allows for an additional investigation, without probable cause. Can a law require you to give up your Fourth Amendment rights in order to be compliant with the law?

Disarming the CHL holder for the purpose of "protection", is not in anyway related to the non-arrest of issuing a traffic citation. What further evidence of the traffic violation can be found in or about the firearm? What if you have pocket holster and the entire holster and weapon is given to the officer? Does removing it from that holster to get the serial number constitute an unlawful search? Based on his case, I would have to say yes.

One other note: IANAL nor did I sleep in a Holiday Inn Express last night.

GC §411.207. AUTHORITY OF PEACE OFFICER TO DISARM.
(a) A peace officer who is acting in the lawful discharge of the
officer's official duties may disarm a license holder at any time the
officer reasonably believes it is necessary for the protection of the
license holder, officer, or another individual. The peace officer shall
return the handgun to the license holder before discharging the license
holder from the scene if the officer determines that the license holder
is not a threat to the officer, license holder, or another individual and if
the license holder has not violated any provision of this subchapter or
committed any other violation that results in the arrest of the license
holder.

Was the officer so concerned for his safety that he called for back-up? Seems to me that if he was SO CONCERNED that he, you, or someone else needed protection he would have at a minimum called for another unit.