APD officer handcuffs 2 CHLs for not allowing search

[srothstein]

For technical accuracy, lying to a police officer, or any police employee is only illegal if he is conducting an investigation and the information is material to the investigation, or if he asks for you name, address, or date of birth if you are a witness, a detainee, or arrested.

The two sections of the Penal Code are 37.08 (false report to a police officer covers investigations) and 38.02 (failure to identify).

So, an officer asking about live ammo as you enter the gun show can be lied to. An officer asking if there is live ammo in the car as he investigates a report of shots fired cannot be lied to (legally).

[suthdj]

For technical accuracy, lying to a police officer, or any police employee is only illegal if he is conducting an investigation and the information is material to the investigation, or if he asks for you name, address, or date of birth if you are a witness, a detainee, or arrested.

The two sections of the Penal Code are 37.08 (false report to a police officer covers investigations) and 38.02 (failure to identify).

So, an officer asking about live ammo as you enter the gun show can be lied to. An officer asking if there is live ammo in the car as he investigates a report of shots fired cannot be lied to (legally).

Ok but in the situation at hand where would it stand? What does ammo or weapons have to do with a simple traffic stop. I believe regardless of how the question is asked the response should be that there is nothing illegal in this car or on me that way you are not lying.

[C-dub]

Thanks for clarifying Steve.

I'm not sure about this situation. There wasn't really any investigation going on. It was probably the typical "Do you have any weapons or drugs in the vehicle?" At this point for me personally, I don't have anything to hide, I would have said, yes. However, if I knew I was not going to allow a search to take place I might respond that "I do not have anything illegal in the vehicle." It really sounds like this particular officer already had his mind made up and it wouldn't have mattered what the two guys said.

[srothstein]

The case like this is a very gray area of the law. Since the law specifically allows an officer to disarm a CHL, there is an implication that the law requires an honest answer to the question. But there is nothing in the law that explicitly says so, thus putting us in the gray area.

If the officer had already disarmed the two from the car, and they are no longer in the car, my gut instinct would be that there is no reason to check the car further. In that case, there would also be no obligation to correctly answer the question, or even answer it at all. In a case like that, normally you would be free to lie. But, if the officer claims he is investigating some potential crime, such as failure to conceal, you could not legally lie even though you could legally refuse to answer.

My advice to friends would be to clearly state that they do not answer any non-required questions (name, date of birth, and home address; and as noted above, possibly the where is the gun if you have a CHL) and do not consent to searches. Then clearly state your demand for an attorney. This would cover you on any possible legal questions. It will probably irritate the officer, but there is always that chance. There are a few who do not get irritated by someone standing on their rights and who do get very irritated at being lied to. And there are a few who do not know how to control their temper (as the one in this incident seems to be from the one side presented) when they get irritated. Fortunately, these groups tend to get smaller all the time as they do lose their temper and mess up and get caught.

[jamullinstx]

Steve,

This brings up an interesting question. I find nothing in the statutes that requires a CHL holder, if carrying, to inform the officer where the gun is located. This would seem to be a question that legally you are not required to answer. Of course, it may find you handcuffed on the side of the road while the officer does a frisk search. However, since the weapon in Texas can be "on or about your person", the CHL holder could have his weapon in the console or under the seat, step out of the car, locking it behind him, then refuse to answer that question, and the weapon wouldn't be discovered in the frisk. Would officers then have legal right to search the vehicle to find the weapon?

What's your interpretation?

[srothstein]

That is the gray area I was referring to. You would not normally be required to answer that question, and under the latest SCOTUS ruling, if you are out of the locked car, the frisk of the car might be illegal (the case ruling is still open to interpretation and discussion of its effects). But the law that says the officer can disarm you certainly implies you would have to tell him where the weapon is so he could disarm you, thus saying you are required to answer that question. You could not claim a violation of your rights for the question since it is not incriminating (you can be required to answer all sorts of non-self-incriminating questions - the Fifth only protects against incriminating ones).

Another point to think about, though, is if you can get out of the car and lock it. SCOTUS says the officer is in control of the stop and can tell you to get out of the car OR stay in it. I always tell people I stop to stay in their car until I ask them to step out. Other officers may prefer their drivers to exit the vehicle as a general rule, also. If I tell you to stay in and you continue to get out, you would be finding yourself looking down the wrong end of the pistol barrel. You could find yourself arrested under Texas law that way too (interfering with a peace officer in the line of duty or failure to obey a lawful order of a peace officer). I see a lot of people give the advice to step out of the car and lock it, but they have never considered if the officer tells them to stay in the car.

I like these sort of academic questions on the fine points because they make me think about what would happen. To be honest, this is also one of those I don't see happening since MOST CHL's would cooperate and answer. Also, other than a few cities, most officers would not do this I think. If this had not been two cop's (ex and soon to be) I don't think this would have gone down this way. In at least one way, I am glad they did this to bring the questions up in the public eye. On the other hand, I not sure this is something I want the public thinking abut. A large number of them seem to think cops should be able to do almost anything and don't understand how a CHL thinks.

[jsimmons]

...the Fifth only protects against incriminating ones.

You can refuse to answer *any* question citing the 5th amendment. You never know how something you say will be twisted when you get into the court room (if things go that far). Remember the part of Miranda that says "anything you say can and will be used against you". Well, the cautionary statement is true ALL of the time.

Another point to think about, though, is if you can get out of the car and lock it.

As many times as a stop goes sideways on a LEO, I'm surprised when I hear people get out of their cars without being asked. That's pretty much the best way I know of to make the LEO skittish and defensive.

To be honest, this is also one of those [things] I don't see happening since MOST CHL's would cooperate and answer.

Bingo. The smart play is to relax and cooperate. The more cooperative you are at the outset, the less likely it is that the LEO will want to try to trample your rights. If the LEO starts to look like he's going to play dirty, that's when I would start to feel burdened by the stop and become defensive myself.

I guess I'm just getting old. Being combative or resistant for no tangible reason is a waste of your time and energy.