DPS

[srothstein]

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.

[KBCraig]

I will take a stab at answering some of the interesting questions posted in this thread

Thanks, Steve. I hoped you'd drop in.

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.

That's a good mindset to reinforce: if the officer needs your cooperation to make his case, don't give it.

Thankfully, "failure to cooperate" is not a crime.

And as Steve points out, be prepared for the consequences, most likely in the form of a traffic citation, with no "discount" on the amount you were traveling over the limit.

I don't work the street, and I'm just SWAGing here, but I'm willing to bet that 90%+ of the consent searches that turn up criminal activity are done by guilty people trying to convince the police that they are good folks with nothing to hide.

Sadly, there are also a number of them who truly are innocent folks with nothing to hide, but something gets found anyway. The various ways it could be there without their knowledge or consent are legion: casual acquaintance passengers, previous renters of the rental car, minor child with something to hide, carpool buddy who accidentally left something behind, bad cop with a throwdown baggie... stuff happens.

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.

The basis of Terry is that the officer, based on his experience, believes that "crime is afoot". That means he believes the person has committed, is committing, or is about to commit, a crime. In such cases, an officer is allowed a cursory search for weapons which might present a danger to himself or others while he conducts the investigation.

A traffic stop is automatically "crime afoot", because traffic violations in Texas are Class C misdemeanors or greater.

(Just offering this for informational purposes, not as a debating point.)

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.

He can't justify forcing entry to a locked car. If there are no other occupants (a key point), then nothing within the car is a threat to him during the course of his investigation.

Your point about limited and revokable consent is important. If there is a roadblock for an escaped convict, and the driver consents to open the trunk to check for an escapee, then looking in the spare tire well, under the floor mats, in the console, etc., all exceed the authorized scope of the search. It's no different from a warrant authorizing a search for a stolen elephant: it doesn't allow searching anywhere that could not contain a hidden elephant.

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.

Here's my take on that as a motorist, not wearing my LEO hat: if you have a reason to write me a ticket, then either do so, or don't. Your choice. If you've required me to step out of the car while you conduct your investigation, and you conclude your investigation by writing the ticket (or not), and you are concerned that there could, possibly be a deadly weapon in my car, and that I'll retrieve it and use it against you, then...

...Hey? Why don't you leave before I get back in the car? Problem solved, right?

I don't mean that to sound trite. Truth is, some officers get too wrapped up in controlling every second of the encounter, from "in sight" to "out of sight". It would be good for those officers to learn different ways of defusing tense situations.

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.

"Force of habit, your honor. I always lock my doors. Don't you?"

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.

As Carlson1 and txinvestigator have already alluded, this is a polite fiction, best shared with a wink and a nudge. It's a legal pretext for an otherwise illegal search. We could go into the logical ways this situation could be avoided, but that should be a different thread.


Okay, let's get down to the real CHL matter:

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.

Really? The law says he may disarm a CHL “at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual�.

That's very different from "must surrender it to him on his demand".

Any departmental policy --or personal policy of an individual officer-- that disarms every CHL on every stop, is going outside the law. As you said above in your comments on Terry, "He cannot use a general reason like I frisk everyone at night, and it must be for a danger to himself."

This has already gotten way too long, so I'll cut it off here. My advice for anyone who is "just transporting", or "just traveling", is to respond: "No, I don't have any illegal weapons." That, and, "I don't give consent for a search of my person or my vehicle."

Good debate. I respect Steve, TXi, Carlson, and all those who've contributed, even though we may reach different conclusions.

Kevin

[txinvestigator]

In my opinion, once the driver was outside the car and separated from his firearms, there was no longer any issue about the trooper's safety and no reason to see the firearms.

So I don't see any case for even reasonable suspicion.

It appears he was definitely 'fishing' and coerced permission from the driver.

Of course, you have never had a subject run back to his vehicle in an attempt to either get away or obtain a weapon. I have.

[txinvestigator]

[
I guess I better take off my NRA Life Member and TRSA Stickers off back window as relates 'reasonable suspicion' TXI?

I am in the middle of studying this topic to take my TCLEOSE exam. I do not believe an NRA or like sticker amounts to even reasonable suspicion.

[kw5kw]

If you feel the trooper acted improperly write a polite letter of complaint stating your issues to Col. Davis, the head guy at the DPS.

You can be sure your complaint will be investigated and you will get a reply.

FWIW

Chuck

If you have a complaint, visit this page: http://www.txdps.state.tx.us/director_s ... plaint.htm and fill out the form. It's that simple.

Russ

[Skipper5]

[
I guess I better take off my NRA Life Member and TRSA Stickers off back window as relates 'reasonable suspicion' TXI?

I am in the middle of studying this topic to take my TCLEOSE exam. I do not believe an NRA or like sticker amounts to even reasonable suspicion.

Thanks TXI... appreciate your reply...How soon do you take your TCLEOSE? Do you already have a LEO job lined up, pending the exam?? It is your intention to return to LE full-time and drop the Security Officer Instruction/ Private Investigator position?

[txinvestigator]

No Ma’am He can take your weapon until the stop is over. Reasons for search. . .
1. Immediate area for "his" safety
2. Probable cause.
3. Inventory search. - This is done after an arrest and everything in the vehicle is placed on a log. They say they do this to stop the tow truck driver, etc. . . from taking things and so the suspect can say something was taken, but it is a SEARCH.

I understand that a peace officer can disarm a CHL holder “at any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual� (Section 411.207)

However, if my lawfully carried weapon is in a case, in my car, then removing me from the car effectively disarms me, right?

I am not trying to be difficult or argumentative, but I need to know how to answer a student who asks me... does an officer have the right to search my car just because I am a lawfully armed CHL holder?

You need to be careful when telling the students about vehicle searches. Basically, they can verbally refuse a request, but if the officer searches anyway they can do nothing to interfere.

Search and seizure law is complex, and the side of the road is not the place you want a student to try to assert his limited and often wrong information.

To answer your question, I don't believe that an officer has a right to search your vehicle JUST on the basis of your having a CHL. However, other facts could come into play which WOULD justify a Terry or even Carroll search.

But if the officer does search anyway, don't interfere.

[easttexas]

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 will.

[txinvestigator]

[
I guess I better take off my NRA Life Member and TRSA Stickers off back window as relates 'reasonable suspicion' TXI?

I am in the middle of studying this topic to take my TCLEOSE exam. I do not believe an NRA or like sticker amounts to even reasonable suspicion.

Thanks TXI... appreciate your reply...How soon do you take your TCLEOSE? Do you already have a LEO job lined up, pending the exam?? It is your intention to return to LE full-time and drop the Security Officer position?

I am NOT a Security Officer, no offense to those who are. I am DPS Private Security Board Combined instructor. I teach classroom and Firearms in the state required commission course for armed guards.

I am also a CHL instructor. I am a PI and Texas Personal Protection Officer (executive protection) and, just began a role as an instructor for Special Operations Systems, a new Texas based firearms and tactical training company for LE, Military and Security.

I have to finish up 2 more classes in continuing ed, (scheduled for March and April) before I can challenge the TCLEOSE. I have yet to decide if I want to go back full time or as a reserve. I have a wife who travels in her job, and a full time position may prove unworkable due to that. However, I have a couple of offers already. Its nice to have options.

I have already applied for my TCLEOSE instructors license. TCLEOSE has relaxed that rule, and I can obtain the license without being with an agency due to my experience and training. I completed Cedar Valley's LEO instructor course several years ago.

[txinvestigator]

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.

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

[easttexas]

Ok learned something else, I was just thinking how many people here have so many different opinions on this which should be a pretty much black and white area, like the trooper I spoke to about this he is LE not Law Interpitor a.k.a. judge. What he would arrest you for the judge might think otherwise.

[KBCraig]

Search and seizure law is complex, and the side of the road is not the place you want a student to try to assert his limited and often wrong information.

However, the side of the road is exactly the place where the driver needs to make it absolutely clear that they do not give consent to any search that might take place.

If no consent is required, no harm.

However, the driver should limit the roadside interaction to making sure the police (and any witnesses, including dashboard video/audio) know that consent has not been given. And that's it -- no resistance, no roadside debates about the Constitution. Assert the right, but save the fight for later.

Kevin

[KBCraig]

In my opinion, once the driver was outside the car and separated from his firearms, there was no longer any issue about the trooper's safety and no reason to see the firearms.

Of course, you have never had a subject run back to his vehicle in an attempt to either get away or obtain a weapon. I have.

So to deal with that, do you handcuff all traffic stops and put them in the back of the car?

Sorry, but that's a strawman argument. Threatening behavior is entirely different from a scenario where a non-threatening motorist verbally objects to a broader search than should be allowed under Terry.

Kevin

[Skipper5]

[quote="Skipper5
Thanks TXI... appreciate your reply...How soon do you take your TCLEOSE? Do you already have a LEO job lined up, pending the exam?? It is your intention to return to LE full-time and drop the Security Officer position? I am NOT a Security Officer, no offense to those who are. ....

I guess the edit I had made to my post crossed with your reply...re: Security Company Instructor...

...continued good luck Jeff....sounds as if you have plenty on the table going your way! As always, your varied experiences provide us with a plethora of info.

[stevie_d_64]

A LEO does not need your permission to conduct a Terry search of your vehicle.

You forgot, "while you are in your vehicle".

If you are outside your vehicle and it is locked, nothing inside is a danger to the officer, and Terry does not apply.

The officer has the right to demand you step out of the vehicle. If he asks you to step out, lock the doors before doing so. He has the right to frisk you for his own safety. He does not have the right to conduct a warrantless search of your locked, unoccupied vehicle without your consent.

Kevin

Bingo!

I have been waiting years for someone else to say this...