DPS

[txinvestigator]

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

Kevin I agree with that completely.

[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.

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

Of course not. However, Terry and subsequent decisions allow Terry type searches of vehicles when the occupant has been removed.

[nitrogen]

Ok, so another question:
let's say an officer removes me from my vehicle, and I lock my doors.

He asks to search the vehicle, and I tell him, "i don't consent to any searches"

What recorse does the officer have at that point if he really wants to search the vehicle? Can he just take the keys? Does he place me under arrest?

Also realising that this isn't the place to argue these things, but just wondering from a procedural standpoint.

[KBCraig]

Terry and subsequent decisions allow Terry type searches of vehicles when the occupant has been removed.

I'd like to read a decision that allows an officer to force entry to a locked vehicle with nothing more than Terry as a basis.

Kevin

[txinvestigator]

Terry and subsequent decisions allow Terry type searches of vehicles when the occupant has been removed.

I'd like to read a decision that allows an officer to force entry to a locked vehicle with nothing more than Terry as a basis.

Kevin

I never wrote anything about locked vehicles Kevin.

However, the locked vehicle theory is an interesting concept. If an officer has reasonable suspicion under Terry, leaving YOU in control of the keys would not eliminate his right to a Terry search, IMO. However, if he relieved you of the keys, I don't know of Terry would still apply. (you would no longer have access)

That said, if the officer decides he wants to search anyway, he will relieve you of the keys and gain entry. If he then arrests you for found contraband, lawyers smarter than me will argue the legality of the evidence presented.

That said, if I were on the street and wanted to search, I would not depend on Terry for a locked vehicle search. If I had real suspicions about contraband and was not just fishing, I could probably make the case for another legitimate search.

The fact is though, that Joe Schmoe CHL holder who happens to be caught running a little over the speed limit has little to be concerned about roadside searches. Having a CHL does not always mean the person is clean right then, but to me it sure raises the odds that my time would better be spent looking elsewhere.

[txinvestigator]

Ok, so another question:
let's say an officer removes me from my vehicle, and I lock my doors.

He asks to search the vehicle, and I tell him, "i don't consent to any searches"

What recorse does the officer have at that point if he really wants to search the vehicle? Can he just take the keys? Does he place me under arrest?

Also realising that this isn't the place to argue these things, but just wondering from a procedural standpoint.

Of course he can....the real question is would it be a lawful search and would any contrabanc seized be admissible.

If he has a legitimate reason to search, he will take your keys. If he does not have a legitimate reason, then he should not push it at that point.

We could get into "what ifs" all day, but you said it, the street is not the place to argue. State your non-approval and leave him be.

[KBCraig]

Terry and subsequent decisions allow Terry type searches of vehicles when the occupant has been removed.

I'd like to read a decision that allows an officer to force entry to a locked vehicle with nothing more than Terry as a basis.

Kevin

I never wrote anything about locked vehicles Kevin.

But I did, as did others.

However, the locked vehicle theory is an interesting concept. If an officer has reasonable suspicion under Terry, leaving YOU in control of the keys would not eliminate his right to a Terry search, IMO. However, if he relieved you of the keys, I don't know of Terry would still apply. (you would no longer have access)

That said, if the officer decides he wants to search anyway, he will relieve you of the keys and gain entry. If he then arrests you for found contraband, lawyers smarter than me will argue the legality of the evidence presented.

I think just about any two-bit lawyer could win that one. As you said, the moment he took the keys, he was in control, and Terry wouldn't apply to the vehicle's contents.

Kevin

[stevie_d_64]

The fact is though, that Joe Schmoe CHL holder who happens to be caught running a little over the speed limit has little to be concerned about roadside searches. Having a CHL does not always mean the person is clean right then, but to me it sure raises the odds that my time would better be spent looking elsewhere.

You got that right...

But having a CHL doesn't necessarily mean an overzealous need (regardless if the Law Enforcement officer is for or against the policy of civilians licensed to carry) to conduct any business other than writing the citation either...

You know as well as I do that these types of encounters/searches are extremely rare in Texas...

And I support a citizens right to refuse a search of their vehicles during a traffic stop (CHL or not) even if they know they have nothing to hide...If they don't want to fight it and take the ride, thats fine...But if they do wish to note their refusal, that needs to be respected as well...

[Aric]

Let me add a little more fuel to this fire. Lets say I get pulled over.
I have 2 kids in my car.
I am ordered to get out.
Same thing as in post - 2 unloaded weapons.

I can't just lock my door with kids in the vehicle, do I tell them to get out?
Do I lock the doors with them in it?

Since the Weapons are unloaded they are not a danger to my kids, but what if (as I usually do ) I have my paddle holster with my glock in it stuffed in between my seat and the middle console with a towel over it so to keep it concealed.
Would I be in violation of the law by leaving a loaded weapon within reach of a child?
Can I still lock the door, so I can negate the Terry Stop?

[srothstein]

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.

I beg to disagree with this part. A peace officer may impound a vehicle without arresting the driver if the vehicle is evidence of a crime, or for various other reasons. Consider the possibility that a vehicle is involved in a hit and run accident with injuries. I see the vehicle (identified from the front license plate left at the scene matching the rear one still on it) the next day. I impound the vehicle as evidence of the hit and run, gettign the damage before it can be repaired. I do not arrest the driver because I do not have probable cause to believe that person was operating the vehicle at the time of the accident. That is just one scenario.

Also, a peace officer may seize a vehicle to hold it while he gets a warrant for the search. In this case, the vehicle gets impounded (without an inventory if the officer know what is good for him) and pulled to a secure area until a warrant can be walked through. He still needs probable cause for the seizure. This is done a lot when they are looking for evidence of a kidnapping/murder in a car that takes a good evidence tech for the search instead of just the average officer on the street.

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

I do agree it can not be done as a pretext for searching without one of the other authorizing events (like the no insurance or similar).

[easttexas]

Ok I'll throw this in while talking to my trooper friend said he knows of this officer that pulled me over and he is a new trooper. Interesting enough he said that the DPS has the right to search any vehical once pulled over for a viloation at any time unlike a city cop which might or might not have the right to search. Which is why DPS are called to stops at times for back-up (drug, weapons search). He told me he has done the same thing to numerious people that didnt have CHL's or known weapons and what times it was fought the DPS has won every time so a CHL involved in a similar search does not matter, standard procedure! This is why drugs are found on traffic offences by DPS. He let me know if I fought this I would loose, and be possibly "tagged" by fellow DPS in the area I told him thats wrong and that cant be right in todays Texas he said that is the way it works.

[KBCraig]

Ok I'll throw this in while talking to my trooper friend said he knows of this officer that pulled me over and he is a new trooper. Interesting enough he said that the DPS has the right to search any vehical once pulled over for a viloation at any time unlike a city cop which might or might not have the right to search.

You're being fed a large dose of smoke. Don't inhale.

Peace officers are peace officers. Troopers don't have any special rights to search that doesn't apply to any other peace officer.

Kevin

[srothstein]

Ok I'll throw this in while talking to my trooper friend said he knows of this officer that pulled me over and he is a new trooper. Interesting enough he said that the DPS has the right to search any vehical once pulled over for a viloation at any time unlike a city cop which might or might not have the right to search. Which is why DPS are called to stops at times for back-up (drug, weapons search).

Let me second Kevin on this. Troopers have very little authority any other peace officer does not (very little as in the only on I can think of offhand is for commercial vehicles, and that is only restricted away from small city departments, large cities and counties have it also). And troopers are called as back up for the reason that they are on the road and that is all. When I worked in Luling, I was called for back-up by the troops on a regular basis, and they backed us up. Many nights, it was just one officer in the city, two deputies in the county, and a couple troopers on IH-10. We all backed each other up as needed.

He told me he has done the same thing to numerious people that didnt have CHL's or known weapons and what times it was fought the DPS has won every time so a CHL involved in a similar search does not matter, standard procedure! This is why drugs are found on traffic offences by DPS. He let me know if I fought this I would loose, and be possibly "tagged" by fellow DPS in the area I told him thats wrong and that cant be right in todays Texas he said that is the way it works.

He is lying if he says DPS wins all the cases. They lose quite a few, though they probably win more than they lose. The trick here is in having the lawyers who can handle it, and better report writing skills. Most citizens do not know how to document or testify, and troopers are taught some tricks. The way most troopers find drugs on traffic stops is because the average person does not know he can refuse to search, or doesn't realize he is consenting to a search when the trooper uses slightly different language (like mind if I look inside for a minute?).

[easttexas]

Alright, I dont know what law or laws he was quoting but he seemed very matter of fact about all the answers so Im not going to test him. Just like the HB823 I read on the Texas site and listened to Mrs. Tripp on the TSRA website talk about I asked him about it also and he said "if I find a gun in the vehical and the owner gives me any trouble about searching Im arresting him and the judge can sort it out." I told him that nowhere in the bill does it say a bad attitude is grounds for arrest? Besides that didnt Mrs. Tripp say a seatbelt or speeding violation dosent warrent a search under HB823? He repeated his statement about the "trouble" thing and I ended the conversation, I guess its another nowhere quick topic I seem to keep running into them with the troopers lately

[Commander]

Sounds like your Trooper Friend is making some veiled threats...ie, your being "tagged", "trouble",....this is not the professional demeanor that DPS expects of its Troopers and reeks of the "good ol' boy" style of law enforcement. This attitude and his comments come close to (or maybe do) violate some of the standards of conduct. I can assure you that complaints are investigated throughly by DPS - usually through the employees supervisor. As a matter of information, policy dictates that the Trooper will receive a copy of the complaint filed against him,so you will
not remain anonymous.