Similar to the DPS officer running the Serial thread, but...

[i8godzilla]

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.

[seamusTX]

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

Not in my amateur opinion.

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.

Police officers could legally get everyone out of the vehicle and handcuff them while issuing a ticket for not wearing seatbelts—ironically, putting them at more risk than driving without seatbelts. This issue has already been to the U.S. Supreme Court in the form of 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

[i8godzilla]

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.

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.

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.

[seamusTX]

Again, in my amateur opinion, if a LEO has probable cause to stop a person for any reason, he is legally allowed to restrain and search that person.

The Terry decision was a huge blow to the protection of the 4th amendment, as we all know, because it changed the standard from probable cause to reasonable suspicion.

I can't imagine that the U.S. Supreme Court, including justices Scalia and Alito, would affirm that you have a right to stick out your jaw and remain armed in the presence of an officer after having been stopped for probable cause even of a misdemeanor traffic violation.

But, hey, I'm not a federal judge and never will be.

Do not really understand the Chicago punked comment.

In Chicago, as in most big cities, the cops do whatever they want; and you or your survivors might win the lawsuit years later. Probably Chicago is not the worst.

- Jim

[austin-tatious]

He left me sitting IN the car, actually... Had me lean forward to disarm me.

I wonder how he disarms someone using a SmartCarry.

Would it be reasonable for a female using SmartCarry or a thigh carry or a shoulder carry for that matter to say she wanted a female officer to disarm her? Or that she didn't want the officer looking down her pants as she disarmed? How would that play out maintaining proper modesty, respect, dignity, and safety?

I'd really like an answer on the SmarCarry question (whether the CHL holder is male or female). When I first asked the question, it was somewhat in jest. But that was before I gave it serious thought.

I can't image the officer would want to stick his hand down my pants to get my pistol. In fact, I think I would pull it out myself before he even got started...the chance of a ND by him pulling the gun out is horrifying. The way I wear it, I'd get in the leg and likely my knee for sure. On the other hand, when he sees me go for my gun, he's going to draw on me?!?!

OK, as Hoi Polloi said (in a subsequent post to the one above), communicating immediately and politely on the risk to my safety and how I have no issue with disarming and will do so myself is the best response. Anyone have a better idea?

[srothstein]

Jim and i8godzilla,

There is a legal difference between disarming the person for safety and reading the serial number for a weapons check. There is also a legal difference between an arrest and a detention, though it is a very confusing area.

In my opinion, running the serial number is a search. If the officer disarmed the person just so he could get the serial number to run, it is an illegal search. If he disarmed the person according to the law (for the protection of someone), then it might be a legal search. As a general rule, the SCOTUS has upheld that an officer may seize anything that is in plain view when he is in a place he has a legal right to be in. This includes serial numbers (IIRC the case was the result of an officer turning stereos around in a pawn shop to read the numbers - if he could see them without moving them, it would be legal but moving them was not).

An officer does not have the right to search everyone he stops, though this may get changed. An officer can perform a search incident to a legal arrest. This was long established as an exception to the warrant requirement both for the safety of the institution the arrestee would be taken to and to gather more evidence before the arrestee could destroy or dispose of it. But, until the Terry case, an officer had no legal right to detain people without an arrest. This is the case that invented the investigatory detention and confuses the issue. It allows for a detention that is not an arrest but the subject cannot leave at will and it allows for a very limited search for the officer's safety (frisk must be for a weapon). Under this case, the subject must still be arrested to perform a real search. Since the officer is in possession of the weapon and it is no longer a possible threat, running it become very questionable, legally.

But then, to get this even more confusing, along comes the Kurtz case in Texas. This is a case on jurisdiction primarily, but it also had an unusual ruling in it that was where the question of jurisdiction arose from. The Court of Criminal Appeals said that any traffic stop was an arrest because the officer had legal authority to arrest but no legal authority to stop or detain, as written into the Transportation Code. They were quick to clarify that it is not a custodial arrest that would trigger the Miranda warnings (a separate twist of logic I don't understand that can be argued later) but to leaves open two serious questions: does an officer need probable cause to make a traffic stop (many cops disagree with me on this) and can an officer search any car he stops incident to a legal arrest.

The second question is the one that would be relevant to this discussion. If the officer can now legally search the car and anyone in it, the running of the serial number is not a civil rights violation. If the arrest does not arise to that level since it is non-custodial, the running of the serial number would need to be justified as a search some other legal way.

It boils down, in my opinion, to how well the officer can write the report. If he can justify disarming the person for safety, he can then legally run the weapon. If not, he cannot. And the courts have ruled many times that things like this cannot be justified on general grounds (like I disarm every CHL I stop) but must have specific articulable reasons that this stop was dangerous (this is also based on Terry).

[McKnife]

What's wrong with lying to the cop about having the firearm? (aside from the moral viewpoint)

Imagine being pulled over and you hand over the ID and CHL. The cop asks if you're armed and you say "No." -- 2 possible outcomes... either no questions asked or he needs a reason to search.

From my understanding, even if he searches and finds the sidearm you lied about, he is required to give it back unless a crime has been committed. I don't believe lying to a police officer is a crime.

Is there something I'm missing? I'm open for feedback. I'm not trying to cause a ruckus, but no one should handle my sidearm, not even police. There are many like it, but this one is mine.

[seamusTX]

I just don't see that going in a good direction.

As I said near the beginning of this thread, your survivors can sue the agency.

- Jim

[McKnife]

I just don't see that going in a good direction.

As I said near the beginning of this thread, your survivors can sue the agency.

- Jim

haha I see.

I'm more interested in the legal ramifications, though. Besides making police officer really angry, could you be charged with anything?

[srothstein]

Yes, you can be charged. Convicted is a separate discussion. The officer could charge you with making a false report to a police officer, which includes lying about an investigation. I seriously doubt the charge would result in a conviction, but I can see some jurisdictions taking it to trial. Others would drop the charges after you spent a night in jail and posted bond enough to get out. It takes awhile for the case to get to the DA's office for a decision on prosecuting, but I can definitely see the charge.

[s197winstang]

Texas Transportation Code § 502.404 only states displayed at the 'front and rear'. Nothing is stated about front-most point. So the officer was interpreting this himself. Now, if he wants, he can write you a ticket, you can go fight it, potentially win on a technicality, but now you have wasted a lot of time and potential expense.

If "HE" can’t see it from where he is in front, then your likely to get the ticket your asking for. If it's attached to the windshield as I have seen at times then it is impeding your view and again can get you a ticket.. if it is flat on the dash, then it likely cannot be seen from many positions in front of the vehicle as a front bumper mounted plate would be. That’s what the LEO is likely to tell the judge, who is like to agree as he, probably has a plat attached to front FRONT of his vehicle.

Then there is the whole definition of the word FRONT
: the forward part or surface
: position ahead of a person or of the foremost part of a thing
Couple the common usage and definition of the word front with an officer standing in court saying from the front he could clearly see the bumper and the manufactures designed location for the plate, but could not read the plate as it rested on the dash.. and we can guess what the judge will decide.

Right wrong or whatever… it is what it is. I don’t like the plate on the front of my S197, but it’s required. I don’t like the idea of LEO places his hands on me or my lawfully carried weapon, but it’s the law, so I’ll deal with it if I ever have to.

BTW, neither close friends (Husband and wife LEO’s in two different departments) said it was taught in training to disarm as a rule, just that they can. And it was not taught that if you decided to, reaching in and doing it your self was the “right” way. Both also said, they nor their fellow officers have an issue with CCW, and would not disarm as a rule or policy on that issue alone.

I hated put it on my s197---- but it beats the hassle..