Expired CHL as PC for search

[nitrogen]

Google Carroll v. United States and United States v. Ross. The police have never needed a search warrant to search a vehicle.

- Jim

My point is, an expired CHL isn't PC for a search. Granted, producing expired documentation to an officer is a bad idea, but the last thing I'd want is an officer to come back to my window, hand on holster, saying, "I KNOW YOU HAVE A CHL WHERE'S THE WEAPON!" or something...

Either the officer had probable cause from something else, or the search was illegal. A District Attorney cannot "authorize a search" unless there's some form of probable cause, or a warrant.

OR, as I said, was my civics class now outdated?

[seamusTX]

I agree that the incident described was an illegal search, because the officer did not have probable cause.

But if they taught you in civics class that a search warrant is always required for a search, they were wrong. The police can search a vehicle or pedestrian without a warrant, if they have probable cause. They can do a weapons pat-down without even that, and sometimes those pat-downs result in finding other evidence (typically drugs).

Another point to be introduced here: Police can perform illegal searches. However, judges generally will not allow evidence obtained from an illegal search to be used in a trial. Sometimes these issues go all the way to the U.S. Supreme Court.

Meanwhile, even if the case is thrown out, the victim of the illegal search has an arrest record, legal bills, and often loses whatever was seized.

- Jim

[txinvestigator]

About attorneys: the client should be prepared to spend thousands of dollars to present a case that would otherwise not bring in big bucks.

The constables know this and that why they continue to act like jerks. Perhaps the ACLU - TSRA - NRA could chip in on this one. What bothers me about this is that this isn't just a rogue cop, it sounds like a corrupt system, and that even DA might be in on this. A successful suit will like have a chilling affect on the whole dept.

I always wondered. If cops and constables have enough cops to stop and harass folks for traffic violation Perhaps they have run out of crime to fight, or investigate.

To be certain, if the events described are accurate, that Deputy actions were criminal. That said, more people are killed in traffic collisions than by all crime. Traffic enforcement is an important part of public safety.

Perhaps we have to many cops on the payroll. Constables are suppose to chase down check kiters and assist with evictions.

who says constables are supposed to chase down check kiters?

It is highly unlikely, even improbable, that the deputy called a district attorney.

[KBCraig]

First, I wouldn't offer an expired licence or credentials for any form of ID in a traffic stop...

He didn't. When he pulled out his DL, the constable saw the expired CHL in the wallet.

Second, I would with all due respect, refuse to consent to a search, just out of general purpose...

He did. And when the other officers arrived and he was handcuffed, he repeated to them that he did not consent.

Kevin

[srothstein]

I always wondered. If cops and constables have enough cops to stop and harass folks for traffic violation Perhaps they have run out of crime to fight, or investigate. Perhaps we have to many cops on the payroll. Constables are suppose to chase down check kiters and assist with evictions.

Just so you have a full understanding of the situation in Texas, Constables are peace officers with full authority to do anything else in their jurisdiction that any other peace officer does. This concept of them being only there to chase check kiters or evictions is not a position supported by the law.

Also, in Texas, all traffic violations are crimes. Most are class C misdemeanors, the same as shoplifting or a bunch of other crimes. Some are Class B misdemeanors or even higher. But what this means is that if I want to arrest a criminal (a person who is committing a crime) all I need to do is stop someone for a traffic violation.

Given that. I know and understand what you meant by your comment. Unfortunately, it is based on a false impression that cops are here to arrest criminals. That concept is how we get LEO's instead of peace officers. A peace officer is here to help protect the safety and quality of life of his community. Traffic enforcement is certainly a big part of this.

And there is another unusual correlation that you might want to be aware of. When the police get a reputation for being very tough on traffic and other small crimes, the overall crime rate, especially the violent crime rate, tends to drop in that area. This is called the broken glass theory in law enforcement, that if cops investigate every time they find anything as small as broken glass, they will be able to prevent or solve much worse crime.

And no, before you ask, I do not do strict traffic enforcement. I was a big proponent of making traffic stops when I was on patrol, but not every stop had to result in a ticket. Not being on patrol now, I sometimes wish I had red lights on my p.o.v. the way some idiots drive.

[Lucky45]

hey srothstein,
I have a question about this incident that happened with this guy. When you remove someone from vehicle, what is the basis for putting handcuffs on the person. They were multiple police present in the first place, then they could have done a pat down for concealed weapons and all would have been suffice "for theirs fears and his safety."

So does putting on handcuffs mean that the person is under arrest? Is there a rule on when they are used? Because according to the 4th amendment, any reasonable person would believe that he has been siezed (arrested) and denied freedom of movement. So he should have been just asked to have a seat under the watch of another officer after following police procedures of a pat down.

[srothstein]

Lucky,

Some departments have internal rules on how their officers handle various contacts with suspects. They may require the cuffs anytime someone is placed in a patrol car.

Part of the reason they do this is some of the very convoluted court rulings on when a search is justified. For example, I can only do a search based on probable cause, except for the very limited search known as a frisk. But to justify a frisk, I must have specific articulable reasons why my life is in danger from this stop and just having a policy of it is not sufficient. However, if they claim a search of the car is justified based on probable cause, how can a search of the person in the car not be justified?

I know a lot of officers who handcuff prisoners during this type of detention for the prisoner's safety. People who are stopped by the police sometimes (especially under drugs or alcohol's influence) do very unusual things. I know of one case where the drunk ran onto Loop 410 in San Antonio to show the cops he could walk a straight line (he wanted to use the lane dividers as his line). Of course, the officer was very glad the LT had stopped by to check on him, so the in custody death report from the car that hit him was easier to write.

I handled one case where a prisoner managed to unseatbelt himself and open the car door and jump out of the car, while it was on the way to the jail at 60 MPH on IH-10. Fortunately, he landed on the cuffs and the car behind the officer hit his brakes when the door opened. No major injuries but a very irritated officer who had to buy a new set of cuffs. We also started calling him the JumpMaster after that and said we were going to install red and green jump lights inside his car.

And then there was the case in Houston recently where the prisoner shot the officer after he was handcuffed and in the back seat of the patrol car. I have no idea how the officer missed the pistol during the search. Prisoners have also suicided in patrol cars the same way. Cuffs may not prevent this, but it does give the officer a chance to intervene if he is watching carefully.

As for the other half of the question, it is a very weird situation on when a detention becomes an arrest. There is at least one Texas Court of Criminal Appeals case (from 2004 IIRC) that says any traffic stop is automatically an arrest. Most of us think of an arrest as being taken into custody, which the cuffs usually indicate. There is also a SCOTUS case that says it is not necessarily an arrest, even though the officers took the people out of the car at gunpoint, proned them out on the street, and then cuffed them. SCOTUS tends to use the time taken as their primary means, with less than 30 minutes before release being a detention and over two hours being an arrest and anything in between is still a gray area. Of course, moving the person to another area is normally an arrest but SCOTUS has ruled that if I take a suspect to another area for a victim ID and then return him, it is still a detention. See what I mean about it being confusing.

In the specific case, I believe the best thing to do is get a good lawyer. The officers violated the civil rights (IMHO) of the person, and the department is liable vicariously for failure to train them on what constitutes probable cause and the new traveling laws (firearms in cars).

Of course, I think the city will settle fairly quickly if he only asks for about 50,000 (or accepts that amount anyway) but a lawyer may see things very differently from you or me.

[stevie_d_64]

First, I wouldn't offer an expired licence or credentials for any form of ID in a traffic stop...

He didn't. When he pulled out his DL, the constable saw the expired CHL in the wallet.

Second, I would with all due respect, refuse to consent to a search, just out of general purpose...

He did. And when the other officers arrived and he was handcuffed, he repeated to them that he did not consent.

Kevin

In my first scan of his account I missed that the Constable saw it...I usually have all my stuff, ID, CHL, Insurance etc etc ready to hand to them...Not that I get pulled over all the time...I do not like to appear to be fumbling for stuff while they wait...Its unsafe for them to be outside my vehicle, and I want them to be able to do the stop as safely and quickly as possible...

But I still stand by my first and second points...

What bothers me now is that we have an alleged Harris County Constibulary using an expired CHL licence that was not necessary (by law) to notify, that gave them some illusion of probable cause to spend almost an hour detaining a citizen in handcuffs, to search their vehicle...

Producing absolutely nothing to warrant the search to begin with...

Lessons learned: (for Steve)

- Don't have expired credentials on your person...

- Encourage everyone you know to get and maintain the CHL to eliminate the wrath of our DA...

Sorry, but this is just the way I feel...I don't like appearing to not respect law enforcement, it is actually 180 degrees the opposite...Granted this is just someones unsubstanciated account of a local traffic stop, that has the earmarks of an unpleasant experience for everyone involved...

But if there is anythig of value to it...It does give us the chance to do a gut check and make sure we have the correct attitude, that once it starts, and you put your foot down, you may have to take a ride...And it may cost you...At the very least...

[stevie_d_64]

I guess forget about what I just said...

Question:

"When is an expired CHL "probable cause" to search either the person or vehicle that person was either driving or riding in?"

Where and who would give the instruction/direction given to a commisioned law enforcement officer possible, in this case???

I can understand a question to the effect of do you have a firearm on you now or in the vehicle...

And...

That my basic understanding, with the discussions in this forum, about the law now that allows anyone who is legal to posess, is now legal to carry a firearm in their vehicle without a CHL...

If I am missing something here, I would certainly welcome correction in my interpretation of this situation...

[Lucky45]

srothstein wrote:
I know a lot of officers who handcuff prisoners during this type of detention for the prisoner's safety. People who are stopped by the police sometimes (especially under drugs or alcohol's influence) do very unusual things.

I understand that. That is why I feel that as long as you not doing anything which would give the officer probable cause, then the handcuff would be unnecessary. Nothing illegal in the vehicle, no arrestable crime committed, and not making any extra movements, then I would be saying something about the handcuff procedures. You can have some "free feels" (frisk) but anything after that you have to pay. LOL.
Just don't like LEO swing around cuffs to try and intimidate people.

[sailor2000]

No, nothing shows up when tags are run but the owner and the stolen status. If you run a DL, it will also show the CHL but I don't know if the expired CHL will show up then or not. I would guess it depends on when it expired.

I was stopped ny DPS for a bad tail light about a year after my CHL expired. They noted I had an expired CHL and asked if I was armed.

So it seems that it does show up.

[srothstein]

No, nothing shows up when tags are run but the owner and the stolen status. If you run a DL, it will also show the CHL but I don't know if the expired CHL will show up then or not. I would guess it depends on when it expired.

I was stopped ny DPS for a bad tail light about a year after my CHL expired. They noted I had an expired CHL and asked if I was armed.

So it seems that it does show up.

Thanks, I was unaware they would show up that long after they expired. I figured they would be gone when the grace period for renewal expired.