CHL Specific Question About Consent to Search

[TX_Jim]

First off, I am not new to CHL but am new to this forum so hello all!!

That being said, I should be more informed about the laws but obviously I am a little confused about something. I started to think about this when reading the Consent to search Poll/Thread. I did not want to hijack the thread so I started a new one.

Given the following situation:

You are a CHL holder and have been pulled over by a LEO. You either don’t have a firearm at that time or you have in the glove box or something (both are extremely rare for me to do…but I digress) You hand the LEO your licenses (DL and CHL)…the officer asks where it is and you tell him either I left it at home or it’s in the glove box (which ever scenario you choose).

At this point does the LEO have enough authority/probable cause to search your vehicle for any weapons in the name of “officer safety.� If he/she does have the authority to search for firearms by going into your vehicle without consent (and I know he is allowed to disarm a CHL holder for officer safety) and while looking in the glove box or where ever…can one still be charged for contraband (not that I have any) or would it be illegal search and seizure.

What are the Texas laws (reference to penal code would be great) that would Govern this situation?

[frankie_the_yankee]

IANAL, but I think that the officer's statutory authority to disarm a CHL holder would allow him to go into the glovebox, if you told him that you had a gun in there, and take temporary custody of the gun if he chooses.

Furthermore, if you also happened to have a bag of dope in the glovebox and he saw it when he went to get the gun, the dope would probably be admissable as evidence for a possession charge. I say this because the cop would have legal standing to go into the glovebox and the dope was in plain sight once he opened the glovebox door.

But I do not think you telling him that you have a gun in the glovebox gives him any basis whatsoever to engage in a general search of the whole car, whether he is looking for more guns or whatever. Such a search would be illegal, IMO.

And if you tell the cop that you do not have any guns in the car, he has no legal basis (no probable cause) at that point to perform any kind of search of the car.

But note that this second scenario seems pretty far-fetched. If you tell a cop that you don't have a gun, he's not gonna do anything unless there is some other factor (smell of alcohol, smell of dope, bad attitude on your part, etc.) involved.

My experience is that if you act calm, cordial, and non-threatening, so will the cop.

[nitrogen]

Here you go:

§ 411.207 AUTHORITY OF PEACE OFFICER TO DISARM. A peace
officer who is acting in the lawful discharge of the officer's
official duties may disarm a license holder at any time the officer
reasonably believes it is necessary for the protection of the
license holder, officer, or another individual. The peace officer
shall return the handgun to the license holder before discharging
the license holder from the scene if the officer determines that the
license holder is not a threat to the officer, license holder, or
another individual and if the license holder has not violated any
provision of this subchapter or committed any other violation that
results in the arrest of the license holder.

It'd be interesting if there was an official legal definition of armed. The definition in my dictionary is a bit vague here:

armed (adj)

1. bearing firearms; having weapons: a heavily armed patrol.
2. maintained by arms: armed peace.
3. involving the use of weapons: armed conflict.
4. equipped: The students came armed with their pocket calculators.
5. (esp. of an animal) covered protectively, as by a shell.
6. fortified; made secure: Armed by an inveterate optimism, he withstood despair.
7. (of an artillery shell, bomb, missile, etc.) having the fuze made operative.

I'd guess that legislative intent was to only have the authority to disarm someone with a weapon on or about their person, not locked away. It'd be up for the courts to decide, unless they already have; I'd guess.

[TX_Jim]

I had a situation occur once when I first got my CHL. I went to the gym and I had taken my motorcycle. Because I was relatively new to CHL and because the holster I had was not the best...carrying and riding was not something I was comfortable with...long story short I did not have my pistol with me at the time. On the way back from the gym I was pulled over by Travis County. I had a back pack that contained my wallet and etc, so I open the backpack took out my wallet and placed the back pack on the seat of the bike unzipped...but closed from view. I showed the LEO my CHL even though I did not have my pistol. He asked where it was and I explained that it was at home. That's when I noticed the LEO tilting is head and bending down slightly to try and pear into the bag. At that time, even though he did not ask, I told him that if it made him feel better he could look in my bag. He said it was unnecessary and we went about the business of the traffic stop. Point being, I gave consent when I should not have mostly because I did not want the LEO to be jumpy during the stop…the last thing I wanted was to grab bag to get something and get shot because he thought I was going for a gun.

On a side note…I was not pulled over for speeding or any kind of moving violation. He pulled me over for expired tags. The truth was the tags were not expired…the tags had changed their looks that year and he just did not know how to read them. And the part that upset me the most was that he gave me a written warning even though it was his mistake…he said something about being required to write a warning for statistical information…and something about ensuring that they are not racial profiling.

[Rokyudai]

Statistical huh? I can just see them back at HQ crunching numbers. Can't you? By the way, welcome!

I would say if it's a traffic stop for a vehicle or speed infraction and you show them both ID's, they will at least ask where the gun is to establish the "threat level"---I mean no disrespect to you, but cops may treat any routine stop with this mind-set regardless of the fact you have previously gone through a criminal background search and were found to be "clean". It's more of the cop's - "what do I have to do to maximize my safety" mindset in these situations. If the weapon is not on your person, for example in a glovebox...it would (should) just stay there and I would hope that the cop would keep to the intent of the traffic stop. If it is on your person and they want to disarm you 'for their safety' (it's a crock, I know)....again, their original intent is safety and should not be a "gateway" to search your vehicle.

If something is in plain view, or something triggers the cop's suspicion, then that's a different ball of wax.

I don't think it is illegal seizure to disarm a CHL'er in the above scenarios but it's downright unecessary in my opinion in the scope of a seemingly, routine traffic stop.

I would also like to hear what others have to say...good Q.

[seamusTX]

At this point does the LEO have enough authority/probable cause to search your vehicle for any weapons in the name of “officer safety.� If he/she does have the authority to search for firearms by going into your vehicle without consent ... and while looking in the glove box or where ever…can one still be charged for contraband ... or would it be illegal search and seizure.

The only short answer is "maybe." This is a very complicated area of law.

A police officer can frisk you and search the area that is immediately within your reach for weapons. If he then finds contraband, there are a bunch of fuzzy guidelines about whether it is admissible. The Supreme Court adds to the confusion every few years.

This looks like a good place to start reading:
http://law.jrank.org/pages/4575/Automob ... rches.html

- Jim

[Renegade]

At this point does the LEO have enough authority/probable cause to search your vehicle for any weapons in the name of “officer safety.�

A lot depends upon why you were stopped in the first place, and there is a big difference between being frisked/searched and whether or not what is found will be admissible as evidence later.

Officers are generally given wide latitude for stop and frisk (Terry vs.Ohio), but stop and frisk is not the same as "search your vehicle".

[OnTexasTime]

As I have told here before, I have been licensed since the first year and end up getting stopped about once every two years. Every one those stops has been a good experience. I present my DL and CHL and when asked I tell them where my handgun is. (On all these stops it never was on my person, it was either in my briefcase, or armrest console or behind the truck seat.)

I have never been asked to hand over my gun or exist my vehicle. If you are just being stopped for a traffic violation and keep a good attitude and treat the officer with basic respect you should not have a problem and won't be worring about whether to let them search your car or not.

LEO's are human too, so there are good one's and bad one's out there. I guess I have been lucky to always meet the good one's.

[srothstein]

Statistical huh? I can just see them back at HQ crunching numbers. Can't you? By the way, welcome!

While not wanting to hijack the thread, I thought I would answer this point. Statistical reasons is a real answer and yes, they do crunch the numbers at HQ. There is a Texas state law requiring every department to track the stops by race/ethnic group and gender, and if there was a search, consent to a search, and anything resulting from the search. Each department is then required to report this information to their governing body once each calendar year.

It was done to counter racial profiling claims, but it is not a truly valid database.

Ooops, that would get me going so I will stop now.

[TX_Jim]

Well, I don’t think I would classify the stop as a bad experience and I would chalk it up as more of a learning experience…for both the LEO and myself. For me, it was the first time being pulled over since I got my CHL and even though I was not carrying at the time, I did not know what to expect and I was maybe a little nervous. As for the LEO, he learned what the new registration tags looked like and hopefully will not wrongfully pull any one else over.

I have had several other encounters with Austin PD that went great. I was going 10 mph over the limit on 35 and pulled over by APD. The LEO came to my passenger side window…he immediately began by telling me that he pulled me over for 10 over the speed limit and before he could finish what he was saying I handed him my DL and CHL. He asked where it was and I told him it was in a holster on my right hip. He then asked what I was carrying and I said a Springfield XD 9. He said nice…if everything checkouts with this (referring to the CHL) you will be on your way. And that is exactly what happened. The entire stop took less then 5 minutes. And no ticket (or warning) to boot…even though I deserved one).

The other time, Also APD, I was at a gas station, inside buying a drink, when someone backed over my motorcycle in the parking lot. I called the police…not realizing one was already in the store buying coffee. Anyway, he came out to help issue citations…the driver who hit my bike was not licensed or insured. The LEO asked me for identification and I showed him my DL and CHL. He saw the CHL in my hand and said I don’t need to see that. And yes, I was armed at the time. But he did not seem to care. I assume he thought everything was cool because I was the one who called APD.

[Rex B]

And the part that upset me the most was that he gave me a written warning even though it was his mistake…he said something about being required to write a warning for statistical information…and something about ensuring that they are not racial profiling.

If they are really compiling statistics per federal requirements, I don't think a written warning would be required to document a stop. Surely they make stops with no paperwork to the stopee.
I'd have been tempted to call a supervisor or the chief.

Supposed Jim's tags had actually expired a week later, then he was stopped and ticketed for real. With the warning on file, could he have been penalized for the earlier incident also?

[CompVest]

In my experience. You don't write erroneous tickets as an officer. You document all your stops in your report not in your ticket book.

The very fact that a ticket was written for an offense that didn't happen negates the very statistics HQ is trying to compile.

[Bob M]

Why give the LEO your CHL when you don't have your weapon with you?
It's not required. It only causes more questions from the officer.

[seamusTX]

Why give the LEO your CHL when you don't have your weapon with you?

Some people have reported that they didn't show their CHL because they weren't armed, and the LEO became annoyed when he ran the driver license and saw that the person had a CHL.

- Jim

[TX_Jim]

Why give the LEO your CHL when you don't have your weapon with you?

I would rather disclose when not armed then try to explain that I do not have a weapon when the LEO runs the DL and finds out about the CHL. It may put the LEO on edge and feel as though I was being deceptive.