Traffic Stop-Passenger Carrying

[srothstein]

In Texas, barring a secondary detention, contacting passengers is treated as consensual contact. Other states have case law that requires passengers to ID themselves if asked.

You are mostly correct on this, as the referenced ruling applied to the right to challenge the stop. In a way, it left passengers in a gray area of the law.

Before this ruling, the courts had always said the passenger was not detained for a driving violation since he could get out and walk away if he wanted. This ruling recognized the reality that no normal citizen would feel that they could do this (I used to love to ask trainees what they would do if someone actually did this - it really made them think about their authority). But it gave no real guidelines on how the passenger could be handled. Texas does not make ID mandatory for anyone during a detention (driver's license while driving being the exception - but the Court of Criminal Appeals has defined this as an arrest not a detention). I expect another case to come out of some state with mandatory ID laws, or maybe even from Texas, based on a search of a passenger's property. If we have probable cause to search a car, can we search all of the purses (for example) in the car? I seem to remember a case that said no, but then we have the new ruling on passengers being detained.

The best advice I can give any officer right now would be to treat the passenger as consensual and document everything. Of course, I always recommend asking for consent, even when you have probable cause and exigent circumstances. It is much harder, though not impossible, to argue consent in court.

[djjoshuad]

That's an OLD version. Straight from Texas Statutes online and current as of the 2009 legislative session is:

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

Note, no reference to a penalty. Also the same in the 2009 CHL-16 booklet.

FWIW, I got my info from here: http://www.txdps.state.tx.us/administra ... chlaws.htm" onclick="window.open(this.href);return false;

also, the CHL booklet was not handed out in my CHL class. We were told that the state stopped supplying them. I have my CHL and I have never owned a CHL-16 booklet nor was I ever shown where to get one. so, what you implied by using the icon (if I'm reading you right) is just rude... no harm no foul though. Just don't assume that I had access to better info and neglected to use it. I used what appeared (and still appears) to be the DPS's current set of CHL-related laws. Now I know there is a better source.

[ScottDLS]

That's an OLD version. Straight from Texas Statutes online and current as of the 2009 legislative session is:

Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license.

Note, no reference to a penalty. Also the same in the 2009 CHL-16 booklet.

FWIW, I got my info from here: http://www.txdps.state.tx.us/administra ... chlaws.htm" onclick="window.open(this.href);return false;

also, the CHL booklet was not handed out in my CHL class. We were told that the state stopped supplying them. I have my CHL and I have never owned a CHL-16 booklet nor was I ever shown where to get one. so, what you implied by using the icon (if I'm reading you right) is just rude... no harm no foul though. Just don't assume that I had access to better info and neglected to use it. I used what appeared (and still appears) to be the DPS's current set of CHL-related laws. Now I know there is a better source.

No icon means "Rules"... not that you should be expected to dig them up without some major Google Fu... I use it when referring to rules that are well known, poorly known, or even incorrect; depending the context. Then again, context is very subjective, especially in the confused mental gymnastics that I apply to my posts.

[Katygunnut]

I read through this thread, but did not see this aspect addressed.

What if your wife is driving, she has no CHL, and she has "her" gun in the center console. I put "her" in quotations because the gun is technically owned by both of you since Texas is a community property state. You have a CHL, but you are not carrying, and you are sitting in the passenger seat. For sake of argument, let's say that you intentionally left your gun at home because you were planning to drink at a restaurant, party, etc., and your wife graciously volunteered to be the designated driver.

Assuming that you are in fact intoxicated (and skipping over the fact that this term is not well defined with regard to a CHL), would you potentially have any legal issues in this scenario. Obviously, you can't be carrying a concealed weapon while intoxicated, but is there an issue if you are in the same vehicle as a weapon that another party is validly carrying under MPA?

[tacticool]

Assuming that you are in fact intoxicated (and skipping over the fact that this term is not well defined with regard to a CHL), would you potentially have any legal issues in this scenario. Obviously, you can't be carrying a concealed weapon while intoxicated, but is there an issue if you are in the same vehicle as a weapon that another party is validly carrying under MPA?

I don't think you would be violating 46.035 in that situation but IANAL. That's not to say that a police officer can't arrest you and let the DA (or courts) sort it out, depending on their training and general mood.

[ScottDLS]

I read through this thread, but did not see this aspect addressed.

What if your wife is driving, she has no CHL, and she has "her" gun in the center console. I put "her" in quotations because the gun is technically owned by both of you since Texas is a community property state. You have a CHL, but you are not carrying, and you are sitting in the passenger seat. For sake of argument, let's say that you intentionally left your gun at home because you were planning to drink at a restaurant, party, etc., and your wife graciously volunteered to be the designated driver.

Assuming that you are in fact intoxicated (and skipping over the fact that this term is not well defined with regard to a CHL), would you potentially have any legal issues in this scenario. Obviously, you can't be carrying a concealed weapon while intoxicated, but is there an issue if you are in the same vehicle as a weapon that another party is validly carrying under MPA?

I'll bite...since it's fun with MPA day...

1 - It would probably be better if your wife carried her gun on her person vs. in the console, since arguably "on or about YOUR person" would include the console.

2- However, you CAN carry a concealed handgun while intoxicated...just not under the authority of your CHL. You can carry intoxicated in your home, or in a car that you own, because you don't need the authority of your CHL to carry it. Now I guess someone could say that MPA wouldn't apply to you if you were committing the crime of being publicly intoxicated (49.02). But just because you are intoxicated and in public (your car?) doesn't necessarily mean you're guilty of a crime.

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

[Hoi Polloi]

I read through this thread, but did not see this aspect addressed.

What if your wife is driving, she has no CHL, and she has "her" gun in the center console. I put "her" in quotations because the gun is technically owned by both of you since Texas is a community property state.

Texas isn't a strict split community property state. It allows individual assets. If something is gifted, earned, etc by/to one party, that properties remains that individual's unless it is commingled in community property. For example, a gun is gifted to the husband. He sells it and puts the money into a joint account. He then purchases a new gun for himself out of the money in the joint account. The old gun was his property, the new one is community property. He then sells the new one and uses the money to gift his wife with a gun. That is now her property. This is all civil stuff, though, and wouldn't likely come up in a criminal trial unless he was a felon or otherwise not allowed access to her gun.

[mgood]

I thought "what's hers is hers and what's his is hers."

[Katygunnut]

I read through this thread, but did not see this aspect addressed.

What if your wife is driving, she has no CHL, and she has "her" gun in the center console. I put "her" in quotations because the gun is technically owned by both of you since Texas is a community property state.

Texas isn't a strict split community property state. It allows individual assets. If something is gifted, earned, etc by/to one party, that properties remains that individual's unless it is commingled in community property. For example, a gun is gifted to the husband. He sells it and puts the money into a joint account. He then purchases a new gun for himself out of the money in the joint account. The old gun was his property, the new one is community property. He then sells the new one and uses the money to gift his wife with a gun. That is now her property. This is all civil stuff, though, and wouldn't likely come up in a criminal trial unless he was a felon or otherwise not allowed access to her gun.

Very interesting, although I believe (IANAL) that "earned" items would still be community property if I understand it correctly (a friend of mine recently went through a divorce). For example, I can't claim that money is my separate property just because I earned it (pay from my job) and it went into a separate account. At least I don't think I can.

The purest common example of this would probably be a 401(K) balance. I believe that is still community property even though all contributions were a result of money or employer matching that I earned, and my wife has never been a named owner on my 401(K). Again, IANAL and could well be wrong.

[Hoi Polloi]

I read through this thread, but did not see this aspect addressed.

What if your wife is driving, she has no CHL, and she has "her" gun in the center console. I put "her" in quotations because the gun is technically owned by both of you since Texas is a community property state.

Texas isn't a strict split community property state. It allows individual assets. If something is gifted, earned, etc by/to one party, that properties remains that individual's unless it is commingled in community property. For example, a gun is gifted to the husband. He sells it and puts the money into a joint account. He then purchases a new gun for himself out of the money in the joint account. The old gun was his property, the new one is community property. He then sells the new one and uses the money to gift his wife with a gun. That is now her property. This is all civil stuff, though, and wouldn't likely come up in a criminal trial unless he was a felon or otherwise not allowed access to her gun.

Very interesting, although I believe (IANAL) that "earned" items would still be community property if I understand it correctly (a friend of mine recently went through a divorce). For example, I can't claim that money is my separate property just because I earned it (pay from my job) and it went into a separate account. At least I don't think I can.

The purest common example of this would probably be a 401(K) balance. I believe that is still community property even though all contributions were a result of money or employer matching that I earned, and my wife has never been a named owner on my 401(K). Again, IANAL and could well be wrong.

A brief overview: http://www.tshaonline.org/handbook/onli ... cles/jsc02" onclick="window.open(this.href);return false;

[Katygunnut]

I read through this thread, but did not see this aspect addressed.

What if your wife is driving, she has no CHL, and she has "her" gun in the center console. I put "her" in quotations because the gun is technically owned by both of you since Texas is a community property state.

Texas isn't a strict split community property state. It allows individual assets. If something is gifted, earned, etc by/to one party, that properties remains that individual's unless it is commingled in community property. For example, a gun is gifted to the husband. He sells it and puts the money into a joint account. He then purchases a new gun for himself out of the money in the joint account. The old gun was his property, the new one is community property. He then sells the new one and uses the money to gift his wife with a gun. That is now her property. This is all civil stuff, though, and wouldn't likely come up in a criminal trial unless he was a felon or otherwise not allowed access to her gun.

Very interesting, although I believe (IANAL) that "earned" items would still be community property if I understand it correctly (a friend of mine recently went through a divorce). For example, I can't claim that money is my separate property just because I earned it (pay from my job) and it went into a separate account. At least I don't think I can.

The purest common example of this would probably be a 401(K) balance. I believe that is still community property even though all contributions were a result of money or employer matching that I earned, and my wife has never been a named owner on my 401(K). Again, IANAL and could well be wrong.

A brief overview: http://www.tshaonline.org/handbook/onli ... cles/jsc02" onclick="window.open(this.href);return false;

Thanks!