Am I "Carrying" When...?

[Hoosier Daddy]

From a practical standpoint, what authority do police have to search a locked safe inside a car in Texas?

[Photoman]

I brainstormed a modification to the scenario. . . he is planning to get hammered in a bar and have his friend drive him home. His friend can't have "possession" of the firearm because of a shaky legal past, even though he's rehabilitated now. His friend won't be drinking. Before going into the bar, he wants to secure the firearm in a way that they do not violate the law on the way home.

It's an interesting theoretical question. . .

Given this, leave the gun at home. I don't understand why anyone would want to have a gun in the car if one person can't legally have it and the one that can plans to get drunk. Silly question in my mind.

I think what we're trying to get at is when does CHL carry end and MPA carry begin or is there even such a distinction?

[hirundo82]

In which scenarios is he (and his friend) "disarmed" or at least "not carrying":
1. Firearm unloaded in trunk of car (ammo also in trunk)
2. Firearm unloaded in locked safe in console (ammo also in safe)
3. Firearm loaded in trunk of car
4. Firearm loaded in locked safe in console
5. Firearm unloaded in glove box (ammo in glove box)
6. Firearm unloaded in glove box (ammo in trunk)
7. Firearm unloaded in trunk of car (ammo in passenger compartment)

When answering these, keep in mind that for carrying there is no difference legally between a loaded and unloaded gun, although it may make a difference to the officer deciding whether to arrest you.

The language used in Penal Code §46 is carrying "on or about your person." I would interpret that to mean you have the firearm readily accessible to you. With that said, I would say that scenarios 1, 3, and 7 are definitely OK, and 2 and 4 are probably fine as well--you can't get to the firearm without having to go through a lock.

[WildBill]

In which scenarios is he (and his friend) "disarmed" or at least "not carrying":
1. Firearm unloaded in trunk of car (ammo also in trunk)
2. Firearm unloaded in locked safe in console (ammo also in safe)
3. Firearm loaded in trunk of car
4. Firearm loaded in locked safe in console
5. Firearm unloaded in glove box (ammo in glove box)
6. Firearm unloaded in glove box (ammo in trunk)
7. Firearm unloaded in trunk of car (ammo in passenger compartment)

When answering these, keep in mind that for carrying there is no difference legally between a loaded and unloaded gun, although it may make a difference to the officer deciding whether to arrest you.

The language used in Penal Code §46 is carrying "on or about your person." I would interpret that to mean you have the firearm readily accessible to you. With that said, I would say that scenarios 1, 3, and 7 are definitely OK, and 2 and 4 are probably fine as well--you can't get to the firearm without having to go through a lock.

IANAL, but I would disagree. Some states make an exception if the handgun is in a locked box that is not the "glove box", but I haven't found any case law in Texas one way or the other. I will defer to someone with more experience or knowledge.

[srothstein]

WildBill,

I think the rules given by hirundo82 would pretty much match up with my training. On or about your person has generally been interpreted to mean within lunging distance and easy reach - can you grab the weapon and use it? I was taught that the locked glove box would not be considered on or about the driver's person, and that as a general rule any locked container would not be on their person either.

And we were also taught that the unlocked glove box was a gray area. It would probably not hold up unless the person reached into it for his license or insurance or something. I know of cases where unlocked center consoles have resulted in convictions but I am not aware of any from locked containers. One case I was involved in included the gun inside an unlocked briefcase on the passenger side floor. We did not charge him, but it was more a case of err on the side of caution than real knowledge. He had run from the MP's at Camp Bullis and I was just helping them stop him and get him in custody. Funny thing is he avoided the DWI and evading charges but then was convicted on a federal rap for filing a false police report - he had tried to complain that I had stolen a $1000 bill from inside the briefcase.

[apostate]

I haven't found any case law in Texas one way or the other.

As previously mentioned, there's Hardy v. State (1897) if nothing more recent contradicts it.

[speedsix]

WildBill,

I think the rules given by hirundo82 would pretty much match up with my training. On or about your person has generally been interpreted to mean within lunging distance and easy reach - can you grab the weapon and use it? I was taught that the locked glove box would not be considered on or about the driver's person, and that as a general rule any locked container would not be on their person either.

And we were also taught that the unlocked glove box was a gray area. It would probably not hold up unless the person reached into it for his license or insurance or something. I know of cases where unlocked center consoles have resulted in convictions but I am not aware of any from locked containers. One case I was involved in included the gun inside an unlocked briefcase on the passenger side floor. We did not charge him, but it was more a case of err on the side of caution than real knowledge. He had run from the MP's at Camp Bullis and I was just helping them stop him and get him in custody. Funny thing is he avoided the DWI and evading charges but then was convicted on a federal rap for filing a false police report - he had tried to complain that I had stolen a $1000 bill from inside the briefcase.

...must have been an electric bill...

[glbedd53]

I have found that the easiest place to cut it off is zero. Driving or carrying.

[WildBill]

WildBill,
I think the rules given by hirundo82 would pretty much match up with my training.

Thanks for your input Steve. I am still learning about Texas laws.

Caveat: If you are travelling in another state such as California, check their laws. IANAL

The term "locked container" means a secure container which is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device. This includes the trunk of a motor vehicle, but does not include the utility or glove compartment. For more information, refer to California Penal Code Section 12026.1.

[hirundo82]

I think the rules given by hirundo82 would pretty much match up with my training. On or about your person has generally been interpreted to mean within lunging distance and easy reach - can you grab the weapon and use it? I was taught that the locked glove box would not be considered on or about the driver's person, and that as a general rule any locked container would not be on their person either.

Thanks for the confirmation. I don't have the training you do, but it was my impression from a lot of reading that a gun is not considered readily accessible, and that you therefore aren't carrying, if it is inside a locked compartment.

[paulhailes]

Thanks for all of the input, I kept going back and forth on where I was going to attach my microvault, I have decided under my passenger seat, that way it is easily accessible if I ever have to secure my weapon when going into a building with one of those hideously ugly signs, you know the ones I'm talking about.

[hirundo82]

From a practical standpoint, what authority do police have to search a locked safe inside a car in Texas?

Police may search areas within reach of persons inside the vehicle for officer safety reasons, although if they remove you from the vehicle to do so their right to search is muddled because of a recent SCOTUS ruling (Arizona v. Gant).

In general, police need probable cause to search a vehicle (reason to believe a crime is being committed) although they don't need a warrant. However, I believe that a locked compartment in a vehicle is an exception in that they do need a warrant to search it (but if they have probable cause they can seize the vehicle until they can get a warrant).

Note--this is my (possibly incorrect) understanding of federal law. Texas may have more stringent requirements, although I don't believe so.

[helicopterpilotdoug]

My question was centered around having drank 1 or 2 beers. I miss spoke, or typed, earlier when I said intoxicated, I simply meant having any alcohol in my system what so ever.

I understood your post. I was just trying to emphasize a point.

its important to understand that being under .08 is not a safe zone. its how your body tolerates the alcohol that will ultimatly effect whether or not you are intoxicated

However, being under .08 on the breathylizer, or on the serum alcohol drawn at your local ER is important. You may be impaired, but not legally so. However, do you want to go through the hassle? I have been a nurse for 25 years, and in the ER for 17 of those. The people who are brought in for a blood draw seem to be treated as if they are guilty until proven innocent. They are miserable and hating their lives. They may lose their jobs, their ability to drive a car...and now you have a CHL to worry about as well. Just don't drink and drive...period. None. At all.

RJ

To me, that's the key to this whole debate. If you are going to drive or carry, DO NOT DRINK PERIOD!
In the 80's I was a real party animal. Don't know how many nights I'd drive home and have to close one eye so I'd only see one road! That's about the time Mothers against drunk drivers came about. I started thinking about what could happen and the destruction of others that could happen, when driving while intoxicated, and made the decision to never drink again if I was going to drive. I've stuck to that promise I made to myself, and never drove drunk again. Have a few drinks at home, or have a sober person drive you. That's no problem, but to drive, and/or carry while intoxicated is a strict NoNo! My 2 pennies worth.