Posted: Mon Feb 19, 2007 2:37 am
I will take a stab at answering some of the interesting questions posted in this thread, starting with your rights about searches, when and what an officer can search, and ending with if the officer did anything wrong. All of this is my personal understanding of the law (and that specific stop as related by the poster) and is not legal advice.
First, you always have the right to not consent to a search. Be very careful with this as you cannot resist a search even if it is unlawful. The place to fight this is in court not at the scene. Also, even if you do not consent, it does not mean that a search is illegal or a violation of your rights. As a final caveat, be prepared to be cited instead of warned for whatever you were stopped for. Most cops, wrongly, will consider your lack of consent to be uncooperative behavior. Cops are notorious for reacting badly to someone they see as uncooperative. You may also give a partial or limited consent, which is what i believe happened in the stop under discussion (more on that later).
Second, there are many times an officer can perform a search without your consent. As it applies to traffic stops, an officer may search if he has probable cause, incident to an arrest, as an inventory if the car is being impounded, or as part of a frisk. The SCOTUS has ruled that the mobility of a motor vehicle is in and of itself exigent circumstances that stop an officer from taking the time to get a warrant. He still needs probable cause though, and it has to meet all of the standards for probable cause that he would need to meet if he were applying for a warrant. Many cops forget about this and try for a consent search because it is easier to get consent than probable cause.
A cop may search the car incident to an arrest. There are some limits on this, such as what can be searched. Usually the courts will limit this to the areas easily accessed by the person arrested, such as the passenger compartment. It is important to note here, with an eye on the law of unintended consequences, that in the 2004 Kurtz (sp?) decision, the Court of Criminal Appeals ruled that any traffic stop is an arrest automatically. I am unaware of any officers or lawyers who have used this logic in a case yet, but I am sure it is only a matter of time until someone does. You do not get to consent or decline consent on a search incident to an arrest.
A cop may also frisk you and your car. This is based on the Terry v. Ohio case that SCOTUS decided many years ago. A frisk is a very limited search for only weapons. On a person it is a pat down of their external clothing only. In a car, it is generally acceptable to look under the seats, in unlocked glove compartments, etc. but not in areas out of the reach of the people in the vehicle like a truck. A frisk also has an additional limitation that it is only justified if the officer has a specific and articulable reason why he felt he was in danger from this particular stop. He cannot use a general reason like I frisk everyone at night, and it must be for a danger to himself. A frisk cannot be done for drugs, as one example. Also, I believe Kevin is wrong about one point on a frisk. The officer can frisk the car even if you are out of it, if he can justify the frisk. One of the reasons the court has accepted this is the fact that you will let the bad guy go back into the car if you do not get probable cause, thus putting yourself at risk again. I would think a good prosecutor would be able to use the fact that you locked the doors as part of the reasonable suspicion if the officer brings it up to him. Courts, up to SCOTUS, have ruled many times that a search is legal at almost any point, if it was ever legal, unless the PC disappears.
An exception to the PC requirement is if the car is being impounded for any reason. In this case, the officer may do a full search of the car as a means of inventorying it. The courts have ruled he may look anywhere, including locked compartments, that there may be a valuable item he would be taking responsibility for. This has come about because the police are liable for your car while it is in their possession and they have a reasonable right to protect themselves from false claims of stolen or missing valuables. This can be applied if the car is being impounded, even if the people are not being arrested (think of the cities where you get your car impounded if you do not have insurance for example).
Now, there is only one area that you have given any rights up on when carrying a firearm under the CHL rules. You must notify the officer you are carrying and you must surrender it to him on his demand. There is some unclear language in the law where it says he may disarm you, and some here have taken this to mean the gun in your car and you outside the vehicle. I believe that the law was intended to allow him to actually take possession of the firearm because that section then says he must return the firearm before releasing you. I think even if you are out of the car, the officer can take the weapon from the car. Nothing says you have to let the officer search your car and the law is not clear if you can hand him the pistol or he must be allowed to get it himself. I am guessing that part of the lack of clarity is the assumption that if you are carrying under a CHL, the gun would be loaded and on your person, not in a case in the car. If it is on your person, you are pretty much going to have to do something to hand it to the officer, though I can see lifting the jacket and turning it towards him to get (though I have never seen a reason to disarm a CHL personally, other officers do feel differently).
Now, for this specific incident, I think the trooper did not act legally (and not just outside of policy). When the trooper asked if he could look at the guns, consent was given for a limited search. In this case, specifically limited to the guns in the case, and directions were given as to where the guns were. As such, if the trooper looks anywhere else, he is going beyond the authorized scope of the search. Thus, I think the trooper, as related by the original poster, has violated the poster's civil rights and conducted an unauthorized search.
I would probably not complain if that was all he did myself, but if there were other indicators of potential problems (bad language, rudeness, the cross questioning, etc.) I would probably call the local regional office and file a complaint. Each of us has a different point at which we complain over bad customer service (and that is what this falls under, as well as possible criminal behavior), so that is your individual decision.
LLWatson, I hope my discourse has helped clear up the question in your mind a little bit. You can always decline a search but you must hand over the weapons if asked. You can give a limited authority to him, such as "you may enter the car to get my gun case only, I am not consenting to a search of my property other than the minimum required by law to disarm me".
As I said, I am not a lawyer, and I could have some of this information wrong. Check with the lawyer who will defend you, or failing that, check with the D.A. (if he will answer) on how he would handle the prosecution.
First, you always have the right to not consent to a search. Be very careful with this as you cannot resist a search even if it is unlawful. The place to fight this is in court not at the scene. Also, even if you do not consent, it does not mean that a search is illegal or a violation of your rights. As a final caveat, be prepared to be cited instead of warned for whatever you were stopped for. Most cops, wrongly, will consider your lack of consent to be uncooperative behavior. Cops are notorious for reacting badly to someone they see as uncooperative. You may also give a partial or limited consent, which is what i believe happened in the stop under discussion (more on that later).
Second, there are many times an officer can perform a search without your consent. As it applies to traffic stops, an officer may search if he has probable cause, incident to an arrest, as an inventory if the car is being impounded, or as part of a frisk. The SCOTUS has ruled that the mobility of a motor vehicle is in and of itself exigent circumstances that stop an officer from taking the time to get a warrant. He still needs probable cause though, and it has to meet all of the standards for probable cause that he would need to meet if he were applying for a warrant. Many cops forget about this and try for a consent search because it is easier to get consent than probable cause.
A cop may search the car incident to an arrest. There are some limits on this, such as what can be searched. Usually the courts will limit this to the areas easily accessed by the person arrested, such as the passenger compartment. It is important to note here, with an eye on the law of unintended consequences, that in the 2004 Kurtz (sp?) decision, the Court of Criminal Appeals ruled that any traffic stop is an arrest automatically. I am unaware of any officers or lawyers who have used this logic in a case yet, but I am sure it is only a matter of time until someone does. You do not get to consent or decline consent on a search incident to an arrest.
A cop may also frisk you and your car. This is based on the Terry v. Ohio case that SCOTUS decided many years ago. A frisk is a very limited search for only weapons. On a person it is a pat down of their external clothing only. In a car, it is generally acceptable to look under the seats, in unlocked glove compartments, etc. but not in areas out of the reach of the people in the vehicle like a truck. A frisk also has an additional limitation that it is only justified if the officer has a specific and articulable reason why he felt he was in danger from this particular stop. He cannot use a general reason like I frisk everyone at night, and it must be for a danger to himself. A frisk cannot be done for drugs, as one example. Also, I believe Kevin is wrong about one point on a frisk. The officer can frisk the car even if you are out of it, if he can justify the frisk. One of the reasons the court has accepted this is the fact that you will let the bad guy go back into the car if you do not get probable cause, thus putting yourself at risk again. I would think a good prosecutor would be able to use the fact that you locked the doors as part of the reasonable suspicion if the officer brings it up to him. Courts, up to SCOTUS, have ruled many times that a search is legal at almost any point, if it was ever legal, unless the PC disappears.
An exception to the PC requirement is if the car is being impounded for any reason. In this case, the officer may do a full search of the car as a means of inventorying it. The courts have ruled he may look anywhere, including locked compartments, that there may be a valuable item he would be taking responsibility for. This has come about because the police are liable for your car while it is in their possession and they have a reasonable right to protect themselves from false claims of stolen or missing valuables. This can be applied if the car is being impounded, even if the people are not being arrested (think of the cities where you get your car impounded if you do not have insurance for example).
Now, there is only one area that you have given any rights up on when carrying a firearm under the CHL rules. You must notify the officer you are carrying and you must surrender it to him on his demand. There is some unclear language in the law where it says he may disarm you, and some here have taken this to mean the gun in your car and you outside the vehicle. I believe that the law was intended to allow him to actually take possession of the firearm because that section then says he must return the firearm before releasing you. I think even if you are out of the car, the officer can take the weapon from the car. Nothing says you have to let the officer search your car and the law is not clear if you can hand him the pistol or he must be allowed to get it himself. I am guessing that part of the lack of clarity is the assumption that if you are carrying under a CHL, the gun would be loaded and on your person, not in a case in the car. If it is on your person, you are pretty much going to have to do something to hand it to the officer, though I can see lifting the jacket and turning it towards him to get (though I have never seen a reason to disarm a CHL personally, other officers do feel differently).
Now, for this specific incident, I think the trooper did not act legally (and not just outside of policy). When the trooper asked if he could look at the guns, consent was given for a limited search. In this case, specifically limited to the guns in the case, and directions were given as to where the guns were. As such, if the trooper looks anywhere else, he is going beyond the authorized scope of the search. Thus, I think the trooper, as related by the original poster, has violated the poster's civil rights and conducted an unauthorized search.
I would probably not complain if that was all he did myself, but if there were other indicators of potential problems (bad language, rudeness, the cross questioning, etc.) I would probably call the local regional office and file a complaint. Each of us has a different point at which we complain over bad customer service (and that is what this falls under, as well as possible criminal behavior), so that is your individual decision.
LLWatson, I hope my discourse has helped clear up the question in your mind a little bit. You can always decline a search but you must hand over the weapons if asked. You can give a limited authority to him, such as "you may enter the car to get my gun case only, I am not consenting to a search of my property other than the minimum required by law to disarm me".
As I said, I am not a lawyer, and I could have some of this information wrong. Check with the lawyer who will defend you, or failing that, check with the D.A. (if he will answer) on how he would handle the prosecution.
I am NOT a Security Officer, no offense to those who are. I am DPS Private Security Board Combined instructor. I teach classroom and Firearms in the state required commission course for armed guards.