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casingpoint wrote:txinvestigator,

Let’s reverse engineer the sentences (no pun intended) and continue to focus only on handguns in vehicles.


46.02

(a)--A person inside a motor vehicle with a handgun in their possession does not commit an offense.

(a-1)—A person inside a motor vehicle who possesses a handgun in plain view commits an offense.


Maybe this law was written by University of Texas alumni redactors for University of Houston alumni prosecutors in a moment of transcendental synergy.

Well, let me see if I can explain it for you.

Look at it again.

46.02(a) says a person commits an offense if he carries a weapon and is not in his car. This section is saying that the primary prohibition does not apply to a person in their own car.

46.01(a-1) now says that you commit an offense if you are carrying in your car and the gun is in plain view. This section now specifically only applies while you are in the car and says the gun must be concealed.

So, we have a general rule that you cannot carry a gun, either in plain view or concealed. But this general rule does not apply to a person in their own car.

Then we have a second law which says you cannot carry a gun in your car in plain view.

Section (a) says that the general rule does not apply to a car. Section (a-1) gives the rule that does apply to the car. If you are in your own car, ignore section (a) and only apply section (a-1).

Then we get the obvious question of what constitutes "plain view". The best way to understand this is through the accumulated case law on police searches. The way I was taught, and I cannot cite the cases leading up to it, is that it is considered a plain view exception to a search warrant requirement IF the officer is in a place where he can legally be and can see the item with his eyes, whether or not he is using a magnification device like binoculars. So, the concept of anything underneath the window line does not apply if the officer is standing next to a stopped vehicle. It would also not apply to anything underneath the window line if the officer was in a taller vehicle than the one the person is driving as they go down the street (truck drivers can see some interesting sights sometimes BTW).

And how does this apply to camouflage or concealment such as a pen gun? The general rule for plain view is that the officer must be able to recognize the object as illegal when he sees it. If the officer can tell it is a pen gun by looking, it is in plain view. If the officer thinks it is a pen, it can be laying on the console and it is not in plain view. The question would be how much of a gun nut is the officer you come up against to know about things like pen guns?

BTW, this doctrine was best established in the Terry v Ohio case where a frisk was defined as being able to recognize a weapon by feel. It was expanded a few years ago to what is now called the plain feel doctrine when an officer convinced the court he could recognize a crack rock in a suspects pocket by feel during a frisk for weapons. If I were on the court, he never could have convinced me he could tell a crack rock from a piece of broken cement, but he did this court. Great report writing by the officer and a good prosecutor combined with a bad defense attorney can work wonders for court rules.

pt145ss wrote:

That is my opinion on the guidelines, but it also certainly shows that there is no way a person can be held for 72 hours in the US.

Not to be argumentative but the Baker Act adopted by Florida in the 70s allows a person to be involuntarily detained for up to 72 hours for observation in order to determine if they are a threat to themselves or others. And the last time i checked...Florida was still in the US. Nor do i think any criminal charges need to be brought to do so.

Yes, there are ways for a person to be held for some time period for a mental examination. That has nothing to do with the police holding a person for an investigation without filing charges. For one thing, it is not the police holding the person, but the mental hospital, even if the police did bring him in and turn him over.

Unless I misunderstood the post I was responding to, he was thinking the police could throw you in a jail cell for up to 72 hours while they investigate and file charges after that time period. That is not legal in the US. It is entirely possible I did misunderstand the question though.

There are two points I want to address that may be relevant to this issue. Well, one is not relevant but I want to correct a common mistaken belief so I will do that first.

The police cannot detain anyone without filing charges except for a short detention for investigation. The Fourth Amendment prohibits this as it would be a seizure. How long is a short detention? That is not quite as clear. The SCOTUS has previously ruled that 30 minutes is not an unreasonable detention and was legal. It also ruled that 2 hours was unreasonably long. So we have one limit that 30 minutes is legal and another limit that 120 minutes is not. The time in-between these two limits would appear to still be a gray area. The question to be answered would be how reasonable the actions of the officer were for that circumstance. Based on recent SCOTUS rulings, I think they would be reluctant to go more than the 30 minute limit, but I could see that if the time was to retrieve the eye witness for a line-up, and the delay was as minimal as the police could make it, they might go along. That is my opinion on the guidelines, but it also certainly shows that there is no way a person can be held for 72 hours in the US.

Now, for the more relevant issue of what the HPD officers feel. The problem is not that the officers want to challenge the law or not support it. They probably feel it is sketchy because the previous law was not clear and they simply do not know the new law. Officers need to be trained in things and this can take time. HPD, like most major departments, probably schedules its officers for an annual in-service training (my department does this and most do). The training will be developed and taught for a year at a time to allow all officers to go through the same training. It takes a year to rotate all officer through this type of training class. In Service classes may be taught on the basis of the calendar year or the fiscal year (my department uses the fiscal year and it takes us from January to June to get all trained). Either way, the training for the last year was developed before the legislative session. The new training with the updates was just started. It will take them some time to get the word to all of the officers.

To give another facet to the problem, TCLEOSE (the certifying agency for police) mandates that the training take the form of a specific course with specific content. The legislative updates course is named 3232, Special Investigative Topics. Every officer in the state gets this course once every four years. But, TCLEOSE has to develop the course content for us to teach. I just received the new course content on Nov. 13. If I tried to teach this course before then, the officers would not get credit for it.

Some agencies, mine included, get around this problem by teching two courses. We developed a special legislative updates course for our officers, so that all of them received an update in October of this year. We will then start teaching the new 3232 class next year sometime, probably in March. It means our officers will get some material twice, but we needed an in depth class on the Alcoholic Beverage Code and it is not included in 3232.