LEO seizure of a handgun

[pt145ss]

Police have never needed a warrant to search a vehicle. The U.S. Supreme Court decided this issue shortly after the first Model T rolled off the assembly line (Carroll v. U.S.). It took me about ten seconds to come up with a recent ruling that illustrates the kind of case you are asking about, Thornton v. U.S.: http://www.law.cornell.edu/supct/html/03-5165.ZS.html

- Jim

You are right, an officer does not need a warrant to search, but lacking a warrant, they need probable cause or consent.

Thornton vs. U.S. seems to hinge on that fact that there was a lawful arrest for the drug possession. Would this case be different if the occupant (who is not in the vehicle) does not have drugs on him? What probable cause does the officer have to conduct a warrantless search? In my mind, finding the drugs on the occupant, would give the officer probable cause to search the vehicle. In the OP, it is stated that the driver exited the vehicle during the stop without the weapon. I think (my opinion in not necessarily based on law) at this point the officer should only be able to perform a Terry Search of the person for their safety. I think if the officer wants to search the vehicle, he would then have to have some sort of probable cause….just my opinion.

EDIT...I apologize, I re-read the OP and it appears that the occupant is in the vehicle and the officer asks the occupant to exit so that he can retrieve the weapon. In this case I think the officer has the right to do so. I do not think he has the right to search other compartments or etc. and is limited to go into just the location of the weapon…that is unless he sees something in plain sight that would give probable cause for search.

[seamusTX]

We're not talking about a search for contraband that will be used as evidence in a criminal case. We're talking about an officer presumably ensuring the safety of himself and others.

Search and seizure issues almost always boil down to whether evidence is admissible in a criminal case.

There can be no criminal charge in Texas for having a concealed weapon in a vehicle, whether the person has a CHL or not, unless the person is engaged in some other criminal activity.

This is my opinion, based on some 40 years of experience: The police will do whatever they want. If they violate the law, it's a very steep uphill battle to obtain redress. I point to the firearms confiscation in New Orleans during Hurricane Katrina as a recent example.

- Jim

[pt145ss]

We're not talking about a search for contraband that will be used as evidence in a criminal case. We're talking about an officer presumably ensuring the safety of himself and others.

Search and seizure issues almost always boil down to whether evidence is admissible in a criminal case.

There can be no criminal charge in Texas for having a concealed weapon in a vehicle, whether the person has a CHL or not, unless the person is engaged in some other criminal activity.

This is my opinion, based on some 40 years of experience: The police will do whatever they want. If they violate the law, it's a very steep uphill battle to obtain redress. I point to the firearms confiscation in New Orleans during Hurricane Katrina as a recent example.

- Jim

I guess I was too slow. You responded before i was done editing my response (see above). I now pose a slightly different question. Suppose you are stopped for a traffic violation. You are not armed at the time of the stop. You do not disclose your CHL as you are not armed. When the officer runs your DL, the CHL comes back. The officer returns to your vehicle and ask you about the CHL and you tell him/her that you do not have a fimearm...does that give the officer enough probable cause to search the vehicle for a fiearm? Could the officer say that he/she was concerned for their safety and thought it best to search? Could it be argued that in this case simply having the occupant exit the vehicle is enough to ensure the officer's safety? Can that argument be applied to the OP as once the occupant has exited the vehicle the occupant no longer has access the the firearm?

[seamusTX]

Suppose you are stopped for a traffic violation. You are not armed at the time of the stop. You do not disclose your CHL as you are not armed. When the officer runs your DL, the CHL comes back. The officer returns to your vehicle and ask you about the CHL and you tell him/her that you do not have a fimearm...does that give the officer enough probable cause to search the vehicle for a fiearm?

Probable cause is not an issue because it would not be an offense to have a firearm in your vehicle. It's like a Terry stop. It's a safety issue.

Now, IMHO, if the officer found dope while searching for weapons, it might would not be admissible as evidence because the officer did not have probable cause to search for dope. However, the Thornton case that I cited above seems to indicate it might.

Could the officer say that he/she was concerned for their safety and thought it best to search?

Of course. And his superiors would probably take his word for it.

Could it be argued that in this case simply having the occupant exit the vehicle is enough to ensure the officer's safety? Can that argument be applied to the OP as once the occupant has exited the vehicle the occupant no longer has access the the firearm?

Again, that argument can be made; but playing the devil's advocate, I could say that the officer cannot devote 100% of his attention to the arrestee (he has to watch for traffic, maybe write a ticket), and the arrestee could retrieve the weapon within seconds and threaten the officer.

The bottom line here is that if a police officer disarms you, then releases you and gives you back your weapon and ammunition, you have no recourse. His superiors will support him all the way up to the mayor or sheriff. No responsible lawyer would file a case for any cause, and a judge would dismiss it.

P.S.: This explanation of Terry is readable and accurate, according to my understanding: http://en.wikipedia.org/wiki/Terry_v._Ohio

- Jim

[txinvestigator]

(Or, as of 9/1/07, when entering a secure area where proper signs are posted and secure storage is provided for the handgun.)

I must have missed this.

What is the source for this?

Texas Government Code 411.207(b)

[Mike1951]

Thanks.

It was puzzling to me since the previous statement made no reference to where it would apply.

when a license holder enters a nonpublic, secure portion of a
law enforcement facility, if the law enforcement agency provides a
gun locker where the peace officer can secure the license holder's
handgun.

[Charles L. Cotton]

I think part of the confusion on this issue is the lack of a statutory definition of "disarm a license holder" as found in Tex. Gov't Code §411.207(a). The statute doesn't say an officer can take a handgun off a CHL's hip or out of her purse, it authorizes disarming the CHL. Since there is no definition, we have to look at case law to see the scope of an officer's authority to search a vehicle for weapons. An officer can search a driver's car for weapons without a warrant or consent, as long as it is for the officer's safety. I'm embarrassed but I can't recall the style of the U.S. Supreme Court case on this issue. It's not Terry, as that deals with pat-downs of suspicious persons. Oh well, another "Sometimers" moment. I know the issue about stepping out of the car and locking the door, but I'm not sure if there is any case law on point.

Chas.

BTW, I agree that the statute does not allow, nor did the Legislature intend for, law enforcement agencies to adopt global policies to disarm any and all CHL's.


§ 411.207. AUTHORITY OF PEACE OFFICER TO DISARM. (a) 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.

[Odin]

I think part of the confusion on this issue is the lack of a statutory definition of "disarm a license holder" as found in Tex. Gov't Code §411.207(a). The statute doesn't say an officer can take a handgun off a CHL's hip or out of her purse, it authorizes disarming the CHL. Since there is no definition, we have to look at case law to see the scope of an officer's authority to search a vehicle for weapons. An officer can search a driver's car for weapons without a warrant or consent, as long as it is for the officer's safety. I'm embarrassed but I can't recall the style of the U.S. Supreme Court case on this issue. It's not Terry, as that deals with pat-downs of suspicious persons. Oh well, another "Sometimers" moment. I know the issue about stepping out of the car and locking the door, but I'm not sure if there is any case law on point.

Chas.

Ordering the driver out of the vehicle...

Pennsylvania v. Mimms

Maryland v. Wilson


Ordering occupants to remain in vehicle with hands in view...

US v. Moorfield


Order occupant who was ordered out of vehicle to return to vehicle...

US v. Williams


Searching the vehicle without a warrant...

Carroll v. United States

Michigan v. Long

[flb_78]

So I should keep my weed in the glovebox with my gun? Then when I am asked to exit the vehicle and the officer opens the glovebox and my weed falls out, I can't be charged with possession because I did not consent to be searched.

[seamusTX]

So I should keep my weed in the glovebox with my gun? Then when I am asked to exit the vehicle and the officer opens the glovebox and my weed falls out, I can't be charged with possession because I did not consent to be searched.

No. If you look at the Thornton decision cited above, you would be busted fair and square.

- Jim

[cbr600]

So I should keep my weed in the glovebox with my gun? Then when I am asked to exit the vehicle and the officer opens the glovebox and my weed falls out, I can't be charged with possession because I did not consent to be searched.

No. You should keep it in the lockbox and wear your sidearm in a holster.

[Geopagus]

To err is to be human....to argue this is a moot point. If an officer deems it necessary to disarm you for a justifiable reason, then please, dont give him/her a hard time. They would like to go home at the end of the day/night just like everyone else. Just because one has a CHL does not mean that they are NOT capable of violence or going off the deep end. I repeat...To err is to be human. I can tell you that officers dont just go around disarming CHL's for no good reason. From my own limited knowledge and experience, the vast majority of the time, CHL holders receive the benefit of the doubt.

[Liberty]

To err is to be human....to argue this is a moot point. If an officer deems it necessary to disarm you for a justifiable reason, then please, dont give him/her a hard time. They would like to go home at the end of the day/night just like everyone else. Just because one has a CHL does not mean that they are NOT capable of violence or going off the deep end. I repeat...To err is to be human. I can tell you that officers dont just go around disarming CHL's for no good reason. From my own limited knowledge and experience, the vast majority of the time, CHL holders receive the benefit of the doubt.

At the risk of being called a cop hater again.

We don't ask the LEO to disarm himself when he comes in contact with with us. We have no reason to believe that they are any less likely to shoot us than we CHL holders are to shoot them. Read the paper, LEOs becoming unnecessarily violent is is almost a daily event. Our background Investigation is the same as theirs.
Admitedly we don't always know whats going on in an officers mind, there may have been some kind of violent incident moments before with an automobile simular to one that he stopped. I don't suggest that we argue or make a big deal out of it while we are stopped., but complaining about it after the fact is certainly within reason. My concern about it is that removing a handgun from its holster and handing it to a stranger who knows nothing about it is an exposure to risk. I have seen some officers at the range that I go to, and the gun handling that I've noticed tends to be sloppy compared to most of the regulars I've noticed, and often they don't react positively to constructive critisism, particularly at a stop. If a cop shoots himself with my gun, it isn't going to pleasant experiance for him or I.

[AFJailor]

At the risk of being called a cop hater again.

We don't ask the LEO to disarm himself when he comes in contact with with us. We have no reason to believe that they are any less likely to shoot us than we CHL holders are to shoot them. Read the paper, LEOs becoming unnecessarily violent is is almost a daily event. Our background Investigation is the same as theirs.
Admitedly we don't always know whats going on in an officers mind, there may have been some kind of violent incident moments before with an automobile simular to one that he stopped. I don't suggest that we argue or make a big deal out of it while we are stopped., but complaining about it after the fact is certainly within reason. My concern about it is that removing a handgun from its holster and handing it to a stranger who knows nothing about it is an exposure to risk. I have seen some officers at the range that I go to, and the gun handling that I've noticed tends to be sloppy compared to most of the regulars I've noticed, and often they don't react positively to constructive critisism, particularly at a stop. If a cop shoots himself with my gun, it isn't going to pleasant experiance for him or I.

As far as asking an LEO to disarm himself; a CHL holder isnt charged with keeping the public safe, but an LEO is. Watch some video of traffic stops during which an LEO was shot at, its pretty hard to see it coming, so if a LEO thinks its a good idea to disarm you for his safety then IMO he shouldn't hesitate to do so. Also, it is just a *tiny* bit harder to become an LEO than it is to get a CHL, and yes LEO's do become violent on occasion, but so do civilians and cops have to deal with those individuals on a daily basis. Don't you think you might just be a little more cautious around an individual with a weapon if you had to deal with shootings every day? I have been to plenty of ranges and seen plenty of people do STUPID things, being an LEO/CHL holder has nothing to do with it, just look at all the range accidents and ND's that happen. Most of the comments you have made about LEO's could be said about the general populace as well, if I walked over to you and told you your grip was wrong, or whatever you probably wouldnt react to positively either.

If I was on a traffic stop and an LEO disarmed me I would not think any less of them, because he/she is doing doing his job and trying to make sure he can go home to his family at the end of the day.

[anygunanywhere]

I have to disageree with you here AF. If disarming CHLs made the officers safer then wouldn't you see all officers disarming CHLs and that the actiion would be policy everywhere? In actuality, and I do not have any numbers anywhere to reinforce my statement, most stops involving CHLs do not involve disarming and the act actually exposes all parties to ND due to unnecessary weapon handling.

Yes the correct action is to comply and deal with it later but a polite question why the officer believes it is necessary is allowed just like questioning and denying searches not supported by probable cause.

Anygun