Pepper Spray an Illegal Weapon?

[sjfcontrol]

So, then when asked if you've ever been arrested, people should respond 'yes' if they've ever received a traffic ticket? Many job applicants would never get beyond that point. Seems getting arrested is a LOT easier than I thought!

[90north]

Just to clarify what a "civilian" is. My trusty Webster's New Collegiate Dictionary gives the following; CIVILIAN one not on active duty in a military, police, or firefighting force.

[srothstein]

Hmmm, In a 'normal' traffic stop, like for issuing a speeding ticket, is that an arrest? I thought you were considered "detained", as you were not allowed to leave (if you do, expect to see an aerial view of your moving vehicle on the Fox News channel), yet you were not under arrest.

This is a common misconception. Until the Terry case, there was no such thing as an investigative detention. If the police interfered with your freedom of movement, you were arrested. This required probable cause, of course, which is why the stop in Terry was questioned. There was insufficient probable cause and the suspect's lawyers knew it. Cops had been doing it for years and this time they got caught. The cop made a stop based on his training, experience, and instincts. He was right and SCOTUS did not want the BG to go free, so even though he had broken the law the SCOTUS came up with this concept of just being detained.

The court case that clarified it for Texas was a DWI case out of Plano. The cop was in the wrong city when he made the stop. The defendant argued it based on the jurisdiction issue. The Court of Criminal Appeals had to examine if the law on where a cop could make an arrest applied. They specifically said that a traffic stop was an arrest since the Transportation Code only gives authority for arrests and not for detentions. They even admitted that the officer could unarrest by letting the guy go with a warning.

So, while it really was a jurisdiction case, it clarified that a traffic stop for a violation of the Transportation Code was an arrest. I have not seen any of the court cases on the unintended consequences (like requiring PC for the stop or a Miranda warning when the cop asks if the driver knows why he was stopped) but I expect to one day soon.

If you're arrested, don't they have to tell you "you're under arrest", and Mirandize you?

A person is under arrest when the officer makes it known that he is trying to arrest the person and the person submits to the officer's authority. The making known of the arrest does not have to be oral, but can be signaled in other ways such as turning on red lights and siren or tackling a person who is running. But they are not under arrest until they actually submit - stop fighting or pull over.

And the rules for Miranda are a lot different from what most people think. I only have to advise you of your rights when I am going to ask you questions which could incriminate you AND you are in custody. I can ask anything I want while in your house and never give you your rights. If I ask you to come to the station and talk and let you know you are free to go, I can ask you anything I want. In either case, i would not need to advise you.

But, if you are arrested, as the case says, when I stop you, I would be legally obligated to advise you of your rights when i ask you if you have anything in the car I should know about. This is why the training is now for the officer to finish the traffic stop and give the person his ticket or warning before starting his investigation. At that point the person is free to go and no longer under arrest. Of course, as the SCOTUS recognized last year, the average person will not think he can leave a cop just because he got the ticket already. Just as a passenger would not feel free to leave, a driver will not feel free to leave.

I see a lot of drug cases being lost when a good lawyer realizes exactly how to get the evidence suppressed. The cops are generally violating peoples rights during road side stops.

Now, they COULD do that, put you in the back of the unit, then look up the law, and subsequently release you at the scene, I suppose.

Which is exactly what I think they should be dong. If the cop thinks you committed a crime, and has the cause for it, secure you. Verify all the facts before leaving the scene. If there is a violation, book him and if not, let him go again with apologies.

[srothstein]

So, then when asked if you've ever been arrested, people should respond 'yes' if they've ever received a traffic ticket? Many job applicants would never get beyond that point. Seems getting arrested is a LOT easier than I thought!

Yes, if you have received a traffic ticket, you have been arrested. This is true for Texas where traffic violations are class C misdemeanors. In some states, violations are not considered crimes, just civil infractions. that would make a significant difference.

But most applications now ask for convictions instead of arrests. They also specifically exclude minor traffic violations and the like. If you come across one that doesn't say yes and explain it in the details. It would make one heck of a court case when they turn you down.

[Kevinf2349]

So, then when asked if you've ever been arrested, people should respond 'yes' if they've ever received a traffic ticket? Many job applicants would never get beyond that point. Seems getting arrested is a LOT easier than I thought!

Yes, if you have received a traffic ticket, you have been arrested. This is true for Texas where traffic violations are class C misdemeanors. In some states, violations are not considered crimes, just civil infractions. that would make a significant difference.

But most applications now ask for convictions instead of arrests. They also specifically exclude minor traffic violations and the like. If you come across one that doesn't say yes and explain it in the details. It would make one heck of a court case when they turn you down.

Interesting. When I was applying for my citizenship I put down that I was arrested for a speeding offence in 1999 and I was told by the US Government offical that in the US that didn't qualify as an arrest. He said that was a common misconception.

I wish there was some definitive answer on this......not that I intend to test these things out of course.

[srothstein]

Kevin,

There is a lot of confusion on this. Part of it is dependent on what state you are in. In Texas, traffic offenses are crimes. In California, they are civil infractions. You cannot be arrested for a civil infraction. The US government would have its own opinion anyway, and that might be based on how the feds see traffic and not a specific state. The feds do write some tickets and they go to the federal Magistrate system instead of to courts with real judges (I bet the Magistrates would hate my calling them not real judges "lol: ).

It is really more of a minor academic interest and fine point in how the laws get applied. In 99.999% of the cases, you can honestly answer no and no one would argue with you.

[dicion]

This is why the training is now for the officer to finish the traffic stop and give the person his ticket or warning before starting his investigation. At that point the person is free to go and no longer under arrest. Of course, as the SCOTUS recognized last year, the average person will not think he can leave a cop just because he got the ticket already. Just as a passenger would not feel free to leave, a driver will not feel free to leave.

Thats good to know. So as soon as I sign the paper, and get my ticket, even if the cop starts asking other questions, I can just drive off?

Im guessing the better thing to do would be to ask 'Am I being detained?' and if they answer 'No', which, according to you, they should at this point, then drive off.

[sjfcontrol]

srothstein -- Very informative postings -- thanks for the detailed information.

I see from your profile you're a Training Coordinator at TABC. I presume that this position involves knowledge of and training others in how Texas law works?

PS -- When was the "Terry" case, and where can more info regarding it be found?

[chabouk]

When was the "Terry" case, and where can more info regarding it be found?

http://en.wikipedia.org/wiki/Terry_v._Ohio" onclick="window.open(this.href);return false;

[srothstein]

srothstein -- Very informative postings -- thanks for the detailed information.

I see from your profile you're a Training Coordinator at TABC. I presume that this position involves knowledge of and training others in how Texas law works?

Oops. I forgot to change the profile, thanks for reminding me. I was the training coordinator for TABC but have moved over to teh Property Tax Divisiion in the Comptroller's office. I am also applying for a reserve police officer job.

But in addition to that position, I have worked for about 30 years in law enforcement. That includes the military police, San Antonio PD, and Luling PD before I went to TABC. My bachelor's is in criminal justice and my master's is in management. I started a doctorate in leadership studies but I was just accepted to transfer to Texas State for their doctorate program in criminal justice. I guess you could say I am dedicated to being a cop and improving law enforcement. I really have no use for bad cops, including dumb ones who refuse to learn the law, or who abuse it.

PS -- When was the "Terry" case, and where can more info regarding it be found?

In addition to the wikipedia article already mentioned, you can read it on findlaw and in almost any law enforcement testbook from your local library.

[Skiprr]

I guess you could say I am dedicated to being a cop and improving law enforcement.

God Bless and Godspeed.

While there are many other dedicated LEOs out there in Texas, we can only hope you are cloned...and many times over.

Thanks, Steve.

[Kevinf2349]

I guess you could say I am dedicated to being a cop and improving law enforcement.

God Bless and Godspeed.

While there are many other dedicated LEOs out there in Texas, we can only hope you are cloned...and many times over.

Thanks, Steve.

[KD5NRH]

Oops. I forgot to change the profile, thanks for reminding me. I was the training coordinator for TABC but have moved over to teh Property Tax Divisiion in the Comptroller's office. I am also applying for a reserve police officer job.

But in addition to that position, I have worked for about 30 years in law enforcement. That includes the military police, San Antonio PD, and Luling PD before I went to TABC.

Geez, you just can't hold a job, can you?

[03Lightningrocks]

Oops. I forgot to change the profile, thanks for reminding me. I was the training coordinator for TABC but have moved over to teh Property Tax Divisiion in the Comptroller's office. I am also applying for a reserve police officer job.

But in addition to that position, I have worked for about 30 years in law enforcement. That includes the military police, San Antonio PD, and Luling PD before I went to TABC.

Geez, you just can't hold a job, can you?

[RPB]

I'm very supportive of Law Enforcement. Customized weapons for Pasadena PD for years etc., But this law still baffles me as the Legislature wrote it.


Texas Penal Code - Section 46.05. Prohibited Weapons
a) A person commits an
offense if he intentionally or knowingly possesses, manufactures,
transports, repairs, or sells:
(8) a chemical dispensing device;
(14) "Chemical dispensing device" means a device,
other than a small chemical dispenser sold commercially for
personal protection, that is designed, made, or adapted for the
purpose of dispensing a substance capable of causing an adverse
psychological or physiological effect on a human being.


I'm not seeing where strength matters?
Many years ago, the local police carried "law enforcement strength" 5% OC
while I used to carry "Bear and Dog deterrant strength" 10% OC .... so I wasn't carrying "law enforcement strength," since theirs was only half as strong as mine.

I guess size DOES matter ( I hope this doesn't apply to my Uric acid sprayer, I'll have to stop taking Viagra )

But seriously, let me get this straight. I can have a small salt shaker to throw salt (Sodium Chloride chemical) into a bad guy's eyes, but not a big one right? I wonder how small is small, and how big is too big?
I live in the country since I retired and if I'm spraying a rabid animal, or run into a pack of wild dogs, I'd really hate for "the well to run dry"
Why didn't Legislators just say "up to xx Ounces" sheesh. Then maybe I could carry 15 "small ones" instead of 1 that was "too large?"

e) An offense under this section is a felony of the third
degree unless it is committed under Subsection (a)(5) or (a)(6), in
which event, it is a Class A misdemeanor

I don't carry a spray nowadays, I've been thinking about buying and carrying spray again when going out fishing/hunting. ( I have encountered a pack of abandonded stray wild dogs between myself and my car when walking back from a lake where I had fished, didn't have spray, and didn't want to shoot them, they did NOT want me to get close to or get into my car, I got home several hours late)

So, I've been thinking about buying and carrying spray again, but I"d hate to lose my Concealed Handgun License because of a conviction for a Salt Shaker being "too big"

Why didn't Legislators just say "up to xx Ounces" sheesh.

On a side note related to "capable of causing an adverse psychological or physiological effect"
Dogs really have an adverse psychological or physiological effect and really hate it if you pee on a tree they already marked as their territory. So, be careful where you dispense your chemicals while out in the woods.