1) Husband and wife both have CHLs
2) They go out to a party, he drinks, she is the designated driver and does not drink at all
3) They get stopped by police on the way home
4) She displays her CHL and says that there is a gun in the center console of the car and that it is under her control
5) The husband is sitting in the passenger seat with a buzz on, his CHL in his pocket, and a gun not a foot away
Thanks in advance...
Instead of a gun - let's make it a cookie of unsmoked crack rock. Can he be charged with it? Not really, unless the officer can prove that the passenger, regardless of his relationship to the driver, knew about it. I believe the courts would treat this the same. If the passenger knew about it, it could TECHNICALLY (though it would be extremely feather-legged and weak) be construed as possession. But, in my experience, objects in the the common area always default to being under the care, custody, and control of the driver, which IMHO equals possession.
I think in most cases, the ofc would be more pleased with the choice of having a sober driver, rather than wasting time construing some strange UCW CHL case that the CA probably would drop anyway. Sroth may have a deeper understanding of this than I do though.
Also I'll go on record as saying if you are "buzzed" there is a good chance that you're past a .08 bac...
Opportunity is missed by most people because it is dressed in overalls and looks like work. - Thomas Edison
sjfcontrol wrote:Umm, anybody else have a problem with this? He's concerned about a plastic sack in the back seat? Clothing? Aunt Martha's Double-Chocolate Chip Cookies? Household goods from Walmart? Could be anything. No reason to think it's anything illegal. Even an unopened 6-pack of beer would not be illegal. What was this all about?
He was afraid Terrell Bolton might be trying to sneak back to Dallas in disguise, from the other direction, bringing in more powdered gypsum for another round of embarrassments.
sjfcontrol wrote:
Umm, anybody else have a problem with this? He's concerned about a plastic sack in the back seat? Clothing? Aunt Martha's Double-Chocolate Chip Cookies? Household goods from Walmart? Could be anything. No reason to think it's anything illegal. Even an unopened 6-pack of beer would not be illegal. What was this all about?
Wouldn't want my wife stepping out of the car at midnight, regardless of LEO or not, but no real problem with asking what's in the plastic bag. I'm not going to be hiding anything.
The LORD is my light and my salvation; whom shall I fear? the LORD is the strength of my life; of whom shall I be afraid? Psalms 27:1
If an officer asks what's in the bag and you respond, is that considered implicit permission to search which you would have to actively and directly revoke?
Pray as though everything depended on God. Work as though everything depended on you. -St. Augustine We are reformers in Spring and Summer; in Autumn and Winter we stand by the old; reformers in the morning, conservers at night. - Ralph Waldo Emerson
When you are stopped, no one has any obligation to answer any questions or take any field sobriety tests. The driver is obligated to show his driver's license and his proof of financial responsibility. The passenger is under no obligation to do anything. Depending on how you view the law, the driver may be required to take a breathalyzer test. This cannot even be offered to a passenger (not the in station machine anyway, the portable ones can be offered but don't count).
BUT, the tactics of getting through the stop without significant legal problems may dictate your doing something you do not want to. Cops will give a break to someone who is cooperative much quicker than to someone who is uncooperative.
Thanks to recent court rulings, we have a very confused state of affairs right now. The Texas Court of Criminal Appeals ruled in the Kurtz case that a traffic stop is an arrest of the driver (and therefore the officer must be legally authorized to make an arrest). But this ignored the passenger. A couple years ago, the SCOTUS ruled that the passenger was also legally detained, which means he can legally question the grounds for the traffic stop. Texas, of course, does not require you to do anything, even identify yourself, when you are detained. We do forbid lying about your identity but do not require an answer.
The officer may always ask about anything, even the plastic bag on the back seat. If you mention being in a rock band, I can almost guarantee he will look for both alcohol and marijuana. And nothing requires you to answer. If you do answer, it is not consent to a search, which must be requested separately. But even knowing that, a couple weeks ago, the SCOTUS ruled that an illegal search that was based on the belief it was legal, was legal. Given past rulings requiring unequivocal statements to protect your right, I would suggest that you make a clear statement that you do not wish to consent to any searches. The same goes for any statements. And remember that you have the right to stop questioning at an time.
The final question to be looked at is who possesses the firearm. As GigAg04 said, 90% of the time, anything in the car goes as possession of the driver unless someone else specifically claims it. But there is a legal theory of constructive possession. This basically says anyone who knew it was there may be charged with possession, especially if there is more than enough to be used by both concerned parties. For a single firearm, this might be harder to prove but an ambitious, anti-gun cop, might claim both are in possession when it is available to either. I don't think the courts would buy it, but that have bought a lot of stuff that I did not understand.
Final conclusion: There is some gray in the possession charge. The passenger is safe from a PI unless he is so drunk he is dangerous. And cooperating makes it much more likely you will go down the road, though it is not a guarantee and might be more unpalatable to some.
Well, maybe I am too cautious. I tell my students about this same identical scenario in my CHL classes. I tell them that "in my opinion" if the passenger is intoxicated it would be best that he/she not have a firearm within reach. Why flirt with the gray areas?
I am glad this stop went so well, although I am really suprised. Had that been here in Corpus it might have gone another direction.
So am I wrong to tell my students to avoid this situation?
Carry safe and carry when and where you can. I'm just sayin'.
Seabear wrote:Well, maybe I am too cautious. I tell my students about this same identical scenario in my CHL classes. I tell them that "in my opinion" if the passenger is intoxicated it would be best that he/she not have a firearm within reach. Why flirt with the gray areas?
I am glad this stop went so well, although I am really suprised. Had that been here in Corpus it might have gone another direction.
So am I wrong to tell my students to avoid this situation?
No. As long as you phrase it as your opinion and your personal advice. It's no different than giving advice to carry something more powerful than a .32ACP, or expressing an opinion that CHL should boycott 30.06 instead of disarming.
Where instructors cross the line is making up stuff because they're ignorant, or telling lies about what the law says to suit their personal prejudices, religious beliefs, etc. A knowledgeable student does society a service when they report the liars to DPS.
