TexasCHLforum.com

Power corrupts.

Lots to respond to but I'm pressed for time:

I want to point that all searches, without consent, must be based on Probable Cause, as spelled out in 4A.

If exigent circumstances and PC are both present, then absent consent, a warrantless search may be conducted. Quick examples include a person incident to arrest, or a vehicle before arrest.

The part about handing the LEO a holstered gun is interesting, but not likely since most LEOs don't want people handling guns. And some LEOs even turn that persons carry gun into a puzzle piece.

puma guy wrote:

57Coastie wrote:

NEB wrote:My understanding is that without probably [sic] cause, it's an illegal search.

Once again I feel obliged to note, with respect, that probable cause is required by the 4th Amendment only when a warrant is sought. Jim

I believe you are incorrect in making the statement the 4th Amendment only applies to seeking a warrant.

I did not say that. I would suggest that you read my post again, carefully, focusing on every word, and every thought, one at a time. I said that the 4th Amendment itself requires that probable cause need be had only to obtain a warrant. If a warrant is not obtained, a search need only not be unreasonable.

If you still do not understand, so be it. I cannot do any better.

Jim

gigag04 wrote:Lots to respond to but I'm pressed for time:
I want to point that all searches, without consent, must be based on Probable Cause, as spelled out in 4A.

With respect, the 4th Amendment does not "spell that out." I again submit that it "spells out" that probable cause must be had only before a warrant may be issued.

Let me try one more way. I am going to take the liberty of quoting my reply this morning to a PM of a forum member who most courteously requested that I elaborate a bit on this.

QUOTE

I can do no better than to simply suggest that one read the 4th Amendment carefully:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

and

no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I have broken the amendment, above, into its two operative clauses:

(1) Searches and seizures, in general, any and all of them, may not be unreasonable,

and

(2) A warrant may not issue for a search and/or seizure without probable cause.

It must be noted that nowhere does the 4th define "reasonable" or "unreasonable." This is what a judge has to do when a criminal defendant appeals an earlier determination by an LEO and/or a prosecutor. I cannot do it for you... The best definition of "unreasonable" I have ever heard was the same as a justice on the Supreme Court of the United States once gave for "pornography:"

"I cannot define it for you, but I will know it when I see it."

I hope this is helpful. It is a real important distinction, and it should be recognized, particularly, by those of us owning, carrying, and using deadly weapons.

Jim

UNQUOTE

As a very simple example: A search must be "reasonable." Consent is given for the search. Therefore the search is "reasonable."

Contrasted with, "probable cause is needed unless consent is given."

Those are two very different sentences and concepts.

Jim

My cousin and his wife relayed an experience to me when I saw them on Thanskgiving. They were stopped for 5 mph over (North Texas area), and my cousin was carrying under CHL and duly handed over DL and CHL. The LEO disarmed him, unloaded the firearm, unloaded the magazine, disassembled the firearm, and placed the individual pieces (slide, frame, barrel, recoil spring assembly) on different parts of the vehicle. My cousin was instructed that he could reassemble the weapon after the officer left. My other cousin's husband, who was a detective for years, was livid when he heard the story.

57Coastie wrote:

puma guy wrote:

57Coastie wrote:

NEB wrote:My understanding is that without probably [sic] cause, it's an illegal search.

Once again I feel obliged to note, with respect, that probable cause is required by the 4th Amendment only when a warrant is sought. Jim

I believe you are incorrect in making the statement the 4th Amendment only applies to seeking a warrant.

I did not say that. I would suggest that you read my post again, carefully, focusing on every word, and every thought, one at a time. I said that the 4th Amendment itself requires that probable cause need be had only to obtain a warrant. If a warrant is not obtained, a search need only not be unreasonable.

If you still do not understand, so be it. I cannot do any better.

Jim

Pearls of wisdom, eh? So, who defines "unreasonable"? When does the search become "unreasonable"? What if an officer feels they NEED to go that extra step or their job might be in jeopardy or they feel they can get promoted by picking up enough "brownie points"? Then they extrapolate to checking every serial number every time, just to cover the bases (and perhaps their backsides). Is that "reasonable"? I'm not saying I want law enforcement to expose themselves to any more danger than they have to in the course of their duty but there has to be a line SOMEWHERE...otherwise, why would they EVER need a warrant?

NEB wrote:My cousin and his wife relayed an experience to me when I saw them on Thanskgiving. They were stopped for 5 mph over (North Texas area), and my cousin was carrying under CHL and duly handed over DL and CHL. The LEO disarmed him, unloaded the firearm, unloaded the magazine, disassembled the firearm, and placed the individual pieces (slide, frame, barrel, recoil spring assembly) on different parts of the vehicle. My cousin was instructed that he could reassemble the weapon after the officer left. My other cousin's husband, who was a detective for years, was livid when he heard the story.

A similar thing happened to me, NEB. I was involved in a fender-bender (for which the other driver was cited, BTW) and I called the local police with my cell phone and exchanged the standard info with the other driver. While I was snapping photos, a young LEO responded to my call, and asked me for my driver's license and proof of insurance. I handed her my driver's license, my proof of insurance, and my CHL. She looked at the CHL, asked me to move away from her, and called (I assume) her station and asked what a CHL was.

Her face turned a nice shade of green and she asked me if I was armed. I responded that I was, and that it was holstered inside my right waistband. Her face changed from green to purple and she directed me to place the weapon under the seat of my car (she did not clear it nor have me clear it).

She finished her report of the accident, and left without a further word about the handgun.

I it appeared clearly to me that she had never been taught about CHLs prior to being turned loose on the public. I did not fault her, but I did (silently) fault her superiors.

To contrast, a couple of months earlier I was involved in another fender-bender, for which this time I was cited. I called the police, and when the officer arrived on scene he of course asked for my DL and proof of insurance. I handed him the DL, the proof of insurance, and my CHL. He just quickly glanced at the CHL, and said, "I don't need that."

Lesson -- while one should always be respectful of an LEOs position and authority, I would never leap to an assumption that he or she was well-trained -- or even, in some cases, that he or she was very smart.

Jim

Heartland Patriot wrote:

57Coastie wrote:

puma guy wrote:

57Coastie wrote:

NEB wrote:My understanding is that without probably [sic] cause, it's an illegal search.

Once again I feel obliged to note, with respect, that probable cause is required by the 4th Amendment only when a warrant is sought. Jim

I believe you are incorrect in making the statement the 4th Amendment only applies to seeking a warrant.

I did not say that. I would suggest that you read my post again, carefully, focusing on every word, and every thought, one at a time. I said that the 4th Amendment itself requires that probable cause need be had only to obtain a warrant. If a warrant is not obtained, a search need only not be unreasonable.

If you still do not understand, so be it. I cannot do any better.

Jim

Pearls of wisdom, eh? So, who defines "unreasonable"? When does the search become "unreasonable"? What if an officer feels they NEED to go that extra step or their job might be in jeopardy or they feel they can get promoted by picking up enough "brownie points"? Then they extrapolate to checking every serial number every time, just to cover the bases (and perhaps their backsides). Is that "reasonable"? I'm not saying I want law enforcement to expose themselves to any more danger than they have to in the course of their duty but there has to be a line SOMEWHERE...otherwise, why would they EVER need a warrant?

Who defines "unreasonable?" I don't know -- it may be five wise men and/or women on the Supreme Court of the United States. It may be you. It may be a local cop who is not the swiftest guy on the beat. It may be the local DA, who may be a political hack. It may be a local judge bought and paid for by local attorneys. The Founding Fathers knew this, and this is precisely why they did not attempt to define "unreasonable."

The important thing is to know that this question usually gets a subjective answer, unless the precisely same circumstances received judicial review before and a judge wrote a decision explaining her decision. Even then, there may be two or three or more stages of judicial review between her and SCOTUS.

Some questions are not easy ones. Some are very hard. When one gets to the highest court of the land one can usually assume the question was not easy.

That's the way it is, thank goodness.

Jim

From my understanding - and nolo.com,

Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

•Did the person actually expect some degree of privacy?
•Is the person's expectation objectively reasonable -- that is, one that society is willing to recognize?

So, I expect privacy of a pistol in a holster tucked into my waistband. However, the law grants the police the power to disarm me, and once the weapon leaves my waistband, I can no longer expect it to be private.

I would surmise this is perfectly legal. However, if this is the case and the DPS is assuming CHL holders (that they license) are breaking the law and running serial numbers to verify we are not, I will lose a lot of respect for DPS. With that loss of respect comes loss of cooperation, so I may become “that guy” everyone loathes on youtube.

Maybe we need to address this issue in the next legislative session.

Jim - we are in agreement. I just wanted it out there that the PC standard appliess to warrantless searches too.

What concerns me here is that the State now knows that not only are my handgun, serial number xxxxxx and model # yyy not stolen but who they belong to. Other than the fereral background check the state or federal government has no indication that I own a gun. The background check that happened for my CHL and when I purchase a new gun does not include any information about what I am buying. Is the DPS keeping a log of this information when they run a check to see if its stolen?

Abraham wrote:Is this disarming scenario a situation where certain officers (or perhaps mandated by their chief) disagree with the CHL and MPA laws and are doing what they can to discourage the public from lawfully carrying?

That is exactly what it is. There are LEO's that have the mindset they are the only ones that have the right to carry a firearm.

There is also a mindset among many CHL's that believe if you do not take a 10 hour class along with intense firearm training you should not be able to carry a firearm. There are some out there that would like to see the class time raised because they do not believe we have sufficient enough "training."

Both groups are wrong as we have a God given right to protect ourselves. The 2nd amendment just echoes our right.

Grapevinebill wrote:What concerns me here is that the State now knows that not only are my handgun, serial number xxxxxx and model # yyy not stolen but who they belong to. Other than the fereral background check the state or federal government has no indication that I own a gun. The background check that happened for my CHL and when I purchase a new gun does not include any information about what I am buying. Is the DPS keeping a log of this information when they run a check to see if its stolen?

When any serial number is run through TCIC/NCIC, you are basically querying a large, national database, looking for a matching record. If a firearm, gps, TV, equipment, has been entered as stolen, lost, etc, then a record will pop up as a match. I'm not sure if or how long queries are stored, but I highly doubt DPS or any other agency, has brought a separate standalone system online just to catalog owners and guns.

And, let me just add that this is not some user friendly Oracle/SAP built interface with very useable data. It is antiquated and cumbersome in many regards, depending on your interface, and ours is one of the better ones...

gigag04 is one of the good guys in law enforcement...

For all the negative contacts folks might/may have with law enforcement, know there are folks like gigag04 who are there on your side - and also understand most law enforcement is made up of good guys/women like him.

gigag04 wrote:Jim - we are in agreement. I just wanted it out there that the PC standard appliess to warrantless searches too.

Howdy, neighbor.

It is nice hearing that, but I am not sure that we are really completely in agreement. The 4th Amendment, REPEAT the 4th Amendment REPEAT does not inherently apply the probable cause standard to warrantless searches -- warrantless searches must only not be unreasonable. .

It may be that some particular warrantless search is so horridly invasive of individual privacy that a court may decide that probable cause is needed for that kind of search to be reasonable -- in order for it to be a lawful search, placing arguably the highest restraint on the authorities. That is, the judiciary may decide that such a search is so invasive that it will be held to be unreasonable unless the LEO has probable cause. A minor distinction? Not really -- in my opinion

On the other hand, other less invasive warrantless searches by an LEO may require her to have only a reasonable suspicion. How about "stop and frisk?" Is not a reasonable suspicion enough? There is that troublesome word "reasonable" again, raising again the question as to who makes the decision as to reasonableness or unreasonableness. The NYPD is facing some serious challenges these days as to whether the suspicion it requires of its LEOs is "reasonable," or not.

Above I stressed that all my comments have been about the 4th Amendment. I have not addressed things like state constitutions, statutes, federal, state or local, nor have I addressed the policies of any particular LEO organization. There may be more rigorous requirements laid down by such authorities as those, but not requirements less stringent than those of the Bill of Rights.

How about that Johnny Football, gigag04?

Jim