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Terry Stop Hypothesis for Lawyers
- Thread starter Bartholomew Roberts
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Brian Pfleuger
Moderator Emeritus
kodiakbeer said:Which is why the rest of us should remember the golden rules of dealing with the police. Never give a policeman permission to search your home or vehicle. Keep your mouth shut beyond the words "Yes" or "No".
Denying permission to search your vehicle will do you no good with an officer who believes as WagonMan apparently believes. I would wager that all you would accomplish is wasting your time sitting on the roadside waiting for the K9 to show up and sniff around your vehicle.
If you're lucky, they won't call a hit and search your vehicle anyway, just because you had the gall to refuse the search.
Either way, the best thing that happens is you waste an hour of your day.
It would be easier in my world to just consent to the search and be on my way. I have nothing to hide anyway. I may as well let the cop have his power trip.
ScottRiqui
New member
You have asked Coppers what do they do when they catch someone in a lie? I find it hard to believe that a Copper would not further investigate someone they caught lying to them.
This may be where what I'm understanding isn't what you're intending to say.
Are you saying that when an unarmed subject doesn't spontaneously volunteer the fact that he has a CHL, that he's somehow "lying" to you or being "evasive"?
kodiakbeer
Moderator
Denying permission to search your vehicle will do you no good with an officer who believes as WagonMan apparently believes. I would wager that all you would accomplish is wasting your time sitting on the roadside waiting for the K9 to show up and sniff around your vehicle.
I have lots of time. Let them waste their time, then call an attorney - remember it's all recorded. I have nothing to hide, so refusal to cede my own 4th amendment rights is not a valid reason for him to violate my 4th amendment rights. At that point, he's the criminal, not me. I'm not going to yield to criminals, badged or otherwise.
Bartholomew Roberts
Moderator
In Texas, I believe that if you do not have a CHL and you have a weapon in the vehicle, the weapon has to be secured outside of one's arm reach.
For the record, this is an incorrect statement of Texas law.
"Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person's own premises or premises under the person's control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person's control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01."
The weapon cannot be in plain view, other than that, you are OK as long as you can legally possess the weapon and aren't doing something illegal.
And while currently, Texas does not require you to notify a LEO that you have a CHL, I believe that it is in one's best interest to do so.
This is also an incorrect statement of Texas law.
"Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's handgun license. "
kodiakbeer
Moderator
And while currently, Texas does not require you to notify a LEO that you have a CHL, I believe that it is in one's best interest to do so.
This is also an incorrect statement of Texas law.
Sec. 411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is carrying a handgun on or about the license holder's person....
Are you saying that when an unarmed subject doesn't spontaneously volunteer the fact that he has a CHL, that he's somehow "lying" to you or being "evasive"?
*
No, I am saying that if I ask you a direct question and you lie to me I will investigate the matter thoroughly. It isn't about some power trip. It is me doing my job
kodiakbeer
Moderator
No, I am saying that if I ask you a direct question and you lie to me I will investigate the matter thoroughly. It isn't about some power trip. It is me doing my job
Your job is to ask people if they have a CHL? Do you also ask about their gym membership, political party, bowling score, religion, ethnicity, religion, tighty-whitey vs boxer preference, marital status?
I'd suggest your job is to ask for a drivers license, registration and proof of insurance, unless you see a bag of heroin or a gun lying in plain view.
Your job is to ask people if they have a CHL? Do you also ask about their gym membership, political party, bowling score, religion, ethnicity, religion, tighty-whitey vs boxer preference, marital status?
No, I ask anything I think is relevant to the T-stop. Whether or not you have a weapon is something I am interested in.
kodiakbeer
Moderator
No, I ask anything I think is relevant to the T-stop. Whether or not you have a weapon is something I am interested in.
Why would having a weapon be relevant to a traffic stop? If he's a CHL holder, he's already obligated to tell you if he has a weapon on his person. If he's not a CHL holder, whether he may or may not have a firearm in his car is none of your business.
I did the LEO thing for quite a few years but never developed the "us-against-them" mentality. I've also been a CHL holder since shortly after they were introduced here in the great state of Texas. I know several CHL instructors and of course, quite a few cops. In my CHL class we were told of the law (quoted earlier by Batholomew Roberts) but were also encouraged to go one step further; to present the license anytime a peace officer asked for ID and to let them know if and what we were carrying. It's my opinion that a CHL is proof that the licensee is a law-abiding citizen and most cops think as I do.
Cops are taught to expect the worst, some see things a bit differently than I do. I always saw CHL carriers as allies, not adversaries. Cops have enough enemies without making more. I was a pretty fair report writer but never felt the need to use that skill to criminalize a marginal act. I could make all the good arrests or write all the good tickets I wanted to, most times more. Never made an arrest for simply "P***ing off the Police". Never wrote a ticket just to generate numbers, never needed to. Nice thing about making good arrests is that after awhile you don't go to court much. A good arrest and a good report are pretty hard to beat in court and attorneys on both sides recognize that. JMHO, of couse, but it worked for me.
Cops are taught to expect the worst, some see things a bit differently than I do. I always saw CHL carriers as allies, not adversaries. Cops have enough enemies without making more. I was a pretty fair report writer but never felt the need to use that skill to criminalize a marginal act. I could make all the good arrests or write all the good tickets I wanted to, most times more. Never made an arrest for simply "P***ing off the Police". Never wrote a ticket just to generate numbers, never needed to. Nice thing about making good arrests is that after awhile you don't go to court much. A good arrest and a good report are pretty hard to beat in court and attorneys on both sides recognize that. JMHO, of couse, but it worked for me.
Why would having a weapon be relevant to a traffic stop? If he's a CHL holder, he's already obligated to tell you if he has a weapon on his person. If he's not a CHL holder, whether he may or may not have a firearm in his car is none of your business.
You have an interesting concept of what is or is not the Copper's interest on a traffic stop. You really didn't just ask why the person being stopped for at least breaking traffic law is being queried as to whether or not he or she is armed. It is attitudes like this that beget bad laws. Are you really staking out the position that a Police Officer cannot interview offenders?
ScottRiqui
New member
Wagonman, I think you and I may have been picturing different scenarios all along.
An unarmed CHL holder has no responsibility or legal requirement to spontaneously bring up the fact that possesses a CHL, but if you decide for whatever reason to ask if he has a weapon and he flat-out refuses to answer, I agree that should raise your suspicions, and would probably serve as justification for a Terry frisk and vehicle search.
Now, if you find something in the car other than a weapon (drugs or stolen property, for instance), its admissibility would likely be a matter for an evidentiary hearing.
An unarmed CHL holder has no responsibility or legal requirement to spontaneously bring up the fact that possesses a CHL, but if you decide for whatever reason to ask if he has a weapon and he flat-out refuses to answer, I agree that should raise your suspicions, and would probably serve as justification for a Terry frisk and vehicle search.
Now, if you find something in the car other than a weapon (drugs or stolen property, for instance), its admissibility would likely be a matter for an evidentiary hearing.
vranasaurus
New member
Scott,
Refusing to answer the question of a police officer, i.e. invoking your right to remain silent, can not be the basis for pulling someone out of a vehicle for a terry search.
Refusing to answer the question of a police officer, i.e. invoking your right to remain silent, can not be the basis for pulling someone out of a vehicle for a terry search.
ScottRiqui
New member
Re-read Terry v. Ohio regarding frisks and the subsequent Michigan v. Long regarding vehicle searches. They both basically set a lower standard for "reasonable suspicion" in the case where the officer has a reasonable suspicion that the subject may be armed. The searches aren't used predominantly for evidence-gathering the way other searches are - they're used out of concern for the officer's safety.
I personally don't believe that an unarmed person neglecting to mention having a CHL fits the requirement (although a lawyer friend of mine disagrees), but if an officer asks a subject point-blank if he has a weapon and the person refuses to answer, even I agree that would justify a Terry frisk and vehicle search. But again, the admissibility of any non-weapon-related evidence may be in question.
I personally don't believe that an unarmed person neglecting to mention having a CHL fits the requirement (although a lawyer friend of mine disagrees), but if an officer asks a subject point-blank if he has a weapon and the person refuses to answer, even I agree that would justify a Terry frisk and vehicle search. But again, the admissibility of any non-weapon-related evidence may be in question.
No, I ask anything I think is relevant to the T-stop. Whether or not you have a weapon is something I am interested in.
According to your own words... If i am stopped for doing 7 over the posted speed limit of 45mph, I would expect you to be interested in...
1)I am a licensed driver
2)Do i have current required insurance
3)Do I have a current vehicle registration
4)Did I know i was speeding
5)Why was I speeding
6)Could it be a defective speedometer
Nothing about, again in your own words, this traffic stop has any "relevance" to my possibly carrying a loaded firearm legally in my center console or under my seat... so why would you ask?
The reason i don't keep it in the glove box is I don't want to have to explain to an officer that I will be revealing my loaded firearm when I go to retrieve my paperwork...
Brent
kodiakbeer
Moderator
Are you really staking out the position that a Police Officer cannot interview offenders?
Beyond what is pertinent to the offense? Absolutely. If you pull me over for a traffic violation, then appropriate questions might be: "Have you been drinking or taking prescription drugs?" "Did you see that speed limit sign back there?"
If you ask me if I'm a CHL holder or if I have a gun in my car (a perfectly legal thing to have in most states), then you are merely fishing - using a traffic stop to harass a citizen. I'm going to politely answer your questions and do so truthfully, but you're going beyond the bounds of what a public servant should be doing. As a CHL holder I'm already obligated to tell you if I have a firearm on my person.
If you ask permission to search my car, the answer is going to be "No". You're going to have to lie to create probable cause or get a warrant. I'm not going to be intimidated into ceding my 4th Amendment rights.
Scott, you got it.
Kodiak, I wOuld reread Terry if I were you. Terry allows me to be reasonably inquisitive in my dealings with the public. I would advise anyone not to lie and be reasonably forthcoming in interactions with the Police. As I have said repeatedly I am not "fishing" to jam up Joe Legit with my initial questioning I am attempting to fully understand who I am dealing with.
Dogs, the why doesn't matter as far as the law. It matters that you are committing the violation. It might mitigate the enforcement but not the illegality.
Kodiak, I wOuld reread Terry if I were you. Terry allows me to be reasonably inquisitive in my dealings with the public. I would advise anyone not to lie and be reasonably forthcoming in interactions with the Police. As I have said repeatedly I am not "fishing" to jam up Joe Legit with my initial questioning I am attempting to fully understand who I am dealing with.
Dogs, the why doesn't matter as far as the law. It matters that you are committing the violation. It might mitigate the enforcement but not the illegality.
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