Is this a search and is it legal?

[R_Bert]

Hi R_Bert

Maybe some of those would be useful. Dunno.

Am hoping that the odds of "getting lucky" in this way are so remote that it is not worth making unusual preparations. Perhaps it would be like making detailed plans on how best to avoid being hit by a meteor.

On the other hand, the odds of being randomly set-up may be greater than the odds of being hit by a meteor, or even the odds of being hit by lightning. Hopefully not drastically more probable than a lightning strike. On the other hand, it is prudent to take precautions against lightning strikes regardless of the odds. For instance, the odds of being hit by lightning are greatly enhanced if you happen to be standing on a hill in the pasture during a lightning storm.

Its hard to say.

No doubt, prevention is key, but under the premises of my question, (at which point probability = 1) response has not been addressed.

The more I think about it, the less inclined I am to consent to search without warrant (same for my house as well). Apparently, from what I am reading, there is not a procedural system of safeguards in place, regardless of how "low-profile" one remains.

It sort of seems analagous to the "never take a breathalyzer" maxim. If you *are* pulled over, and officer asks to search, then you are probably screwed, whether you submit or not.

[Richard995]

I don't have a HCP and don't plan on getting one just for this reason. I don't want to give an LEO a reason to search. I got pulled over about 2 years ago by a Columbia LEO for doing 2 miles under the speed limit. Yes, I gave him a little lip and he searched my car without my permission. He stated a Vet shouldn't be going so slow. I contacted the chief and he defended his officer.

BTW that LEO is now in jail on other charges.

[DaveTN]

It's not my ruling, blame SCOTUS, you can only search the vehicle if the person is in it for officer safety, otherwise you need PC or a warrant.

Rarely is a warrant needed for a vehicle search. It is an Officer Safety issue if he says it is; but you can battle that out later in court. But not only that, it doesn’t matter whether you are in the car or not. It’s illegal to carry a loaded gun in Tennessee on you, or in your car. So if the Officer thinks you look like a dirt bag or maybe thinks you have been drinking and don’t want you near a gun while he’s conducting a traffic stop; that’s fine….HCP or not… that’s the law.

If he finds something in plain view he has PC for a search; no warrant needed.

If you don’t have an HCP and tell him no when he asks if you have any firearms; he would need PC or permission to enter the vehicle. (You can’t get a warrant for a vehicle without PC and if you have PC you generally wouldn’t need a warrant)

[Fallguy]

I don't have a HCP and don't plan on getting one just for this reason. I don't want to give an LEO a reason to search. I got pulled over about 2 years ago by a Columbia LEO for doing 2 miles under the speed limit. Yes, I gave him a little lip and he searched my car without my permission. He stated a Vet shouldn't be going so slow. I contacted the chief and he defended his officer.

BTW that LEO is now in jail on other charges.

You can get a HCP....just don't hand it over with your DL like some do...

[JayC]

You can get a HCP....just don't hand it over with your DL like some do...

Also, you're only required to display your permit on request... law doesn't say you have to answer officers questions... just don't lie to them

[DaveTN]

Also, you're only required to display your permit on request... law doesn't say you have to answer officers questions... just don't lie to them

You have to answer the question “Are you armed or have any weapons in the vehicle?” Refusal to answer that question could result in the loss of your HCP if you are carrying.

[Oh Shoot]

You have to answer the question “Are you armed or have any weapons in the vehicle?” Refusal to answer that question could result in the loss of your HCP if you are carrying.

I'll bite, Dave. You base this on ___?

- OS

[TMF]

Rarely is a warrant needed for a vehicle search. It is an Officer Safety issue if he says it is; but you can battle that out later in court. But not only that, it doesn’t matter whether you are in the car or not. It’s illegal to carry a loaded gun in Tennessee on you, or in your car. So if the Officer thinks you look like a dirt bag or maybe thinks you have been drinking and don’t want you near a gun while he’s conducting a traffic stop; that’s fine….HCP or not… that’s the law.

If he finds something in plain view he has PC for a search; no warrant needed.

If you don’t have an HCP and tell him no when he asks if you have any firearms; he would need PC or permission to enter the vehicle. (You can’t get a warrant for a vehicle without PC and if you have PC you generally wouldn’t need a warrant)

T.C.A. 39-17-1351(t)

Any law enforcement officer of this state or of any county or

municipality may, within the realm of the officer’s lawful jurisdiction

and when the officer is acting in the lawful discharge of the officer’s

official duties, disarm a permit holder at any time when the officer

reasonably believes it is necessary for the protection of the permit

holder, officer or other individual or individuals. The officer shall

return the handgun to the permit holder before discharging the permit

holder from the scene when the officer has determined that the permit

holder is not a threat to the officer, to the permit holder, or other

individual or individuals provided that the permit holder has not

violated any provision of this section and provided the permit holder

has not committed any other violation that results in the arrest of the

permit holder.

I don't believe "reasonably necessary" is defined by a HCP holder simply having a weapon. Perhaps signs of drunkeness is a reason, but just "looking" like a dirtbag? I don't buy that. Often when I'm doing yard work or remodeling parts of my home I make frequent trips to the dump and I'm not dressed professionally. I guess I probably look like a dirtbag. This shouldn't be reason to disarm me. If an officer decides to disarm me for no reason and then runs the numbers on my weapon (which violates my Constitutional rights) there will be a fallout in regards to the civil leadership contacted regarding the violation of my rights.

Once again, I'm not getting into a pissing match on the side of the road. I don't have time for that, nor do I think I would win. I will make sure the issue is addressed after the fact. A Law Enforcement Officer is there to enforce the law. I don't see how disarming a law abiding citizen or finding reason to search a vehicle is enforcing any law. And to counter the argument of "the LEO doesn't know if they're a law abiding citizen", well, that should always be the assumption of a LEO until he has reason to suspect the citizen of breaking the law. Being prepared for the worse/having situational awareness and assuming everyone is a criminal are two totally different things.

[Makiaveli]

I'm gonna make a wild guess and hope it doesn't hurt anybody's feelings. Am not claiming anything generally applicable to police.

Drive a recent-model clean vehicle of average value, follow all the traffic laws, and don't look like the kind of person a policeman might not like.

I have been lucky to have been stopped very few times and only one time where I would consider I was "hassled" by the cop. I always drive cautiously. Have NEVER been stopped driving a clean nice-looking vehicle and following the law. Was stopped one time in a clean-looking vehicle when I was accidentally driving too fast because I didn't notice a construction sign.

Except for the valid speeding stop, every one of my few stops was when driving a falling-apart junker vehicle.

Possibly in some cases driving TOO nice a vehicle could invite extra attention, unless you also look like a rich fat cat? Dunno.

Maybe my findings were just random chance with no valid relevance.

Me being fiscally responsible and driving a paid for '97 Crown Vic with a family installed dent in the side should have ****-all to do with me being pulled over. Before I got a "professional" type job, I had long hair. That shouldn't be a justification to harass me. Lastly, if I choose to help save the planet (has nothing to do with being lazy ) by virtue of not wasting water to wash my car, that also should not have a bearing on it.

Now I get that my car looks like a drug-dealer's car. If I needed a haircut 6 weeks ago, I get that an officer is going to be itching for an excuse to pull me over. If I give him one, I have no problem with it.

But your attitude that I should have to buy a nicer car and adjust my grooming standards etc etc in order to not be harassed irks me. I get that you don't mean it that way, and maybe I am tired and reading too much into it.

So no hard feelings, well no permanent ones anyway, Deal?

[Makiaveli]

I'll bite, Dave. You base this on ___?

- OS

Wouldn't this go back to a HCP is just a defense to the crime of carrying a weapon? So failing to reply in the affirmative would be effectively concealing the fact that you are committing a crime. Technically.

[Oh Shoot]

Wouldn't this go back to a HCP is just a defense to the crime of carrying a weapon? So failing to reply in the affirmative would be effectively concealing the fact that you are committing a crime. Technically.

There's a charge called "concealing your crime" on top of committing it? Is it a misdemeanor or a felony?

(Afraid that I must call horse pucky on that premise, even though it does sound quite Machiavellian, Makiaveli)

- OS

[Guest pfries]

There's a charge called "concealing your crime" on top of committing it? Is it a misdemeanor or a felony?

(Afraid that I must call horse pucky on that premise, even though it does sound quite Machiavellian, Makiaveli)

- OS

[Guest Lester Weevils]

Me being fiscally responsible and driving a paid for '97 Crown Vic with a family installed dent in the side should have ****-all to do with me being pulled over. Before I got a "professional" type job, I had long hair. That shouldn't be a justification to harass me. Lastly, if I choose to help save the planet (has nothing to do with being lazy ) by virtue of not wasting water to wash my car, that also should not have a bearing on it.

Now I get that my car looks like a drug-dealer's car. If I needed a haircut 6 weeks ago, I get that an officer is going to be itching for an excuse to pull me over. If I give him one, I have no problem with it.

But your attitude that I should have to buy a nicer car and adjust my grooming standards etc etc in order to not be harassed irks me. I get that you don't mean it that way, and maybe I am tired and reading too much into it.

So no hard feelings, well no permanent ones anyway, Deal?

Hi Makiaveli

I did not make any value judgement about whether that is a good or proper thing. Maybe I'm making the wrong conclusion. Perhaps justice is blind to frivolous economic factors such as the condition of the vehicle.

It may have been sheer coincidence that there seemed increased odds of me being pulled over when I was driving unwashed old dented vehicles. I have heard friends make the same observation, but it may be a bull theory. One old friend, a Nam vet driving a crap car while he was finishing up college on the GI bill, would repeatedly gripe, "I gotta graduate and get a better car so I don't get pulled over for so many trivial infractions." As far as I know his streak of bad luck really did subside after he got a nicer car.

Some things I've observed seemed dependent on set and setting. For instance an old man driving a junk truck might be more likely to get a pass than a young dude driving a junk truck. That might be assuming the LEO had learned a traditional respect for aged father figures. OTOH if some other LEO might have had an abusive father and developed a bad attitude toward father-figures, then maybe the odds would be reversed?

Long ago sat all morning in traffic court over my speeding ticket watching the different cases, and in that court, old folks charged with things just as bad as young folks, the old people seemed more likely to get off, and the young males seemed most likely to get a heavy fine. The young cute females had excellent odds of getting off if they were successful enough in pretending to be properly contrite. Even the cute young females didn't have much luck if they happened to be too whiney or acted too spoiled. Maybe it would be some other pattern in some other court.

It would seem "fair" that everybody guilty of the same infraction would get the same punishment, but that did not look like what was going on, as best I could tell. Maybe was reading the situation all wrong.

Edited December 23, 2011 by Lester Weevils

[Fallguy]

Wouldn't this go back to a HCP is just a defense to the crime of carrying a weapon? So failing to reply in the affirmative would be effectively concealing the fact that you are committing a crime. Technically.

I thought I heard somewhere you didn't have to answers questions that may incriminate yourself....

[DaveTN]

I thought I heard somewhere you didn't have to answers questions that may incriminate yourself....

Just as your fifth amendment rights can be removed by a Judge forcing you to testify, they can also be waived. You waived rights when you agreed to the conditions of an HCP. The intent of the legislature is clear; you do not a right to carry, you have simply purchased the privilege.

To settle this once and for all I guess we would either need case law or an opinion from the AG. I don’t know if there is case law as I don’t have that available to me. I doubt there are many HCP holders that are willing to put their HCP at risk by telling a cop they don’t have to answer when asked about firearms. I would write my Congressmen and see if they would ask for an opinion, but I wouldn’t want to waste that on something I’m pretty sure I know the answer to.

Maybe someone from DOS could give an opinion.

Of course it’s all going to boil down to how and why a firearm became an issue, and why the Officer is asking.

[JayC]

You have to answer the question “Are you armed or have any weapons in the vehicle?” Refusal to answer that question could result in the loss of your HCP if you are carrying.

I can find the statue that says you must display your permit... I can't find the statue that says you must inform, or tell the officer anything. Even if such a law was on the books (and it's not) it would be a clear violation of the 5th Amendment since the HCP is only a defense to a criminal act.

[bubbadavis]

Just as your fifth amendment rights can be removed by a Judge forcing you to testify, ...

Hey Dave, do you know of any case law, etc. to back this up? While a judge can force you to testify in a trial (under the threat of jail time for contempt) they can't, to my knowledge, force you to testify against yourself. There are lots of trials where defendants don't take the stand. Even when testifying in another's trial, you can plead the 5th and refuse to answer questions.

[Oh Shoot]

Just as your fifth amendment rights can be removed by a Judge forcing you to testify, they can also be waived. You waived rights when you agreed to the conditions of an HCP. The intent of the legislature is clear; you do not a right to carry, you have simply purchased the privilege....

Forget all that. My question is what provision in TCA allows your permit to be jerked for not responding to an officer about whether you have a weapon? Or even lying to him about it?

- OS

[Oh Shoot]

nm, misread something

[DaveTN]

I can find the statue that says you must display your permit... I can't find the statue that says you must inform, or tell the officer anything. Even if such a law was on the books (and it's not) it would be a clear violation of the 5th Amendment since the HCP is only a defense to a criminal act.

As we have already seen, you don’t have to commit a crime to lose your HCP.

We both have our opinions; until there is a ruling a person would have to rely on common sense.

[DaveTN]

Forget all that. My question is what provision in TCA allows your permit to be jerked for not responding to an officer about whether you have a weapon? Or even lying to him about it?

- OS

Doesn’t need a violation of the TCA. Goofballs HCP was yanked for his stupid act at Radnor Park, but he didn’t do anything illegal.

[bubbadavis]

Doesn’t need a violation of the TCA. Goofballs HCP was yanked for his stupid act at Radnor Park, but he didn’t do anything illegal.

Being that stupid should be illegal!

[DaveTN]

Hey Dave, do you know of any case law, etc. to back this up? While a judge can force you to testify in a trial (under the threat of jail time for contempt) they can't, to my knowledge, force you to testify against yourself. There are lots of trials where defendants don't take the stand. Even when testifying in another's trial, you can plead the 5th and refuse to answer questions.

Of course you can’t be forced to testify against yourself when you are on trial. They would have had to grant you immunity; wouldn’t be much of a point in a trial then would there?

Once you invoke the 5^th in a trial of another, a Judge can grant you immunity. Then you have to testify or go to jail for contempt. If you lie, you can be charged with perjury. Rare, because the state has to be absolutely sure of what happened and what they think you will say, but it is done.

[bubbadavis]

Of course you can’t be forced to testify against yourself when you are on trial. They would have had to grant you immunity; wouldn’t be much of a point in a trial then would there?

Once you invoke the 5^th in a trial of another, a Judge can grant you immunity. Then you have to testify or go to jail for contempt. If you lie, you can be charged with perjury. Rare, because the state has to be absolutely sure of what happened and what they think you will say, but it is done.

OK, I see where you were coming from now. Thanks for the clarification.

[DaveTN]

Hey Dave, do you know of any case law, etc. to back this up? While a judge can force you to testify in a trial (under the threat of jail time for contempt) they can't, to my knowledge, force you to testify against yourself. There are lots of trials where defendants don't take the stand. Even when testifying in another's trial, you can plead the 5th and refuse to answer questions.

Here’s another example… You don’t a 5^th amendment right to refuse to answer Officers questions or refuse a field sobriety test during a DUI investigation. Sure you can refuse; but you can lose your license even if you aren’t found guilty of the DUI. Why? Because driving isn’t a right; and neither is carrying a gun in this state.