Is this a search and is it legal?

[Fallguy]

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.

If you're drunk and the officer has PC to believe your drunk, then yes there are consequences for violating the implied consent law.

The implied consent law is on the books and is there for all to see.

Yes, the law says I must produce my HCP if asked for it, but I do not see the law that says there are consequences for not answering a LEOs question of if I have weapon, whether I have a HCP or not. Also I don't see anywhere where I have waived my 5th amendment right just because I have a HCP.

Are you saying someone without a HCP could refuse to answer with no consequences for just not answering but if the same question is asked to someone with a HCP there are legal consequence?

I'll grant that it is not beyond the realm of possibility the DOS would suspend/revoke your HCP if they some how found out, but that is not what I'm talking about. I am also not talking about if the officer has PC to search and finds the weapon. IMO (FWIW) I don't think having a HCP is PC enough on it's own to conduct a search for weapons...but again I admit I could see a judge ruling that it was.

Also just for the record...I would not lie to the officer, I also would not let him "discover" any firearm...whether I thought it was right or wrong, if he was going to search I would tell him there is one and where it is or if I thought it might be seen somehow in plain view.

[JayC]

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.

Except, there is a law that requires you to submit to the test or automatically loose your license... there is no such law when it comes to answering questions and your HCP.

[Oh Shoot]

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.

Wasn't only Radnor, took Bellemeade to ice it -- but comparing Kwik's behavior to this discussion is really really stretching.

- OS

[DaveTN]

Wasn't only Radnor, took Bellemeade to ice it -- but comparing Kwik's behavior to this discussion is really really stretching.

- OS

His behavior is pretty relevant to this conversation as his story is the only one I know of personally of someone that has had the HCP revoked. He committed no crime at Radnor or Belle Meade. There is no law saying you can’t strap an AK pistol to your chest and walk through Radnor and there is no law that says he couldn’t walk through Belle Meade. There are laws saying citizens can’t do this, be we are talking about a special group with special privileges.

I certainly am not standing up for him, his HCP revocation was the right thing for the state to do in my opinion. My point is that you don’t have to violate a law to lose your HCP.

However… I believe 39-17-1351 clearly provides for an Officer disarming you at his discretion. And I believe 39-17-1352 clearly allows for the revocation of your permit if you violate any provision of 39-17-1351 through 39-17-1360.

[Fallguy]

However… I believe 39-17-1351 clearly provides for an Officer disarming you at his discretion. And I believe 39-17-1352 clearly allows for the revocation of your permit if you violate any provision of 39-17-1351 through 39-17-1360.

I agree..... assuming he knows you are armed....

[Guest mcgyver210]

When are all of us going to learn the constitution does nothing for us on the side of the road or anywhere if we run into what I consider to be a BAD LEO (lucky for me I haven't run into many BAD LEOs in my entire life). Because a BAD LEO knows he can do or say anything he wants & get away with it with any excuse he wants to make up. Also if there is any kind of witness they have been known to try to destroy or intimidate one.

Everyone talks about the LEOs safety in every situation but if you run into a BAD LEO you have no one looking out for your safety this includes the courts & even sometimes other LEOs. In general LEOs are all powerful on the side of the road & can even LIE outright to get what they want from you. Your only chance against this is if you have a witness because a LEOs word is always given more weight than yours & IMO actually considered the truth over yours. This is the main reason BAD LEOs don't like Video that they don't control.

As for searches this has been addressed in the past here in TN due to the abuse by LEOs in the past but as always the laws are not really for our safety & are not equal protection so there are plenty of loopholes for the abuse of searches without real PC. Look just recently CH 5 News ran a story on Policing for profit that involved searches & confiscation of innocent citizens money in the name of the drug war conveniently none of the agencies really like working the side where the drugs may actually be.

So if they do something wrong in the field most likely noting will happen to them

In most cases I will always say NO to a consent for a search. I also keep my vehicles clean & organized so hard to see anything in them. I also don't drink, smoke or do drugs & never have taken up these habits. If asked to get out of my vehicle I will comply. I also for my safety usually have technology available to protect me but as I said I just don't have much experience with a BAD LEO.

Also in today's world when the government so chooses they just do it & the Constitution is just a old piece of paper with no meaning. Oh & the Scotus backs them up just like the puppets they are.

Disclaimer: I have many friends that are LEOs I don't hate LEOs they do have a job to do but I have Zero respect for BAD LEOs that abuse their position or break the laws they swore to uphold. This is even my opinion when they break the laws to catch a bad guy. "Two Wrongs Doesn't Make A Right Ever IMO" Bad LEOs are giving GOOD LEOs a Black Eye anyway you cut it.

[MikePapa1]

Such a search as the OP described would be illegal. I'd be happy to fight it, for a fee.

[Fallguy]

Hmmmm I have to admit after a bit more thought I have modified my position a bit.

39-17-1351 (The HCP privilege law) does clearly say if you have a HCP and are armed a LEO may disarm you if he feels it is necessary for safety reasons. He can't do this (easily) unless you tell him where it is. So I have to agree with Dave if you don't allow him to disarm you, you have violated a provision of 39-17-1351 and could have your HCP suspended/revoked under 39-17-1352

Also I agree with others that you will not win any legal debate/argument on the side of the road.

But some of this goes back to how does the topic of HCP/Firearms come up in the first place?

If you are they type to hand over your HCP without even being asked for it....you are more than likely the type that would tell him where it is and allow him to disarm you.

If you are they type that doesn't volunteer you have a HCP and the LEO doesn't ask for it or about firearms, then the topic never comes up. So no question, no need to answer, no search.

...and Yes...I do know your HCP is tied to your DL and the LEO will know you have a HCP from running your DL, but this still doesn't mean he will ask. I can tell you this from personal experience and reference several post on this board.

[DaveTN]

But some of this goes back to how does the topic of HCP/Firearms come up in the first place?

This is usually my first question when a friend or family member asks about a search. I ask the hard questions that a Judge will ask in ruling on the legality of a search. I also get to ask the question they usually won’t answer on a forum and don’t have to answer in court… are you guilty?

I have performed hundreds if not over a thousand vehicle searches. Unlike what I read about the cops on here I have never asked to search a vehicle that I wasn’t already going to search anyway. It was usually over drugs or liquor and I was simply letting the person I had stopped have some input into what was getting ready to happen to his future. Be cooperative, admit when you are caught dead bang, invoke the fifth, tell me I need a warrant, tell me your father is an attorney and I should be shaking in my shoes, tell me you will have my job, say you want a Command Officer on the scene, tell me you are related to the Chief… whatever. It was just me making conversation and determining how things were going to end when I found what I was looking for.

The first and biggest issue in a vehicle search is alcohol. If it was apparent to me that someone had been drinking I already knew I could arrest them for DUI and tow their vehicle. Or If I approached their vehicle and saw an open liquor container, a joint, a gun, or pills in plain view; I didn’t need their permission.

Second biggest issue was driver’s license violations. If you were suspended or revoked I was getting in your car because I had to do an inventory search prior to towing it. I found a lot of drugs and guns that way.

You or your attorney can argue in front of a Judge and try to get the evidence kicked on an unlawful search. That’s fine with the Officers and fine with the attorneys.

Edited December 23, 2011 by DaveTN

[JayC]

Hmmmm I have to admit after a bit more thought I have modified my position a bit.

39-17-1351 (The HCP privilege law) does clearly say if you have a HCP and are armed a LEO may disarm you if he feels it is necessary for safety reasons. He can't do this (easily) unless you tell him where it is. So I have to agree with Dave if you don't allow him to disarm you, you have violated a provision of 39-17-1351 and could have your HCP suspended/revoked under 39-17-1352

Also I agree with others that you will not win any legal debate/argument on the side of the road.

But some of this goes back to how does the topic of HCP/Firearms come up in the first place?

If you are they type to hand over your HCP without even being asked for it....you are more than likely the type that would tell him where it is and allow him to disarm you.

If you are they type that doesn't volunteer you have a HCP and the LEO doesn't ask for it or about firearms, then the topic never comes up. So no question, no need to answer, no search.

...and Yes...I do know your HCP is tied to your DL and the LEO will know you have a HCP from running your DL, but this still doesn't mean he will ask. I can tell you this from personal experience and reference several post on this board.

Fallguy, re-read that provision again... the law doesn't say you must allow the officer to disarm you... it says an officer can disarm you. A Permit holder has no duty in helping the officer disarm you for officer safety... let alone volunteer the location of a firearm (or if a firearm is anywhere to be located)...

Now if you did something to actively prevent the officer from disarming you, that might be a violation.... but it's like going limp while being arrested, you can't be charged with resisting arrest unless you take an action to actively resist.

[JayC]

Just curious Dave, ever search a vehicle without the owners consent and find nothing?

This is usually my first question when a friend or family member asks about a search. I ask the hard questions that a Judge will ask in ruling on the legality of a search. I also get to ask the question they usually won’t answer on a forum and don’t have to answer in court… are you guilty?

I have performed hundreds if not over a thousand vehicle searches. Unlike what I read about the cops on here I have never asked to search a vehicle that I wasn’t already going to search anyway. It was usually over drugs or liquor and I was simply letting the person I had stopped have some input into what was getting ready to happen to his future. Be cooperative, admit when you are caught dead bang, invoke the fifth, tell me I need a warrant, tell me your father is an attorney and I should be shaking in my shoes, tell me you will have my job, say you want a Command Officer on the scene, tell me you are related to the Chief… whatever. It was just me making conversation and determining how things were going to end when I found what I was looking for.

The first and biggest issue in a vehicle search is alcohol. If it was apparent to me that someone had been drinking I already knew I could arrest them for DUI and tow their vehicle. Or If I approached their vehicle and saw an open liquor container, a joint, a gun, or pills in plain view; I didn’t need their permission.

Second biggest issue was driver’s license violations. If you were suspended or revoked I was getting in your car because I had to do an inventory search prior to towing it. I found a lot of drugs and guns that way.

You or your attorney can argue in front of a Judge and try to get the evidence kicked on an unlawful search. That’s fine with the Officers and fine with the attorneys.

[Oh Shoot]

...However… I believe 39-17-1351 clearly provides for an Officer disarming you at his discretion. And I believe 39-17-1352 clearly allows for the revocation of your permit if you violate any provision of 39-17-1351 through 39-17-1360.

Well, let's see, cop can disarm you, but only if you are armed. If you say you're not armed, he won't disarm you unless you are searched. Need a reason to search. Sort of. No law against a cop lying to you, or you lying to a cop (unless you want to argue hindering an investigation, which is also not grounds to pull a HCP, unless it's Class A 'meanor or higher). 39-17-1351 doesn't say you must inform if you are armed, only show permit on request, hence there's no penalty prescribed for lying about whether you are armed. So this wouldn't be a violation of 39-17-1351.

So, like Kwik, I guess a letter or two from the LEA to TNDOS might get your permit revoked, but not for violation of 1351, but could claim "danger to public" (which is basis for Kwik's being pulled). Or not.

All quite clear to me.

- OS

[DaveTN]

Just curious Dave, ever search a vehicle without the owners consent and find nothing?

Many times. I have done inventory searches on many vehicles I was having towed because I was arresting the driver and either found nothing or didn’t find anything I wanted to charge them with.

Have I had PC to search a vehicle for drugs or alcohol and not found any? Possibly.

If you are asking me if I have ever violated a person rights by searching their vehicle with no PC, no and I have never had a search kicked by a Judge.

[DaveTN]

Well, let's see, cop can disarm you, but only if you are armed. If you say you're not armed, he won't disarm you unless you are searched. Need a reason to search. Sort of. No law against a cop lying to you, or you lying to a cop (unless you want to argue hindering an investigation, which is also not grounds to pull a HCP, unless it's Class A 'meanor or higher). 39-17-1351 doesn't say you must inform if you are armed, only show permit on request, hence there's no penalty prescribed for lying about whether you are armed. So this wouldn't be a violation of 39-17-1351.

So, like Kwik, I guess a letter or two from the LEA to TNDOS might get your permit revoked, but not for violation of 1351, but could claim "danger to public" (which is basis for Kwik's being pulled). Or not.

All quite clear to me.

- OS

So you are making the argument that you have to tell them you have an HCP if they ask, but if they ask you if you are armed you can tell them you don’t have to answer that or tell them where your weapons are? Interesting interpretation of the intent of the law, I guess we will have to wait and see if we can find someone to be a test case.

[Oh Shoot]

So you are making the argument that you have to tell them you have an HCP if they ask, but if they ask you if you are armed you can tell them you don’t have to answer that or tell them where your weapons are? Interesting interpretation of the intent of the law, I guess we will have to wait and see if we can find someone to be a test case.

No, I'm thinking the situation probably will simply never arise. A HCP holder would be a total idiot not to admit he was armed, or had guns in the vehicle, since there's no downside, short of having an illegal weapon like unstamped NFA item or something. If he's idiot enough to refuse to answer, most likely that situation is going to escalate to something else that he could be charged with, or the LEO will just drop it, one of the two. But I don't think you'll ever see a charge of "refusing to inform LEO of existence or location of weapons".

And sure, if the LEO is pissed enough he could write to TNDOS and see if he could get the doofus' permit revoked, but again, it would have to be for "danger to public" or something I'd say. I guess there is a "failure to obey lawful order" statute? And the "interfering with an investigation" (though that seems quite the stretch). But unless those are Class A 'meanors, that wouldn't get permit pulled on those grounds either.

It's mostly one of those "freedom vs police powers" debates, can't really see much in the way of real world application, though if TWO azzholes find themselves at loggerheads anything's possible!

- OS

Edited December 24, 2011 by OhShoot

[Guest Baron]

I never concede to any searches. I have known good and bad cops and chances are I will not know which one I am dealing with when pulled over. This is for my protection.

Yes, my vehicle was searched without my consent during a traffic stop. Ironically, I was retuning from running a PC repair call at a TN State Trooper sub station. The officer thought it was suspicious that I had a bag of tools and a loose screwdriver in the passenger seat. I got a pat-down, cuffed and sat in the back of his squad car where I watched him comb through my car for about 15 minutes. He never asked if I had drugs or weapons. He only asked what the tools were for (I answered) and then he asked if he could search the vehicle (I refused). No other words were exchanged till the end when he explained the traffic ticket I was receiving.

But back to the point, I wouldn't consider a LEO retrieving a weapon from a known location a search. One of the rare exceptions I have about answering LEO questions is about my weapons. If they ask, I will answer honestly. Good or bad, I do recognize their right to safety. If they request the weapon, I will request they retrieve it for my safety.

If I tell them a weapon is in the glove box and they walk over and pull it from the glove box, I don't see where that is a search. If they then continue to go digging in the trunk or other parts of the car, then that is a different story.

[Makiaveli]

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

And this (plus all the other comments) is why I shouldn't post after midnight.

I was going off the previous comments about a HCP is only a defense, and thinking that the law says if asked you must show the permit, and tell the officer you are carrying. So based on that line of thinking (correct or not as it may be), I was asking if it wouldn't be a crime to fail to tell the officer you were armed.

I am not a jack-booted thug, though 20 years ago that was my goal in life. I studied Criminal Justice with a eye toward going into Federal LE, and yes intended to try to use just that type of manipulation etc in the interests of "Justice". Fortunately I grew up mentally and am now a Libertarian.

[Guest mcgyver210]

Where it gets more interesting is if you aren't carrying your gun or permit (since it isn't needed when no gun present). Leo still sees the permit when running DL but you don't have any obligation really in this situation & he has no PC just because he knows you have a permit.

Again I feel very lucky to have only had dealings with Good LEOs while carrying my gun. It is best since I am not very good at just letting anyone run over me although unlike some I will always stay legal with my retaliation because I have always believed & try to practice "Two Wrongs Doesn't Make a Right"

I have no past to dig up either because I have a conscience.

[TMF]

Yes, my vehicle was searched without my consent during a traffic stop. Ironically, I was retuning from running a PC repair call at a TN State Trooper sub station. The officer thought it was suspicious that I had a bag of tools and a loose screwdriver in the passenger seat. I got a pat-down, cuffed and sat in the back of his squad car where I watched him comb through my car for about 15 minutes. He never asked if I had drugs or weapons. He only asked what the tools were for (I answered) and then he asked if he could search the vehicle (I refused). No other words were exchanged till the end when he explained the traffic ticket I was receiving.

How is this, in any way, legal for the officer to do? I would be suing the crap out of that department. I can't imagine being treated like a criminal and detained for no reason.

[Makiaveli]

How is this, in any way, legal for the officer to do? I would be suing the crap out of that department. I can't imagine being treated like a criminal and detained for no reason.

Not saying it was legal, but I would guess the ofc. thought he had found burglary tools and (presuming here) that is PC to search. Also the bit about just having left a State Trooper station probably sounded like a lie. I mean what are the odds? So I would imagine the ofc thinks he was above board and was just unlucky in that he didn't find stolen goods.

[Guest 270win]

This is why I don't tell the police I have a weapon. The only reason I would is if the gun is in plain view or I have to get it out of my car.

[Guest Baron]

How is this, in any way, legal for the officer to do? I would be suing the crap out of that department. I can't imagine being treated like a criminal and detained for no reason.

It was a lifetime ago and being a young long-haired man driving a new black Trans Am got me a lot of unwanted LEO attention back then. I didn't ever think my rights were violated (back then). If anything, I was annoyed that he wouldn't radio anyone to try verify my story.

Being illegally searched or detained isn't at the top of my concern list and there is little you can actually do about it. My big fear is the LEO pulling that little bag (of whatever) out his pocket and claiming "Look what I found".

[Defender]

I think there's much to be said for not volunteering that you are armed, unless the LEO asks. As far as this case goes. the weapon would have been "secured for the officers safety while still in the backpack, no need to search. I think so many times, just as a traffic stop, though it may be justified, is simply a pretense to stop and see if there is something serious you can work on, like outstanding warrants, , visible illegal items, etc., or even to get permission for a search when you have no probable cause. Heck, I think there's even an award for that in Metro here in Nashville...the Oddfellow award, or something like that. Anyone that has done law enforcement knows that there are more "crimes" that are "discovered" during a traffic stop than just about ANYWHERE else.

Edited December 25, 2011 by barewoolf

[DaveTN]

I think there's much to be said for not volunteering that you are armed, unless the LEO asks. As far as this case goes. the weapon would have been "secured for the officers safety while still in the backpack, no need to search. I think so many times, just as a traffic stop, though it may be justified, is simply a pretense to stop and see if there is something serious you can work on, like outstanding warrants, , visible illegal items, etc., or even to get permission for a search when you have no probable cause. Heck, I think there's even an award for that in Metro here in Nashville...the Oddfellow award, or something like that. Anyone that has done law enforcement knows that there are more "crimes" that are "discovered" during a traffic stop than just about ANYWHERE else.

Oh, I’d be the first to admit traffic stops are used for checking out suspicious people. I hated working traffic, but I leaned the vehicle code inside and out while I had to do it. Once I got to District Patrol if I saw a suspicious vehicle cruising your neighborhood; he didn’t have a chance. I could quickly find a legitimate reason to stop him and check him out. Look around the inside of the car, run his DL, ask him what he was doing in the area. If during that I found something I dealt with it. If he checked out I let them go (usually without a ticket for whatever violation I stopped them for). That’s just good Police Work. Wanted felons, burglars, and armed robbers aren’t setting at home being good boys; they are out driving around in cars looking for their next victim.

[TMF]

Not saying it was legal, but I would guess the ofc. thought he had found burglary tools and (presuming here) that is PC to search. Also the bit about just having left a State Trooper station probably sounded like a lie. I mean what are the odds? So I would imagine the ofc thinks he was above board and was just unlucky in that he didn't find stolen goods.

When I was still in the military I often had an E-tool and tarp in the back seat of my truck, but I don't think that's PC to search my vehicle for dead hookers. I get what you're saying but it doesn't make it right. Unless there were vehicle break-ins in the area and he matched the description of a suspect then I guess that could be PC when you factor in the tools, but the tools alone, nope.

It was a lifetime ago and being a young long-haired man driving a new black Trans Am got me a lot of unwanted LEO attention back then. I didn't ever think my rights were violated (back then). If anything, I was annoyed that he wouldn't radio anyone to try verify my story.

Being illegally searched or detained isn't at the top of my concern list and there is little you can actually do about it. My big fear is the LEO pulling that little bag (of whatever) out his pocket and claiming "Look what I found".

I haven't been stopped in a long time, but I'm going to make sure that if I do get stopped in the future my vid camera will be running on my phone. I've consented to search before when I was younger, but now I usually have a couple of kids in tow, so I'm not about to remove them from car seats and all that just so a LEO can satisfy his curiousity. Who knows how that conversation will go if I refuse, but based on some of the stuff I've read and seen on YouTube there is a good enough chance of it not going well for me and my rights.