Expired CHL - Vehicle searched

[HankB]

If you make a formal complaint, even if nothing officially happens, it should end up in the officer's personnel records.

A history of citizen complaints won't look good when or if the officer(s) cross the line in a more serious matter.

This is the BEST way that the state can prove that you weren't travelling--get you do to it for them! If the answers you give make it clear that you are not travelling, you have defeated the presumption that would have prevented your prosecution.

The Texas State Rifle Association has warned of just that down around Houston . . . they recommend that when the officers start asking you where you've been, where you're going, etc., you just point to the documents you've already handed the officer (driver's license, proof of insurance, etc.) and politely say "Officer, my attorney has told me that everything you need to know is right ther."

 

[gregthehand]

Who polices the local cops? Well I'll tell you. The FBI does. If I were you I would call there office in Houston [(713) 693-5000], and talk to an agent. This guy violated your civil rights. How long until he does it again, but maybe worse? Abuse of power is just the same in any spectrum. The more this guy gets away with it will reinforce his ideas that it is ok, and the bolder he will get. The FBI does, and will investigate civil rights violations, and yes I have talked to agents who have done it, and yes they will take your case seriously. Also I did work in LE and I can tell you that this kind of behavior is not rampant, or tollerated so you need to take care of this. It might be timid to just let this all blow over but well... just read my sig line.

 

[ReidWrench]

Of course they were patted down for a mirror .

Why , oh why , would an expired CHL be grounds in his eyes for a search ? He feels you might posses a "prohibited "object .

The United States has been at war with herself for many , many years . I think all the confusion arises because when war was declared it was "understood" that it would be a war on someone else . But it didnt exactly work out that way did it ?

 

[Spreadfire Arms]

Originally Posted by Friend working for DOJ
AS I UNDERSTAND IT..........

When an officer asks to search a vehicle, and the driver refuses, the officer can call into the district attorney's office and get a VERBAL SEARCH WARRANT.

In other words, the D.A. goes to a judge, right there and then, and tells the judge the situation. The judge issues a search warrant. The DA Calls the Street officer, and VERBALLY gives the officers permission to search the vehicle based on the issuance of a search warrant.

and the part about the handcuffs IN MY MIND is NOT false arrest.... the cops get away with it by saying they did it to secure you for your own safety.

It's chickens****. Most officers will frisk you, and then put you in the backseat of a car UN-CUFFED until the vehicle search is completed.

ive never heard of a telephonic search warrant being legal in Texas, where this incident occurred. a google search reveals there are bills in other states to allow this but there doesn't appear to be a law in Texas allowing this. the CCP states, in Texas, that a copy of the search warrant, along with a receipt of all property seized, will be given to the owner of said property prior to the officer conducting the search warrant departs.

according to Texas Judiciary Online:

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=14724


it says:

Several states also allow telephonic warrants, including Alaska, Arizona, California, Colorado, Delaware, Idaho, Illinois, Minnesota, Nebraska, and South Dakota

 

[gregthehand]

A warrant has to be delivered to the person in TX with a list of property siezed...

From the Texas Code of Criminal Procedure:
"Art. 18.06. [317, 319] [368, 370] [356, 358] EXECUTION OF
WARRANTS. (a) A peace officer to whom a search warrant is
delivered shall execute it without delay and forthwith return it to
the proper magistrate. It must be executed within three days from
the time of its issuance, and shall be executed within a shorter
period if so directed in the warrant by the magistrate.
(b) On searching the place ordered to be searched, the
officer executing the warrant shall present a copy of the warrant to
the owner of the place, if he is present. If the owner of the place
is not present but a person who is present is in possession of the
place, the officer shall present a copy of the warrant to the
person. Before the officer takes property from the place, he shall
prepare a written inventory of the property to be taken. He shall
legibly endorse his name on the inventory and present a copy of the
inventory to the owner or other person in possession of the
property. If neither the owner nor a person in possession of the
property is present when the officer executes the warrant, the
officer shall leave a copy of the warrant and the inventory at the
place.

Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff.
Jan. 1, 1974; Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 2, eff.
Sept. 1, 1981."


Now in Texas there is a provision for searching cars without a warrant. This is because cars are of course mobile, and therefore time to get a warrant may not always be available. However even in these cases probable cause must first be obtained. In this case PC was not obtained, therefore the warrantless search was a violation of the original posters 4th ammendmant rights. As far as "false arrest" well there is no penal code violation in TX for that. There is however TX Penal Code section 39.03 Official Oppression. While this section does provide for unlawful searches, the DA would have to able to prove that the Deputy knew the search was unlawful. This can be hard to do as it all comes down to what the Deputy and his counterparts were thinking when they started the search. Unless the DA can get one of them to say that "Yes we knew the search was bad because we didn't have PC." Then it's going to be very hard to prove.

 

[HankB]

The part about being handcuffed by the side of the road reminded me of a story a college chum told me some years back.

Seems that his father - an amateur magician - had been stopped, handcuffed, and left to cool his heels while a swarm of cops searched his vehicle.

He got the 'cuffs off (don't ask me how - I'm not a magician!) while they were distracted and threw them some distance into a water-filled drainage ditch.

When the cops were through and some drove off, the original one told him he was lucky this time that they didn't find anything . . . and then did a double-take"

"Hey, where's my cuffs?"

Guy said "One of the other cops took them off when I told him they were hurting me."

"Which one?"

"Beats me . . . he was in a blue uniform."

Cop was a might upset.

Wonder how much a set of cuffs cost back then?

 

[ChickenHawk]

I love that story, HankB!

Personally, I would have had more fun just handing them back to him, but I am no more a magician than a rock star so I guess I'll never know the feeling!

Cheers,
ChickenHawk

 

[thexrayboy]

This incident kind of reminds me when slick Willie was in office and the country was having a major discussion over the fact of when the word "is"
actually meant "is"....

Seems like the dictionary is a foreign object not heard of at least in the Houston area.

Last I heard, and the last time I checked Merriam-Webster
traveling was defined as moving in a given direction or path for a given distance. By that definition if I am in a car and traveling from point A to point B I am traveling. How far apart those 2 points are is irrelevant.How fast I am moving is also irrelevant, I am traveling. Therefore the recent law stating the carrying of a firearm in a vehicle while traveling being
allowed should protect this gentleman....In a perfect world, apparently Harris county is far away from perfect.


Now as to being handcuffed but not actually being arrested...again according to Merriam-Webster arrest is defined as "to take or keep in custody by authority of law". It does not mention a time frame necessary to be considered an arrest. So when you use the authority of a badge to put someone in handcuffs you have placed them in custody, they cannot leave and therefore are under arrest. If you later find that you had no grounds to keep them in handcuffs and remove said cuffs and let them go you are by default guilty of false arrest which is an arrest not justifiable by law. If it was justifiable you would have kept them in custody, if keeping them in custody was not justified than placing them in custody was not justified.

Just because some shyster in black robes decides to twist the meaning of the English language around to suit the needs of those in blue might and I mean might make it legal. It definitely is not right, moral or correct. When police use these tactics all they do is alienate citizens.

When we get a firm control over the judges who twist words and interpret longstanding definitions to meet their own immediate agenda we will have made at least a start in regaining our freedom. But as long as the judiciary can create definitions ad hoc and the police are not held accountable to anyone but the IAD buddy system these kinds of abuses will occur on a regular basis.

 

[Spreadfire Arms]

Webster's Dictionary is not considered a source for legal definitions in any courtroom.

i certainly hope you are not a lawyer.

 

[Kenneth Lew]

Mandirigma, the guys doing the processing at jails are most certainly not LEOs. They are merely "jailors." Perhaps a good many of them are wanna-be LEOs. But to classify their behavior as representative of genuine LEOs is grossly incorrect.

asknight

In Harris County, the intake people processing arrested individuals are indeed Harris County Deputies. A lot of civilian jailers "White Shirts" do their time (required 2 years for the Sheriff's Department) before heading off to the police academy. A lot of deputies choose to remain in the Harris County jails throughout their careers.

 

[dave_pro2a]

Travel is not defined in Black's Law.

"Transit: In course of passing from point to point. Transportation of goods or persons from one place to another. passage; act of passing. See also In Transitu, stoppage in transit."

"In transitu: In transit; on the way or passage; while passing from one person or place to the next. In the course of transportation."

Stoppage in transitu: (stuff about commerce and U.C.C.)

 

[dave_pro2a]

Quote: "Webster's Dictionary is not considered a source for legal definitions in any courtroom"

If it were, we'd probably be living in a better country with more freedom and common sense.

A word means what it means, not what some judge 'interprets,' or some bar association tell us.

 

[thexrayboy]

Webster's Dictionary is not considered a source for legal definitions in any courtroom.

i certainly hope you are not a lawyer.
__________________

First of all I am not a lawyer, I make an honest living.

And second of all I am aware that no dictionary is considered a source for legal definitions in a courtroom. That is part and parcel of the misery that is being inflicted on Americans. When a word can mean anything some shyster wants it too no citizen is safe from tyranny and oppression. The misuse of language for the oppression, rape and imprisonment of others is one of the many reasons lawyers are reviled, despised and loathed over all other professions save perhaps politics. Shakespears quote "First let us kill all the lawyers" was not a jest but a suggestion.

I made it quite clear in the above post that I was aware that the definitions real people use are not allowed
in court due to the conflict they create with the legal agenda being pursued. Until we change this practice
the evils perpetrated in the name of justice will continue.

 

[Spreadfire Arms]

And second of all I am aware that no dictionary is considered a source for legal definitions in a courtroom.

you could try Black's Law Dictionary.

from Wikipedia:

http://en.wikipedia.org/wiki/Black's_Law_Dictionary

Black's Law Dictionary is the definitive law dictionary for the law of the United States. It was founded by Henry Campbell Black. It has been cited as legal authority in many Supreme Court cases.

from the Univ. of Washington School of Law:

http://lib.law.washington.edu/ref/dict.html

Black's Law Dictionary (8th ed. 2004) is the most frequently used U.S. legal dictionary.

 

[JohnKSa]

Last I heard, and the last time I checked Merriam-Webster
traveling was defined as moving in a given direction or path for a given distance. By that definition if I am in a car and traveling from point A to point B I am traveling. How far apart those 2 points are is irrelevant.How fast I am moving is also irrelevant, I am traveling. Therefore the recent law stating the carrying of a firearm in a vehicle while traveling being
allowed should protect this gentleman....In a perfect world, apparently Harris county is far away from perfect.

The original traveling exception was clearly intended to protect people who were on a journey. It was very obviously not directed towards commuters or people running errands.

There is no careful definition of traveling in TX law which can be either good or bad. On the good side, if a judge takes the view of traveling that you described, you can be in for an easy time. If he takes a strict view of traveling you may not like the outcome. The practical effect is that unless you're taking a fairly direct route from one place where you slept last night to a place where you intend to sleep tonight then the wisest course of action is not to carry a gun. Put it in the trunk instead. You might get a more lenient definition, but there's no assurance of that.

 

[thexrayboy]

Again I am aware that the judiciary uses Blacks dictionary. The underlying question is the same. The definitions used by society, the people that the judiciary are supposedly to serve, are not the definitions used by the judiciary. That is the core of the matter. The law should serve the people, instead by twisting definitions and narrowly defining the applications of common language the judiciary is actually enslaving society.

 

[rock jock]

To the OP: I don't want to pressure you, but if you don't heed the advice of the posters here, you will be letting yourself get bullied, and in turn, all law-abiding citizens (gun owners and otherwise).

As far as Houston area cops, a good friend mine is in the higher ranks with the HPD. One of the reasons I get along with this guy is that he calls it like it is. He doesn't defend lazy, incompetent, or corrupt cops. In fact, he probably has a harsher attitude towards these people than a non-LEO. If I told you some of the stories he has told me about the HPD, it would make you cringe. Frankly, it makes me angry. Suffice it to say that while the vast majority of "civil rights violation" complaints that are filed are complete BS, there are enough valid ones to keep the legal staff busy full-time. Note that in his opinion, many of the problems that the HPD faces are due to the continuous drive of the city to be "more PC" and the consequent neverending need to lower standards. Lower standards = bad cops.

Sue like your liberty depends on it.....because ultimately it does.

 

[thexrayboy]

The original traveling exception was clearly intended to protect people who were on a journey. It was very obviously not directed towards commuters or people running errands.

If lawmakers wish to apply a law such as the one in question to a specific set of people traveling for a specific distance or for a specified purpose they need to state so in the law. Otherwise the law should be applied uniformly to everyone who meets the common and accepted definition of traveling. The law is made to serve the people, when you use a definition of a word that is not commonly in use by those people then you are creating bigger problems.

 

[JohnKSa]

The travelling exception came into being as a result of case law in the late 1800s, IIRC. It was later made more official.

If lawmakers wish to apply a law such as the one in question to a specific set of people traveling for a specific distance or for a specified purpose they need to state so in the law.

That is exactly what the legislature wants to avoid. If you create a legal definition then the defendant must exactly meet the conditions that the legislature listed in order to be acquitted. Said another way, if the legislature failed to think of a definition that covered every possible type of travelling then people could be prosecuted even when they were meant to be protected by the intent of the law.

For what it's worth, I'm aware of no one who's been prosecuted for carrying a gun while in direct route to a destination where they intend to stay the night. Regardless of their method of travel, distance of the trip, etc. People who try to stretch the exception into something that it's not are running a risk.

 

[mljdeckard]

I don't have time to read the whole thread.

ABSOLUTELY you should report it. Here's why.

This officer broke the law. He searched your vehicle illegally. You KNEW it was illegal, and called him on it, and he did it anyway. Did he find anything? No. Did you suffer unreasonable distress as a result? No. Will anything actually happen to him as a direct result of your complaint? No.

BUT,

One day, he will cross the line, and he WILL do an illegal search (he has probably gotten away with it MANY times,) and he WILL do some actual harm. This person who was harmed will sue him, and when he does, he will have access to the officer's file. THIS STORY NEEDS TO BE IN IT.

Another result may be, one day he will ask a judge for a warrant, based on shaky evidence. (He was probably judge-shopping while you were cuffed.) The judge will have to decide whether or not to give him the benefit of the doubt. If he pulls the file, and sees an outstanding record with nothing out of the ordinary, he will probably sign the warrant. But if he pulls it, and sees your complaint, AND PROBABLY MANY OTHERS AS WELL, he will think twice.

I am proud to say that in my state, CCW holders, expired or otherwise, are exetended every courtesy in all my experience, and every experience I have ever heard of. The police KNOW WE AREN'T CRIMINALS.

 

[Mandirigma]

On the topic, how did the arresting officer treat you?

Honestly, decent. I got some flak when they were digging through my BOB and Medkit. Even prompting them to ask me when I got out of the service. He was kind enough to write down a few numbers from my cell phone so I could call to let someone/anyone know where I was.

spreadfire arms: Those comments were responses I had from friends when I emailed them the first post in this thread. He was with DOJ but now is with Homeland.

I got another from a buddy that is PD (yeah, I have issues with Houston LEO's in general but have friends that work in the field and others that work with the other acronyms. What can I say, the life of a bartender its about networking heh)

Here's another response that I got today.

Uhhh no. That was an illegal search if that were all of the facts. They can frisk the vehicle which includes the lunge areas only. That was a search and an expired CHL in not probable cause. Reasonable suspicion is cause for a frisk but that is the first step in developing probable cause.

 

[Spreadfire Arms]

if i were going to file a citizen's complaint about a LEO's actions, in this case, a violation of your 4th Amendment right, then i would be 100% sure that what i told them was the complete truth.

there are many LE agencies that will have you come in and give a sworn written statement. if they have evidence that proves that someone came in and gave a false account of what actually happened, then that person can be charged with filing a false police report and subsequently be arrested.

for example, if this officer had a dash camera, or an audio recorder, or both, and the account of what the complaining citizen gave did not coincide with the video and/or audio taped account, and it was grossly incorrect, then i'd say that citizen may want to seek the advice of legal counsel.

for reference here is the relevant Texas Penal Code section:

Sec. 37.08. FALSE REPORT TO PEACE OFFICER OR LAW ENFORCEMENT EMPLOYEE. (a) A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:
(1) a peace officer conducting the investigation; or
(2) any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.
(b) In this section, "law enforcement agency" has the meaning assigned by Article 59.01, Code of Criminal Procedure.
(c) An offense under this section is a Class B misdemeanor.

i'd make sure that if i was going to report such an incident that i would for damn sure know that what i told them happened, actually happened. nothing added, nothing subtracted, nothing changed. not saying that the original poster is not telling the truth, but be advised that if you make any false statement that is "material" to a criminal investigation, the police can file on you instead. and believe me, they will. LE agencies on the most part will take care of their own if they are falsely accused of something.

so, if the LEO in this case was clearly incorrect, go and file the citizen's complaint and report of your civil rights violation. if, however, some facts were omitted, embellished, or fabricated, i wouldn't go so far as to file a complaint.

and i have absolutely no idea what happened in this case, i wasn't there. but if someone files a false report of misconduct on an LEO, i hope they get charges filed on them.

 

[thexrayboy]

That is exactly what the legislature wants to avoid. If you create a legal definition then the defendant must exactly meet the conditions that the legislature listed in order to be acquitted. Said another way, if the legislature failed to think of a definition that covered every possible type of travelling then people could be prosecuted even when they were meant to be protected by the intent of the law.

For what it's worth, I'm aware of no one who's been prosecuted for carrying a gun while in direct route to a destination where they intend to stay the night. Regardless of their method of travel, distance of the trip, etc. People who try to stretch the exception into something that it's not are running a risk.

Exactly. If they want it to apply to a specific set of people they would need to make a specific definition of who it applied to and what circumstances. They did not. Therefore it applies to everyone who is traveling. Not just traveling in a fashion that the police think is traveling. Traveling period.
I don't care if you are headed from Houston to Omaha to see grandma or two blocks over for some Cheetos. If you are traveling to or from a destination you are traveling. PERIOD. It's this b******t about the word traveling meaning what we say it means even though we didn't actually say that when we wrote the law that is sheer lunacy. The only thing crazier than the police and the DA interpreting the word traveling to their likeing is the fact that people allow them to get away with it.

 

[Spreadfire Arms]

am i missing something here....but didn't Texas law already define travelling here:

§ 46.15. NONAPPLICABILITY. (a) Sections 46.02 and 46.03
do not apply to:
....
(3) is traveling;
....
(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other
than a Class C misdemeanor that is a violation of a law or ordinance
regulating traffic;
(3) not otherwise prohibited by law from possessing a
firearm;
(4) not a member of a criminal street gang, as defined
by Section 71.01; and
(5) not carrying a handgun in plain view.

as ive stated before, under Texas law, it is only a defense to prosecution. it does not preclude the police from arresting you for Unlawful Carrying of Weapons. personally i don't know of anyone who has been arrested for UCW while travelling, not to say it has or hasn't happened yet.

i would think that it is moot here really, because the LEO in question didn't see a gun. there was no gun, only an expired CHL.

 

[kungfuhippie]

My last traffic stop went something like this...

Saw cop, turned off hwy, pulled over, turned car off, rolled down window put hands on steering wheel, waited for oficer to do his job.
"Do you know why I pulled you over?"
"yes sir, I was going 20 miles over the speed limit"
"That's right. Where are you off to in such a hurry?"
"I don't disclose things like that sir."
"Excuse me?"
"I was pulled over for a traffic violation that has nothing to do with my destination sir, and so I see no need to disclose irrelivant information."
"fine, I need your DL and registration and proof of insurance?"
"Yes sir" (open wallet and pull out info, cop sees my hand gun saftey certificate needed to purchase a handgun in the PRK)
"Do you have a gun on your person or in your car?"
"No sir."
"Why's that in your wallet?"
"So I may purchase a handgun."
"Is that where you're going?"
"My destination is none of your buisness officer."
"Mind if I take a look in your car?"
"Yes, I do. You have no reason to. Mind if I start recording our conversation with my video camera?"
"That shouldn't be necessary, let me fill out your ticket and you'll be on your way."
...

I try to be very nice and cooperative. But making the jump from a paper card to posession of a firearm is too much a stretch for me. I figure any more that if a cop wants to screw up my day beyond a justifiable ticket, etc. I get to screw up his.
I've been searched by cops before. I was too dumb and young to know that they needed probable cause. I'd rather sit on a cold freeway at night than sit on the roadside in a 110 degree day in palm springs again.

GET A LAWYER