Titan6
member
Earlier this week a soldier in an adjacent units was arrested in a major metropolitan area in Texas. The Soldier's Commander referred the soldier to me for advice on how to proceed as the Commander knows I am a big fan of the Constitution and the Bill of Rights. JAG will not help as this is a "civil" matter.
I spoke to the soldier and while I have not seen the police report but the soldier states the facts as follows:
He is black and was traveling through an upper class almost exclusively white neighborhood at about 1AM, shortly after getting off duty. He was pulled over for failing to signal during a lane change. In Texas this is commonly known as Driving While Black (DWB). When the officer pulled him over he stated that the NCO seemed "nervous" and told him to exit the vehicle and put his hands on the hood. The NCO gets confused at this point and says the officer asked if he had any "drugs, bombs, dangerous weapons, and something (probably guns)". He told the officer no because he does not remember hearing "gun". The officer never asked to search the vehicle and did not show a warrant.
The officer proceeded to search the vehicle and found a full pistol magazine inside of the closed vehicle center counsel. He then handcuffed the NCO and put him in his patrol car. He went back to the vehicle and continued to search and found an empty SA pistol with no magazine under the seat.
Although he is still awaiting charges the NCO was arrested for carrying a concealed weapon. I would ask the following questions of anyone with the legal know how:
1. Was this a legal search? My understanding is that in Texas you need either a warrant or permission, the LEO had neither. Certainly "seeming nervous" is not probable cause as anyone pulled over at 1AM for an unknown reason would be nervous...
2. Does having the weapon and magazine in two different places qualify as readily available?
3. Does having the magazine loaded even though it is not in the gun count as loaded in Texas? I know states vary...
4. Does he have a chance of winning here, or should he give up?
Strictly BTW and not really a matter of legal consequence: This is a career NCO who has never been in trouble before. He was carrying the gun because he had just been a victim of a crime not more than a week before.
I spoke to the soldier and while I have not seen the police report but the soldier states the facts as follows:
He is black and was traveling through an upper class almost exclusively white neighborhood at about 1AM, shortly after getting off duty. He was pulled over for failing to signal during a lane change. In Texas this is commonly known as Driving While Black (DWB). When the officer pulled him over he stated that the NCO seemed "nervous" and told him to exit the vehicle and put his hands on the hood. The NCO gets confused at this point and says the officer asked if he had any "drugs, bombs, dangerous weapons, and something (probably guns)". He told the officer no because he does not remember hearing "gun". The officer never asked to search the vehicle and did not show a warrant.
The officer proceeded to search the vehicle and found a full pistol magazine inside of the closed vehicle center counsel. He then handcuffed the NCO and put him in his patrol car. He went back to the vehicle and continued to search and found an empty SA pistol with no magazine under the seat.
Although he is still awaiting charges the NCO was arrested for carrying a concealed weapon. I would ask the following questions of anyone with the legal know how:
1. Was this a legal search? My understanding is that in Texas you need either a warrant or permission, the LEO had neither. Certainly "seeming nervous" is not probable cause as anyone pulled over at 1AM for an unknown reason would be nervous...
2. Does having the weapon and magazine in two different places qualify as readily available?
3. Does having the magazine loaded even though it is not in the gun count as loaded in Texas? I know states vary...
4. Does he have a chance of winning here, or should he give up?
Strictly BTW and not really a matter of legal consequence: This is a career NCO who has never been in trouble before. He was carrying the gun because he had just been a victim of a crime not more than a week before.
