Is CHL probably cause to search a vehicle?

[MeanStreaker]

I was reading most of the long "Can I look in the vehicle" thread, and had a specific question that I thought I'd ask here.

I'm aware of the requirements for a Terry Frisk and for probable cause to justify a non-consentual search of a vehicle.

Anyway, here's the hypothetical scenario: In OH, you have to notify the officer when you're carrying. Say I have a CHL and I politely notify the officer of that. Does that give him enough probable cause that there's likely a weapon in the car so that he can perform a non-consentual search? Now, what if I happen to be carrying and notify him of such? Could he search the rest of the vehicle for additional weapons? What if I'm not carrying at the time and notify him of such?

Does having a CHL give sufficient probable cause to search for weapons?

If anyone is a lawyer or has sufficient knowledge to believe that what they post is more fact than their opinion, I'd appreciate you saying so. Thanks.

 

[Bartholomew Roberts]

I don't think there is going to be much case law on the subject. To get case law we first need:

(1) Someone with a CHL doing something bad
(2) That CHL getting pulled over
(3) That CHL informing the officer of his license
(4) The officer doing a non-consensual search and finding something that leads to criminal charges OR
(4) The officer doing a non-consensual search that provokes a civil suit
(5) A trial determination on #4
(6) An appeal of the trial determination to a higher court

Without case law, all anybody can do is make guesses based on other situations that are going to have significantly different facts. I don't see much case law building up because even reaching #4 on the above list is going to be an extremely rare occasion.

Just pontificating on my part... the major requirement to justify a Terry frisk is that the officer reasonably believes the person is armed AND presently dangerous to the officer or others. Terry v. Ohio, 392 U.S. 1, 24 (1968). I would think that an officer would have a difficult time arguing a CHL holder was dangerous to others absent some additional facts (like the CHL making threats or being involved in a crime).

The Supreme Court has also said that a protective search cannot go beyond what is necessary to determine if a subject is armed. If it does, then the fruits of that search are invalid. Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Of course the current court might be willing to stretch that ruling a bit in favor of law enforcement; but I think you will run into problems arguing you needed a more extensive search when the person has a CHL and has volunteered the information to begin with (again absent some fact like you just called up your wife and threatened to kill her).

 

[Molon Labe]

Well, I'm pretty sure an NRA sticker cannot be used as PC for searching a vehicle. So I'm confident a CHL cannot (or more precisely, should not) be used as PC.

Just curious, MeanStreaker... has this happened to a CHL holder in Ohio? If not, it will probably happen sooner-or-later. When it does, let's hope the CHL holder has the means to fight it in court.

 

[Bartholomew Roberts]

Here is the closest I have I have come so far to your hypothetical:

Lewis v. State (WL 532464 - Tex. App. Dallas. 2005)

In this one the defendant Lewis was pulled over in Addison, TX. The officers had spotted Lewis parked in an apartment parking lot with his headlights off and engine running around 10pm. There had been a rash of burglaries in the area so when the officers came back about three minutes later and he was still there, they pulled him over.

"As the officers approached, Lewis put his hands out the window and told the officers he had a concealed handgun license. Lewis identified himself, provided his driver's license, and confirmed he lived in Frisco. Lewis explained that he was waiting for his girlfriend. Modley asked him how he got there and where his girlfriend was. Lewis said his girlfriend told him how to get there and she was on the way. Modley asked him to call her on his cell phone. Lewis called her and indicated she was on a street. Modley asked what street she was on, but Lewis did not ask her. Modley told Lewis to have her come there, but Lewis told her to stay where she was. When Modley again told him that she needed to come there, Lewis ended the conversation. Modley then asked Lewis to exit the vehicle. Lewis was wearing a police shirt with an iron-on Dallas Police Department badge, but Lewis did not identify himself as a police officer. Lewis later said his brother was a Dallas police officer."

The officers asked him if he had a gun in the car and asked "You have a problem with me looking in your car?" Lewis replied they were "More than welcome to" and the officers ended up discovering methamphetamine.

This doesn't help us much though because:

1) No proof Lewis actually had a CHL as he claimed
2) He gave consent to the search, so no Terry frisk

 

[rwc]

Probably not, but if this is a matter of pressing concern you should speak with someone licensed to practice law in your state.

 

[geekWithA.45]

I don't have the citations handy, but the general rules I've read clarify that since a carry permit is a lawful thing to have, its presence does not suggest that a crime is or has been committed, and therefore, a CCW in and of itself is insufficient grounds for probable cause.

The flipside is also true: having a carry permit is not going to prevent probable cause from being formed if there's a dead body hanging out the back of your trunk.

 

[cngerms]

OK, I'll ask...... isn't "probable cause" a shortened version of "probable cause a crime is being/has been committed?" Where's the crime or illegality in possessing a legally acquired permit?

PS: GEEK beat me to it......

 

[geekWithA.45]

You should probably also look up Terry Frisks, which stipulate that:

The Court held that police may briefly detain a person if they have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Because of the important interest in protecting the safety of police officers, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a “stop and frisk”, or simply a “Terry stop”. The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops.

http://en.wikipedia.org/wiki/Terry_v._Ohio

 

[Bartholomew Roberts]

I think it is probably easier to understand if you break it down into two different concepts: Probable cause and Terry frisk (even though they really blend into each other)

An officer must have probable cause to believe a crime has been committed to make a stop/search; but that search must be limited to the crime he believes has been committed. For example, he can't pull someone over for speeding and then search their car for drugs without being able to articulate why there was a probability of drugs in the car.

A Terry frisk is slightly different and is about the officer's safety. All he needs to justify that is a reasonable belief that there are weapons in the vehicle and that you are presently dangerous to others. If he can articulate a belief a jury finds reasonable, then he can search for weapons to the extent necessary to protect himself.

Both require a reasonable belief - PC requires an objectively reasonable belief a crime has been committed and TF requires a reasonable belief that you are armed and dangerous. However, a Terry frisk doesn't require you be able to state a reasonable belief a crime has occured. It is solely about officer safety.

If a driver was belligerent or refusing to comply with officer orders, I can see a court accepting a Terry frisk despite a CHL. My understanding is pretty limited on this aspect of the law though... I am sure cops and prosecutors/public defenders that deal with these issues more often are probably more knowledgable.

 

[Richmond]

probable cause

An officer must have probable cause to believe a crime has been committed to make a stop/search

Actually, an officer needs the lesser threshold of "reasonable suspicion" for the stop.

The federal and state constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. Generally, it is constitutionally impermissible for police officers to search or seize an individual unless the officers have “an arrest warrant, search warrant or have probable cause to make an arrest. The proscription against warrant-less searches and seizures is “subject only to a few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993) (quotations and citation omitted). For instance, under certain circumstances, an officer may perform an investigative stop of an individual and conduct a protective pat-search for weapons even if the officer does not have probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968). The search and seizure, however, “must be founded upon some objective justification” such as:
a reasonable suspicion entertained by a police officer based upon the officer’s experience that criminal activity may be taking place and that the individual with whom the officer is confronted may be armed and capable of immediately causing permanent harm.

Whether a brief seizure for investigatory purposes is reasonable is based on the totality of the circumstances, and must not be based on mere whim, caprice, or idle curiosity.

Think of each portion as a specific event:

In order to make a brief investigatory stop, the officer needs

Specific and articulable facts supporting reasonable suspicion that a crime has been committed or is about to be committed

Once that stop has been made, in order to do a Terry frisk, the officer needs

specific and articulable facts to support reasonable belief that the individual is armed and presents a danger.

For a full scale search, the officer needs probable cause - This term comes from the Fourth Amendment of the United States Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Illinois v. Gates, 462 U.S. 213 (1983), described the threshold of probable cause by as a "substantial chance" or "fair probability" of criminal activity. Gates also established the “totality of the circumstances” test.

In MN, a carry permit specifically does not provide grounds for a search – and when the officer runs DL/ID information, and it comes back that the individual has a permit, it states under it that this does not provide grounds for any search – a helpful reminder. This should be the correct analysis – how would the fact that someone is doing something lawful (carry with a permit) support either suspicion or probable cause to believe that there is criminal activity?

 

[cngerms]

I DO know this much...... I wouldn't want to be a police officer in court trying to justify a Terry frisk on someone who was allowed to be armed by the very same court in which I'm testifying based solely on permit possession. I have no idea if the Terry frisk is legal or not in this case. I'm neither a lawyer nor a LEO. I just know I wouldn't want to have to attempt the justification of it before a judge. In my feeble mind, being potentially "armed and dangerous" is a LONG way from being legally armed in the absence of a crime or ongoing investigation. Maybe the Terry frisk is allowed because the traffic stop IS the result of an offense?? This is an argument for better legal minds than mine.

 

[cngerms]

Looks like Richmond has cleared it up

 

[ronto]

According the instructors at my CHL class, one retired and one current LEO, a CHL holder is the LAST person they would suspect of any unlawful activity and would have no reason or desire to search their car or their person.
If I were a LEO, I would certainly concur with their reasoning and would not view a CHL holder as a potential BG.

 

[Sergeant Bob]

The flipside is also true: having a carry permit is not going to prevent probable cause from being formed if there's a dead body hanging out the back of your trunk.

But, but, I thought a carry permit was a license to kill!

 

[shooter503]

That ultra-liberal left-wing State of Oregon wins again.

166.262 Limitation on peace officer’s authority to arrest for violating ORS 166.250 or 166.370. A peace officer may not arrest or charge a person for violating ORS 166.250 (1)(a) or (b) or 166.370 (1) if the person has in the person’s immediate possession a valid license to carry a firearm as provided in ORS 166.291 and 166.292. [1999 c.1040 §5]

166.291 Issuance of concealed handgun license; application; fees; liability. (1) The sheriff of a county, upon a person’s application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person:

166.300 Killing another as cause for loss of right to bear arms. (1) Any person who has committed, with firearms of any kind or description, murder in any degree, or manslaughter, either voluntary or involuntary, or who in a careless or reckless manner, kills or injures another with firearms, and who, at any time after committing murder or manslaughter or after said careless or reckless killing or injury of another, carries or bears firearms of any kind or description within this state, shall be punished upon conviction by a fine of not more than $500, or by imprisonment in the county jail not to exceed one year, or both.

(2) Subsection (1) of this section does not deprive the people of this state of the right to bear arms for the defense of themselves and the state, and does not apply to any peace officer in the discharge of official duties or to a member of any regularly constituted military organization while on duty with such military organization.

 

[MechAg94]

I was thinking that Texas CHL law allowed the officer to ask that the CHL holder's weapon be turned over during a stop. I was thinking that might extend to having the CHL holder get out and the cop get the weapon. If it was in the glove box, he could open the glove box and get the weapon. I don't think this is a blanket search authorization though. Someone more versed on the specifics might know better.

Edit: This is more or less what I was thinking about.
http://www.texasonline.state.tx.us/NASApp/txdps/chl/common/jsp/welcome.jsp

GC §411.207. AUTHORITY OF PEACE OFFICER TO DISARM. A
peace officer who is acting in the lawful discharge of the officer's official
duties may disarm a license holder at any time the officer reasonably
believes it is necessary for the protection of the license holder,
officer, or another individual. The peace officer shall return the
handgun to the license holder before discharging the license holder
from the scene if the officer determines that the license holder is not a
threat to the officer, license holder, or another individual and if the
license holder has not violated any provision of this subchapter or
committed any other violation that results in the arrest of the license
holder.

 

[Frog48]

In OH, you have to notify the officer when you're carrying. Say I have a CHL and I politely notify the officer of that. Does that give him enough probable cause that there's likely a weapon in the car so that he can perform a non-consentual search?

I'm not a lawyer (yet), but no, I do not believe it would.

Simply because you have a CHL does not make any implication that you're currently engaged in an illegal activity, or give rise to suspicion that you're in possession of contraband.

Because you're CHL affirms the legal status of the gun possession, it is not considered contraband, so therefore it shouldnt be used as a stepping-stone to indicate the possible possesion of other contraband.

 

[Reyn]

Having a firearm with a CCW without any other circumstances is not probable cause to search a vehicle.

 

[Aguila Blanca]

Anyway, here's the hypothetical scenario: In OH, you have to notify the officer when you're carrying. Say I have a CHL and I politely notify the officer of that. Does that give him enough probable cause that there's likely a weapon in the car so that he can perform a non-consentual search? Now, what if I happen to be carrying and notify him of such? Could he search the rest of the vehicle for additional weapons? What if I'm not carrying at the time and notify him of such?

You are actually asking about two different scenarios, and I think the first may be based on a false premise:

Your hypothetical begins with the supposition that Ohio law requires you to notify a police officer when you're carrying. Okay ... I don't know Ohio law specifically, but a lot of states have that law, so we'll go with it.

But your first hypothetical appears to be asking what happens if you are a CHL holder and you are stopped when you are not carrying. Unless Ohio law requires you to notify the officer that you have a license, rather than requiring you to notify the officer when you are carrying pursuant to the license, the way I see it there is no requirement for you to even notify the officer of your CHL if you aren't "packing."

In the second scenario, what possible justification could there be for a Terry frisk? The purpose is to allow an officer to find out if you have a weapon. You just told him you are carrying pursuant to a CHL. He doesn't have to frisk you, all he has to do is ask where the gun is. Once you tell him it's in an IWB holster on your right hip, he can then decide how to proceed. No need for a frisk, you've already done the work for him.

 

[Crunker1337]

If you are legally armed, no they may not search your vehicle.
Methinks, however, that they would be able to to pat you down and make you surrender your weapon for the duration of the stop, if you're being detained.

 

[ServiceSoon]

If you are legally armed, no they may not search your vehicle.
Methinks, however, that they would be able to to pat you down and make you surrender your weapon for the duration of the stop, if you're being detained.

I disagree. I'm not the criminal, stop treating me like one. Its a mutual trust thing. Fact: Very few legal CCWers commit crimes.

 

[Kentak]

In Ohio, you do not have to inform the officer of CHL unless you are actually carrying. Then you must immediately inform the officer. However, if it is a traffic stop, the officer will probably know you are CHL before he approaches you by running your plates. Still, don't assume that, you MUST inform if you are carrying on your person or in the car.

The officer would probably ask you where the gun is located. The officer has the legal right to secure the weapon during the stop. It will be returned after the stop.

I have only been stopped while carrying once. The gun was locked in the glove box as per law. I informed the officer politely as he approached. He was perfectly professional about it and treated me with respect. He simply cautioned me not to go for the glove box. He did not frisk my person nor ask to see the weapon. I assume he visually scanned the interior of the car, which, of course, is legal.

From the Ohio Atty General's handbook on concealed carry:


Traffic Stops and Other Law Enforcement
Encounters
If a person is stopped for a law enforcement purpose and if the person
is carrying a concealed handgun as a CCW licensee, whether in a
motor vehicle or not, the person shall keep his or her hands in plain
sight at all times, unless in accordance with directions given by any
law enforcement officer. Violating this section of law is a first degree
misdemeanor, and in addition to any other penalty handed down by a
court, shall result in the suspension of the person’s concealed handgun
license for one year.
NOTE: So far, the Ohio Supreme Court has not defined the term
“plain sight” precisely in the context of carrying a concealed handgun.
However, in other contexts, courts have generally held that the term
“plain sight” is a common sense term that means clearly visible or
unobstructed. Plain sight applies to your hands and other objects.
If a person is stopped for a law enforcement purpose and if the person
is carrying a concealed handgun as a CCW licensee, whether in a motor
vehicle or not, the person shall not have or attempt to have any contact
with the handgun, unless in accordance with directions given by a law
enforcement officer. Violating this section of law is a felony of the fifth
degree.
If a person is stopped for a law enforcement purpose and if the person
is carrying a concealed handgun as a CCW licensee, whether in a motor
vehicle or not, the person shall not knowingly disregard or fail to comply
with any lawful order given by any law enforcement officer. Violating
this section of law is a first degree misdemeanor, and in addition to any
other penalty handed down by a court, shall result in the suspension of
the person’s concealed handgun license for two years.


NOTE: Under the law, a law enforcement officer has the authority to
take the handgun from you during a traffic stop or other encounter. It
will be returned upon completion of the stop and encounter.
WARNING:
If you are planning on carrying a concealed handgun while driving:
Have your concealed carry license and another piece of valid
government identification in your possession.
Make sure the handgun is:
In a holster secured on your person, or
In a closed case, bag, box, or other container that is in plain sight and
has a closing mechanism such as zipper, snap or buckle, or
Locked in your closed glove compartment, or
Locked in a case.
If you are pulled over and you are carrying a concealed handgun:
Before the officer approaches, roll down your window and place your
hands in plain view on the steering wheel.
Calmly tell the officer that you have a license to carry a concealed
handgun and that you have your handgun with you. Ask if the officer
has particular instructions concerning the handgun.
Do not touch or attempt to touch your handgun unless specifically told
to by the officer.
Do not exit your vehicle unless specifically told to by the officer.
Comply with all lawful orders given by the officer.
If you are a licensee and are not carrying a concealed handgun, this
section does not apply to you.
In addition to the concealed carry prohibitions detailed above, Ohio
has strict laws concerning firearms in a vehicle. If you DO NOT have a
concealed handgun license, you may not transport a loaded handgun in
any manner where it is accessible to anyone inside the vehicle without
•
•
•
•
•
•
•
•
•
leaving the vehicle. If you DO NOT have a license, you may not
transport a firearm in a vehicle unless it is unloaded and carried in one of
the following ways:
In a closed package, box or case;
In a compartment that can be reached only by leaving the vehicle;
In plain sight and secured in a rack or holder made for that purpose;
In plain sight with the action open or the handgun stripped, or, if the
firearm is of a type in which the action will not stay open or cannot
easily be stripped, in plain sight.
Statutory Reference(s): R.C. 2923.16(E) governs how licensees may
transport loaded concealed handguns in motor vehicles.
R.C. 2923.16(B) - (C) governs how firearms must be otherwise
transported in a motor vehicle.
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[MechAg94]

As I said above, Texas officers have the authority to take your weapon for the duration of the stop. I have never heard of them doing so. As said above, most all officers I have come across or read about here view the CHL holders as the people they least have to be concerned about. I have been pulled over a few times and 2 of 3 only asked what I carried.

Should they have the authority to take the weapon like that? Probably not.

 

[AngryBassets]

"Probably" cause?

Never heard of it.

 

[Art Eatman]

Experience in Texas: I've been stopped for speeding some four times since I first got a CHL. Twice, the DPS guy showed no interest whatsoever about any handgun. Once I was asked as to location; when I replied, "In the console," he grinned and showed no further interest. The fourth occasion led to a bull session about guns.

Similarly for a buddy of mine, but for more BS sessions about guns.

Art