Would a CCW Permit = Probable Cause? - Page 2

Would a CCW Permit = Probable Cause?

This is a discussion on Would a CCW Permit = Probable Cause? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by landofvanill Is this enough Probable Cause to search your car? Remember, you're in a state where they would care very much... No....

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Thread: Would a CCW Permit = Probable Cause?

  1. #16
    Distinguished Member Array nutz4utwo's Avatar
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    Quote Originally Posted by landofvanill View Post
    Is this enough Probable Cause to search your car? Remember, you're in a state where they would care very much...
    No.


  2. #17
    Senior Member Array Landric's Avatar
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    Quote Originally Posted by MitchellCT View Post
    To conduct a Terry search or similar, police need reasonable suspicion that the person is suspected of imminent illegal behavior or past criminal activity.

    Reasonable suspicion is based on the totality of the circumstances as understood by those in law enforcement; it is more than a hunch but less than probable cause.

    Totality of circumstances means based on all the circumstances, which includes objective observations, information from police reports, and consideration of the modes of patterns of operation of certain kinds of lawbreakers.

    My question would be: What did the police have reasonable suspicion of?

    A weapon being present, is not, without more, indicia of criminal activity. It is indicia of a weapon being present.

    That the occupant of a vehicle is permitted to carry a firearm in another state? That does not mean a weapon is present...it means the person is licensed to carry a weapon in another state.

    ESTEP v. TX 310 F.3d 353 ruled on a similar issue - an NRA sticker on a car. The court found the following:

    The constitutional right at stake in this case is Estep's right to be free from an unreasonable search of his vehicle. The constitutional principle applicable to this case is found in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Supreme Court held that a warrantless search of the passenger compartment of a vehicle does not violate the Fourth Amendment if the search is conducted to protect the officer's safety. Specifically, the Long court stated that the:

    search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts, which taken together with rationale inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of the weapon. Id. at 1049, 103 S.Ct. 3469.

    Thus, for purposes of determining whether the Fourth Amendment was violated, the question is: was it reasonable for Officer Peace to think Estep was dangerous and might gain immediate control of a weapon based upon (1) Estep's vehicle containing an NRA sticker; (2) Estep's vehicle containing camouflage gear; (3) Estep showing Peace that he had a key chain which contained mace; (4) Estep getting out of the car to hand Peace his identification; and (5) Estep's manner in answering Peace's questions?

    The answer to that question is no for several reasons. The presence of the NRA sticker in the vehicle should not have raised the inference that Estep was dangerous and that he might gain immediate control of a weapon. Regardless of whether there is some correlation between the display of an NRA sticker and gun possession, placing an NRA sticker in one's vehicle is certainly legal and constitutes expression which is protected by the First Amendment. A police officer's inference that danger is afoot because a citizen displays an NRA sticker in his vehicle presents disturbing First and Fourth Amendment implications. See United States v. Ramon, 86 F.Supp.2d 665, 677 (W.D.Tex. 2000) (holding that in the absence of other sufficiently strong factors supporting a stop, reliance upon the vehicular display of religious decals and symbols as indicative of criminal activity likely violates the First and Fourth Amendments). Although we do not definitively decide today whether the presence of an NRA sticker could ever contribute to a "reasonable suspicion" of danger calculus, we do find that Peace's utilization of the NRA sticker in his "reasonable suspicion" of danger calculus was unwarranted when viewing the facts in the light most favorable to Estep.

    The only remaining factors alleged to indicate that Estep posed a danger to Officer Peace is that Estep had a camouflage jacket in his vehicle, Estep stepped out of his vehicle to greet Peace, Estep possessed a key chain with mace, and Estep was not cooperative in answering Peace's questions. We address each alleged factor which remains in turn.

    First, as far as we know, there is no law which prevents a citizen from carrying a camouflage jacket, carrying a key chain with mace, or displaying an NRA sticker in his vehicle. Indeed, if the presence of an NRA sticker and camouflage gear in a vehicle could be used by an officer to conclude he was in danger, half the pickups in the state of Texas would be subject to a vehicle search. Second, Estep's decision to get out of his vehicle to greet Peace and hand Peace his identification does not create the type of individualized suspicion needed for an officer to conclude he is in danger. See United States v. Hunt, 253 F.3d 227, 232 (5th Cir.2001) ("[a]n individual's decision to step out of his or her vehicle to greet a detaining officer does not create the individualized suspicion required for an automobile search"). Third, we cannot accept the notion that mere possession of a key chain with mace indicated that Estep posed a danger to Peace.4 Finally, Estep's alleged uncooperativeness could not justify the vehicle search because, viewed in the light most favorable to Estep, it appears as though Peace, not Estep, was the individual being uncooperative in the situation.5 Under Estep's version of the events, he cooperated until the search of his vehicle commenced.

    We realize that officers are called upon to make split-second judgments in oftentimes tense situations. Moreover, we recognize that the officer in the field is in a much better position than a judge in his office to determine whether a situation truly places the officer in danger. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)(noting that because police officers are often forced to make split-second judgments in tense situations the reasonableness of the officer's conduct should be judged from an on-scene perspective). However, the contention that a search must be done to protect a police officer must have some reasonable basis in fact. We cannot rubber-stamp a search of a vehicle based on an officer's mere inchoate and unparticularized "hunch" that a citizen poses an immediate threat of danger.6 See Maryland v. Buie, 494 U.S. 325, 332, 334 n. 2, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

    Here, viewing the facts in the light most favorable to Estep, there were no specific articulable facts from which Officer Peace could have lawfully concluded that he was in danger. The contention that a citizen poses an immediate danger because he possesses a key chain containing mace, camouflage gear, an NRA sticker, and does not answer questions in exactly the manner the officer desires is not suspicious enough behavior to justify a Long "frisk" of a vehicle. Thus, the search violated the Fourth Amendment.
    This is all good information. The officers in "Long" used the presence of a hunting knife in plain view to frisk both Long and his vehicle for weapons and located contraband. The knife, in and of its self, was legal. The totality of the circumstances lead to the frisk and Long's arrest. The Supreme Court upheld the frisk of Long's vehicle.

    I'm not saying that I would conduct a Terry frisk based on the possession of a CHP, but in a jurisdiction that is anti-gun and an articulate officer, the courts might well side with an officer conducting such a frisk. If they did, the ruling would likely be supported by Michigan v. Long.

    The resonable suspicion necessary would likely be illegal possession of a weapon or illegal carrying of a concealed weapon. One has to remember that in such states simply having a weapon can be illegal. Get the right (or wrong depending on how one looks at it) set of circumstances and an officer might be able to justify a vehicle frisk.

    Given that could be the case, the thing to do is comply with the laws of the state one is in. Even in the event one is subjected to such a frisk the absence of evidence would go a long way to preventing charges.

    Again, my point is not that I agree with such tactics, just that they exist and in some cases are perfectly legal.

    One should also note that the case referenced above, Estep V. Texas, took place, obviously, in Texas, not IL, MD, NJ, or NY. Courts in those jurisdictions might well take a different view.
    -Landric

    "The Engine could still smile...it seemed to scare them" -Felix

  3. #18
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    Confused here. Is it that Long was upheld, the presence of a hunting knife was sufficient to frisk Long? But, Estep won, because an NRA sticker etc., was insufficient?

    Is the court drawing a distinction between the knife as a weapon and the pepper spray as a weapon OR, is the distinction that the knife itself was illegal and therefore proof a crime was committed, and therefore a search of the vehicle or person justified?

  4. #19
    Ex Member Array Deanimator's Avatar
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    Quote Originally Posted by Landric View Post
    I'm not saying that I would conduct a Terry frisk based on the possession of a CHP, but in a jurisdiction that is anti-gun and an articulate officer, the courts might well side with an officer conducting such a frisk. If they did, the ruling would likely be supported by Michigan v. Long.
    If you conducted a Terry frisk on me because I had a CHL, it'd be on. I wouldn't resist, but you can damn well bet I wouldn't consent. You can also bet that I'd do everything humanly possible to grab your career and roll like a Nile crocodile. If having a valid CCW credential is justification for a Terry search, then so is a military ID, or a membership card from a martial arts school which teaches weapons techniques.

    I doubt that such a frisk would hold up in CHICAGO, much less the United States.

    I take such things VERY seriously. Not everybody is willing to be intimidated for completely lawful activities that some random bully doesn't like. I'm one of ones who isn't. I simply would NEVER let it go, no matter what.

  5. #20
    Member Array calmp9's Avatar
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    Quote Originally Posted by landofvanill View Post
    Hypothetically, let's say you were traveling through a state like NY, NJ, MD, or IL. Doesn't matter if you have your weapon with you (if you do, you're following FOPA-which could still get you in trouble in NY/NJ)

    You're pulled over, police look up your details and see that you're a CCW permit holder from another state (From what I've read, this is possible... dependent on the state). (Actually my Utah instructor stated that Utah holders must identify themselves in any state in which they are stopped. Please correct me if this is incorrect)

    In any case, the police now know you're a permit holder. Is this enough Probable Cause to search your car? Remember, you're in a state where they would care very much...
    I don't know what you mean by "looking up your details". The police in those states aren't going to know that you have a Utah CCW unless you tell them. If you volunteer that information, the officer will ask if you have a handgun in the car. They may or may not want to search.

    The 4 states you mentioned do not recognize the Utah permit. Declaring you have one will only invite problems.
    "[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them."

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  6. #21
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    No, a CCW is not probable cause to search your vehicle. Granted, police often conduct unconstitutional searches so weigh the cost of defending yourself if you put yourself in that situation.

  7. #22
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    Never been stopped while carrying, but after reading these posts it sounds like there could be a number of issues. My uninformed opinion tells me the less I say the better.

  8. #23
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    Quote Originally Posted by matdicdad View Post
    Never been stopped while carrying, but after reading these posts it sounds like there could be a number of issues. My uninformed opinion tells me the less I say the better.
    If you are carrying and you are legal IMHO there is no reason not to inform the officer in a polite and non-threatening manner. Even if it is not required by law. I would in most situations. IMO even that is not grounds to conduct any type of search.

    If I was not carrying, and I was in Nevada where my DL is linked to my permit, I would tell the officer that I have a valid permit but that I was not armed. That way when he runs my license he will not be surprised and wonder why I didn't tell him (even though you are not required to inform in Nevada even if you are armed). Outside of Nevada I would not say anything.

    Ken

  9. #24
    Ex Member Array Deanimator's Avatar
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    Quote Originally Posted by CowboyKen View Post
    If you are carrying and you are legal IMHO there is no reason not to inform the officer in a polite and non-threatening manner.
    That's not necessarily true.

    VCDL in Virginia has on their site an account of a man from North Carolina who when stopped by Fairfax, VA LEOs, voluntarily notified. He was thereupon falsely arrested for among other things, "crossing state lines with a loaded weapon", "having hollowpoints", and "illegally carrying a concealed weapon"... even though he had a valid NC credential, recognized by VA. I believe he's suing Fairfax County and the individual officers.

  10. #25
    Senior Member Array 2edgesword's Avatar
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    Probably cause to search for what, a firearm you're legally allowed to carry?

  11. #26
    VIP Member Array MitchellCT's Avatar
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    Quote Originally Posted by Landric View Post
    This is all good information. The officers in "Long" used the presence of a hunting knife in plain view to frisk both Long and his vehicle for weapons and located contraband. The knife, in and of its self, was legal. The totality of the circumstances lead to the frisk and Long's arrest. The Supreme Court upheld the frisk of Long's vehicle.

    I'm not saying that I would conduct a Terry frisk based on the possession of a CHP, but in a jurisdiction that is anti-gun and an articulate officer, the courts might well side with an officer conducting such a frisk. If they did, the ruling would likely be supported by Michigan v. Long.
    I disagree.

    In Long, the knife, although legal, was itself a weapon. Legal to carry, but still a threat.

    A carry permit is a state issued identification card. It is not a dangerous weapon that may be used against the police.

    They are not equivalent, no matter how much someone may wish them to be.

  12. #27
    VIP Member Array ccw9mm's Avatar
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    Quote Originally Posted by landofvanill View Post
    In any case, the police now know you're a permit holder. Is this enough Probable Cause to search your car?
    Probable Cause for a crime, you mean? Merely because I've been through the upstanding citizens' sieve of a background check, heavy attention by my sheriff/police chief, etc.?

    From a citizen's viewpoint, absolutely not. Having a license to carry a concealed firearm is about as benign, truthfully, as having black socks. If anything, as we all know, such a person is (statistically speaking) about the least likely person present to be a criminal. In and of itself, a CHL from another state implies no "probable cause" for a crime. Not hardly.

    In every sense of the word, such heavy-handed police officers are to be feared far, far more than the "threat" represented by another state having a strong belief that I'm an upstanding citizen and having taken pains to "prove" it.

    Now, if knee-jerk fears from a heavy-handed state demand that its police withdraw from the human race while puffing up their chests with their power status to roust upstanding people ... then, I suppose a CHL would represent as good a reason as any to screw over their oath as officers, sure. I'd think every upstanding officer would see that for the load of crap it is. Can't say what the lesser element would think or do, but nothing would surprise me.

    And yes, there have been instances when courts supported this Neanderthal behavior. It is what it is.
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  13. #28
    Senior Member Array Landric's Avatar
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    Quote Originally Posted by MitchellCT View Post
    I disagree.

    In Long, the knife, although legal, was itself a weapon. Legal to carry, but still a threat.

    A carry permit is a state issued identification card. It is not a dangerous weapon that may be used against the police.

    They are not equivalent, no matter how much someone may wish them to be.
    Perhaps I am not making myself clear. You and I agree that the possession of a state issued CHP shouldn't justify a vehicle frisk. That doesn't mean that in some states under some set of circumstances that it wouldn't be used as a reason.

    One has to remember that in order for the search to end up in court (outside a civil suit-good luck suing the government BTW) there has to be a charge filed. For example, an out of state CHP holder is subjected to a vehicle frisk in New Jersey. The officer recovers a handgun in the glove box. The CHP holder is arrested. The case goes to trial and the officer is called to testify. It might go something like this:

    ADA: Officer, what lead you to conduct a vehicle frisk on the defendant's vehicle?

    Officer: When I contacted the defendant I discovered he held a concealed handgun permit in North Carolina. I noticed that the defendant appeared very nervous, he was visably sweating even though it was cool outside and his hands were shaking. When I asked him if he had any weapons in the vehicle he replied "No" in a very quiet voice while looking at the glove box. I asked again if he had any weapons and he shook his head without making any sort of verbal reply. Based on my training and experience I felt that the defendant was being deceptive and I was concerned that he might well have an illegal handgun concealed in his vehicle. Fearing for my safety I removed the defendant from the vehicle and conducted a Terry frisk on his person. Not finding a weapon on his person I then checked the passenger compartment of the vehicle. I recovered a loaded Glock 9mm handgun in the glove box. At that point I arrested the defendant for illegal possession of a concealed weapon.

    How might a court in New Jeresy rule on that? I know I wouldn't want to find out.

    I am pretty sure that it wouldn't fly in my jurisdiction in North Carolina, but New Jeresy is a whole other ball of wax.

    The point is that no matter what any of us think about this issue, the courts are the ones who make the decisions on the frisks and searches. Counting on a court in an anti-gun jurisdiction (making the court its self likely anti-gun) to rule in a gun owners favor after an illegal (in that jurisdiction) gun has been recovered is pretty risky. Its not something I would want to do. That means follow the law in the jurisdiction you are in whether you agree with it or not. At least if one is subject to a frisk based on what one thinks is not valid reasonable suspicion and one is not charged with anything, one has a better civil case.

    Quote Originally Posted by 2edgesword View Post
    Probably cause to search for what, a firearm you're legally allowed to carry?
    Someone always has to whip out the "Probably Cause" in these discussions don't they?

    Quote Originally Posted by Deanimator View Post
    That's not necessarily true.

    VCDL in Virginia has on their site an account of a man from North Carolina who when stopped by Fairfax, VA LEOs, voluntarily notified. He was thereupon falsely arrested for among other things, "crossing state lines with a loaded weapon", "having hollowpoints", and "illegally carrying a concealed weapon"... even though he had a valid NC credential, recognized by VA. I believe he's suing Fairfax County and the individual officers.
    As well he should. He has a great case too, but suing the government is always a lengthly process and there is no way to assure success no matter how right one is. The government, after all, has lawyers on the payroll and pretty much unlimited funds. They should at the very least settle this case, but who knows if they will.

    Quote Originally Posted by heckler22150 View Post
    No, a CCW is not probable cause to search your vehicle. Granted, police often conduct unconstitutional searches so weigh the cost of defending yourself if you put yourself in that situation.
    Its not probable cause for anything, probable cause to search=probable cause to arrest, they are the same thing. Whether or not it might be used to get to the level of reasonable suspicion is what the big debate here seems to have turned into.

    Quote Originally Posted by Deanimator View Post
    If you conducted a Terry frisk on me because I had a CHL, it'd be on. I wouldn't resist, but you can damn well bet I wouldn't consent. You can also bet that I'd do everything humanly possible to grab your career and roll like a Nile crocodile. If having a valid CCW credential is justification for a Terry search, then so is a military ID, or a membership card from a martial arts school which teaches weapons techniques.

    I doubt that such a frisk would hold up in CHICAGO, much less the United States.

    I take such things VERY seriously. Not everybody is willing to be intimidated for completely lawful activities that some random bully doesn't like. I'm one of ones who isn't. I simply would NEVER let it go, no matter what.
    I wouldn't bet my freedom on it. If you want to, that is up to you. Again, in the event you are subjected to a Terry frisk you feel is unjustified (especially if such frisk doesn't result in your being arrested and the courts ruling the arrest valid), you are welcome to sue. However, due to the nature of government and the courts, you are in for an uphill battle. I'm not saying I like it, I don't, but it is what it is.

    Quote Originally Posted by Hopyard View Post
    Confused here. Is it that Long was upheld, the presence of a hunting knife was sufficient to frisk Long? But, Estep won, because an NRA sticker etc., was insufficient?

    Is the court drawing a distinction between the knife as a weapon and the pepper spray as a weapon OR, is the distinction that the knife itself was illegal and therefore proof a crime was committed, and therefore a search of the vehicle or person justified?
    If you are looking for consistency and sense in multiple court rulings you are likely to be disappointed. Both are weapons that could pose a threat to the officers involved and both where perfectly legal. Clear as mud right?
    -Landric

    "The Engine could still smile...it seemed to scare them" -Felix

  14. #29
    Ex Member Array Deanimator's Avatar
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    Quote Originally Posted by Landric View Post
    As well he should. He has a great case too, but suing the government is always a lengthly process and there is no way to assure success no matter how right one is. The government, after all, has lawyers on the payroll and pretty much unlimited funds. They should at the very least settle this case, but who knows if they will.
    I wouldn't settle such a case, for at least two reasons.

    1. It allows the perpetrators to eschew guilt. If you did it, you're guilty. I won't be a party to your lie that you weren't at fault. If I take a swing at a cop, nobody's going to let me "settle" without admitting guilt.

    2. I don't do nondisclosure agreements. You violate my 4th and 5th Amendment rights, THEN want to violate my 1st Amendment rights too? Not in a million years. If you falsely arrest me because of your extralegal personal agenda, I reserve the right not just to snatch the cheerios out of your kids' mouths, I reserve the right to talk about you like the cur you are, and nothing on earth can stop me.

    If you violate my rights, I'm going to get a piece of paper saying you did and I'm going to publicize it to the nth degree including how much money I got out of you and your employer.

  15. #30
    Senior Member Array Landric's Avatar
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    Quote Originally Posted by Deanimator View Post
    I wouldn't settle such a case, for at least two reasons.

    1. It allows the perpetrators to eschew guilt. If you did it, you're guilty. I won't be a party to your lie that you weren't at fault. If I take a swing at a cop, nobody's going to let me "settle" without admitting guilt.

    2. I don't do nondisclosure agreements. You violate my 4th and 5th Amendment rights, THEN want to violate my 1st Amendment rights too? Not in a million years. If you falsely arrest me because of your extralegal personal agenda, I reserve the right not just to snatch the cheerios out of your kids' mouths, I reserve the right to talk about you like the cur you are, and nothing on earth can stop me.

    If you violate my rights, I'm going to get a piece of paper saying you did and I'm going to publicize it to the nth degree including how much money I got out of you and your employer.
    I don't disagree with you in principle, but the reality can be very different. I have a friend who was fired from a government job for no good reason (basically the powers that be didn't like him). He got a ruling that he was fired due to his race. One would think that would be enough to get the staisfaction he wanted and deserved. One would be wrong. He spent better than four years fighting the good fight in court and racked up over 100,000 dollars in legal bills. Eventually he had to settle because he ran out of money to keep up the fight and the lawyers were not willing to work any longer without getting paid. He got over $200,000, but after paying the lawyers and all the bills he ran up after losing his government job and ending up working in a restaurant he had about $25,000 and still no job. He used the money to go back to school and is going into nursing, but it wasn't the jackpot would expect from such a lawsuit.

    That is how it goes sometimes. Suing the government is an uphill battle. You have every right to try. I agree with your position, I just wish is was more realistic.
    -Landric

    "The Engine could still smile...it seemed to scare them" -Felix

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