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; 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 ...
May 4th, 2009 11:03 AM
Would a CCW Permit = Probable Cause?
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...
May 4th, 2009 11:03 AM
May 4th, 2009 11:10 AM
Iam a Police Officer here in Va. Whenever we pull a car over dispatch tells us immediately when the person has a concealed weapons permit or not. It is just for our safety and not necessarily to treat a person as if they are doing something wrong. I usually just ask them if they have the weapon and if so not to get it and keep their hands visible. As for PC to search, if you are legal and are hiding nothing i see no reason to do a search unless there is something else that comes up. If you have a gun in plain view without a permit thats fine also but I might run ur info to make sure you are not a convicted felon. Ive never had a problem with any CCW holder in my fifteen years on this job.
Originally Posted by landofvanill
May 4th, 2009 11:12 AM
It's incorrect. You only need to inform a police officer if you're in a state that requires it, regardless of where your permit is from.
Originally Posted by landofvanill
May 4th, 2009 11:34 AM
Thanks for the correction..
Also I want to re-iterate, I'm wondering how this would play out in an anti-gun state (that does not recognize any other state's permits) that discovered you were a CCW permit holder from another state. (Patrol- are you notified only of Virginia holders or from a bunch of other states?) Then I am wondering if this would provoke a fishing expedition based on PC because they know any gun they could find would be arrestable (even with FOPA in some states...)
May 4th, 2009 12:03 PM
Assuming it's a simple traffic violation and the ONLY information they have is that you're a CCW holder, no way in hell is that probable cause for a search!
Sig Sauer P229 9mm
Sig Sauer P238 .380
Colt XSE 1911 .45
May 4th, 2009 12:35 PM
That's a tough one. First off, like you say, I don't know if that info comes up if you're out of state.
I have heard of people with southern license plates and/or NRA stickers being targeted by police in NY/NJ. I think they can inquire about where you're going,exc., but a full search of the car if you already said you had a gun might be a stretch.
Best bet is refuse the search..........
"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
Nunn v. State GA 1848
May 4th, 2009 12:42 PM
Again, the word "probable" in probable cause doesn't have the usually understood meaning we all attach to it--chance. As in, the chances are....
In the context of a reason to search, it means there is evidence that proves something. The word probable means "provable." The officer must be able to articulate the crime suspected and the evidence.
Does merely having a cc in your possession "prove" you have a weapon? Is it evidence that you have a weapon? If the answer is NO, then there is no probable cause.
Of course, that doesn't mean things will always go the way they should, and not the way they shouldn't. As numerous threads here demonstrate, the concepts are very situation and fact dependent, and the issues are complex.
In my state you are only required to show your permit if you are actually carrying. Yet, I have heard of arrests made when folks failed to show their permit even though they weren't carrying.
When dealing with IL, NY, NJ, and MD, I'd make sure there is nothing in my car and my license isn't in my wallet where it might be seen while showing a DL--which does not show the CHL.
May 4th, 2009 01:28 PM
OK I will throw you a curve ball to this.....Use a Rental Car...Would they still know buy running the plate....
."..and he who has no sword, let him sell his garment and buy one." — Jesus Christ, Luke 22:36 NKJV
“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.”
May 4th, 2009 01:56 PM
There is generally a lot of confusion on what probable cause is. Probable cause to search and probable cause to arrest are the same thing. If an officer has probable cause to search your vehicle, they also have probable cause to arrest you, plain and simple.
Having a CHP from another state in a state where CCW is prohibited or seriously restricted does not amount to probable cause. However, it might amount to reasonable suspicion, depending on how articulate the officer is and what the courts in that jurisdiction are like. All that is needed to do a protective sweep of the passenger compartment is reasonable suspicion that a weapon is present and the occupant(s) may be dangerous. A protective sweep is basically a search of anywhere a weapon could be located and could be accessed by someone inside the vehicle. Does a valid CHP amount to reasonable suspicion? I can't answer that question, it could. It probably wouldn't in my jurisdiction, but I work in a shall issue state.
"The Engine could still smile...it seemed to scare them" -Felix
May 4th, 2009 02:27 PM
The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. Const. Amend. IV.A search is presumed to be unreasonable when it is conducted outside the judicial process, without prior permission of a judge or magistrate. Coolidge v. New Hampshire , 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2032 (1971)
Originally Posted by landofvanill
One exception to the bar against warrantless searches is a search conducted incident to a custodial arrest. United States v. Robinson , 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973). Such a search of the person and immediate surroundings is justified by the need to remove weapons and prevent destruction of evidence. Chimel v. California , 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969).
Probable cause to arrest must exist before the search and cannot be provided by the search itself. Smith v. Ohio , 494 U.S. 541, 543, 110 S. Ct. 1288, 1290 (1990).
Probable cause exists if the objective facts indicate that "a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime had been committed."State v. Johnson , 314 N.W.2d 229
Absent indicia of a crime (posession of a permit to carry a firearm from another state, in a state that does not accept such a permit is not indicia of a crime absent other indications...) any search for weapons under Chimel v. California or its successors would presumably be unlawful under the 4th amendment.
However, you have to be careful you do not provide additional indicia of a crime (carrying a weapon outside that state's laws or the FOPA or other...) by your actions or words.
May 4th, 2009 02:42 PM
As a owner of a rental car busienss it is impossible for LEO to know if you have a CCW our computers are not linked with DMV's. I don't even know which car you are going to get until I start to write up the rental agreement.
Originally Posted by Dark Wolf
Now a good percentage of my customers are carrying gun illegally here in NY. We had a Dodge caravan return 3 weekends ago with 4 windows blown out. There was 2 bullets that went thru the door and 2 rounds got the stuck in the door. Customer claims it was parked. Yea, Right !!!
May 4th, 2009 02:52 PM
To conduct a Terry search or similar, police need reasonable suspicion that the person is suspected of imminent illegal behavior or past criminal activity.
Originally Posted by Landric
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.
May 4th, 2009 03:30 PM
"Probable cause" for WHAT?
"Reasonable articulable suspicion" of WHAT?
Having a concealed carry credential isn't a crime.
Having a concealed carry credential isn't evidence of any other crime.
In Ohio, I have to notify a cop if I'm stopped for an official purpose, AND I'm carrying my firearm. It shows up when they run your information.
I go to Chicago once a year. There's no CCW in Illinois, AT ALL, so I don't take ANY guns there. When I have to drive through Illinois to get to Missouri, my guns are carried IAW FOPA. Regardless of how they would know, if I were detained, searched, arrested or anything of the sort on the basis of my having an Ohio CHL, I would devote my life to destroying that officer's career and finances.
Cops in anti-gun states don't have to like CCW. They don't have to like the 4th and 5th Amendments. If they like being able to support their families, they'd better obey the law. Liking that is totally optional.
"I do not consent to ANYTHING."
"Am I free to leave?"
"No? I have nothing further to say without my lawyer present."
Those three lines are as much protection for you as any firearm.
May 4th, 2009 03:58 PM
Very interesting thread !
Originally Posted by Deanimator
The last post has great information.
The first rule of a gunfight: "Don't be there !"
The second rule: "Bring enough gun"
jfl (NRA Life Member/Instructor - GOA - IDPA - GSSF - ex-IHMSA)
May 4th, 2009 04:18 PM
during a normal traffic stop, I am not required by PA law to inform the LEO that I have a weapon.
My PA drivers license, car registration, and proof of insurance are all in a see thru carrier that resides in the driver's side door pouch...which I can access before the LEO makes it to my rolled down window. My hands are at 10 and 2 holding said carrier and it is presented when asked for...then that hand returns to the wheel.
If it came to a point where the LEO wants me out of the car, and I feel that I am going to be searched, the LEO is advised that I am a LTCF permit holder and the weapon is holstered IWB strong side right. The location of said permit is then offered.
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