imported post
user wrote:
The citation to Pruitt by WVCDL is apt. Pruitt was injured in a car accident, and the gun, which had been on the passenger seat was thrown to the floor in the collision. He put it in the center console, rolled up the windows, and immediately got out, closing the door behind him. He made arrangements to have the car towed and asked for an ambulance to take him to the hospital. After a conviction in the trial court and a denial of his petition to appeal to the Court of Appeals, the Supreme Court determined that the gun was not "on or about his person" such that it was subject to his immediate control and access.
My answer, assuming a person who has not been issued a CHP, to the effect that it should be secured in a separate container in the hardest place to get at, was intended to keep a person from being arrested, such that he didn't have to defend himself at all, much less spend $20,000 in legal fees to win after multiple appeals. The point is to avoid the situation in which a cop could reasonably believe that the person had concealed a handgun on or about his person.
In Pruitt, it seems clear to me, though it was not mentioned in the opinion, that the cop on the scene had a reasonable belief that the gun had been in the center console the whole time, and that was probable cause to arrest. The cop had no way of knowing at that time that the gun had been in plain sight while the driver was operating the vehicle, and made a judgment call. Of course, the driver must have protested, "But, but..."; I reckon one might imagine that cops get that all the time and routinely disregard self-serving protestations of innocence. If you rely on Pruitt, you're likely to spend some time in jail, at least. You may win at trial, if you've got a competent lawyer who isn't a liberal gun-hater himself, but would one want to have to go through all that?
I agree with you 100% about the risk of doing this without a CCP and being arrested. I repost this from elsewhere on this site because I believe it is important:
There is more recent case law (2009) from the Virginia Court of Appeals which I believe is pertinent, White v. Commonwealth, see
http://www.courts.state.va.us/opinions/opncavtx/2292072.txt. In this case the defendant exited his vehicle and the officers looked in the vehicle and saw a portion of the gun, mostly hidden, then entered the vehicle, retreived the gun, at which point the defendant was arrested.
From my reading, the court is indicating that the weapon hidden in the vehicle may be sufficient for probable cause allowing seizure of the weapon and an arrest, even though it may be insuffient to establish proof beyond a reasonable doubt for a conviction. I don't think I want to hide the weapon in my car until I get a CCP.
The case includes this from the court:
"For example, Code § 18.2-308(A) criminalizes the carrying of a firearm "about [one's] person, hidden from common observation." We find Officer Howe did have probable cause to believe appellant was violating this code section once the officer saw the weapon hidden under the armrest. As reasonable suspicion is a less stringent standard than probable cause,
see Alabama v. White, 496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less demanding standard than probable cause . . . ."), our finding that the officers had probable cause to believe the firearm was evidence that appellant was committing a crime necessarily subsumes and includes a finding that the officers also had reasonable suspicion to detain appellant once they saw the firearm. Thus, the police legitimately seized both the firearm and appellant."
"In other words, even though probable cause means more than a "mere suspicion," it is not necessary for the facts to be "sufficient to convict" the accused of the offense.
Gomez [v. Atkins], 296 F.3d [253,] 262 [(4th Cir. 2002)] (quoting
Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996)). Unlike a factfinder at trial, "reasonable law officers need not `resolve every doubt about a suspect's guilt before probable cause is established.'"
Id. (quoting
Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991)). We reject, therefore, Slayton's assertion that the alleged insufficiency of the evidence for a conviction necessarily precludes a finding of probable cause.
Because Deputy Spencer had probable cause to believe Slayton illegally possessed a concealed weapon, Spencer had authority both to arrest Slayton and to search him incident to that arrest."
"Appellant also argues that the firearm was not "about his person," an element of the concealed weapon statute, Code § 18.2-308(A), and, therefore, that the officers did not have probable cause to believe he was violating this statute. Specifically, he contends that, because he had exited the Cadillac and the weapon remained in the car, the gun was not near him or actually in his possession by the time Officer Howe discovered it, confiscated the weapon, and arrested appellant. However, again, the case upon which appellant relies,
Pruitt v. Commonwealth, 274 Va. 382, 384, 650 S.E.2d 684, 684 (2007), addresses sufficiency of the evidence to prove guilt, not to establish probable cause. In
Pruitt, the Court considered whether the evidence proved guilt
beyond a reasonable doubt, whereas here we are considering whether the evidence established
probable cause for a reasonable officer to believe that appellant was committing a crime.
See Slayton, 41 Va. App. at 107-08, 582 S.E.2d at 451. Thus,
Pruitt is not controlling here."