Arrested for Unlawful Carrying of a Weapon in Dallas 06'

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I came to this site to get information on how long i would have to wait to get a CHL after getting a 'UCW' in 2006. After reading different members post; it made curious about my own case. I had no prior's or have had anything else since that charge. I'm also not a member of a gang of any such. Was the search illegal or not? Read below and give some input:

"I was making a left turn at an intersection. The officers were coming from the street I was headed on, and was making a right turn; headed the towards the direction i was leaving. As the officers made the right turn, they looked directly at me and then went in made a U-turn. (Note: I was drivng a 1992 Toyota Camry; Registration and License Plate stickers were in standard). They came in pulled behind me as the light changed for me to go. I proceeded my turn and headed towards my destination which was the next street. I made my turn with the officers still behind me and as i drove a little further; the officers turn his lights on. I pulled over and waited for the officers to approach my door. One officer got out and instead of coming to my door; came to the passenger door. The first thing he asked was about the registered owner of the car; which was my sons mother. He said she had warrants and ask for my information; He said if everything checks out with me, I would be free to go. He went back to the squad car and check my information. He came back to the passenger side and let me know that i was clear and free to leave. As he walked back towards the squad car; he was looking in my back seat and spotted a camouflage case sticking out a little bit under the back seat. He then asked what was in the case. I said "nothing" and that's when he asked me to step out of the vehicle, and to sit on the curb. By this time his partner approach me and starting talking. The main officer went inside my vehicle and grab the camouflage gun case. He opened it and found the gun with bullets in the case. The gun was an old antique "smith & weston" revolver six shooter. Hadn't been shot in a decade or two "

 

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Sounds like an illegal search to me, however IANAL. Get with an attorney and tell him your story. In answer to your first question, if you were charged with a misdemeanor you will have to wait 5 years before you can apply for a CHL.

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Not only that, it IS legal to carry a gun (long guns always HAVE been and handguns are NOW since September of 2007) in the car in Texas -- with or without a CHL and loadedor unloaded-- as long as4 points are met:

1. It is concealed.

2. You are not a gang member.

3. Are not engaged in criminal activity.

...and (4) otherwise legally allowed toown a firearm.

And back in 2006 -- before the law changes since then--if the gun was in a location that required "a material change in body position" (not in arm's reach) to get a hold of it, then you were NOT considered "carrying." [IF I have this correct]

You don't say whether it was a long-gun or handgun...it makes a difference. Not NOW, but back it 2006 it probably did.

But back then -- and keep in mind Iam not a lawyer -- if you were going to or from a gun range/shooting activity (re: handguns only...long guns were exempt) or, "travelling," then you were in no violation, either. The cops would have to prove you were NOT going to any gun range or activity (HTH do they do that?) or show you wereNOT travelling...but back then, even the travelling part was not a clear-cut issue and interpreted differently by judges. I guess itwould have to be shown that you habitutally carry a handgun in your car at all times...but again, HTH are the cops going to prove that?

And acase under the seat you say was sticking out just a little (so they could not see the whole thing) -- regardless of it's color -- could contain your lunch for gosh sakes...so what? How does it say "there's something illegal" (or not) inside?

So it sounds like the cops were on thin ice if not just plain out wrong.

-- John D.

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CrossFire wrote:

Sounds like an illegal search to me, however IANAL. Get with an attorney and tell him your story. In answer to your first question, if you were charged with a misdemeanor you will have to wait 5 years before you can apply for a CHL.

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I may have to look up the requirements again, but 'charged' with ANY misdemeanor? say, I got charged for driving without a license then later had the charge dropped? I'd have to wait 5 years still?

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DKSuddeth wrote:

CrossFire wrote:

Sounds like an illegal search to me, however IANAL. Get with an attorney and tell him your story. In answer to your first question, if you were charged with a misdemeanor you will have to wait 5 years before you can apply for a CHL.

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I may have to look up the requirements again, but 'charged' with ANY misdemeanor? say, I got charged for driving without a license then later had the charge dropped? I'd have to wait 5 years still?

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O.K. I meant convictedof a misdemeaner.

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It was an antique "Smith & Weston" six shooter revolver that hadn't been shot in an decade

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Illegal search. At the end of the stop he should have just let you go, period. The only problem is that you are beyond the 2 year SOL for a 1983 lawusit.

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Dang....should have thought about it sooner....other than the lawsuit is there anything else i can probably do......i will still have to wait the full 5 yrs. huh

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Also I wasn't found guilty; I was given deferred

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Also I wasn't found guilty; I was given deferred

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Yes, it looks like you'll have to wait. "Deferred adjudication" is a problem getting a TX CHL:



http://www.texasdefenselaw.com/recent_news/2008/01/concealed-handgun-license-eligibility.html

"Friday, January 18, 2008

Concealed Handgun License Eligibility and Deferred Adjudication

Another warning about deferred adjudication—it can jeopardize your eligibility to obtain a concealed handgun license in Texas.

Accepting deferred adjudication in certain situations will make you ineligible to obtain a concealed handgun license. In fact, DPS considers deferred adjudication a conviction when evaluating a CHL application.

First, for felonies: a person cannot apply for a CHL if he has a felony deferred adjudication for offenses against a person, including murder, manslaughter, criminally negligent homicide, kidnapping, sexual assault, indecency with a child, aggravated assault and robbery.

For all other felonies, like property or drug crimes, the deferred adjudication must have started ten years before the date one applies for a CHL.

For misdemeanors, one cannot have a deferred adjudication for a Class A, Class B, or for a Class C disorderly conduct for five years before applying for a CHL.

DPS also prohibits applicants from having two or substance related offenses in the ten year period before asking for a license. So if a person has a DWI conviction and a deferred adjudication for possession of a controlled substance in the last ten years, he cannot apply for a CHL."

--Fred Dahr, criminal defense lawyer, Houston, Texas.



...I am assuming these points are still current law.

-- John D.

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Believe it or not, in Texas, he had probable cause, then you lied to him. Bad move.

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There's no law against lieing.

There's a lot missing here, or it's total BS...... Something made the LEO believe it was a gun and if so, in 2006 there's a good chance he was breaking the law. I say good chance because the change in 2007 eliminated the ambiguity which could make having a handgun in your car a violation.

But why toss a handgun, in a case or not, in the seat of a car at a time when it was not clearly legal to do so (like since 9/102007)

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Legal or not, if a cop sees a case in my truck and asks if there is a weapon in it, I sure won't say no if there is. Now that's just dumb. You don't make a cop mad, he can make it hard on you.

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I am a cop. That is an illegal search. He cannot use the pat down of the vehicle excuse anymore since he was done with his business and was cutting you lose. The gun wasn't in plain view. You didn't admit to having one or authorized him to look in your car. If you got convicted on Class A UCW, you have to wait 10 yrs to be eligible for CCW.

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Count wrote:

I am a cop. That is an illegal search. He cannot use the pat down of the vehicle excuse anymore since he was done with his business and was cutting you lose. The gun wasn't in plain view. You didn't admit to having one or authorized him to look in your car. If you got convicted on Class A UCW, you have to wait 10 yrs to be eligible for CCW.

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But, seeing part of a camoflage case in plain view would begin a new cycle where an LEO may address questions to anyone, no? So, I'm going to guess that if the search was illegal, it wasn't because the LEO was done with the traffic stop.

Lets assume for the moment that the traffic stop was over and the LEO was beginning a new inquiry. Would the corner of a camoflage case (lets assume it is a gun case) sticking out give rise to reasonable articulable suspicion of an illegally carried gun? I'm thinking it might.

Then when the driver answered there was "nothing" in the case, does this not add to the suspicion.

I guess the real question is whether the driver's denial and whether the corner of the case looked like a gun case were enough for probable cause for a search for carrying an illegal gun. As compared to searching the car for officer safety.

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It sounds like a win - lose situation to me.

I would think the LEO stepped over the line on this one, depending on the attitude of the person or persons involved.

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Citizen wrote:

Count wrote:

I am a cop. That is an illegal search. He cannot use the pat down of the vehicle excuse anymore since he was done with his business and was cutting you lose. The gun wasn't in plain view. You didn't admit to having one or authorized him to look in your car. If you got convicted on Class A UCW, you have to wait 10 yrs to be eligible for CCW.

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But, seeing part of a camoflage case in plain view would begin a new cycle where an LEO may address questions to anyone, no? So, I'm going to guess that if the search was illegal, it wasn't because the LEO was done with the traffic stop.

Lets assume for the moment that the traffic stop was over and the LEO was beginning a new inquiry. Would the corner of a camoflage case (lets assume it is a gun case) sticking out give rise to reasonable articulable suspicion of an illegally carried gun? I'm thinking it might.

Then when the driver answered there was "nothing" in the case, does this not add to the suspicion.

I guess the real question is whether the driver's denial and whether the corner of the case looked like a gun case were enough for probable cause for a search for carrying an illegal gun. As compared to searching the car for officer safety.

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The simple presence of a "gun case" does not meet the requirements of the Horton test for a plain view search. This is further compounded in thissituation because the case wasreportedly only partially visible,thus the officer could not even say that it wasgun case.The fact that it was camouflage does not matter either, as they make everything in camo patter these days as a fashion statement.Since a case can be used for any purpose, the simple presence of a case, no matter what shape it is (i.e. the common tapered shape of a gun case, square or whatever), is not enough to justifyan unauthorized search based on the plain sight doctrine.

For the plain view doctrine to apply for discoveries, the three-prongHorton test must apply, which requires the officer to be:

1. lawfully present at the place where the evidence can be plainly viewed,
2. the officer must have a lawful right of access to the object, and
3. the incriminating character of the object must be “immediately apparent.”

The term"incriminating character of the object", as used in part three of the test, refers to the illegal object (i.e. gun, drugs, etc) and the term "immediately apparent" refers to being clearly discernible that theillegal object is present. The third part of this test did not apply here because the incriminating character of the object (in this case the gun) was not "immediately apparent". In order to say for sure that a gun was present the officer had to perform the search, which made the search illegal under the Horton test. The presence of a case does not mean a handgun is present, thus thepresence of a weapon or any other illegal item is not immediately apparent. In order to meet the "immediately apparent" requirement, the officer has to actually identify the presence of the illegal object by sight (actually see an identifying character of the object, such as a part or outline of a gun), touch (such as feeling it duringa legal pat down), sound (such as hearing an occupant refer to the illegal object in the vehicle) or smell (such as smelling the odor of burning marijuana in the vehicle or the use of a drug dog to detect the presence of drugs), without having to enter, move, uncoveror otherwise further access the object.

Furthermore,the presence ofa cased handgunthat is out of reach of the driver is not a violation of Texas law either.

As for lying to the officer, while not a good idea for numerous reasons, it is not an offense in itself. Lying is only an offense if it was done under oath, such as in court or on a sworn statement.

All of this is irrelevant anyway, because this case (if true, and I have mydoubts)has already been ruled on by the court and the 30 days allowed to file an appeal in Texas has long since past, so legal search or not, guilty of the charge or not,it is a done deal.

Doc

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In the future, in Texas, if I'm pulled over by a LEO and I'm not carrying a weapon, which I do have a CHL, for instance, I just left Academy with a new case and it's behind the seat of my truck. Can an officer search this case?

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DocNTexas wrote:

Citizen wrote:

Count wrote:

SNIP I am a cop...

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SNIP I guess the real question is whether the driver's denial and whether the corner of the case looked like a gun case were enough for probable cause for a search for carrying an illegal gun.

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SNIP The simple presence of a "gun case" does not meet the requirements of the Horton test for a plain view search. This is further compounded in thissituation because the case wasreportedly only partially visible,thus the officer could not even say that it wasgun case.The fact that it was camouflage does not matter either, as they make everything in camo patter these days as a fashion statement.Since a case can be used for any purpose, the simple presence of a case, no matter what shape it is (i.e. the common tapered shape of a gun case, square or whatever), is not enough to justifyan unauthorized search based on the plain sight doctrine.

For the plain view doctrine to apply for discoveries, the three-prongHorton test must apply, which requires the officer to be:

1. lawfully present at the place where the evidence can be plainly viewed,
2. the officer must have a lawful right of access to the object, and
3. the incriminating character of the object must be “immediately apparent.”

The term"incriminating character of the object", as used in part three of the test, refers to the illegal object (i.e. gun, drugs, etc) and the term "immediately apparent" refers to being clearly discernible that theillegal object is present. The third part of this test did not apply here because the incriminating character of the object (in this case the gun) was not "immediately apparent". In order to say for sure that a gun was present the officer had to perform the search, which made the search illegal under the Horton test. The presence of a case does not mean a handgun is present, thus thepresence of a weapon or any other illegal item is not immediately apparent. In order to meet the "immediately apparent" requirement, the officer has to actually identify the presence of the illegal object by sight (actually see an identifying character of the object, such as a part or outline of a gun), touch (such as feeling it duringa legal pat down), sound (such as hearing an occupant refer to the illegal object in the vehicle) or smell (such as smelling the odor of burning marijuana in the vehicle or the use of a drug dog to detect the presence of drugs), without having to enter, move, uncoveror otherwise further access the object.

Furthermore,the presence ofa cased handgunthat is out of reach of the driver is not a violation of Texas law either.

As for lying to the officer, while not a good idea for numerous reasons, it is not an offense in itself. Lying is only an offense if it was done under oath, such as in court or on a sworn statement.

All of this is irrelevant anyway, because this case (if true, and I have mydoubts)has already been ruled on by the court and the 30 days allowed to file an appeal in Texas has long since past, so legal search or not, guilty of the charge or not,it is a done deal.

Doc

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Thanks for the info on the "Horton" test, Doc. I'll look it up.