Illegally searched by Montgomery County PD

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Sig229 wrote:

swinokur wrote:

removing it to a hotel room would not be legal IMO.

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Thats not true.
A rented hotel room in YOUR name is considered a "temporary domicile".
Therefore, all laws regarding firearms inside of your home or apartment apply.

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Please provide a cite from MD law for this statement regards a hotel room as a legal domicile.

Maybe I was not clear in y statement of removing your weapon from your vehicle to stay in a hotel room as far as your continued coverage under FOPA and my use of the word illegal. I meant illegal under FOPA protections per the storage requirements. hence my advice to leave the weapon in your vehicle to at least comply with that portion of the law.. If you stop your vehicle in MD and remove your weapon, you are no longer traveling in compliance with FOPA and I'm guessing MD law would then apply and any FOPA coverage you had is now removed as you are are no longer storing your weapon per FOPA storage requirements. Secondly by stopping your journey in MD and removing your weapon, you have now created a destination in MD Not sure about the legality of a hotel room as a domicile in MD for purposes of 4-203. If as in Dreamers situation you then continued to your daughters home in MD, per the AG ruling, BOTH your origin and destination are in MD and 4-203 and 4-206 then apply, if you are stopped by LEO, you are then subject to the allowed search as outlined in 4-206. IMO 4-206 seems to not pass constitutional muster in light of Terry vs Ohio anyway.

That's my read of this. I would not consent to a search of my vehicle other than what is required by Terry vs Ohio USSC. (Pat down and cursory interior search for weapons) I am not even sure that a traffic stop by itself if it's a civil matter not criminal constitutes RAS for purposes of a search (RAS=Reasonable articulable suspicion of a crime being committed or in progress) as required by Terry vs Ohio USSC.


If the cop feels that strongly standing by the side of the road in the cold that a crime has been committed, let him go obtain a search warrant which then changes the burden to probable cause.

My .02


IANAL.

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Mike wrote:

swinokur wrote:

The federal law you cite (18 USC 926A) applies to the interstate transportation of a firearm (handgun or long arm) and supersedes Maryland law. It would have no bearing on the transportation of a firearm where the origin and destination are both within Maryland. It would however allow for the transportation of a firearm through the State of Maryland regardless of the Maryland law cited above.

For purposes of the exceptions to Maryland law, a handgun may be transported within the passenger compartment of the vehicle provided it is unloaded and in an enclosed case or holster. For purposes of the federal law exception, the firearm must be unloaded and not readily accessible from the passenger compartment.

Mark H. Bowen Assistant Attorney General

(end of quotation from Mr. Bowen)

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Interesting - Maryland law is actualy less strict than Virginia law in that an unloaded gun may be possessed in an arguably concealed condition (case or holster) in the passenger compartment.

As for FOPA being limited to interstate journeys, that's not what the text of FOPA says, and after all state highways are instrumentalities of federal commerce and "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce)." United States v. Lopez,514 U.S. 549 (1995).

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But MD also has a very strict laws that limit when the weapon can even be in your vehicle such as going to the range, a gun shop or an organized shoot. You cannot just drive around with it in your vehicle as you can in VA.. MD 4-203 outlines the narrow allowances for the weapon to be in your vehicle at all. It's not really more lax IMO as compared to VA, at least as it pertains to OC where carry in your vehicle is OK with certain exceptions. While MD appears to be more lax as far as the method of carry, if you compare where you can carry, even in an enclosed case or holster, to VA, VA clearly is a better environment IMO.

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Thanks for the replies. I’m glad to see that this incident has generated some lively discourse.

As far as the legal aspects go, I’ll have to limit my comments somewhat because the potential for legal action is still pending. Nevertheless, there are a couple of points that I’d like to share.

I’ve spoken with a handful of attorneys already, two of them good friends with JD’s from Ivy League schools who have adamantly confirmed the unconstitutionality of the officer’s actions. Virginiatuck raises some very interesting points by bringing up 4-206, which is a peculiar piece of legislation that I’ve never seen before. The remarkable thing is how watered-down it is, with endless room for interpretation.

It reminds me of Dreamer’s recent idea for a protest involving a copy of the Constitution with the “VOID in Maryland” stamp at the top.  Spot-on, Sir…

I’ve had lengthy (and colorful) discussions with other attorneys licensed in MD, again confirming the blatant illegality of what took place. The sad part is that the courts routinely condone illegal practices such as these and are well-versed in a plethora of tactics to sweep incidents like these under the carpet. The idea of a 1983 civil rights action has been discussed at length, but I can’t go any further than that at this point in time. Apologies.

Dreamer, your question about how my gear was stored is a good one. The guns are stored in one locked case and my magazines, range gear plus a couple boxes of ammo normally go in a locked ammo crate also in the trunk. I don’t always go through the effort of locking up my range gear since it’s normally not necessary, but when crossing state lines I prefer to go the extra mile, if nothing else then just to show any LEO’s that the out-of-stater they’ve never met before is indeed a good citizen on the right side of the law. Too bad that concept doesn’t exist in Maryland, where the good guys are treated like criminals and criminals are treated like good guys.

I’d heard about the magazine issue before but not wanting to take chances, I’ve always kept my magazines empty when travelling. I figure it doesn’t pay to take chances and rationalize that it gives the springs a chance to rest. As soon as I get home from the range or cross into a state that’s covered by one of my various nonresident CCL’s, I load them back up with HP’s.

I don’t drive around with this stuff in my trunk on a regular basis. I had planned to visit the range with my fiancé on this trip. She’s been to the range with me periodically over the past couple of years and is quite the shooter. With society being the way it is nowadays, and since I can’t be around all the time, we’ve talked at length about the need for her to be safe. Too bad that in MD, it’s illegal for a woman to take steps to protect herself beyond carrying a rape whistle and a cell phone. It reminds me of what a friend told me recently after moving to Connecticut from Arizona, something along the lines of, “I still have firearms left in Arizona because they weren’t ‘allowed’ in Connecticut. Back home I was a well-armed, safe and sane citizen, but let me come to Connecticut with that same gun and suddenly I’m a maniac. Funny how that works.” Fortunately, we’re moving out of that Godforsaken nanny state the second we’re done with our business there and not a moment too soon.

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Watch this video.

http://www.youtube.com/watch?v=6wXkI4t7nuc

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So my question is what is considered an "enclosed holster" under Maryland law.

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Great info thanks

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Not really defined in MD 4-203. The general consensus on the MD Shooters forum is a holster that substantially covers the firearm, such as a flap style holster. When i go to the range I put my weapons in my range bag. That is considered an enclosed case.. Actually, under MD law you could actually wear your unloaded weapon on your person if the holster substantially covers the weapon. As someone pointed out, that's even more lax than VA where the pistol must be in plain sight. The BIG difference is in VA it can be LOADED.

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jayspapa wrote:

As the poster was completely legal with the guns locked up in cases in the trunk , why couldn't you just say ," there is nothing illegal in my vehical !"??? Then if they search the car , it really is a fishing expedition and completely unwarrented.

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Not contradicting; just adding another thought.

"Officer. No offense. I know you are just doing your job. But, I believe in automatically invoking my rights. I would not consent to answering any questions without my attorneys."

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swinokur wrote:

Sig229 wrote:

swinokur wrote:

removing it to a hotel room would not be legal IMO.

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Thats not true.
A rented hotel room in YOUR name is considered a "temporary domicile".
Therefore, all laws regarding firearms inside of your home or apartment apply.

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Please provide a cite from MD law for this statement regards a hotel room as a legal domicile.

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I cannot find the statute online. But FWIW, the Anne Arundel county Circuit Court States Attorney stated this on many occasions involving a case that I was a participant in.

Perhaps one of the members on here can ask a lawyer friend.

Also, lets say you are staying in a hotel room and a person breaks in and is threatening bodily harm, you have a legal right to use a firearm in self defense just as you would in your regular home.

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Sig229 wrote:

swinokur wrote:

Sig229 wrote:

swinokur wrote:

removing it to a hotel room would not be legal IMO.

Click to expand...

Thats not true.
A rented hotel room in YOUR name is considered a "temporary domicile".
Therefore, all laws regarding firearms inside of your home or apartment apply.

Click to expand...

Please provide a cite from MD law for this statement regards a hotel room as a legal domicile.

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I cannot find the statute online. But FWIW, the Anne Arundel county Circuit Court States Attorney stated this on many occasions involving a case that I was a participant in.

Perhaps one of the members on here can ask a lawyer friend.

Also, lets say you are staying in a hotel room and a person breaks in and is threatening bodily harm, you have a legal right to use a firearm in self defense just as you would in your regular home.

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Again, you are offering your opinion on this situation, not a law or case law involving legal precedent in MD that defines a hotel room as a domicile. Until that happens, your example is sheer conjecture and could land someone in serious trouble if it's not the case. Laws are not made by States Attorneys and if there is no case law or statute on this subject it's just your opinion, not a law.

I will try to find a cite if I can. Until that happens, I'd recommend if traveling of any nature in MD, you leave your weapon locked in your vehicle per FOPA to avoid any legal entanglements. You can of course do anything you choose. YMMV. My .02

IANAL

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There is no provision in MD 4-203 about the legality of a domicile. Residence is all that is mentioned: 4-203 portion below:

4-203(b)(3) establishes that it is not a violation of the state law to transport a handgun (unloaded and in "an enclosed case or an enclosed holster") "between bona fide residences of the person." 4-203(b)(6) establishes that it is not a violation of the state law to wear or carry a handgun, openly or concealed, "on real estate that the person owns or leases or where the person resides . . ." The question, then, is whether a hotel room is a "bona fide residence" and/or a place "where the person resides" within the meaning of these provisions.

In late 2005, this question was discussed on the now-defunct forum packing.org. One of the participants in that discussion called the Maryland State Police and was told by an officer that transporting a handgun to a hotel room would be illegal (without a carry permit) because a hotel room is not specifically listed as an approved distination in the statute. However, at my suggestion the inquirer subsequently submitted the question to Assistant Attorney General Mark Bowen, who by e-mail provided the response that I have pasted in below. Please note that Mr. Bowen's answer is now more than four years old, and it is possible that some court may have spoken to the issue more recently.

Mr. Bowen's 2005 email follows:

Dear Mr. Morrison:

I cannot provide you with a definitive answer as, to my knowledge, Maryland’s appellate courts have not addressed the issue of whether a hotel room is a bona fide residence for purposes of Maryland’s handgun transportation laws.

Mark H. Bowen
Assistant Attorney General

Therefore based on the ambiguity of all of this, I would leave my weapon locked in my vehicle as per FOPA. YMMV. IANAL

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swinokur,

Thanks for the reply.
Again it wasnt necessarily "my" opinion. This was coming from the states attorney of the circuit court.
That is a lawyer who defends the state.

But I understand your side of it. I would want to actually read the case as well.

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Understood. But as I pointed out, I would feel better seeing case law or a specific statute allowing this. i don't so I won't. The word of a state's attorney has no legal weight in a court room if you are the defendent.

If the MSP have the same opinion as a few years ago, taking the weapon into a hotel room does NOT appear to be allowed under 4-203. It certainly does not comport with the requirements in FOPA either.

Everyone is free to do what they think is best for them.

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swinokur wrote:

Understood. But as I pointed out, I would feel better seeing case law or a specific statute allowing this. i don't so I won't. The word of a state's attorney has no legal weight in a court room if you are the defendent.

If the MSP have the same opinion as a few years ago, taking the weapon into a hotel room does NOT appear to be allowed under 4-203. It certainly does not comport with the requirements in FOPA either.

Everyone is free to do what they think is best for them.

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This is true. When yo are the defendant, I guess the States Attorney is willing to "forget" about certain interpretations of the law.

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i vist east pa alot i live in lexington, ky ill go out of my way through ohio not to go through nazi facist maryland.

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Dreamer wrote:

It's gotten to the point where I'm SERIOUSLY considering renting a small storage unit in Tysons Corner VA, so I can just drop off and lock up my firearms before I cross the state line into the "PRM". I'm actually afraid for my life while driving in MD when I've got my pistol locked up and unloaded in the back of my SUV, in separate. locked containers, and the threat I'm afraid of isn't the prolific "thug life" in MD--it's the folks with the badges that I'm worried about...

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This is pretty freaking scary and rediculous.

Maryland, Are you still in America?

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Wow, the cop actually said he was trying to catch VA CHP-holders?

You know, we invade places a lot farther away than Maryland to install puppet governments, Maryland is only a few miles from my house and it's surrounded by pro-gun states.What're we waiting for?

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ianto94 wrote:

So my question is what is considered an "enclosed holster" under Maryland law.

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Under the LETTER of the law, it is not defined...

Under the PRACTICE of the law, the only "enclosed holster" that a MD LEO is going to see as legal is one that is "enclosed" by the border of ANY other state than MD, I would venture to say.

If you travel in or through MD, leave your guns at home. If you don't want to leave your guns at home, don't go to MD.

When they start to realise that their anti-gun policies are effecting their economy through a massive reduction in income from a drop-off in out-of-state spending, maybe then they might reconsider.

Money talks... Especially to whores...

Ever wonder why there were so many lamp posts in Annapolis?
It gives something for the legislators to lean on when they are walking the streets...

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Damn. Gotta love it!

MD sucks. NO doubt. Can't wait to get out to an OC state.

Couple ?s for ya.

MD law says each handgun is unloaded and carried in an enclosed case or an enclosed holster. Federal (when in a vehicle without separate compartment), gun OR ammo is in a locked container.

Federally or in MD, this appears to mean that one may carry the weapon on one's side (if in vehicle without trunk or the like and let's just say enclosed in holster so we may include MD in this broad interpretation) as long as ammo is locked up.

You read it that way, fellas?

Am I correct in that I can carry a weapon in my yard, in MD? as per: (b) This section does not prohibit: (6) the wearing, carrying, or transporting of a handgun by a person on real estate that the person owns or leases or where the person resides or within the confines of a business establishment that the person owns or leases;

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That is the way the MD law reads...

However, you need to remember that MD DOES NOT have state preemption, and so a lot of cities and municipalities have laws prohibiting transport, carry or display in their jurisdictions, and some are even written to disallow OC if you have a valid MD permit, and they get away with it, because MD state law allows it.

In MD, it is a "general carry" permit, or more properly, a "Permit to Carry a Handgun". Ther eis no requirement or stipulation that if permitted, you must carry concealed. So if you've got a permit in MD, you can open carry. The problem is, many cities have banned the open display of firearms. Open carry (or ANY carry for that matter) is not legal in MD unless you have a PTCF, and even then, it's pretty much been banned--EVEN for permit holders--in all the urban areas like Rockville, Baltimore, or Chevy Chase...

Now as for carrying a gun on your hip in an "enclosed holster", even if it's unloaded, here's my take. It is legal, per the letter of the law. And since an enclosed holster would NOT have the gun "openly displayed", if you have a MD LTCF, it would probably even be legal in cities with an Open Display ban. But IANAL...

HOWEVER, knowing what I know about the attitudes of the MSP and Montgomery County LEA's, if you are pulled over in a car and have a WWII-style flap holster on your hip, and have an UNLOADED .45 in it, you WILL be proned and cuffed, you WILL have your person and your vehicle meticulously searched, you probably WILL be charged with some variant of "contempt of cop" like "disturbing the peace" or "diorderly conduct" or some other such "catch-all" violation, and you WILL have your firearm seized.

Now in a state with a non-criminal government and court system, any rational judge wold throw such a citation out, have your property returned to you, and let you go on your way.

But in MD, chances are, unless you've got Alan Gura as your defense attorney, you're going to get convicted, and you are NOT going to get your gun back.

If you want to be a "test case" and you have the time and money to fight it, then more power to you.

My answer to the criminal mentality of the MD government is to just "leave my guns at the border" before crossing the moat...

But then again, IANAL... Yet...