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Thread: Does an Empty Holster Give RAS or PC to Search Vehicle?

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    Does an empty holster give RAS or PC to search my vehicle?

    If I am pulled over for a traffic stop, or entering/exiting a vehicle with a visible empty holster, and a cop asks to search myself or the vehicle and I refuse consent, can he use the empty holster to conduct the serch anyhow?

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    Does an occupied holster give them PC or RAS of a crime?

    Transporting firearms is legal (with restrictions), so I'm going to say no on both.

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    Does holding a plastic cup while walking down a street give LEO RAS to stop you?

    He doesn't know what you have in the cup!

    I don't think that should give a LEO a RS of you or your vehicle, a empty holster is just an empty holster, you could use it to hold mints for all he needs to know. Just my opinion and God knows we all have one!

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    I diddnt think so, but never hurts to ask around. An empty holster is also a form of protest. Should be protected under the first amendment.

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    stainless1911 wrote:
    SNIP Does an empty holster give RAS or PC to search my vehicle?
    RAS and PC are terms that have to do with standards of suspicion of a crime or evidence of a crime.

    Your question will have more to do with officer safety.

    In Terry v Ohio, the US Supreme Court basically said that before a cop could search for a weapon for officer safety, three elements had to be present: 1) reasonable suspicion the person is armed 2) reasonable suspicion the person is presently dangerous, and 3) nothing in the first few moments of the encounter serves to dispel the cop's concern for safety.

    In PA vs Mimms the US Supreme Court effectively removed the last twoTerry-requirements for a traffic stop for the officer to have reason to think the person is presently dangerous and that nothing in the first few moments dispels his concern about safety.

    Thus, during traffic stops, Mimmsleft only the first requirement ofTerry: reasonable suspicion of gun.

    Wanta bet that an empty holster will be viewed by the courts as reasonable suspicion a gun may be present and allow the officer to search for his safety?

    Also, it has been a while since I've read them, so I can't cite, but I think there are other court cases that allow cops to search the areas the driver can reach for a weapon for officer safety. Perhaps another forum member knows the cases and can refresh our collective memory.

    It occurs to me that you all may have a law prohibitingcarry in a vehicle, or alaw requiring a certain kind of carry in a vehicle, or requiring a license for vehicle carry. An empty holsterwould probablygive reasonable articulable suspicion (RAS) such a law is being violated, allowing additional detention beyond the traffic stop itself, for the cop to try to determine if such a law is being broken by a plain view search or questioning.I am fairly sure an empty holster could give rise to reasonable suspicion of a gun for officer safety. Mimms all but says so. And the courts seem to give wide latitude to police on officer safety matters.I strongly suspect that a gun whichis in violationof a vehicle carry lawthat is found during an officer safety search will not be suppressed by the courts. Meaning, I strongly suspect a court would admit into evidence such a gun.

    Heck, a court might even admit such a gun if it is found inside the car while the person to whom it belongs is outside the car. Remember that Gant addresses searches incident to arrest. A cop might claim the empty holster outside the car during a traffic stop is probable cause to search for a gun carried in violation of a vehicle law, and a court might side with him. I think it can depend on as little as whether the cop and judge feel it is more likely than not that somebody wearing an empty holster took the gun out for comfort or something while driving.

    I wouldn't take any chances.Even if I locked the gun in the trunk, securely wrapped/cased, separate from secured ammunition, I wouldn't give a cop the opportunity to search my car based on an empty holster.Even though he didn't find anything, I'd still be out the time, and have the aggravation. I'd just put theholster and mag pouch in the trunk, too.

    PA v Mimms: http://supreme.justia.com/us/434/106/case.html

    Terry v Ohio: http://www.law.cornell.edu/supct/htm...2_0001_ZO.html

    Other court cases that have proven helpful to know:

    http://opencarry.mywowbb.com/forum65/23936.html

    Arizona v Gant: http://www.law.cornell.edu/supct/html/07-542.ZO.html

    Edited to add text in blue.
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    My guess is that Citizen is correct ... it WOULD be considered sufficient to establish RAS for a Terry stop.

    Think of it this way as well ... would an empty beer can or whiskey bottle establish RAS for DUI? I believe they would.

    If I didn't want a LEO searching my vehicle I certainly wouldn't display an empty holster in plain view.

    Your lawyer might POSSIBLY be able to argue the issue at trial, and if s(he)'s successful then whatever the LEO found MIGHT be excluded at trial ... but I sure wouldn't bet on it.

    Citizen wrote:
    stainless1911 wrote:
    SNIP Does an empty holster give RAS or PC to search my vehicle?
    RAS and PC are terms that have to do with standards of suspicion of a crime or evidence of a crime.

    Your question will have more to do with officer safety.

    In Terry v Ohio, the US Supreme Court basically said that before a cop could search for a weapon for officer safety, three elements had to be present: 1) reasonable suspicion the person is armed 2) reasonable suspicion the person is presently dangerous, and 3) nothing in the first few moments of the encounter serves to dispel the cop's concern for safety.

    In PA vs Mimms the US Supreme Court effectively removed the last twoTerry-requirements for the officer to have reason to think the person is presently dangerous and that nothing in the first few moments dispels his concern about safety.

    Thus, during traffic stops, Mimmsleft with only the first requirement ofTerry: reasonable suspicion of gun.

    Wanta bet that an empty holster will be viewed by the courts as reasonable suspicion a gun may be present and allow the officer to search for his safety?

    Also, it has been a while since I've read them, so I can't cite, but I think there are other court cases that allow cops to search the areas the driver can reach for a weapon for officer safety. Perhaps another forum member knows the cases and can refresh our collective memory.

    PA v Mimms: http://supreme.justia.com/us/434/106/case.html

    Terry v Ohio: http://www.law.cornell.edu/supct/htm...2_0001_ZO.html

    Other court cases that have proven helpful to know:

    http://opencarry.mywowbb.com/forum65/23936.html

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    stainless1911 wrote:
    Does an empty holster give RAS or PC to search my vehicle?

    If I am pulled over for a traffic stop, or entering/exiting a vehicle with a visible empty holster, and a cop asks to search myself or the vehicle and I refuse consent, can he use the empty holster to conduct the serch anyhow?
    I would agree with citizen here, based upon cites stated. I get why you are asking the question given your current circumstances...

    However, if you refuse consent to search, an officer can still search unless you attempt to physically stop them somehow. I do not believe anything found after refusal could be used against you as it would be "fruit from the poisonous tree".

    Other thoughts anyone?
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    It sounds like I should be taking off my holster and putting it in the trunk with my weapon. Thanks for starting this thread, as I hadn't thought it through obviously.

    ETA: A little OT, but I want to be sure on something: The gun has to be unloaded, in the trunk, but it isn't illegal to have your magazines/ammo in the same case as the unloaded weapon?
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    Citizen wrote:
    stainless1911 wrote:
    SNIP Does an empty holster give RAS or PC to search my vehicle?
    RAS and PC are terms that have to do with standards of suspicion of a crime or evidence of a crime.

    Your question will have more to do with officer safety.

    In Terry v Ohio, the US Supreme Court basically said that before a cop could search for a weapon for officer safety, three elements had to be present: 1) reasonable suspicion the person is armed 2) reasonable suspicion the person is presently dangerous, and 3) nothing in the first few moments of the encounter serves to dispel the cop's concern for safety.

    In PA vs Mimms the US Supreme Court effectively removed the last twoTerry-requirements for the officer to have reason to think the person is presently dangerous and that nothing in the first few moments dispels his concern about safety.

    Thus, during traffic stops, Mimmsleft with only the first requirement ofTerry: reasonable suspicion of gun.

    Wanta bet that an empty holster will be viewed by the courts as reasonable suspicion a gun may be present and allow the officer to search for his safety?

    Also, it has been a while since I've read them, so I can't cite, but I think there are other court cases that allow cops to search the areas the driver can reach for a weapon for officer safety. Perhaps another forum member knows the cases and can refresh our collective memory.

    PA v Mimms: http://supreme.justia.com/us/434/106/case.html

    Terry v Ohio: http://www.law.cornell.edu/supct/htm...2_0001_ZO.html

    Other court cases that have proven helpful to know:

    http://opencarry.mywowbb.com/forum65/23936.html
    "exiting a vehicle with a visible empty holster"


    If the person is outside his locked vehicle with an empty holster, the officer MIGHT have RAS to search (pat him down outside clothes), but I don't see how he can search the vehicle for a weapon as it would be secured and pose no threat to the officer's safety. It would be the same if his firearm were locked in his trunk lawfully, the weapons posses no threat to the officer in this case.

    Searching a vehicle is a big intrusion into ones personal freedom and should not be looked on lightly.


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    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    Brian, would you mind scrolling up and taking a look at my edit I made to the post above yours?
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    fozzy71 wrote:
    Brian, would you mind scrolling up and taking a look at my edit I made to the post above yours?
    In regards to your question about ammo. You can have your ammo in a magazine in the same case as your weapon as long as the weapon is not loaded. In fact you could wear anempty holster and a have a couple of mags on you and you would be lawful as long as the firearm was secured per state law.

    The only mention of ammo separate from your firearm is if you have a CPL and you have been drinking alcohol then the weapon has to be unloaded and locked in a case, with the ammo in a separate location.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    Thank you, that was my understanding but I wanted to be sure. Getting ready to head to drop off the registration for my para 1911, then to the range to put 100 rounds through it and hope the slide doesn't crack.
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    Venator wrote:
    fozzy71 wrote:
    Brian, would you mind scrolling up and taking a look at my edit I made to the post above yours?
    In regards to your question about ammo. You can have your ammo in a magazine in the same case as your weapon as long as the weapon is not loaded. In fact you could wear anempty holster and a have a couple of mags on you and you would be lawful as long as the firearm was secured per state law.

    The only mention of ammo separate from your firearm is if you have a CPL and you have been drinking alcohol then the weapon has to be unloaded and locked in a case, with the ammo in a separate location.
    This came up in the Grand Rapids Seminar and it was amazing how many people were taught wrong by their CPL instructors.
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

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    The CPL class I took in April was a joke. The cop did a terrible job explaining the laws. He never explained the 21 ft rule or castle doctrine. he never mentioned you could OC in the PFZ's. After the '27 year veteran officer' did his part, the instructor from the shop said 'Open Carry is legal in michigan, but you cant carry in your car'. That's all we are going to say on the matter, because this is a 'concelaed pistol class'. :?

    The '8 hour class' took less than 5 hours. 100 guys at $100 a piece. You do the math as to what their goals were teaching the CPL class.

    And I am pretty sure I don't need even need to mention which shop/range this was.
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    To read more on this topic one should google the term "vehicle frisks".

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    what's the 21 foot rule? i imagine it's something to do with immediate threat or time to react.

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    kryptonian wrote:
    what's the 21 foot rule? i imagine it's something to do with immediate threat or time to react.
    better known as the Tueller Drill http://defendyourself101.ca/articles...-tueller-drill
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

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    if you don't have anything in your car that you wouldn't want found by a LEO during a search, it would be worth it to try the case. IMO.

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    I dont carry anything illegally, but I really dont want to be a 231 test case either. I also value my privacy and dont want someone digging through my car. I dont want to have to prove my intensions destinations reasons and so on for transporting, just because I have an empty drop leg, during a stop, or walking in a parking lot.

    I keep getting conflicting reports on the ammo question though, even from LEO. Could someone cite wether a person can have a loaded mag in their pocket while transporting their firearm unloaded, cased, and in the trunk?

    Im really tired of loading 12 rounds every time I want to OC.

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    I added a few lines to my post above. A little more thinking.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

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    Citizen wrote:
    I added a few lines to my post above. A little more thinking.
    OH! Please dont misunderstand that I am NOT transporting illegally. I have been very careful about that. I am aware of 231a, and 234d, and follow both very closely.

    My concern is that with a 231a case, it would be very likely a case of your word against the officers, in regards to where it was that you were coming from or going to. By default, this law is weighted heavily towards the favor of the officer.

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    Venator wrote:
    fozzy71 wrote:
    Brian, would you mind scrolling up and taking a look at my edit I made to the post above yours?
    In regards to your question about ammo. You can have your ammo in a magazine in the same case as your weapon as long as the weapon is not loaded. In fact you could wear anempty holster and a have a couple of mags on you and you would be lawful as long as the firearm was secured per state law.

    The only mention of ammo separate from your firearm is if you have a CPL and you have been drinking alcohol then the weapon has to be unloaded and locked in a case, with the ammo in a separate location.
    Only if the vehicle you're in does not have a trunk.

    Per 28.425k:

    (3) This section does not prohibit an individual licensed under this act to carry a concealed pistol who has any bodily alcohol content from transporting that pistol in the locked trunk of his or her motor vehicle or another motor vehicle in which he or she is a passenger or, if the vehicle does not have a trunk, from transporting that pistol unloaded in a locked compartment or container that is separated from the ammunition for that pistol or on a vessel if the pistol is transported unloaded in a locked compartment or container that is separated from the ammunition for that pistol.

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    SpringerXDacp wrote:
    Venator wrote:
    fozzy71 wrote:
    Brian, would you mind scrolling up and taking a look at my edit I made to the post above yours?
    In regards to your question about ammo. You can have your ammo in a magazine in the same case as your weapon as long as the weapon is not loaded. In fact you could wear anempty holster and a have a couple of mags on you and you would be lawful as long as the firearm was secured per state law.

    The only mention of ammo separate from your firearm is if you have a CPL and you have been drinking alcohol then the weapon has to be unloaded and locked in a case, with the ammo in a separate location.
    Only if the vehicle you're in does not have a trunk.

    Per 28.425k:

    (3) This section does not prohibit an individual licensed under this act to carry a concealed pistol who has any bodily alcohol content from transporting that pistol in the locked trunk of his or her motor vehicle or another motor vehicle in which he or she is a passenger or, if the vehicle does not have a trunk, from transporting that pistol unloaded in a locked compartment or container that is separated from the ammunition for that pistol or on a vessel if the pistol is transported unloaded in a locked compartment or container that is separated from the ammunition for that pistol.
    Yes good point, the handgun can be loaded, but must be locked in the trunk. I don't have a trunk and was thereby biased in my post. Sorry.
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    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    fozzy71 wrote:
    The CPL class I took in April was a joke. The cop did a terrible job explaining the laws. He never explained the 21 ft rule or castle doctrine. he never mentioned you could OC in the PFZ's. After the '27 year veteran officer' did his part, the instructor from the shop said 'Open Carry is legal in michigan, but you cant carry in your car'. That's all we are going to say on the matter, because this is a 'concelaed pistol class'. :?

    The '8 hour class' took less than 5 hours. 100 guys at $100 a piece. You do the math as to what their goals were teaching the CPL class.

    And I am pretty sure I don't need even need to mention which shop/range this was.
    Not intending to hijack but I hope you got your money back and did not turn in the certificate to the gun board. If your class was not less than 8 hours your certificate is invalid. And I hope somone turns those instructors in to the prosecutors for their felony

    Important points in bold

    28.425j Pistol training or safety program; conditions.
    Sec. 5j.
    (1) A pistol training or safety program described in section 5b(7)(c) meets the requirements for knowledge or training in the safe use and handling of a pistol only if the program consists of not less than 8 hours of instruction and all of the following conditions are met:
    (a) The program is certified by this state or a national or state firearms training organization and provides 5 hours of instruction in, but is not limited to providing instruction in, all of the following:
    /snip/

    (b) The program provides at least 3 hours of instruction on a firing range and requires firing at least 30 rounds of ammunition. /snip/
    (d) The instructor of the course is certified by this state or a national organization to teach the 8-hour pistol safety training course described in this section.
    (2) A person shall not do either of the following:
    (a) Grant a certificate of completion described under subsection (1)(c) to an individual knowing the individual did not satisfactorily complete the course.
    (b) Present a certificate of completion described under subsection (1)(c) to a concealed weapon licensing board knowing that the individual did not satisfactorily complete the course.
    (3) A person who violates subsection (2) is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,500.00, or both.


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    Regular Member fozzy71's Avatar
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    In their defense, the class was technically 8 hours. I live nearby so I was able to do my shooting a few days before hand. This meant I didn't need to be there at 7am for the group range time. I just had to show up and get my pic done before heading to class. If you add their 3 hours of range time that I avoided, the class would meet the criteria.

    I still feel the training by the officer and instructors was rather inadequate and obviously (purposely?) lacked information (bordering on misinformation).
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