• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Had my bag searched outside of a sterile area of an airport without consent..

Thejoyofdriving

Regular Member
Joined
Jul 31, 2011
Messages
55
Location
CA
Yea so with the way you described this scenario you sort of set yourself up to be harrassed. Airport lobby with a bag and a visble holster with no weapon in it is most definitley going to draw hoplophobic security and LE.

The problem you face is they assume you are a criminal and no talking/convincing otherwise is going to make them think different. You have a holster on which means you MUST have a gun, which means you MUST be up to criminal activity or terrorist intent. The amount of time allowed before somone approached you was them planning how to deal with you in case things went sour real fast, and to them refusing a search or voicing your rights is going sour.

Yea I know its BS but these are the fearful and illogical times we live in. So regardless of what you said or did, they were going to locate the weapon and run you for prior history, and finding none they would look for something to pin to you.

LE will makeup what ever story they wish to get you to comply, "federal property" is a verbal judo technique of using something that is difficult to refute because it sounds official but cant be disproved easily. LE pulled that out of his A** to manipulate you to stop arguing and comply. I suggest if you continue to OC do as much research as possible into Verbal Judo techniques to help you deal with this interaction. Also knowing your court cases and penal codes verbatim is also very helpful.

I dont think you will win the probale cause argument because you put the holster on and that is an indication you have a firearm somewhere in you possession. In court the Judge will probably not let you get away with it. Its almost the same as If a LE noticed a print of a handgun on your belt line when you bend over to pick up your bag. Since we are dealing with "gun" most LE figure you are criminal first and only law abiding citizen when you act submissive and show your papers. You were arguing and standing up for your rights from the get go, criminals that try to avoid LE contact do the same thing.

In all likelyhood you might have faired better if you were OC'ing with the weapon in plain view and unloaded, now you fall under the realm of PC 12025,12026 and 12031. All they could legally do would be to check loaded status and then they are done, anything else would have been a clear violation of your rights... Having it unseen, which is technically concealed, is what sent this interaction the way that it did.

You could have thrown U.S. v King at them "A firearm alone does not create a reasonable suspicion of criminal activity." However you possibly having a concealed weapon without immediately producing a ccw is what probably set off the LE to continue the detainment and search. Good point though is if you think the situation is going more bad than good, and you ask "Am I under arrest?" and the answer is no, then follow up with "am I being detained?" and they answer no, Immediately leave, even if your in a strange place, get into a cab and drive away. By staying you are with your actions making the encounter consensual and they can and will continue to poke and prod for info and make every attempt to get you to give them probable cause.

Sounds like you got off with out to much trouble, be sure next time you have 100% recording high quality capability when carrying in public, reading the transcript is great but hearing the tone and voice inflection and attitude would serve you better in the court, and the court of public opinion.

I certainly was not in the airport lobby. I was in a food court outside of the airport building, as i said. If they were worried about a concealed weapon on my person they could have just done a terry pat. The bag was sealed by a federal employee, there was no way it could have left the bag, searching it was pointless.
 

Lawful Aim

Regular Member
Joined
Nov 25, 2010
Messages
131
Location
USA
You responded very well under the circumstances and yes, it does take experience to reduce the amount of times one looks back and says to themselves, "I should've".

Again, you expressed non-consent to the search and by expressing that you will not obstruct or by remaining in the area does not invalidate your non-consent. The agents acted under "color of law" with coercive authority while armed. You invoked the protections under the 4th Amendment to which they have no leg to stand on period.

Here is an excerpt from a class/lecture given at the Federal Law Enforcement Training Center regarding the 4th Amendment and consent;

Solari: ... Lawful consent has to meet three requirements. First, it has to be voluntarily - a product of free will. Second, the consent has to be given by someone with either actual or apparent authority over that place to be searched. Third the officers must confine their search to the place authorized.


Miller: How do courts determine whether consents is voluntary?


Solari: By the totality of the circumstances. The courts appear to find consent voluntary so long as it’s not the product of expressed or implied coercion. For instance, the courts consider the suspect’s age, intelligence, the number of officers who are present, the tone of voice they used, whether the suspect was in custody and given Miranda rights, and the suspect’s experience in the criminal justice system. No single one of those factors is determinative. The courts are going to consider all of them. Officers don’t have to tell people that they have the right to refuse a search, but of course if they do, that’s going to weigh heavily in favor of finding that the consent is voluntarily.


Miller: Well let’s get back to our resident at 123 Main Street. Let’s assume these facts. We’ve identified the occupant as the owner of the car in the parking lot. I ask the occupant, “Can we search your car?” I explain, “You have a right to refuse; however, if you don’t let us search the car, I’m going to apply for a warrant.” He then said “okay.” I spoke in a conversation tone of voice; however, this guy is in handcuffs at the time I’m having this conversation with him. Do you think that would be a voluntary consent?


Solari: I think it would be. What would weigh against a determination that the consent is voluntary is the fact that you’ve taken him into custody, he’s under arrest, and in handcuffs at the time you’re having that conversation; but; that doesn’t necessarily mean you can’t obtain a voluntary consent to search the car.

The things that definitely weigh in favor of it being voluntary – first, you told him where you wanted to search. You actually told him, even though you didn’t have to, that he had a right to refuse to give you consent to search. You also told him that if you don’t let us search the car, “I’m going to apply for a warrant.” Now that verbiage is pretty important. You simply told him the facts - you’re going to go apply for a warrant if he failed to consent. Importantly, what you can’t do is to tell him that if you don’t consent, I’m going to get a warrant or somehow pretend that you have a warrant that you don’t already have. But all you told him was that you were going to go ask for one. So I think that would be voluntary consent.
... ... ...
Miller: After the consenter authorizes the search, can he withdraw?

Solari: Absolutely. You bet. However, the courts generally require that withdraw of consent be unequivocal. By that, I mean, the consenter has to then make it perfectly clear to the officer that he no longer consents to the search and wants the officer to stop.


http://www.fletc.gov/training/progr...amendment-transcripts/consent-to-search.html/
 

markm

New member
Joined
Mar 7, 2010
Messages
487
Location
, ,
Your scenario is very similar to People v. DeLong. In that case the officers unlocked a trunk to inspect a rifle and the courts ruled that it was allowed under 12031. Now maybe those officers that hassled you didn't know about DeLong, but you can be reasonably sure their lawyer will, and I'm guessing the court will likely see little difference between the two cases.

How should you have acted differently? Don't talk to police officers. You knew right off that you were going to be hassled by a hostile officer. He wasn't having a friendly chat about what kind of holster you were wearing. You knew about 12031(e). So don't talk to them. Or if you decide to talk to them, feel free, but do not ever inform anybody that you have a firearm in a bag. But after you had talked to them and they informed you that you were not detained you should have gotten the hell out of Dodge. Don't sit around and wait for them to figure something out or to get brazen. Leave.

The only thing you have going for you in this case is that the officers didn't perform the 12031(e) check. They nearly did, but they didn't. Maybe that's a big enough difference to make a court feel that the officers were violating your rights, but I suspect that since they were allowed to be searching through your bag under 12031(e) that they can decide to stop and do something else instead of finishing their search.

Hello JoyofDriving,

IMHO, Bigtoe has some good advice here.

I find it difficult to not answer questions when a person under color of authority asks me questions. When I feel the urge to answer, I answer their question with a question. LEO is trained to entrap you with leading questions--questions that are designed to get one outcome for the police officer: Your admision of guilt! Barring LEOs success at getting an admission of guilt, they will ask for consent to detain you and to search your belongings.

Once the police officer starts answering your questions, he is on defense. He must justify his actions. You become the interogator.

Gundude at 5:35 pm has it right. However, if you have trouble keeping your pie-hole shut, ask the officer to quote you PC sections that he is unlawfully detaining under. Ask him if he has RAS. Keep repeating the question: Am I free to leave? If no answer ensues, the cops are fishing and you must slowly get up and slowly walk away.

Furthermore, the cops tailed you to your pick-up car. They got the license plate number and ran that plate for wants and warrants. You should have left in a cab.

markm
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,706
Location
Fairfax County, Virginia, USA
you should have been open carrying - legal in California ariports.

There is no reason that the gun must be registrered to you in California - you might be a visitor, new resident, or possess a gun imported or received prior to registration by sale requirement.

Further, as the gun might be borrowed, the police have no reason to check serial numbers anyway.
 

Thejoyofdriving

Regular Member
Joined
Jul 31, 2011
Messages
55
Location
CA
Hello JoyofDriving,

IMHO, Bigtoe has some good advice here.

I find it difficult to not answer questions when a person under color of authority asks me questions. When I feel the urge to answer, I answer their question with a question. LEO is trained to entrap you with leading questions--questions that are designed to get one outcome for the police officer: Your admision of guilt! Barring LEOs success at getting an admission of guilt, they will ask for consent to detain you and to search your belongings.

Once the police officer starts answering your questions, he is on defense. He must justify his actions. You become the interogator.

Gundude at 5:35 pm has it right. However, if you have trouble keeping your pie-hole shut, ask the officer to quote you PC sections that he is unlawfully detaining under. Ask him if he has RAS. Keep repeating the question: Am I free to leave? If no answer ensues, the cops are fishing and you must slowly get up and slowly walk away.

Furthermore, the cops tailed you to your pick-up car. They got the license plate number and ran that plate for wants and warrants. You should have left in a cab.

markm

I did ask them lots of questions "is this federal property?" "am I doing anything illegal?" "am I being detained?" "do you have any reasonable suspicion that a crime is, or may be commited?" "what authorizes this search?" etc etc. I asked as many questions as I could.

Again, I ask you to put yourself in my shoes. Leaving in a taxi would have been horrible. My family members who where picking me up at that location were already not a fan of open carry and the trouble it brings...if I would have left in a taxi, and made them play games to come pick me up, they would have gone crazy. Not to mention we were on a time constraint. No time for "pick me up here, no...here instead 5 blocks somewhere else"
 

Thejoyofdriving

Regular Member
Joined
Jul 31, 2011
Messages
55
Location
CA
you should have been open carrying - legal in California ariports.

There is no reason that the gun must be registrered to you in California - you might be a visitor, new resident, or possess a gun imported or received prior to registration by sale requirement
Further, as the gun might be borrowed, the police have no reason to check serial numbers anyway.

Oh....if I was OCing they would have called in swat or came in with guns in my face!!! If they gave me so much trouble about an empty holster, just imagine if it had something in it!!! These LEOs clearly didn't know the law and they wouldn't have known I was a harmless open carrier :lol:

I agree....the check the serial number thing was a gotcha game. It was to try and intimidate me and get consent. It didn't work.
 
Last edited:

pullnshoot25

Regular Member
Joined
Jul 24, 2008
Messages
1,139
Location
Escondido, California, USA
Yea so with the way you described this scenario you sort of set yourself up to be harrassed. Airport lobby with a bag and a visble holster with no weapon in it is most definitley going to draw hoplophobic security and LE.

The problem you face is they assume you are a criminal and no talking/convincing otherwise is going to make them think different. You have a holster on which means you MUST have a gun, which means you MUST be up to criminal activity or terrorist intent. The amount of time allowed before somone approached you was them planning how to deal with you in case things went sour real fast, and to them refusing a search or voicing your rights is going sour.

Yea I know its BS but these are the fearful and illogical times we live in. So regardless of what you said or did, they were going to locate the weapon and run you for prior history, and finding none they would look for something to pin to you.

LE will makeup what ever story they wish to get you to comply, "federal property" is a verbal judo technique of using something that is difficult to refute because it sounds official but cant be disproved easily. LE pulled that out of his A** to manipulate you to stop arguing and comply. I suggest if you continue to OC do as much research as possible into Verbal Judo techniques to help you deal with this interaction. Also knowing your court cases and penal codes verbatim is also very helpful.

I dont think you will win the probale cause argument because you put the holster on and that is an indication you have a firearm somewhere in you possession. In court the Judge will probably not let you get away with it. Its almost the same as If a LE noticed a print of a handgun on your belt line when you bend over to pick up your bag. Since we are dealing with "gun" most LE figure you are criminal first and only law abiding citizen when you act submissive and show your papers. You were arguing and standing up for your rights from the get go, criminals that try to avoid LE contact do the same thing.

In all likelyhood you might have faired better if you were OC'ing with the weapon in plain view and unloaded, now you fall under the realm of PC 12025,12026 and 12031. All they could legally do would be to check loaded status and then they are done, anything else would have been a clear violation of your rights... Having it unseen, which is technically concealed, is what sent this interaction the way that it did.

You could have thrown U.S. v King at them "A firearm alone does not create a reasonable suspicion of criminal activity." However you possibly having a concealed weapon without immediately producing a ccw is what probably set off the LE to continue the detainment and search. Good point though is if you think the situation is going more bad than good, and you ask "Am I under arrest?" and the answer is no, then follow up with "am I being detained?" and they answer no, Immediately leave, even if your in a strange place, get into a cab and drive away. By staying you are with your actions making the encounter consensual and they can and will continue to poke and prod for info and make every attempt to get you to give them probable cause.

Sounds like you got off with out to much trouble, be sure next time you have 100% recording high quality capability when carrying in public, reading the transcript is great but hearing the tone and voice inflection and attitude would serve you better in the court, and the court of public opinion.

My only issue with this otherwise excellent post is about detentions.Don't ask about a detention. You are either under arrest or not. Detention is a nebulous subject.

You have been sufficiently reamed for talking so I won't get into that. This is a learning experience so be glad it didn't get worse.

Sent from my PC36100 using Tapatalk
 
Last edited:

The Big Guy

Regular Member
Joined
Oct 20, 2009
Messages
1,966
Location
Waco, TX
1. Only answer questions with the question "Am I being detained or am I under arrest?" If they say "no" or don't respond, tell them the conversation is over and then shut up! Leave the area if you can.
2. If they answer "Yes" Invoke your 5th amendment rights and ask for a lawyer.
3. If they tell you they want or are going to search you or your possessions, simply state that you object to any search of your person or the search and seizer of your property.

I would think that the taking possession of and the search of your property would lead a reasonable person to believe you are being detained and or arrested.
Try to get an incident report, and then file a I.A. complaint. See where that goes.

As the Police admitted that you were not in violation of any law, they were then admitting that they had no RAS and therefore violated your rights. This is no different than stopping you driving down the street just to see if you have a driver’s license.


TBG
 

markm

New member
Joined
Mar 7, 2010
Messages
487
Location
, ,
I did ask them lots of questions "is this federal property?" "am I doing anything illegal?" "am I being detained?" "do you have any reasonable suspicion that a crime is, or may be commited?" "what authorizes this search?" etc etc. I asked as many questions as I could.

Again, I ask you to put yourself in my shoes. Leaving in a taxi would have been horrible. My family members who where picking me up at that location were already not a fan of open carry and the trouble it brings...if I would have left in a taxi, and made them play games to come pick me up, they would have gone crazy. Not to mention we were on a time constraint. No time for "pick me up here, no...here instead 5 blocks somewhere else"

Hey Joyofdriving,

I apologize for being too critical. I should have qualified my statement so that my opinion would not have been tied directly to your incident.

The cops broke the law, you did not.

A back-up egress plan is a good tactic for all of us if we don't want LEO violating our rights by running our license plates for wants and warrants after an e-check.

markm
 

ConditionThree

State Pioneer
Joined
May 22, 2006
Messages
2,231
Location
Shasta County, California, USA
you should have been open carrying - legal in California ariports.

There is no reason that the gun must be registrered to you in California - you might be a visitor, new resident, or possess a gun imported or received prior to registration by sale requirement.

Further, as the gun might be borrowed, the police have no reason to check serial numbers anyway.

If the airport is a public building, this would not be entirely correct. PC171b
 

cadurand

New member
Joined
Jul 1, 2011
Messages
4
Location
Mountain View, CA
The real question to ask is "Am I free to go?"

This forces the officer to tell you if you are free or not.

If they say "You're free to go.." then start walking. You don't have to leave the leave airport if that's not an option but walk far enough away to make it clear you don't want to talk to them. If they follow you it helps build your case later.

That's the whole point of asking if you're being detained isn't it? To leave? End the conversation? Right?

Don't stand there arguing once you're determined you're free to leave.

If they say you're not free to leave, stop asking questions and keep asking when you can leave. The whole thing about remaining silent has been covered in this thread already though.
 
Last edited:

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,516
Location
Northern Piedmont
You may well have a number of things you could sue them for; but this is what's called a "dignitary tort" - the only thing injured was your personal dignity. Juries typically don't think that's worth much. It'll cost you more to sue them than the case is worth, so you're not going to find an attorney who'll take the case on a contingent fee basis. You can plan on spending up to about twenty thousand dollars to do the litigation, and you'll have to submit to discovery, preparation for trial, and the trial itself, all of which will be added aggravation, time and trouble. The guys who pull this kind of stunt know perfectly well that what you're facing in suing them is worse than what caused the suit, that's why they know they can get away with it. Even if you did file suit and win, it won't stop them, because you're just one guy. The next guy they do it to won't go to all that trouble. Or the next...

What we need is some legislation with some teeth in it. If there were a mandatory statutory damages award of ten thousand dollars plus attorneys' fees as compensation to one who is subjected to this kind of rigamarole, then they'd have reason to stop. As it is, well, you know.
 
Top