Travelling With A Gun In The Vehicle?

[Guest CJRogue]

A buddy was asking me about this at work Friday. He's debating whether or not to get a concealed carry permit. I've taken the classes before and never opted to get the permit. Never actually had the need for one I guess and I know better than to let my vehicle get searched without a clear explanation of the probable cause involved and still wouldn't volunteer for it, even if all I had with me was a pocket knife and a pack of chewing gum. On principle.

In Texas, I could clearly carry a loaded handgun in the cab of my pickup as long as I was "travelling." Generally accepted definition of travelling was crossing 2 county lines that day.

What's your take on the law in Tennessee?

Is it "concealed" if it's under the seat?

In a small rig like a pickup, can it lay on the seat next to the driver and be legal?

I hear of folks unloading a gun, keeping it and the ammo in separate compartments (trunk, glove compartment, etc). What's the real deal here in my new home state?

[bubbadavis]

If you don't have a HCP, you cannot legally have a loaded handgun in the car. Open or concealed does not matter in TN -- you have to have a HCP to have a loaded handgun in the car. You cannot have a loaded rifle or shotgun in the car even if you have a permit as its for handguns only.

The only way to be legal without a HCP is to unload the gun (and the magazine) and keep the gun and ammo separated.

[Fivestring63]

In Tennessee it's not a CCW "Concealed Carry Permit". It a "Handgun Carry Permit" HCP. Technically, with the HCP, you can open carry, although most people don't.

[nightrunner]

correct, without a HCP, you cannot legally have ANY type of firearm loaded in your vehicle. you must have guns and ammo separated, for example in a pickup truck, guns in cab and ammo in the bed, secured or vice versa.

[Fallguy]

Everyone is right!!

[DaveTN]

Never actually had the need for one I guess and I know better than to let my vehicle get searched without a clear explanation of the probable cause involved and still wouldn't volunteer for it, even if all I had with me was a pocket knife and a pack of chewing gum. On principle.

And if you don’t get this “clear explanation” you will do what??

Many situations can cause a vehicle search; very few of them are going to involve a need for your consent.

What's your take on the law in Tennessee?

If you don’t have a carry permit you are just an average citizen.

<?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /><st1:State>Tennessee</st1:State> does not recognize any right to carry under either the U.S. Constitution or their own state constitution.

As someone who has been arrested for no crime other than having a gun in my car I can assure this is not the road you want to take. Get your permit.

Welcome to Tennessee.

[Guest GLOCKGUY]

yes please do get your permit its not hard to do just takes a little bite of your time and money

[Guest CJRogue]

Thanks for the answers. Dave, I respectfully disagree with your assessment of my searchability. As the only law I normally break is speeding, there would likely never be much PC to search me or my vehicle. I would inform the folk wanting to search my vehicle that I simply don't consent to it. My thinking here is that it would cause a good cop to pause and evaluate the need for a search. I might be sitting on the side of the road waiting for a dog to sniff around my truck, but I won't have anyone searching my property without a darn good reason.

[Volzfan]

I have an HCP so this question is not for me but for my cousin. I was never sure about it before I got my permit so here it is.

If I am driving a car, the gun and ammo can't both be in the same area and I am under the assumption that the gun can't be anywhere in the drivers compartment and the ammo in the glove compartment or the other way around. Either the gun or the ammo has to be in the trunk. Is that correct? How about both in the trunk?

What about a truck where there is no way to secure one or the other in the bed of the truck?

[EMTRN]

Dave, I respectfully disagree with your assessment of my searchability. As the only law I normally break is speeding, there would likely never be much PC to search me or my vehicle. I would inform the folk wanting to search my vehicle that I simply don't consent to it. My thinking here is that it would cause a good cop to pause and evaluate the need for a search. I might be sitting on the side of the road waiting for a dog to sniff around my truck

Man, you are smart. If only the dope boys we pull over were as smart as you. And, BTW many of them were "only speeding." To borrow a quote from Jay-Z, "we'll see how smart you are when the canine comes!"

[Guest db99wj]

I have an HCP so this question is not for me but for my cousin. I was never sure about it before I got my permit so here it is.

If I am driving a car, the gun and ammo can't both be in the same area and I am under the assumption that the gun can't be anywhere in the drivers compartment and the ammo in the glove compartment or the other way around. Either the gun or the ammo has to be in the trunk. Is that correct? How about both in the trunk?

What about a truck where there is no way to secure one or the other in the bed of the truck?

You can have both in the drivers compartment, they can't both be accessible or within reach of each other. In other words, you can't be able to lean over and grab the gun out of the glove box and grab the ammo behind the seat while still sitting in your seat. So if it were me I would get my permit and not worry about it. If he has not permit, drives a small regular cab truck, put the gun in the glove box, the ammo on the passenger side behind the seat in the corner or in the tool box of the truck or the bed of the truck if not raining.

[DaveTN]

Thanks for the answers. Dave, I respectfully disagree with your assessment of my searchability. As the only law I normally break is speeding, there would likely never be much PC to search me or my vehicle. I would inform the folk wanting to search my vehicle that I simply don't consent to it. My thinking here is that it would cause a good cop to pause and evaluate the need for a search. I might be sitting on the side of the road waiting for a dog to sniff around my truck, but I won't have anyone searching my property without a darn good reason.

A good cop wouldn’t be asking for consent to search your vehicle unless he already had PC. I know this to be fact.

[Guest Abominable_Hillbilly]

Thanks for the answers. Dave, I respectfully disagree with your assessment of my searchability. As the only law I normally break is speeding, there would likely never be much PC to search me or my vehicle. I would inform the folk wanting to search my vehicle that I simply don't consent to it. My thinking here is that it would cause a good cop to pause and evaluate the need for a search. I might be sitting on the side of the road waiting for a dog to sniff around my truck, but I won't have anyone searching my property without a darn good reason.

As stated, get the HCP. It sucks to have to play mother-may-I with the state to fully avail yourself of your Second Amendment protections, but that's the way it is.

As to the search issue, it doesn't matter what the offense is. With the SCOTUS decision in Virginia v. Moore a few months ago,the cops will just arrest you and perform a search incident to a lawful arrest. It doesn't matter whether or not you agree to sign the summons. It doesn't matter that state law requires the police to issue you a summons and turn you loose as long as you agree to sign. Doesn't matter at all now. If they have PC for a traffic violation, they can get in your car if they want--without RAS or further PC formerly needed to search.

[DaveTN]

As to the search issue, it doesn't matter what the offense is.

I don’t think <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /><st1:State>Virginia</st1:State> v. <st1:City>Moore</st1:City> would get an Officer inside a vehicle on a minor ticket, such as speeding. The drugs found on <st1:City>Moore</st1:City> were found on him, not in his vehicle incident to an arrest. <st1:City>Moore</st1:City> was arrested for driving on a suspended license. <st1:State><ST1:pVirginia </st1:State>allows the Officer to give you a summons and release you, but also has provisions for an arrest.

I don’t know how <st1:State>Tennessee</st1:State> handles a driving on suspension, but where I was from we took the individual to jail; that allowed the search of him. His vehicle would have been impounded and that means an “inventory search†prior to towing; that covered the search of the vehicle.

<st1:City>Moore</st1:City> was a know drug dealer and known to have a suspended license. This guy didn’t have a chance from the get go. That’s a lot different than a stop for a minor traffic violation. Although stops for minor traffic violations can turn to criminal charges pretty quickly based on what is observed when the Officer approaches the car and talks with the driver.

[skipsfirearms]

Thanks for the answers. Dave, I respectfully disagree with your assessment of my searchability. As the only law I normally break is speeding, there would likely never be much PC to search me or my vehicle. I would inform the folk wanting to search my vehicle that I simply don't consent to it. My thinking here is that it would cause a good cop to pause and evaluate the need for a search. I might be sitting on the side of the road waiting for a dog to sniff around my truck, but I won't have anyone searching my property without a darn good reason.

It might cause a "Good Cop" to pause, but I can tell you from personal experience that THEY do what they want. Not too hard to make up probable cause. Say like handcuffing you for "Their Protection". Been there done that....

[Guest jth_3s]

Thanks for the answers. Dave, I respectfully disagree with your assessment of my searchability. As the only law I normally break is speeding, there would likely never be much PC to search me or my vehicle. I would inform the folk wanting to search my vehicle that I simply don't consent to it. My thinking here is that it would cause a good cop to pause and evaluate the need for a search. I might be sitting on the side of the road waiting for a dog to sniff around my truck, but I won't have anyone searching my property without a darn good reason.

I ran in the the dog problem after refusing consent to search. I found out later from a judge that came and talked at one of my college classes thath an officer could not make you wait for a dog if he did not have one. He told me if it happened again ask to talk to a superior

[EMTRN]

The dog must arrive in a reasonable amount of time. We were told 15 to 30 minutes was reasonable.

[Guest Abominable_Hillbilly]

I don’t think <st1:state>Virginia</st1:state> v. <st1:city>Moore</st1:city> would get an Officer inside a vehicle on a minor ticket, such as speeding. The drugs found on <st1:city>Moore</st1:city> were found on him, not in his vehicle incident to an arrest. <st1:city>Moore</st1:city> was arrested for driving on a suspended license. <st1:state><st1>:pVirginia </st1>allows the Officer to give you a summons and release you, but also has provisions for an arrest.</st1:state>

I don’t know how <st1:state>Tennessee</st1:state> handles a driving on suspension, but where I was from we took the individual to jail; that allowed the search of him. His vehicle would have been impounded and that means an “inventory search” prior to towing; that covered the search of the vehicle.

<st1:city>Moore</st1:city> was a know drug dealer and known to have a suspended license. This guy didn’t have a chance from the get go. That’s a lot different than a stop for a minor traffic violation. Although stops for minor traffic violations can turn to criminal charges pretty quickly based on what is observed when the Officer approaches the car and talks with the driver.

The Supreme Court of Virginia suppressed the evidence against Moore. What's that tell you? The officers had no business arresting him.

For federal Fourth Amendment purposes, a minor traffic ticket is an arrestable offense. Period. If an arrest was made for 36 in a 35, and it was appealed all the way to SCOTUS, they'd call it a good arrest. All a state has to do is appeal a suppression, and the evidence will eventually be admitted. It has to be. SCOTUS nullified state laws that protect citizens from capricious, obnoxious behavior by the police.

I ran in the the dog problem after refusing consent to search. I found out later from a judge that came and talked at one of my college classes thath an officer could not make you wait for a dog if he did not have one. He told me if it happened again ask to talk to a superior

Be careful. Entire agencies can be very vindictive.

The dog must arrive in a reasonable amount of time. We were told 15 to 30 minutes was reasonable.

There is no set time limit. With several recent decisions, all you have to do is show that your behavior was "reasonable". With RAS, you might very well be able to wait for a dog from another county.

State v. Fly (TN) established, once again, that our courts will follow the federal courts. See Caballes v. Illinois (SCOTUS). Both these cases provide that the drug soldiers may perform a dog sweep "contemporaneously" with the traffic stop. So long as at least one officer is engaged in issuing the summons, any other number of officers and dogs may commence with interrogating the citizen. This has led to an interesting set of case law where the courts are trying to interpret when a police officer is intentionally stalling or expanding the scope of a stop simply because he or she is trying to extend the stop long enough for the dog to get there.

Edited July 15, 2008 by Abominable_Hillbilly

[Guest ProguninTN]

For federal Fourth Amendment purposes, a minor traffic ticket is an arrestable offense. Period. If an arrest was made for 36 in a 35, and it was appealed all the way to SCOTUS, they'd call it a good arrest. All a state has to do is appeal a suppression, and the evidence will eventually be admitted. It has to be. SCOTUS nullified state laws that protect citizens from capricious, obnoxious behavior by the police.

Yes, but you must distinguish between a custodial arrest and a non-custodial arrest such as a state misdemeanor citation. Searches subsequent to a custodial arrest are constitutional. (See Chimel v. California 395 U.S. 752 (1969). Searches subsequent to a non-custodial arrest are NOT constitutional. (See Knowles v. Iowa 525 U.S. 113 (1998).

[Guest Abominable_Hillbilly]

Yes, but you must distinguish between a custodial arrest and a non-custodial arrest such as a state misdemeanor citation. Searches subsequent to a custodial arrest are constitutional. (See Chimel v. California 395 U.S. 752 (1969). Searches subsequent to a non-custodial arrest are NOT constitutional. (See Knowles v. Iowa 525 U.S. 113 (1998).

Now, when you say "non-custodial," do you mean that, technically, being stopped is an "arrest"? If so, I agree. While agreeing, I'll point out to you that the arrest in Moore was custodial, and it was for a traffic violation that could've been dealt by issuance of a summons. The drug warriors, however, wanted this guy. A search incident to arrest would seal the deal. No sticky consent issues, etc. No RAS based on the man's history. Clearly established, easily defensible search incident to custodial arrest.

In Virginia v. Moore, SCOTUS determined that a custodial arrest for an alleged traffic violation (assuming PC for such), was perfectly lawful. Regardless of state law. 36 in a 35 on a radar gun is defensible PC for a custodial arrest in federal courts. The question was never about whether a non-custodial or custodial seizure of the suspect's person was appropriate. Merely whether a custodial arrest could be performed for a traffic violation. It can be.

Confederation is long dead. Ironically, it heaved through its first death throes in Virginia as well.

Edited July 15, 2008 by Abominable_Hillbilly

[Guest ProguninTN]

Now, when you say "non-custodial," do you mean that, technically, being stopped is an "arrest"? If so, I agree. While agreeing, I'll point out to you that the arrest in Moore was custodial, and it was for a traffic violation that could've been dealt with by issuance of a summons. The drug warriors, however, wanted this guy. A search incident to arrest would seal the deal. No sticky consent issues, etc. No RAS based on the man's history. Clearly established, easily defensible search incident to custodial arrest.

No. Being stopped is a seizure, but not an arrest. By custodial arrest, I mean physical custody...handcuffed/transported to jail/pre-trial detention facility. In those circumstances, a search is permissible under Chimel. Here in TN, we have State Misdemeanor Citations. SMC's, operate like summons (you are free to go, but are required to appear in court on a later date.) However, they are still considered "arrests". Hence, non-custodial arrest. I was just pointing out that a search pursuant to arrest is not permissible under those circumstances.

[Guest ProguninTN]

In Virginia v. Moore, SCOTUS determined that a custodial arrest for an alleged traffic violation (assuming PC for such), was perfectly lawful. Regardless of state law. 36 in a 35 on a radar gun is defensible PC for a custodial arrest in federal courts. The question was never about whether a non-custodial or custodial seizure of the suspect's person was appropriate. Merely whether a custodial arrest could be performed for a traffic violation. It can be.

Wrong. The court did not address the constitutionality of the arrest. SCOTUS addressed the issue of whether suppression of the evidence found after arrest was required under the US constitution. http://www.law.cornell.edu/supct/cert/06-1082.html See under "Question Presented".

[Guest Abominable_Hillbilly]

No. Being stopped is a seizure, but not an arrest. By custodial arrest, I mean physical custody...handcuffed/transported to jail/pre-trial detention facility. In those circumstances, a search is permissible under Chimel. Here in TN, we have State Misdemeanor Citations. SMC's, operate like summons (you are free to go, but are required to appear in court on a later date.) However, they are still considered "arrests". Hence, non-custodial arrest. I was just pointing out that a search pursuant to arrest is not permissible under those circumstances.

I apologize for sounding rude, but you've got quite a few issues wrong here. Virginia has similar statutes dealing with arrest and with traffic citations. These officers violated Virginia code in making a custodial arrest on Moore. That's what the beef was about. The trial court allowed the evidence, but two higher Virginia courts suppressed the evidence. The Commonwealth appealed to SCOTUS, who nullified Virginia law.

I don't think you understand Chimel or Moore. In Chimel, it was a house that was searched incident to lawful arrest. Houses are definitely not cars in terms of the Fourth Amendment. In Moore, it was a person, vehicle, and hotel room that were searched. These two cases are incomparable on those grounds alone.

Knowles gets a little closer to things, but it's still not comparable. The officer there had already issued a citation when he decided to stick his nose up the driver's butt.

Let me ask you this........do you really understand what happened, in terms of jurisprudence, in Moore? Virginia police violated their own law, but not federal law. Hence, the feds upheld what the drug soldiers did. This then, in effect, struck down the Virginia statute, and every similar statute in every state--including Tennessee. It doesn't matter that Tennessee law will allow a police officer to issue a summons and send the person on their way. So long as there's PC to believe a crime has been committed (36 in a 35 is a crime), then that officer will have a good hook in federal courts. The custodial arrest, and any evidence from the subsequent search incident, will be good.

Edited July 15, 2008 by Abominable_Hillbilly

[Guest Abominable_Hillbilly]

Wrong. The court did not address the constitutionality of the arrest. SCOTUS addressed the issue of whether suppression of the evidence found after arrest was required under the US constitution. http://www.law.cornell.edu/supct/cert/06-1082.html See under "Question Presented".

The reason they addressed this question was because of the questioned constitutionality of the arrest.

[Guest ProguninTN]

I apologize for sounding rude, but you've got quite a few issues wrong here. Virginia has similar statutes dealing with arrest and with traffic citations. These officers violated Virginia code in making a custodial arrest on Moore. That's what the beef was about. The trial court allowed the evidence, but two higher Virginia courts suppressed the evidence. The Commonwealth appealed to SCOTUS, who nullified Virginia law.

I don't think you understand Chimel or Moore. In Chimel, it was a house that was searched incident to lawful arrest. Houses are definitely not cars in terms of the Fourth Amendment. In Moore, it was a person, vehicle, and hotel room that were searched. These two cases are incomparable on those grounds alone.

I do understand Chimel and they are comparable. Chimel is the case

which established searches subsequent to an arrest. While Chimel did take place in a building, the court took notice of the "lunge area". The "lunge area" may be searched without a warrant subsequent to the arrest. As far as Moore goes, the facts as I read them pertain to his person and his vehicle. (which would be permitted under Chimel) I do not see a mention of a hotel room. http://www.law.cornell.edu/supct/cert/06-1082.html

If his hotel room was searched, he may have grounds for suppression.

Knowles gets a little closer to things, but it's still not comparable. The officer there had already issued a citation when he decided to stick his nose up the driver's butt.

Knowles is relevant to this case. Moore himself used this case as a precedent to have his conviction overturned in the lower courts. Reading into Knowles, it does not matter whether the search comes before or after the issuance of the citation. A traffic violation alone is reasonable suspicion for a seizure, but it is not probable cause to search.

Let me ask you this........do you really understand what happened, in terms of jurisprudence, in Moore? Virginia police violated their own law, but not federal law. Hence, the feds upheld what the drug soldiers did. This then, in effect, struck down the Virginia statute, and every similar statute in every state--including Tennessee. It doesn't matter that Tennessee law will allow a police officer to issue a summons and send the person on their way. So long as there's PC to believe a crime has been committed (36 in a 35 is a crime), then that officer will have a good hook in federal courts. The custodial arrest, and any evidence from the subsequent search incident, will be good.

To correct my previous statement, what I meant to say was the court never considered whether a custodial arrest is permitted for traffic violations. It has all ready been upheld.

I do understand what has happened. The court upheld evidence obtained from an illegal arrest, because the search was obtained incident to the illegal arrest. This ruling could encourage illegal arrests because evidence found subsequent to that arrest will not be suppressed even though the arrest violated state law. Hence, the Feds have given some leverage for questionable and possible unconstitutional practices by refusing to articulate that evidence found subsequent to an arrest must come from a lawful arrest.

All of this is explained here.

http://www.law.cornell.edu/supct/cert/06-1082.html