wear/carry violation

swinokur · Jun 13, 2014

So the owners refusal to open the glovebox even in the absence of PC like marijuana odor would not be grounds to seek a warrant from a judge for another reason like RS of a weapon?

You didn't answer my question. Are you LE or an attorney?

And to reiterate, it wasn't offered as legal advice.

IANAL

K.C.Dean · Jun 13, 2014

I am a little confused about the charges in this case. Why is he charged for illegal carrying a weapon instead of concealed weapon? Does the charge cover both?

swinokur · Jun 13, 2014

Is the suspicion of a firearm the same as the suspicion of contraband which allows a warrantless search?

esqappellate · Jun 13, 2014

strapped said:
Vehicles fall into the mobile exception. If there is probable cause, then police can conduct a warrantless search of the vehicle within the scope of the PC. An example would be if I smelled marijuana in a vehicle, I could then conduct a warrantless search of the vehicle anywhere that marijuana could be stored which includes the glovebox, trunk, under the hood, etc.

Not trying to make you feel bad, just dealt with a bunch of "street lawyers" last night who I'm sure never graduated middle school.

Correct: See generally Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 U.S.Ariz.,2009:

"Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), permits an officer to search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is “dangerous” and might access the vehicle*347 to “gain immediate control of weapons.” Id., at 1049, 103 S.Ct. 3469 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820–821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. Unlike the searches permitted by Justice SCALIA's opinion concurring in the judgment in Thornton, which we conclude today are reasonable for purposes of the Fourth Amendment, Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader. Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding).

swinokur · Jun 13, 2014

I don't feel bad when I'm wrong so I stand corrected.

But it shoots down another post saying not keeping his papers in the glove box because it's protected from search does it not?

whitelightning777 · Jun 13, 2014

Does the glove box have a lock which needs a key to open it? If so, he might be able to argue that it was under lock and key.

esqappellate · Jun 13, 2014

swinokur said:
I don't feel bad when I'm wrong so I stand corrected.

But it shoots down another post saying not keeping his papers in the glove box because it's protected from search does it not?

Here is the rule that governs how I proceed: If the stop is legally justified (e.g., speeding), then the cop has the discretion to order you out of the car and search the passenger compartment (including the glove box and the console) as part of a safety sweep if he can articulate a reason at all, regardless of whether he has probable cause for the reason. It is a safety sweep. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093 U.S.Md.,1990; Michigan v. Long 463 U.S. 1032, 103 S.Ct. 3469 U.S.Mich.,1983. See also U.S. v. Morgan 729 F.3d 1086 C.A.8 (Neb.),2013 That does not mean the trunk. For the trunk, they bring a drug dog to the scene because they may "smell' marijuana. If the dog goes on alert (according to the officer), then they can search the *entire* vehicle* including tearing it apart in pieces. See Florida v. Harris 133 S.Ct. 1050 U.S.Fla.,2013.

esqappellate · Jun 13, 2014

whitelightning777 said:
Does the glove box have a lock which needs a key to open it? If so, he might be able to argue that it was under lock and key.

Irrelevant. If it inside the car's passenger compartment, he can search it if the search is otherwise valid, regardless of whether it is locked.

esqappellate · Jun 13, 2014

swinokur said:
Is the suspicion of a firearm the same as the suspicion of contraband which allows a warrantless search?

A regulated firearm *is* contraband unless the transport falls within one of the exceptions set forth in 4-203(b).

swinokur · Jun 13, 2014

Well, how is the determination made if you say you were driving to the gun shop?

esqappellate · Jun 13, 2014

swinokur said:
Well, how is the determination made if you say you were driving to the gun shop?

Better have a good story to tell. I make an appointment with the shop ahead of time and get a name and number. And I go directly there. When the shop is open.

swinokur · Jun 13, 2014

I'll buy that for a dollar.

AssMan · Jun 13, 2014

Subscribing. I carry almost daily in VA and have to unload prior to re-entering DRM. However, I have a 2-seat vehicle and often the mag and holstered gun are in the same compartment. I should probably get out and put the mag in the trunk every time, but it's not always convenient (rain, traffic, etc.). Granted, I'm like 5 miles from the Potomac, but I'd like to keep within the letter of the law nonetheless.

And we all know that MD's transport laws aren't exactly the crystal.

Andras · Jun 13, 2014

swinokur said:
Well, how is the determination made if you say you were driving to the gun shop?

The gun had a loaded magazine in it, that is a carry violation if the owner doesn't have a permit. The range/gunshop exception only applies to unloaded guns.

When I was pulled over and the trooper asked for my registration, I kept my hands on the wheel and told him it was locked in the glove box with an unloaded/holstered revolver and that I was on my way to a friends farm for shooting. I also had my range bag with accessories in the car with me. He asked me to step out of the car and unlocked the glovebox and retrieved the registration himself. There was no drama involved at all. We actually had a short conversation and he cut me a break on the speed.

Dogabutila · Jun 13, 2014

esqappellate said:
Irrelevant. If it inside the car's passenger compartment, he can search it if the search is otherwise valid, regardless of whether it is locked.

That's ridiculous. If it's locked then a person doesn't have the ability to gain "immediate control of a weapon."

swinokur · Jun 13, 2014

snallygaster said:
Subscribing. I carry almost daily in VA and have to unload prior to re-entering DRM. However, I have a 2-seat vehicle and often the mag and holstered gun are in the same compartment. I should probably get out and put the mag in the trunk every time, but it's not always convenient (rain, traffic, etc.). Granted, I'm like 5 miles from the Potomac, but I'd like to keep within the letter of the law nonetheless.

And we all know that MD's transport laws aren't exactly the crystal.

There is nothing in MD law that prohibits the gun and magazine being together. Only that the gun be in an enclosed case or holster.

I'm assuming you are stopping at a place in MD.

esqappellate · Jun 13, 2014

snallygaster said:
Subscribing. I carry almost daily in VA and have to unload prior to re-entering DRM. However, I have a 2-seat vehicle and often the mag and holstered gun are in the same compartment. I should probably get out and put the mag in the trunk every time, but it's not always convenient (rain, traffic, etc.). Granted, I'm like 5 miles from the Potomac, but I'd like to keep within the letter of the law nonetheless.

And we all know that MD's transport laws aren't exactly the crystal.

When I travel from VA (where I have a permit) to MD or from MD to VA, I transport in MD strictly pursuant to 18 usc 926A and I go to / from my MD "place" (my home) directly without stopping:
Section 926A:
Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a
firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle:
Provided, That in the case of a vehicle without a compartment separate from the driver's compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

swinokur · Jun 13, 2014

Dogabutila said:
That's ridiculous. If it's locked then a person doesn't have the ability to gain "immediate control of a weapon."

No but as it's been explained, the officer also can look for contraband with PC. A safety sweep seems like icing on the cake as I understand this.

esqappellate · Jun 13, 2014

swinokur said:
There is nothing in MD law that prohibits the gun and magazine being together. Only that the gun be in an enclosed case or holster.

I'm assuming you are stopping at a place in MD.

You cannot mix and match FOPA with Maryland law. If you want to make use of FOPA, you have to comply with ALL of FOPA. Assuming that one of the exceptions does not apply (e.g., range transport), carrying a regulated firearm in the car is banned in MD. Period. If you are coming home from VA where you carried legally, it is best to transport strictly in compliance with all the requirements of FOPA while in MD.

swinokur · Jun 13, 2014

Got it. yep. headed home and not on a MD specifcly allowed activity, your advice is most prudent.

wear/carry violation

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