FOPA and Pickup Truck?

CrueChief · Jul 28, 2016

swinokur said:
not having either the ammo or the firearm a locked case is not following the spirit of the law.

It's breaking it. laws are written a certain way for a reason.

Courts deal in facts, not good intentions.

ETA FOPA only applies if crossing through a state other than your own.. trips that start and stop in MD follow the MD Statute 4-203 enclosed case or holster

MD AG opinions

It seems the way the law is written one couldn't take their lawfully owned firearm out of state to carry in another state that they have a permit to do so in. Mr Cohen almost goes out of his way to state as much. :sad20:

So how many of us break the law daily, weekly of whatever. It seems this should be "low hanging fruit" that the governor could help with if he was really "with" us. :innocent0

swinokur · Jul 28, 2016

correct. technically there is no allowance in the MD statute to allow interstate travel. Some legal minds here have postulated that having proof of heading out of state if stopped in MD may be necessary. ie, hotel or travel reservation, etc.

they also disagree with Mr. Bowen's assertion that you cannot possess and carry in MD. You can of course possess and carry on your own property, putting you in partial compliance with the FOPA requirement. it's definitely something that needs fixing.

or going to an allowed activity out of state, ie range, shoot, etc.

Boondock Saint · Jul 28, 2016

Blaster229 said:
I remember you saying this. Not funny then I am sure, but you saying you were prepared to jump the median, it just funny right now. I felt your panic.

Palpable fear. I literally would have gone Dukes of Hazzard style over/through something if needed to avoid crossing the river. Bet that! In hindsight, I probably wasn't thinking clearly.

I was soaked from the handful of showers that rolled through, sore from bouncing around all damn day at the shoot and in no mood to spend my net worth in an effort to avoid jail time for having...gasp...a loose round of .45 ACP rolling around my passenger compartment.

Whatever traffic infractions a PA Trooper could have put on me would have been fine. Take my money; me, my "arsenal" and my "stockpile" will be going home now.

rondon600 · Jul 29, 2016

swinokur said:
Courts deal in facts, not good intentions.

Unless the FBI investigates you first... (Hillarys emails, no intent, no court!)

swinokur · Jul 29, 2016

the rules apply to us, not her.

Pinecone · Jul 29, 2016

montoya32 said:
I commend your due diligence for asking, but people need to stop being so paranoid and apprehensive about things. As long as you take steps to follow the "spirit of the law" and do not conduct yourself in a malicious manner, you should be fine. If you are utilizing a pickup, separate the ammo from the gun and put the gun in a case.

Which does not meet the specific requirements of the law. Therefore ILLEGAL.

Yeap, you will get a long way in many states saying you met the "spirit of the law." Try that in NJ, where they will arrest you even if you follow what the laws says to do. You will win in court, but at what expense?

Blacksmith101 · Jul 29, 2016

I decided the simplest thing to do was to lock everything up. I went out and bought a bunch of keyed alike small simple locks and put a lock on every gun case, pistol rug and lockable container I use when shooting and for the ammo cans I put a lightweight chain around them and through the handles with a lock. Now if I ever go to court the testimony will always be it was locked. Remember the case and the lock don't have to be burglar proof just locked, a pistol rug with a lock through the zipper tab and the little cloth loop is in a locked case per the law.

When I get to the range I unlock everything with the same key and when done everything gets locked back up and loaded in the car or truck and I don't have to worry.

ComeGet · Jul 29, 2016

Blacksmith101 said:
I decided the simplest thing to do was to lock everything up. I went out and bought a bunch of keyed alike small simple locks and put a lock on every gun case, pistol rug and lockable container I use when shooting and for the ammo cans I put a lightweight chain around them and through the handles with a lock. Now if I ever go to court the testimony will always be it was locked. Remember the case and the lock don't have to be burglar proof just locked, a pistol rug with a lock through the zipper tab and the little cloth loop is in a locked case per the law.

When I get to the range I unlock everything with the same key and when done everything gets locked back up and loaded in the car or truck and I don't have to worry.

That's pretty much what I do either in my SUV or on my bike.

I know it's a little overboard and some are going to call out BGOS, but I'd much rather be safe than sorry, and what does it hurt me doing it like this anyway?

esqappellate · Aug 1, 2016

Everyone knows I don't give legal advice on the fora. But this is what I do when I transport under FOPA in a SUV or pickup:

1. Comply strictly with the precise letter of the law, including the letter of the law that demands that it be legal to possess and carry (both) at the "place" of origin and at the "place" of destination. It is an affirmative defense, so be prepared to demonstrate each of these elements (that's why resident and non-resident permits are a really good idea).

2. Before entering the FOPA jurisdiction:
a. Have two ammo cans, one large enough to hold the handgun, one large enough to hold the ammo.
b. Unload and put handgun in one ammo can and lock it with a padlock.
c. Put the ammo mags (and any spare ammo) in the second ammo can and lock it with a padlock.
d. Put the two cans as far away from driver in the SUV as possible and cover. In a pickup, it would be insane to put stuff in an open bed, so the right back seat floor, cover the cans.

3. Yes, I know, the language of Section 926A only requires that *one* of the cans be locked (best practice: the can with the gun -- see DC law), but that requires the LEO to parse the words. The object here is to avoid arrest, not simply to avoid conviction. Locking both makes clear that neither is immediately accessible and that I have an expectation of privacy for the contents (ala Fourth Amendment law).

4. Drive extra carefully through the FOPA jurisdiction without stopping for gas or food. Note, the court of appeals for the Third Circuit (which includes NJ) has held that FOPA only includes transport by vehicle

5. Once I have left the FOPA jurisdiction, rearm in accordance with the law of your "place" of destination (and out of sight of the public).

swinokur · Aug 1, 2016

excellent summation as always counselor.

esqappellate · Aug 2, 2016

swinokur said:
Blaster I agree. Not to mention advocating breaking the law is a violation of forum rules.

Well, it's not quite that simple. First, making a false statement to a FEDERAL LEO (etc) is a felony in violation of 18 U.S.C. 1001. That covers "whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. Ask Martha Stewart about Section 1001.

MD State law is different.
Md. Code Ann., Crim. Law § 9-501 (recodifying former Art. 27, § 150), provides that "(a) A person may not make, or cause to be made, a statement, report, or complaint that the person knows to be false as a whole or in material part, to a law enforcement officer of the State, of a county, municipal corporation, or other political subdivision of the State, or of the Maryland-National Capital Park and Planning Police with intent to deceive and to cause an investigation or other action to be taken as a result of the statement, report, or complaint." That's a misdemeanor that makes the person "subject to imprisonment not exceeding 6 months or a fine not exceeding $500 or both."

In Johnson v. Maryland, 75 Md.App. 621 (Ct. of Sp. Appeals 1988), cert denied 316 Md. 675 (1989), the intermediate court of appeals of Maryland applied Maryland precedent and held that "we do not believe the giving of false information in response to routine questioning by the police, even though it is likely to hinder or delay an investigation already underway, is the type of false statement, report or complaint that comes within the “false alarm” public mischief the General Assembly intended to criminalize when it enacted § 150" Rather, the statute covers "the making of false reports to the police which cause the police to conduct investigations that divert them from their proper duties of preventing crime and investigating actual incidents of crime." That's much more narrow than Section 1001. This holding in Johnson was confirmed by the MD Court of Appeals in Jones v. State, 362 Md. 331, 765 A.2d 127 (2001), and in Choi v. State, 316 Md. 529, 560 A.2d 1108 (1989). The Court stated in Jones that "under Choi, the offense of making a false statement to a police officer is not committed by one who, during an ongoing investigation, answers an investigating police officer's inquiries untruthfully. The offense is only committed by one whose false statement causes the police initially to undertake an investigation or other action." (765 A.2d at 130). See also In re Heather B. 369 Md. 257, 799 A.2d 397 (2002).

This is not to say that lying to a state LEO is ok. Quite to the contrary, generally, intentionally lying to police officers "is not to be condoned." Jones, at 131. Cops and prosecutors just hate being lied to. It just may not be criminal, in and of itself, in very specific circumstances. That's just in Maryland. The law of another state may be different. This can get complicated very quickly. Consult your lawyer.

ras_oscar · Aug 2, 2016

esqappellate said:
Well, it's not quite that simple. First, making a false statement to a FEDERAL LEO (etc) is a felony in violation of 18 U.S.C. 1001. That covers "whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. Ask Martha Stewart about Section 1001.

MD State law is different.
Md. Code Ann., Crim. Law § 9-501 (recodifying former Art. 27, § 150), provides that "(a) A person may not make, or cause to be made, a statement, report, or complaint that the person knows to be false as a whole or in material part, to a law enforcement officer of the State, of a county, municipal corporation, or other political subdivision of the State, or of the Maryland-National Capital Park and Planning Police with intent to deceive and to cause an investigation or other action to be taken as a result of the statement, report, or complaint." That's a misdemeanor that makes the person "subject to imprisonment not exceeding 6 months or a fine not exceeding $500 or both."

In Johnson v. Maryland, 75 Md.App. 621 (Ct. of Sp. Appeals 1988), cert denied 316 Md. 675 (1989), the intermediate court of appeals of Maryland applied Maryland precedent and held that "we do not believe the giving of false information in response to routine questioning by the police, even though it is likely to hinder or delay an investigation already underway, is the type of false statement, report or complaint that comes within the “false alarm” public mischief the General Assembly intended to criminalize when it enacted § 150" Rather, the statute covers "the making of false reports to the police which cause the police to conduct investigations that divert them from their proper duties of preventing crime and investigating actual incidents of crime." That's much more narrow than Section 1001. This holding in Johnson was confirmed by the MD Court of Appeals in Jones v. State, 362 Md. 331, 765 A.2d 127 (2001), and in Choi v. State, 316 Md. 529, 560 A.2d 1108 (1989). The Court stated in Jones that "under Choi, the offense of making a false statement to a police officer is not committed by one who, during an ongoing investigation, answers an investigating police officer's inquiries untruthfully. The offense is only committed by one whose false statement causes the police initially to undertake an investigation or other action." (765 A.2d at 130)

This is not to say that lying to a state LEO is ok. Quite to the contrary, generally, intentionally lying to police officers "is not to be condoned." Jones, at 131. It just may not be criminal, in and of itself, in very specific circumstances. That's just in Maryland. The law of another state may be different. This can get complicated very quickly. Consult your lawyer.

I agree that making untruthful statements to LEO is illegal, and more importantly wrong. However, Is it not also true in MD that confirming the presence of firearms in the vehicle constitutes probable cause to search without a warrant?

Were I in the aforementioned situation, I plan to say "I prefer not to answer that question sir. There is nothing illegal in my vehicle" Obviously, at that point the LEO knows there are firearms. However, I have not IMHO waived my rights regarding a search.

swinokur · Aug 2, 2016

well not exactly. MD statute 4-206

Maryland Criminal Law Section 4-206

Article - Criminal Law
§ 4-206. (a) (1) A law enforcement officer may make an inquiry and conduct a limited search of a person under paragraph (2) of this subsection if the officer, in light of the officer's observations, information, and experience, reasonably believes that:

(i) the person may be wearing, carrying, or transporting a handgun in violation of § 4-203 of this subtitle;

(ii) because the person possesses a handgun, the person is or presently may be dangerous to the officer or to others;

(iii) under the circumstances, it is impracticable to obtain a search warrant; and

(iv) to protect the officer or others, swift measures are necessary to discover whether the person is wearing, carrying, or transporting a handgun.

(2) If the circumstances specified under paragraph (1) of this subsection exist, a law enforcement officer:

(i) may approach the person and announce the officer's status as a law enforcement officer;

(ii) may request the name and address of the person;

(iii) if the person is in a vehicle, may request the person's license to operate the vehicle and the registration of the vehicle;

(iv) may ask any question and request any explanation that may be reasonably calculated to determine whether the person is unlawfully wearing, carrying, or transporting a handgun in violation of § 4-203 of this subtitle; and

(v) if the person does not offer an explanation that dispels the officer's reasonable beliefs described in paragraph (1) of this subsection, may conduct a search of the person limited to a patting or frisking of the person's clothing in search of a handgun.

(3) A law enforcement officer acting under this subsection shall take into account all circumstances of the occasion, including the age, appearance, physical condition, manner, and gender of the person approached.

(b) (1) If the officer discovers that the person is wearing, carrying, or transporting a handgun, the officer may demand evidence from the person of the person's authority to wear, carry, or transport the handgun in accordance with § 4-203(b) of this article.

(2) If the person does not produce the evidence specified in paragraph (1) of this subsection, the officer may seize the handgun and arrest the person.

(c) (1) A law enforcement officer who conducts a search or seizure in accordance with this section shall file a written report with the law enforcement officer's employer unit within 24 hours after the search or seizure.

(2) The report shall be on a form that the Secretary of Public Safety and Correctional Services prescribes, shall include the name of the person searched, and shall describe the circumstances surrounding and the reasons for the search or seizure.

(3) A copy of the report shall be sent to the Secretary of the State Police.

(d) On request of a law enforcement officer, the Attorney General shall defend the officer in a civil action, including any appeal, in which the officer is sued for conducting a search or seizure under this section that is alleged to be unreasonable and unlawful.

(e) (1) This section may not be construed to limit the right of a law enforcement officer to conduct any other type of search or seizure or make an arrest that is otherwise authorized by law.

(2) The provisions of this section are in addition to and not limited by the provisions of Title 2 of the Criminal Procedure Article.

esqappellate · Aug 2, 2016

swinokur said:
well not exactly. MD statute 4-206

"if the officer, in light of the officer's observations, information, and experience, reasonably believes "

Which is a long winded way of saying "probable cause." Note that Section 4-206 addresses probable cause to think that 4-203 is being violated. Mere possession in the car, by itself, is not necessarily a violation of 4-203, since 4-203 permits transport for specific reasons (e.g., to the range).

Not suggesting what others might do, but I would simply say "I have no contraband in my vehicle, officer" (which would be true as I *always* transport lawfully) and respectfully decline to consent to a search. Note that if he had probable cause to pull you over (broken tail light, speeding, etc), he can search the passenger compartment (not the trunk) without needing any further probable cause. If you consent to the search of the vehicle, he can search the trunk.

swinokur · Aug 2, 2016

and noting again that 4-203 does not apply to long guns.

Boondock Saint · Aug 2, 2016

esqappellate said:
"if the officer, in light of the officer's observations, information, and experience, reasonably believes "

Which is a long winded way of saying "probable cause." Note that Section 4-206 addresses probable cause to think that 4-203 is being violated. Mere possession in the car, by itself, is not necessarily a violation of 4-203, since 4-203 permits transport for specific reasons (e.g., to the range).

Not suggesting what others might do, but I would simply say "I have no contraband in my vehicle, officer" (which would be true as I *always* transport lawfully) and respectfully decline to consent to a search. Note that if he had probable cause to pull you over (broken tail light, speeding, etc), he can search the passenger compartment (not the trunk) without needing any further probable cause. If you consent to the search of the vehicle, he can search the trunk.

Interesting. It was my understanding that a simple stop like that didn't give probable cause to search the passenger compartment, unless something was plainly visible from the exterior to warrant such a search.

esqappellate · Aug 2, 2016

Boondock Saint said:
Interesting. It was my understanding that a simple stop like that didn't give probable cause to search the passenger compartment, unless something was plainly visible from the exterior to warrant such a search.

A simple stop generally won't result in a search of a vehicle, but it is within the officer's discretion (read "gut"). The theory being that anything in the passenger compartment is sufficiently "reachable" to possibly constitute a danger to the LEO. He/she doesn't need additional probable cause unless he wants to search the trunk, for which he needs to get a warrant OR your consent.

Norton · Aug 5, 2016

Boondock Saint said:
After a shoot some years back in eastern PA, I accidentally got on the PA turnpike, and to my horror, was headed eastbound. I was absolutely traveling within the bounds of FOPA, but was under no circumstances going to cross the river into Jersey. I was literally prepared to jump the median if needed to avoid that place. Thankfully, there was one last exit and I was able to turn around safely.

I may or may not know someone who may have or may not have actually crossed the river with a trunk load of firearms that may or may not have been legal to possess in NJ.

Norton · Aug 5, 2016

....and back to our regularly scheduled programming.

swinokur · Aug 5, 2016

thank you sir. Always prudent to follow Norton's forum rule #1.

Be nice or leave. oh well.

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