Author Topic: Plan View doctrine, Texas Motorist Protection Act, and "concealed" Vs "open"  (Read 435 times)

Halftime Oracle

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Texas Law is a little complicated with regard to carrying openly, concealed, and in your automobile (Texas Motorist Protection Act, 2009, which allows for concealed carry in a car without any kind of a license so long as the weapon in "not in plain view,") creating, in my opinion, some conflicts that I cannot answer.  I apologize for the length of this question to cover some subtleties about which I am very confused.   

In Texas -- and I make these distinctions because they are relevant to my question –
   1) When carrying openly,  on your person, the handgun must be carried in a belt or shoulder holster.   
   2) When carrying in your car without an LTC, the weapon cannot be in “plain view.” 
   3) The law is silent about whether, when carrying a weapon in your car when you do have an LTC the weapon can or cannot be “in plain view” (It is assumed that I am not acting criminally by flashing, menacing, brandishing, showing or otherwise handling the weapon out in the open.)

Here are my confusions.  Under the following circumstances:
1) I am a resident of Texas
2) I have a valid LTC
3) I am in my car going about my daily business
4) I want the weapon in a ready access.  I don't want to have to crawl to my glove box or futz with trying to get into my console if under attack or duress (e.g., car-jacker walks up to my window with a gun and points it through the glass and says "unlock the door and get out" or "give me your wallet right now.")  In either case, I have no opportunity to go swimming around the car for a weapon, and I don't want it sliding around on the floor or the seat next to me anyway.  Therefore, I want to mount it on my console BESIDE and BEHIND my leg and knee (from the driver’s door) while I am driving.  In general, which doctrines apply:  Motorist protection, Open Carry, Concealed Carry, and/or aggravated assault, etc., and more specifically: 

Q1)  Can I legally use a belt retention holster for the gun but mount it to the car's console, between my right knee and the wall of the console without the "plain view" doctrine coming into play?   Please note the following subtleties before answering:  (a) The gun is not, in my opinion, in plain view" while I am driving.  b) In order to see it, someone would have to be standing on the hood of my SUV and looking through the front windshield toward the floor to see the gun between my leg and the console of my SUV, and in that case they would see nothing but the butt of the pistol and they'd have to be standing on the hood to see it.  My leg completely covers the presence of a gun when looking through the driver's window when I am in the seat, and the console completely covers the presence of the gun at all times when looking in the passenger-side window.  To me, that does not seem to be "in plain view."  Is it?  (c) "In plain view" does not seem to me to be sufficiently defined to cover this case, and the “plain view” doctrine may not even apply because I have an LTC.  Does it?

Q2) If “plain view” applies, would the weapon be considered “in plain view” when on the wall of the console if you cannot see it while I am sitting in my driver’s seat unless you crawl on the hood of the car and look down toward the floorboard? (I admit readily that, on the other hand, if I were to get out of the car without removing the weapon from the car mounted holster and moving it to my empty belt holster or to my console, anyone could easily see it from outside the car through the open door or through the driver's window; this is obvious and is not my question.)

Q3) If “open carry” laws apply rather than “plain view” laws, then is the terminology "on or about," with regard to where the gun is "carried," sufficient to cover putting the weapon on the wall of the console beside my knee when carrying in my car if the weapon IS in a belt holster, but the belt holster is NOT ON MY BELT, but ON THE CONSOLE WALL.  The weapon is still "about" my person, but not "on" my person. (i.e., "open carrying" would apply possibly, but the belt holster itself is not on my belt even though it is "about my person."). 

Q4) Instead, would the weapon be considered "concealed" instead, as long as I am sitting in the car in such a way that the weapon cannot be seen without jumping up onto the top of the hood to look behind my leg? (i.e., In which case there are no holster restrictions at all, and "open carrying" laws would not apply either, making the "belt holster” provision null and the requirement to carry it ON MY BELT or ON MY SHOULDER null.

Q5: If the holster is empty and contains no gun, but is obviously there for that purpose, if I am stopped in a traffic violation, can I rightfully be charged with a crime for an empty car-mounted holster, and if so, what crime? It is sort of like "drug paraphernalia" in the absence of a the powder or a roach.  It is obvious why the holster is there, but it has nothing in it.   An officer would have to storm my car and get there before I had a chance to move the weapon to my console before I exited the car. 

If you can't tell, I don't trust cops any more to do the right thing because I think they are looking for ways to make the public an enemy, including LTC holders.   So sorry for how long this was, but I don’t want to get a jury of my peers to answer this question for me, but I do want ready access to my weapon and I don’t want to be sitting on it when I am driving…. That’s just way too uncomfortable.  I also don’t want TLS to say… “Oh, sorry… we won’t defend you because you were charged with a crime and you were carrying your weapon illegally.”


TexasLawShield

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Halftime Oracle,

Your concerns seem to surround the limits of open carry as it exists in Texas. Texas Penal Code § 46.02(a-1) makes it a crime for a person to carry a handgun in a motor vehicle if that handgun is in plain view unless it is carried in a shoulder or belt holster. This means that unless the handgun is concealed, it must be carried in a belt or shoulder holster. However, while the law uses the term “plain view,” it does not invoke the “plain view doctrine.” Under state and federal case law, the plain view doctrine is a principle that a police officer can seize contraband or evidence of a crime if it is in plain view. Thankfully, we don’t have to worry about that here! Instead, “plain view” in this context refers to whether a person could, from outside the vehicle from any angle, see your firearm.

Questions 1, 2, & 4:
1, 2, and 4 are best answered together because they feed into each other.

There’s a chance that mounting a belt retention holster to the car’s console is legal but there’s also a  chance it’s not. Because the open carry law is so new in Texas, we don’t know whether the belt holster has to be on the person or if it can be mounted elsewhere if it is going to be visible. While it may not be visible while you are inside the car, imagine a police officer asks you to exit the vehicle. Your handgun would be plainly visible then, opening you up for a possible unlawful carry charge. Now what started as a simple traffic stop has turned into a Class A misdemeanor under TPC 46.02.

Question 3:
Since open carry is a relatively new concept in Texas law, we do not yet have case law determining what constitutes “on or about your person.” If the mounted handgun in your vehicle is not concealed or carried on your person, carrying this holster could result in criminal charges. This may make you the test case for the limits of open carry laws, and your fate will be in the hands of the legal system.

Question 5:
Having an empty holster in your vehicle is not in itself a violation of the law. You draw a connection to drug paraphernalia; however, drugs and paraphernalia are illegal to own. A handgun is legal to own and to possess in your vehicle. For this reason, possessing handgun accessories is not a crime.
It is possible that officers will see the holster and have reasonable suspicion that you have recently taken the handgun from the holster and are holding it. If that were the case, the officer could ask you to step out of the vehicle and frisk you for weapons to ensure his safety. This is perfectly within the officer’s rights, and you are not guilty of a crime if he takes those measures.

Conclusion:
As you can see, the law is nuanced and what may seem like a harmless, convenient way to keep your handgun in your car can result in serious legal trouble for you. For that reason, instead of mounting a belt holster to your console, we advise keeping the holster on your person or concealing it fully within your vehicle.