WYLIE, Texas - A canister of pepper spray is now at the center of a Wylie dispute after a North Texas man found out what most people don't know, anyone who carries it can face a felony.
Jason Simpkins admitted he looked suspicious when a Wylie officer stopped him while he was driving his truck with a jet ski inside his lawn mowing trailer.
It happened early on the morning of August 22.
"I didn't have a problem with it at first," Simpkins said. "I gave him my drivers license. I thought, 'Okay, you know, it does look suspicious.'"
Police were curious if it was stolen, but Simpkins provided proof he owned the jet ski.
The officer then noted that Simpkins' speaker for his truck alarm positioned in his grill looked similar to a siren, though the officer never tested it to see what sound it emitted. News 8 did and heard a loud screeching sound, but no type of emergency tone.
Simpkins had what police thought were red lights in his grill, as well. But, again, no officer activated them. The "lights" don't illuminate, but are rather part of a laser detection system.
Officers also saw a police scanner and a law enforcement type light switch often used to activate emergency strobes. The scanner isn't illegal to have and no one tried switching on the lights, which would have illuminated nothing more than fog lights.
After an extensive check, police discovered Simpkins had no criminal warrants and no prior record.
But, 40 minutes and four officers later, questions continued.
"They said, 'Do you have any weapons.?'" he said. "I think out of respect for officers, if an officer says, 'Hey, do you have any weapons in your truck or your vehicle?' you should tell them. It's an officer safety thing."
Jason volunteered information that he had a four-ounce can of pepper spray he purchased legally inside his satchel in the cab of his truck. The spray is sold to the public, but marketed as law-enforcement strength.
The investigating officer, a young man named Officer Silas Hughes, said it was illegal to possess. That was something that even surprised his sergeant.
"Is that a prohibited weapon?" the sergeant asked Hughes according to a recording of the dash cam video.
"Yeah, you're not supposed to have it," Hughes said.
"Really?" the sergeant pressed.
"[You] can't have police-strength pepper spray," he said. "I can look it up in the penal code real quick. I can't remember exactly where it's at, but I know it's in there."
But, there is no such wording in the Texas Penal Code.
Simpkins, who the dash cam video showed was cooperative, said he couldn't believe what happened next, which was all captured on the dash cam video.
HUGHES: "You can carry stuff like Mace, things like that, like the little stuff you buy on TV, that kind of deal. This is a no-no. You can't do this."
SIMPKINS: "Really?"
HUGHES: "That being said, you want to turn around and put your hands behind your back?"
SIMPKINS: "Wait, wait."
HUGHES: "Put your hands behind your back."
SIMPKINS: "I'm under arrest for..."
HUGHES: "I've asked you twice. Number three time, turn around and put your hands behind your back."
Simpkins complied.
He was arrested and charged with a third-degree felony. Pepper spray, Wylie police alleged that night, is a prohibited weapon. A Collin County Grand Jury agreed to prosecute the case, but refused to indict.
John Duscio, Wylie's police chief, said the system worked.
"They didn't say the officer did anything wrong," Duscio said. "They just felt there wasn't enough to continue on because there is a lot of variance, a lot of gray in that law."
The chief admitted he has never heard of another case similar to it. But, he adamantly supported his officers as they considered the totality of the circumstances.
The exception in the law is vague, stating pepper spray is illegal to possess in anything "other than a small chemical dispenser sold commercially for personal protection."
"Is this one small?" Chief Duscio asked holding up a two ounce canister of pepper spray.
"Is this one small?" he asked holding up Simpkins' much taller four ounce black canister. "You might say it's small. I might say it's not. The law doesn't clearly state what small is or what a chemical dispensing device really is."
Wylie police tested the flaw in the law and lost. Simpkins said he is just upset it happened at his expense. He lost $6,200 in expenses related to the arrest and hiring an attorney, he said.
Since the grand jury refused to indict, essentially dropping the charge, Simpkins wants a refund and his record expunged.
Duscio said he met with Simpkins but would not divulge what was discussed or what might happen.
A call to the Wylie city manager, Mindy Manson, was not returned as of 10 p.m. Thursday.
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