Gun Temporarily Confiscated to Check if Stolen

[Kirk Freeman]

I'll have to do the work on this, but there is a SCOTUS case that officers could not move the stereo equip. in an apartment to view the serial numbers to check if it was stolen.

Yes, Hicks. I posted it earlier so you are covered.

 

[Effingham]

Case settled was assured by the COP this morning the situation will be handled. After our talk I have full faith in the Chief.

Thanks for all your discussion and assistance.

All this conversation and THAT'S IT?

I need DETAILS. I need CLOSURE.

HOW will it be handled? What will be the outcome? What will happen to the LEO who disarmed you?

DISH, man. DISH.

 

[AndersonIN]

OMG................the entire post has been 'FRIEND ZONED' with NO DETAILS as to WHY!!!

 

[TEK]

......lawyer would be able to get that evidence suppressed due to an illegal search. There is no probable cause here for the firearm or anything else being stolen.

Hmm, I dont think so and here is why. first off "any lawyer" does not necessarily know a hill of beans about the fourth amendment and its exceptions. perhaps most lawyers! constitutional criminal procedure is on bar exams to a small degree but it is not a requirement in most law school curricula

secondly, we know and agree that an accused can object to an illegal search directed at himself, but if the supposedly illegal search was against someone else who didnt object and isnt objecting, then it probably will make it into evidence against the accused. I mean if the gun were stolen, they would have every right to confiscate it and return it to the original ower-- after using it in a prosecution against the thief, whomever that might be. Now, if the driver were being prosecuted for receipt of a stolen article, then, yes I think the driver's lawyer would try and get it suppressed, but I would guess unsuccessfully because of the Terry stop rationale. discussed next.

thirdly have you heard of a Terry stop. Terry is a case that says the passenger compartment can be searched for the officers safety if the stop is legit. The stop need only be premised upon a "reasonable suspicion' that a crime has occurred. A speeding pullover based on radar will easily meet the Terry stop level and then someone stating that they are armed, will easily meet the Terry "safety" rationale whereby the officer temporarily disables the weapon

I dont know if there are cases about this but that is how I would think it would be handled. anybody has a case that shows a different result Iwould love to read it.

 

[TEK]

Does that give you PC?

Terry says that you dont need probable cause to temporarily make the office safe during the Terry stop investigation

just "reasonable suspicion" for the stop followed by whatever modest action is necessary to secure the safety of the officer

a temporary disarm like this might be really upsetting but I am not sure that it is so clearly unconstitutional

 

[Frank_N_Stein]

Terry says that you dont need probable cause to temporarily make the office safe during the Terry stop investigation

just "reasonable suspicion" for the stop followed by whatever modest action is necessary to secure the safety of the officer

a temporary disarm like this might be really upsetting but I am not sure that it is so clearly unconstitutional

A traffic stop is not a Terry stop.

 

[TEK]

Do tell? So, LEO's have the right to just open the car door, disarm, sweep the passenger and confiscate the weapon without any RS/PC or a warrant.

Last time I heard this is not a police state. There is the 4th Amendment in case you forgot.

you added RS reasonable suspicion which is the Terry stop standard and it is precisely for the safety of an officer that a passenger compartment can be searched with only reasonable suspicion

Terry was a walking case but Michigan V Long 462 us 1032 (1983) is the passenger compartment type case. "lunge area" is the phrase used I think

 

[TEK]

A traffic stop is not a Terry stop.

No but each traffic stop that has at least reasonable suspicion will fit into the Terry rationale. At least that's how it seems to me. read this case and let me know if you get my drift.

Michigan v. Long - 463 U.S. 1032 (1983) :: Justia US Supreme Court Center

Michigan V Long 1983

 

[Frank_N_Stein]

No but each traffic stop that has at least reasonable suspicion will fit into the Terry rationale. At least that's how it seems to me. read this case and let me know if you get my drift.

Michigan v. Long - 463 U.S. 1032 (1983) :: Justia US Supreme Court Center

Michigan V Long 1983

So if the officer doesn't see a weapon in plain view and the driver doesn't inform, is there still reasonable suspicion the person is armed? And I don't think traffic infractions rise to the level of criminal activity discussed in Terry.

 

[TEK]

So if the officer doesn't see a weapon in plain view and the driver doesn't inform, is there still reasonable suspicion the person is armed?

Not what I was saying. In the original thread post the guy said he informed the officer he was armed. That triggered the safety concern, or, arguably so at least.

And I don't think traffic infractions rise to the level of criminal activity discussed in Terry.

I would agree with that in theory but in reality I have been told every speeding stop becomes a Terry stop and that is what police tend to believe. by that I mean they are going to search the compartment if they have any safety concern they can articulate to themselves at all. I think in practice "reasonable suspicion" diminshes to "whatever can be articulated in retrospect." It may just be what a cop fees is necessary for his own safety. I dont want to make arguments against our Fourth amendment rights I just recognize that a lot of cops are killed every year making traffic stops and if you are smart you will remember that next time you get pulled over for speeding and dont scare em.

I have never told them I'm armed, and didnt think it was necessary, and I've had a lot of speeding tickets and was ordered out of the car maybe once my whole life twenty years ago when I admitted I had a beer. No I wasnt dui. at that time I only had a knife in the car but not in my pocket and they didnt bother to search, just gave me field sobrieties and cut me loose. no biggie.

i keep my hands on the wheel where they can see em. dont make superfluous conversation, dont answer pointless questions, dont argue, dont move quickly for any reason,. I've always foudn that works just fine to make a simple speeding stop easy on the consumer end of it.

 

[Cameramonkey]

So if the officer doesn't see a weapon in plain view and the driver doesn't inform, is there still reasonable suspicion the person is armed? And I don't think traffic infractions rise to the level of criminal activity discussed in Terry.

It might be considered reasonable if he sees your LTCH as you pull your drivers license out of your wallet? (although its a stretch) I had that happen several months back during a traffic stop. I keep my LTCH in a windowed part of my wallet and my ID in a flip out windowed section that folds down over that. (so I can quickly flip out the ID when buying beer, etc)

The trooper "saw my pink" as I was removing my license and said "I see you have your permit. Do you have your weapon on you now?"

 

[Frank_N_Stein]

I would agree with that in theory but in reality I have been told every speeding stop becomes a Terry stop and that is what police tend to believe. by that I mean they are going to search the compartment if they have any safety concern they can articulate to themselves at all. I think in practice "reasonable suspicion" diminshes to "whatever can be articulated in retrospect."

Lets not turn this discussion into incorrect generalizations about the police. If you have a specific instance thats one thing.

It may just be what a cop fees is necessary for his own safety.

I could do a lot of things that are necessary for my own safety. But just because I can, doesn't mean I do.

I just recognize that a lot of cops are killed every year making traffic stops and if you are smart you will remember that next time you get pulled over for speeding and dont scare em.

It takes more than someone telling me they are armed to scare me.

 

[Frank_N_Stein]

It might be considered reasonable if he sees your LTCH as you pull your drivers license out of your wallet? (although its a stretch) I had that happen several months back during a traffic stop. I keep my LTCH in a windowed part of my wallet and my ID in a flip out windowed section that folds down over that. (so I can quickly flip out the ID when buying beer, etc)

The trooper "saw my pink" as I was removing my license and said "I see you have your permit. Do you have your weapon on you now?"

Ok so seeing a LTCH gives me reasonable suspicion the person is armed. Where does the "reasonable suspicion that criminal activity is afoot" come into play?

 

[kludge]

Call me crazy (and I'm sure the hardliners here will call me more colorful names), but except for a simple speeding ticket stop, any extended interaction with an LEO during an investigation of a crime, I really dont mind my sidearm being placed in a safe place within my property outside of my reach (like my earlier story where he moved it from under the seat to my trunk).

So you're OK that you were not only unlawfully disarmed (you were not "dangerous" under Indiana law), but that the cop also talked you into a free peek in your trunk without any RS or PC and without you realizing you gave "consent"?

 

[Fargo]

Terry says that you dont need probable cause to temporarily make the office safe during the Terry stop investigation

just "reasonable suspicion" for the stop followed by whatever modest action is necessary to secure the safety of the officer

a temporary disarm like this might be really upsetting but I am not sure that it is so clearly unconstitutional

The "modest action" you refer to has to be supported by articulable evidence giving the officer a reasonable suspicion that the person is BOTH armed AND dangerous. It is in the plain language of Terry.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174-176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). [n23] And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.

My emphasis added.

A couple years ago, Guy, Kirk and I had talked about proposing some legislation to clear the issue up; however we never really got it off the ground. I still have a proposed draft somewhere.

Perhaps it is time to revisit it?

Joe

 

[grand champ]

Had similar situation,out for few drinks late,my dd got pulled over round 2 am by fortville pd. Had both of us get outta car,at that point w pat down imminent I informed of having gun& ltch. They took my gun,ran it,handed it back several mins later,I went home w pocket full of hollowpoints. Officer was polite tho,didn't freak out.

 

[Cameramonkey]

So you're OK that you were not only unlawfully disarmed (you were not "dangerous" under Indiana law), but that the cop also talked you into a free peek in your trunk without any RS or PC and without you realizing you gave "consent"?

I was also a 21 year old kid when this happened. (who was incidentally commiting a minor crime that I was more concentrating on (translation: ****ting my pants hoping I didnt go to jail) at that moment. A cop seeing a spare tire and not much else was the least of my worries.

Oh, and about that high horse, you can climb down off it any time.

Ok so seeing a LTCH gives me reasonable suspicion the person is armed. Where does the "reasonable suspicion that criminal activity is afoot" come into play?

Good point. I didnt think the "Criminal activity" part all of the way through. just that seeing the pink would tip your hand as to be potentially carrying.

 

[Kirk Freeman]

Guy, Kirk and I had talked about proposing some legislation to clear the issue up; however we never really got it off the ground. I still have a proposed draft somewhere.

Perhaps it is time to revisit it?

Yeah, and if I remember correctly that was my fault when work interfered with me getting to Indy during a gun show.

I think Richardson helps clarify what police can do (if person legal, full stop) but I think a statute would be would helpful just so we do not have any unnecessary gun handling (i.e. opportunities for harm) going on in public.

I have no problem with cops taking guns if they have RS that someone is armed and dangerous but most of the coonfingering going on is nothing more than Hecklers' Vetoes.