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Thread: Open Carrier's gun seized after DUI arrest. Police won't return

  1. #1
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    Open Carrier's gun seized after DUI arrest. Police won't return

    PREFACE: I personally don't think alcohol and firearms mix, and neither do the people in question. They weren't carrying, but rather keeping it in the glove box.

    My sister's boyfriend got a DUI in Spokane, WA. For what its worth, the boyfriend is an African American, my sister is not. Could or could not have something to do with is? I don't know, but moving on... He had his glock in the glove compartment. He was with my sister, and they both have valid CPLs. My sister often carries the glock, although it is his weapon. It was legally purchased from a friend, who purchased it from a pawn shop. When he was arrested, and they impounded his car, him and my sister asked to retrieve the firearm from the glove box, but the police officer confiscated the gun because she couldn't prove that it was legally owned. In WA state, the DOL form for transfers is optional, I believe?

    Anyways, now it is Monday, and my sister/bf went to the police station to retrieve the glock, but they refuse to give it back without a NICS check, and until they can verify it is legally his. He has no bill of sale. Is the officer legally allowed to seize a firearm to check if it was stolen? Without any probable cause? What action should my sister's boyfriend take in this situation? He has a valid CPL and no felonies, and the firearm is legally owned. Is a DUI probable cause for possessing stolen firearms?

    Thanks a bunch for advice / legal references.

  2. #2
    Regular Member DeltaOps's Avatar
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    Your questions are confusing!

    You should be more detailed in your story so some can answer the question correctly.

    I hate to assume, but since I do not have all the facts I will just have to for now.

    He was pulled over, I assume he had been drinking and was driving and was over the legal limit. Since the car was impounded. Yes they can legally search the car. Now if any of the compartments were locked, they would have to attain a search warrant to seach the locked parts. I "asume" the glove bock was not locked. Since they siezed the firearm legally and they have no proof as to who owns the gun, they can and will do a search to see if the firearm is indeed stolen. If the check comes back clean, it is possible that your friend may have to retrieve the firearm. this is a situation nobody should allow themselves to get into. Owning any firearm comes with a lot of responsiblities. If I carry out in public, I always carry with a registered pistol, besides, I don't have any that aren't, they are at the bottom of the sea due to a boating accident in Alaska.
    Clerk: Is that a weapon?
    Me: No, it is my tool.
    Clerk:
    Me: A tool that takes some time to master!
    Clerk:
    Me: Have a nice day!

  3. #3
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    Right now, he has been trying to retrieve the firearm, but they won't let him, because he cannot "prove" he is the owner.

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    Regular Member 07Altima's Avatar
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    The Person who

    not legal advice but a state of fact is that if you want it back you may end up having to get the person he bought it from to retrieve it.

  5. #5
    Regular Member rapgood's Avatar
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    Quote Originally Posted by theaero View Post
    Right now, he has been trying to retrieve the firearm, but they won't let him, because he cannot "prove" he is the owner.
    Gee. I think that the law presumes that the firearm is his since it was in his possession. That said, it is a common practice before a LE agency returns a firearm seized pursuant to an arrest to run a NICS background check on the person claiming ownership and possession. Whether that's legal, I have not researched. I just know that it is common.

    WRT whether the firearm is stolen is a different issue altogether. My experience and training indicates that the burden is on the State to prove that the firearm is stolen. As mentioned above, I believe that the law presumes that lawful ownership is with the possessor. It has been my experience that it is not uncommon that one must get an order from the court to compel return of the firearm to the lawful owner. Whether the law requires getting an order to compel, I don't know. But, I doubt it. I have just found it easier to get a court order so that the LE agency can't jack you around in an attempt to get it returned. Even then, I have seen LEO attempt to not return the firearm (they frequently appear to think that only LEOs should be allowed to own firearms). In that case, it seems to be very effective to then tell the LE agency that you'll just have to go back to the court and explain that they didn't want to comply with the court's order and then make a motion for an order to show cause why the LEO shouldn't be held in contempt for failure to comply with the order to return the firearm (judges tend to get particularly irritated when anyone refuses to comply with their orders).

    I have seen "show cause" orders to be very persuasive tools.

    If your friend needs the name of a good lawyer in Spokane, let me know. I have worked with several there.
    Rev. Robert Apgood, Esq.

    A right cannot be lost by exercising it. McDonald v. Chicago, 561 U.S. 3025, 130 S. Ct. 3020, 3021, 177 L. Ed. 2d 894 (2010) (citing Near v. Minn., 283 U.S. 697 (1931)).

    Although IAAL, anything I say here is not legal advice. No conversations we may have privately or otherwise in this forum constitute the formation of an attorney-client relationship, and are not intended to do so.

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    Quote Originally Posted by DeltaOps View Post

    If I carry out in public, I always carry with a registered pistol,
    Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.

  7. #7
    Opt-Out Members BigDave's Avatar
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    I fully agree with rapgood assessment and they may get that day in court?

    RCW 9.41.098
    Forfeiture of firearms — Disposition — Confiscation.

    (1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:
    (e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW;
    Last edited by BigDave; 08-13-2012 at 06:52 PM.
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

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    All good advice. Thank you. He has no way of proving the firearm is his. Rapgood, do you know if there is any clause in the RCW that says anything about that presumption? Your post was very helpful by the way, thank you.

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    Campaign Veteran gogodawgs's Avatar
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    Quote Originally Posted by Orphan View Post
    Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.
    +1

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    Regular Member DeltaOps's Avatar
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    Quote Originally Posted by Orphan View Post
    Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.
    You believe what you want.
    Clerk: Is that a weapon?
    Me: No, it is my tool.
    Clerk:
    Me: A tool that takes some time to master!
    Clerk:
    Me: Have a nice day!

  11. #11
    Opt-Out Members BigDave's Avatar
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    Registry or Register, how one wants to perceive it, there is a accessible record of those who have purchased a firearm from an FFL or processed through an FFL here in Washington, though there is no requirement to register or fill out a firearms transfer if one has purchased from a private party or moved here from another State, it still comes down to a searchable register accessible by law enforcement or upon your request of your firearms though DOL.
    Last edited by BigDave; 08-13-2012 at 08:28 PM.
    • Being prepared is to prepare, this is our responsibility.
    • I am not your Mommy or Daddy and do not sugar coat it but I will tell you simply as how I see it, it is up to you on how you will or will not use it.
    • IANAL, all information I present is for your review, do your own homework.

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    Quote Originally Posted by DeltaOps View Post
    You believe what you want.
    OK here is the deal, every time you say my "registered" pistol people that do not know any better read it and they believe it. If you say it often enough then a lot of people will believe it then when a bill comes before the state legislature no one protests because they have heard registered gun so many times they a. get used to hearing that guns are registered, b. they think it is already law so having a law that requires registration is no big deal now.

    I fully understand that when a new pistol is purchased the serial numbers are unlawfully kept by the state,

    Every time you say registered gun you are helping the anti gun people.

    Every time you use the phrase registered gun you are taking us one step closer to actual registration.

    We have enough battles to fight please do not add to them.

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    Quote Originally Posted by Orphan View Post
    Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.
    Yes, actually there is. As a dealer there is a form that is filled out for the state for every handgun purchase. This form is filled out in triplicate. One copy I as the dealer keep. One copy goes to the LEO for the background check. One copy goes to the Department of Licensing where they record all the information. Anytime an LEO does a licensing check on a driver's license they can cross reference your handgun ownership. It is a registration and it is required by law for every handgun purchased through a dealer.

  14. #14
    Regular Member hermannr's Avatar
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    More than 1/2 my personal guns I aquired BEFORE 1968, More than 1/2 of my personal guns were manufactured BEFORE 1934, one of which does not even have a serial number (marlin .22) Some of these were personal purchases, some of these were gifts, and some I inherited...now, tell me where they are registered? Tell where they are going to find someone alive to say they sold/gave/bequested them to me?

    If a weapon is not reported stolen, and in your posession, it must be assumed to be legally yours.

    Sounds like you need to visit lammo (member on here). His office is close to the court house.

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    Quote Originally Posted by rapgood View Post
    That said, it is a common practice before a LE agency returns a firearm seized pursuant to an arrest to run a NICS background check on the person claiming ownership and possession.
    How? Police don't have access to run NICS checks. Only FFL Dealers can do that.

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    Quote Originally Posted by KBCraig View Post
    How? Police don't have access to run NICS checks. Only FFL Dealers can do that.
    Incorrect. When a person is purchasing a handgun through a dealer and does not have a CPL (and when you get a CPL or have it renewed) the LEO do a NICS check. In fact with getting the CPL they do two levels of NICS, two levels of NCIC and the state mental health department checks. When I send a state form in to the LEO for NICS checks they call me back with a NICS Transaction Number and not some state number.

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    Campaign Veteran gogodawgs's Avatar
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    When picking up a firearm (stolen or otherwise) from police custody a NICS check is NOT run. However, a criminal background check (felonies) is run.

    I have picked up stolen firearms from the local PD for the business (Champion Arms) and even though I have a CPL, manage a gun store, have finger prints on file, etc.... the detective runs my background each time.
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    Quote Originally Posted by sirpuma View Post
    Yes, actually there is. As a dealer there is a form that is filled out for the state for every handgun purchase. This form is filled out in triplicate. One copy I as the dealer keep. One copy goes to the LEO for the background check. One copy goes to the Department of Licensing where they record all the information. Anytime an LEO does a licensing check on a driver's license they can cross reference your handgun ownership. It is a registration and it is required by law for every handgun purchased through a dealer.
    Please cite where Washington requires registration of pistols.

    Yes if you purchase a pistol from a FFL Olympia keeps that info. That is vastly different from registration. In the state of Washington there is no requirement to register pistols otherwise we would all have to go through a FFL or the state to purchase pistols from private parties.

    Keep saying it and we will have to register pistols, well you all will I will no longer live in Washington.

  19. #19
    Regular Member 911Grunt's Avatar
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    As a side note, Iím a 911 dispatcher when I check someone for a concealed weapon permit it will give provide a return of all handguns purchased by that person (at a business). Besides the name, address, etc it also provides make, model, caliber, where it was purchased and date of sale. During our training on the ACCESS system, itís commonly confused as 'weapons registered' instead of 'weapons purchased'; add to that other officers are use to vehicle registration and drivers license registration I'm assuming they just lump this into another 'registration'.

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    Quote Originally Posted by hermannr View Post
    More than 1/2 my personal guns I aquired BEFORE 1968, More than 1/2 of my personal guns were manufactured BEFORE 1934, one of which does not even have a serial number (marlin .22) Some of these were personal purchases, some of these were gifts, and some I inherited...now, tell me where they are registered? Tell where they are going to find someone alive to say they sold/gave/bequested them to me?

    If a weapon is not reported stolen, and in your posession, it must be assumed to be legally yours.

    Sounds like you need to visit lammo (member on here). His office is close to the court house.
    Let me say it again. When someone acquires a HANDGUN from a LICENSED DEALER there is a STATE PISTOL TRANSFER APPLICATION (FIR-652-001) form that is required BY LAW to be filled out in triplicate. Copy A is sent to the LEO for background checks. Copy B is sent to the STATE DEPARTMENT OF LICENSING for registration. Copy C is kept by the LICENSED DEALER for six years. If your firearm does not meet those conditions it isn't "registered". If your firearm does, then it is registered. This form is currently in effect and has been for quite some time, though I don't know exactly when it was implemented.

    http://www.dol.wa.gov/business/firearms/firchart.html
    http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.129 "The department of licensing may keep ... copies or records of applications to purchase pistols provided for in RCW 9.41.090, and copies or records of pistol transfers provided for in RCW 9.41.110."

    There is proof of the registration. While it is not mandatory for every resident to register every firearm, all handguns purchased from a dealer are. And it looks like the Pistol Transfer Form law 9.41.090 has been around since 1994.

  21. #21
    Regular Member MKEgal's Avatar
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    Quote Originally Posted by rapgood
    I think that the law presumes that the firearm is his since it was in his possession.
    ... the burden is on the State to prove that the firearm is stolen.
    Quote Originally Posted by hermannr
    If a weapon is not reported stolen, and in your posession, it must be assumed to be legally yours.
    What they said.

    Quote Originally Posted by theaero
    he has been trying to retrieve the firearm, but they won't let him, because he cannot "prove" he is the owner.
    Quote Originally Posted by sirpuma
    As a dealer there is a form that is filled out for the state for every handgun purchase.
    ...One copy I as the dealer keep.
    One copy goes to the LEO for the background check.
    One copy goes to the Department of Licensing where they record all the information.
    So the State (and therefore the LEA/LEO) know that the gun was sold to your friend.
    They already have the proof they're requiring him to provide.

    There has to be some way to do an open records request (ORR) to get that proof.
    Or how about going back to the dealer to get a copy of the same form?
    (Or just point out to a judge what I said in the last paragraph... they already have all the proof they need.)

    Quote Originally Posted by 911Grunt
    when I check someone for a concealed weapon permit it will give provide a return of all handguns purchased by that person (at a business).
    Besides the name, address, etc. it also provides make, model, caliber, where it was purchased and date of sale.
    There you go.
    They knew almost instantly that it does belong to your friend.
    There's no reason for the PD to stall, other than simply that they don't like LACs.
    Last edited by MKEgal; 08-13-2012 at 10:25 PM.

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    Campaign Veteran gogodawgs's Avatar
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    Quote Originally Posted by sirpuma View Post
    Let me say it again. When someone acquires a HANDGUN from a LICENSED DEALER there is a STATE PISTOL TRANSFER APPLICATION (FIR-652-001) form that is required BY LAW to be filled out in triplicate. Copy A is sent to the LEO for background checks. Copy B is sent to the STATE DEPARTMENT OF LICENSING for registration. Copy C is kept by the LICENSED DEALER for six years. If your firearm does not meet those conditions it isn't "registered". If your firearm does, then it is registered. This form is currently in effect and has been for quite some time, though I don't know exactly when it was implemented.

    http://www.dol.wa.gov/business/firearms/firchart.html
    http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.129 "The department of licensing may keep ... copies or records of applications to purchase pistols provided for in RCW 9.41.090, and copies or records of pistol transfers provided for in RCW 9.41.110."

    There is proof of the registration. While it is not mandatory for every resident to register every firearm, all handguns purchased from a dealer are. And it looks like the Pistol Transfer Form law 9.41.090 has been around since 1994.
    Yet, I acquired two handguns from licensed dealer's and filled out the form (FIR-652-001) that was required by law. The 2 firearms I bought are NOT 'registered' to me. They only show that I purchased them. Both have been given as gifts and are no longer in my possession. And there is nothing required by law that says I have to do anything else. Even if they were used in a crime in the future I would tell LE to go pound sand.
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  23. #23
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    Now while you don't have to pay for registration like you do with your vehicle (car, truck, motorcycle, boat, airplane) and while you don't have a copy of this registration for you to keep on you to prove it's yours, the Pistol Transfer Application still meets the definition of a registration.

    Definition of REGISTER
    1
    : a written record containing regular entries of items or details

    Definition of REGISTRATION
    1
    : the act of registering
    2
    : an entry in a register

    Definition of REGISTER
    transitive verb
    1
    a : to make or secure official entry of in a register b : to enroll formally especially as a voter or student c : to record automatically : indicate d : to make a record of : note

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    Quote Originally Posted by MKEgal View Post
    What they said.



    So the State (and therefore the LEA/LEO) know that the gun was sold to your friend.
    They already have the proof they're requiring him to provide.

    There has to be some way to do an open records request (ORR) to get that proof.
    Or how about going back to the dealer to get a copy of the same form?
    (Or just point out to a judge what I said in the last paragraph... they already have all the proof they need.)


    There you go.
    They knew almost instantly that it does belong to your friend.
    There's no reason for the PD to stall, other than simply that they don't like LACs.

    He purchased the gun from a private party. There was no record of the sale.

  25. #25
    Regular Member hermannr's Avatar
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    Quote Originally Posted by sirpuma View Post
    Let me say it again. When someone acquires a HANDGUN from a LICENSED DEALER there is a STATE PISTOL TRANSFER APPLICATION (FIR-652-001) form that is required BY LAW to be filled out in triplicate. Copy A is sent to the LEO for background checks. Copy B is sent to the STATE DEPARTMENT OF LICENSING for registration. Copy C is kept by the LICENSED DEALER for six years. If your firearm does not meet those conditions it isn't "registered". If your firearm does, then it is registered. This form is currently in effect and has been for quite some time, though I don't know exactly when it was implemented.

    http://www.dol.wa.gov/business/firearms/firchart.html
    http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.129 "The department of licensing may keep ... copies or records of applications to purchase pistols provided for in RCW 9.41.090, and copies or records of pistol transfers provided for in RCW 9.41.110."

    There is proof of the registration. While it is not mandatory for every resident to register every firearm, all handguns purchased from a dealer are. And it looks like the Pistol Transfer Form law 9.41.090 has been around since 1994.
    yes, another Lowry lovely...However..please show me wher anything in 9.41.090 or 110 has anything to do with private citizen to private citizen sale...chapter and verse...sorry...if you buy from a dealer it applies, if you purchase from a private party, none of this applies. If anyone sold you a firearm in WA prior it Lowry and company...it does not apply.

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