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.

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.

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

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.

theaero said:

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

Click to expand...

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.

DeltaOps said:

If I carry out in public, I always carry with a registered pistol,

Click to expand...

Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.

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;

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.

Orphan said:

Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.

Click to expand...

+1

Orphan said:

Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.

Click to expand...

You believe what you want.

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.

DeltaOps said:

You believe what you want.

Click to expand...

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.

Orphan said:

Please stop saying your pistol is registered there is no such thing a pistol registration in Washington State.

Click to expand...

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.

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.

rapgood said:

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.

Click to expand...

How? Police don't have access to run NICS checks. Only FFL Dealers can do that.

KBCraig said:

How? Police don't have access to run NICS checks. Only FFL Dealers can do that.

Click to expand...

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.

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.

sirpuma said:

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.

Click to expand...

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.

As a side note, I’m 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, it’s 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'.
:banghead:

hermannr said:

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.

Click to expand...

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.