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Thread: Illegal Seizure question

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    Regular Member Kwik Stix's Avatar
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    Illegal Seizure question

    Hey everyone,

    well today I was helping my father change a pool filter/pump on a customer's pool in Hampstead, NC (Pender County). We came to a situation that required me going up to our shop to get some equipment to stop a really bad pool leak that could have lead to some catastrophic failures of other pieces of equipment, so I was moving pretty good to get to the shop. Well, I ended up getting pulled over for speeding. As the Pender County Sheriff approached the car I let him know I had my pistol holstered and on my passenger seat.

    I gave him my DL and Registration, and right before he went back to his car, he reached in and grabbed my pistol and said, "Im taking this with me for my protection". He started to walk off with it so I was just like, "Ok, Whatever you need".

    Is this legal at all?

    Also, when he returned it, he had the weapon cleared and I was missing a round upon the return of my weapon. He left before I could ask him about that.

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    Re: Illegal Seizure question

    You consented, right? End of story.

    If anything, do not consent and if it's seized you have the basis for a complaint.

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    Was the Gun Seizure Legal?

    Yep.

    See Pennsylvania vs Mimms linked at the link below.

    http://forum.opencarry.org/forums/sh...ources-Here!!&
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    Quote Originally Posted by smn View Post
    You consented, right? End of story.

    If anything, do not consent and if it's seized you have the basis for a complaint.
    According to the OP report, the cop seized the gun before consent was given.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Re: Illegal Seizure question

    If there's audio it can be shown that "acquiescence is not consent" and a complaint can be made.

    In GA we have the benefit of State v. Jones (2008) saying as much as well as requiring RAS that the gun is part of the crime (or armed AND dangerous) before disarming the driver.
    Last edited by smn; 05-21-2013 at 08:23 PM.

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    not much of a right if they can just take it away, is it

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    How was he able to just reach in and take it? I guess he approached from the passenger side. Next time only roll the window down halfway. The only thing you can do now is file a complaint with his department and hope his behavior is addressed.
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    Quote Originally Posted by smn View Post
    If there's audio it can be shown that "acquiescence is not consent" and a complaint can be made.

    In GA we have the benefit of State v. Jones (2008) saying as much as well as requiring RAS that the gun is part of the crime (or armed AND dangerous) before disarming the driver.
    Wonderful! You wouldn't happen to a link to that case would you?
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Wow, so he just reach in and took your weapon out of your hostler without any warning. He has broken your rights and what he did was a wrongful act. Next step is filed a complaint with his supervision because it seems that was a dangerous action for both of you.

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    Re: Illegal Seizure question

    Quote Originally Posted by Citizen View Post
    Wonderful! You wouldn't happen to a link to that case would you?
    Try this URL: http://www.georgiapacking.org/caselaw/statevjones.htm
    Last edited by smn; 05-21-2013 at 10:21 PM.

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    File a FOIA to see if he run the gun, which he is not allowed to do. He can take the weapon for officer safety according to SCOTUS. File a theft report for the missing round. It's lucky for him he did not discharge it while playing with it.
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    Deleted 'cause it was for the wrong state.
    Last edited by Citizen; 05-21-2013 at 10:59 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Illegal Seizure question

    But the incident took place in NC. There may be similar caselaw in NC, or here's an opportunity to create it.

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    Quote Originally Posted by smn View Post
    But the incident took place in NC. There may be similar caselaw in NC, or here's an opportunity to create it.
    Oh, snap! I lost track of which state we're talking about!
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    To Clear up a few things that I didn't detail in the OP:

    The firearm was in a holster, on my passenger seat. He approached the vehicle on the passenger side since I pulled over into a parking lot. The windows in my car were already fully lowered (I never ride with the windows up unless it's raining). I told him I had the firearm, and that it was on the seat as he approached the car.

    He did indeed reach in, grabbed, and removed it as he was telling me he was "holding on to it for his protection".

    Can anyone provide me a link that shows when the SCOTUS said that an officer has the right to temporarily seize the weapon during a traffic stop?

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    Regular Member WalkingWolf's Avatar
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    Quote Originally Posted by Kwik Stix View Post
    To Clear up a few things that I didn't detail in the OP:

    The firearm was in a holster, on my passenger seat. He approached the vehicle on the passenger side since I pulled over into a parking lot. The windows in my car were already fully lowered (I never ride with the windows up unless it's raining). I told him I had the firearm, and that it was on the seat as he approached the car.

    He did indeed reach in, grabbed, and removed it as he was telling me he was "holding on to it for his protection".

    Can anyone provide me a link that shows when the SCOTUS said that an officer has the right to temporarily seize the weapon during a traffic stop?
    There are several but the most common is Terry V Ohio, where the court ruled that a officer can make a search and a seizure during a stop for officer safety as long as the officer has RAS. You were stopped for speeding so the officer had RAS, and you offered up the information that you had a firearm, which you did not have to do since it was not concealed. The courts may take your offering the information up as a consent to seizure of the firearm. Outside of providing the necessary information, drivers license, registration, and insurance it is best to keep your mouth shut. The officer had no RAS IMO that the firearm was stolen, or otherwise unlawful, so IMO he could not run the numbers.
    It is well that war is so terrible otherwise we would grow too fond of it.
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    Quote Originally Posted by Kwik Stix View Post
    To Clear up a few things that I didn't detail in the OP:

    The firearm was in a holster, on my passenger seat. He approached the vehicle on the passenger side since I pulled over into a parking lot. The windows in my car were already fully lowered (I never ride with the windows up unless it's raining). I told him I had the firearm, and that it was on the seat as he approached the car.

    He did indeed reach in, grabbed, and removed it as he was telling me he was "holding on to it for his protection".

    Can anyone provide me a link that shows when the SCOTUS said that an officer has the right to temporarily seize the weapon during a traffic stop?
    On the passenger seat, window always down. You don't think that a pedestrian could easily grab your gun when you are stopped at a light, in a line of traffic, etc.

    In NC, getting your CHP could make sense if only for some better options of where you can keep your gun while driving. On the front seat or dash really aren't' the best choices.

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    Quote Originally Posted by WalkingWolf View Post
    There are several but the most common is Terry V Ohio, where the court ruled that a officer can make a search and a seizure during a stop for officer safety as long as the officer has RAS. You were stopped for speeding so the officer had RAS, and you offered up the information that you had a firearm, which you did not have to do since it was not concealed. The courts may take your offering the information up as a consent to seizure of the firearm. Outside of providing the necessary information, drivers license, registration, and insurance it is best to keep your mouth shut. The officer had no RAS IMO that the firearm was stolen, or otherwise unlawful, so IMO he could not run the numbers.
    Thanks for the clarification

    Quote Originally Posted by XD40sc View Post
    On the passenger seat, window always down. You don't think that a pedestrian could easily grab your gun when you are stopped at a light, in a line of traffic, etc.

    In NC, getting your CHP could make sense if only for some better options of where you can keep your gun while driving. On the front seat or dash really aren't' the best choices.
    It was on the seat b/c I put it there as I came to a stop in the parking lot. I usually have it in the door sill next to me while driving, but I didn't want there to be any question about it being "open" during the traffic stop.

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    Michigan v. Long speaks more towards seizure of weapons during a traffic stop:
    2. The protective search of the passenger compartment of respondent's car was reasonable under the principles articulated in Terry and other decisions of this Court. Although Terry involved the stop and subsequent patdown search for weapons of a person suspected of criminal activity, it did not restrict the preventive search to the person of the detained suspect. Protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger. Roadside encounters between police and suspects are especially hazardous, and danger may arise from the possible presence of weapons in the area surrounding a suspect. Thus, the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and the suspect may gain immediate control of weapons. If, while conducting a legitimate Terry search of an automobile's interior, the officer discovers contraband other than weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances. The circumstances of this case justified the officers in their reasonable belief that respondent posed a danger if he were permitted to reenter his vehicle. Nor did they act unreasonably in taking preventive measures to ensure that there were no other weapons within respondent's immediate grasp before permitting him to reenter his automobile. The fact that respondent was under the officers' control during the investigative stop does not render unreasonable their belief that he could injure them. Pp. 463 U. S. 1045-1052.
    Read up on NC law which is weighted more towards this case and see. Without making furtive movements it's difficult for the cop to justify his seizing the weapon, although he's given a lot of leeway to do just that.

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    Quote Originally Posted by Kwik Stix View Post
    Thanks for the clarification



    It was on the seat b/c I put it there as I came to a stop in the parking lot. I usually have it in the door sill next to me while driving, but I didn't want there to be any question about it being "open" during the traffic stop.

    Put it on the middle of the dash next time and do not say anything, or tell him it does not matter as long as he can see it but cannot have his way with it.

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    Similar situation happened with me on I-77 in Yadkin County a few years ago but the State Trooper was very nice about it and asked if the gun (an 1861 Navy Colt black powder) was loaded and asked if he could hold it until he was done. When he finished with the ticket (speeding) he placed it on the back seat and politely asked that I leave it there until after he pulled off. It was in plain sight, holstered and leaning against the transmission tunnel in my car.

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    Re: Illegal Seizure question

    I am thinking that I might just keep a backup gun in my car so if one gun is stolen I still have one. Of course a jerk move would be to put it on the passenger seat while he writes the ticket.

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    Quote Originally Posted by WalkingWolf View Post
    There are several but the most common is Terry V Ohio, where the court ruled that a officer can make a search and a seizure during a stop for officer safety as long as the officer has RAS. You were stopped for speeding so the officer had RAS, and you offered up the information that you had a firearm, which you did not have to do since it was not concealed. The courts may take your offering the information up as a consent to seizure of the firearm. Outside of providing the necessary information, drivers license, registration, and insurance it is best to keep your mouth shut. The officer had no RAS IMO that the firearm was stolen, or otherwise unlawful, so IMO he could not run the numbers.
    1. After a person is temporarily seized (detained) for investigation based on reasonable articulable suspicion, Terry v Ohio requires three conditions for a weapons search and seizure: reasonable suspicion the person is armed and dangerous, and nothing in the initial moments of the encounter serves to dispel the cop's reasonable concern for his safety. (I've never seen that last point hashed out in a later case--it seems totally ignored by police, defense attorneys, and courts.) However, when it comes to traffic stops, another case gives cops more lattitude. Pennsylvania vs Mimms. The Terry court required two conditions: armed + dangerous. The Mimms court sneakily changed that to armed = dangerous. I say sneakily because of their sophistry in explaining their position while omitting to mention that they were changing the conditions given under Terry. So, Mimms basically is saying that a gun in a traffic stop is immediately seizeable for officer safety without further consideration as to whether the vehicle occupant(s) are dangerous.

    So, unless NC law has more restrictive requirements, Mimms is going to allow the gun seizure in this case.

    2. WW's comment about running the serial number on the gun raises an interesting point. In this case the gun was holstered. If the cop took from the passenger seat the holster (with the gun in it), then the cop may have needed to remove the gun from the holster to read the serial number. Arizona v Hicks makes it clear that even as little as lifting a record player to view its serial number is a search and thus governed by probable cause. A cop would need actual probable cause, not just an officer safety concern, to lawfully remove the gun from the holster to view the serial number. In the OPers case, we don't yet know whether the cop ran the serial number, nor whether the serial number is still visible while holstered as, for example, engraved on the grip frame; so, we can't say this cop illegally ran the serial number. But, WW touches on an interesting point.


    Links to cases mentioned above.
    http://forum.opencarry.org/forums/sh...ources-Here!!&
    Last edited by Citizen; 05-23-2013 at 10:36 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by cap-n-ball View Post
    Similar situation happened with me on I-77 in Yadkin County a few years ago but the State Trooper was very nice about it and asked if the gun (an 1861 Navy Colt black powder) was loaded and asked if he could hold it until he was done. When he finished with the ticket (speeding) he placed it on the back seat and politely asked that I leave it there until after he pulled off. It was in plain sight, holstered and leaning against the transmission tunnel in my car.
    Well, that would be one way to avoid the indignity of having your gun returned to you unloaded--carry a cap-and-ball revolver that is really difficult and time consuming to unload.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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