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Thread: LEOs running serial numbers

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    Regular Member DamonK's Avatar
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    LEOs running serial numbers

    I'm trying to find the case law that makes LEOs running your serial number at a traffic stop illegal. Kind of having a brain fart today though. Any assistance would be greatly appreciated.

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    Regular Member EMNofSeattle's Avatar
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    I don't think the act of running a serial number is in and of itself illegal... it would be like any other search, depending upon consent and/or probable cause of a crime to conduct said search....

    some cursory research came up with Hicks v. Arizona a SCOTUS ruling involving some police officers who entered an apartment due to someone firing shots from said apartment and after arresting the occupants and securing the guns an officer wrote down serial numbers on a stereo and found them to be stolen, charging the apartment occupants with possession of stolen property. that conviction was overturned on the basis that the stereo had nothing to do with the warrantless entry into the apartment as they already secured the shooter and weapons.

    I suppose that could be applied to a gun since during a traffic stop if you're lawfully carrying the gun is not evidence of a traffic violation. but it's a stretch
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Regular Member MKEgal's Avatar
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    Quote Originally Posted by DamonK
    I'm trying to find the case law that makes LEOs running your serial number at a traffic stop illegal.
    You'll want to look for 4A case law (search & seizure), because taking the pistol is a seizure and running the serial # is a search.
    If it's not connected to the reason they stopped you (tail light out, ran a red light) they have to either get your permission for a search or seizure, or have a warrant (not likely), or have RAS of a crime (and several circuits have ruled that simply possessing a firearm, in states where such is legal, is not RAS).

    There's a Volokh blog post on the topic:
    http://www.volokh.com/2009/10/01/pol...ing-a-handgun/


    "Mr. St. Johnís lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
    St. John v. McColley


    The Third Circuit found that an individualís lawful possession of a firearm in a crowded place did not justify a search or seizure.
    United States v. Ubiles (3rd Cir. 2000)


    The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
    United States v. King (10th Cir. 1993)


    "The Claim and exercise of a Constitutional Right cannot be converted into a crime."
    Miller v. U.S.


    "The mere presence of firearms does not create exigent circumstances."
    WI v. Kiekhefer
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    Regular Member F350's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    I don't think the act of running a serial number is in and of itself illegal... it would be like any other search, depending upon consent and/or probable cause of a crime to conduct said search....

    some cursory research came up with Hicks v. Arizona a SCOTUS ruling involving some police officers who entered an apartment due to someone firing shots from said apartment and after arresting the occupants and securing the guns an officer wrote down serial numbers on a stereo and found them to be stolen, charging the apartment occupants with possession of stolen property. that conviction was overturned on the basis that the stereo had nothing to do with the warrantless entry into the apartment as they already secured the shooter and weapons.

    I suppose that could be applied to a gun since during a traffic stop if you're lawfully carrying the gun is not evidence of a traffic violation. but it's a stretch
    I think you are missing the most salient point of Hicks; the stereo equipment was "in plain view" and the officers attempted to use the "plain sight exemption" to run the serial numbers. EXCEPT the court ruled that since the equipment had to be moved to see the serial numbers, the numbers were not in plain view and required probable cause/warrant to conduct a search, invalidating the arrest.


    Held:
    http://www.law.cornell.edu/supremecourt/text/480/321

    1. The policeman's actions come within the purview of the Fourth Amendment. The mere recording of the serial numbers did not constitute a "seizure" since it did not meaningfully interfere with respondent's possessory interest in either the numbers or the stereo equipment. However, the moving of the equipment was a "search" separate and apart from the search that was the lawful objective of entering the apartment. The fact that the search uncovered nothing of great personal value to respondent is irrelevant. Pp. 324-325.
    I think many cops take a firearm as a matter of standard practice for chickensh..... er I mean "officer" safety (permitted in the law here in Colorado) then use the plain sight exemption to run the serial numbers. Below is an e-mail exchange I had with BATFE...




    From: Xxxx Xxxxx
    Sent: Sunday, September 09, 2012 7:01 PM
    To: FIPB Regulatory Email inquiries
    Subject: Obscured serial number

    Some buddies and I are having a rather heated discussion about this....

    If I were to put a piece of black tape over the serial number of my CCW handgun (1911 style) would that constitute "obscuring" the serial number and be illegal? The serial number is in no way defaced, altered or removed, all you have to do to see the serial number is remove the tape. If this does constitute obscuring then isn't every S&W shipped with the large grips which cover the serial number on the butt illegal? There are a number of after market products that cover the serial number, would that be illegal? If not but the tape is what is the difference?

    Thank You

    Bob




    FIPB Regulatory Email inquiries <FIPB@atf.gov>
    9/19/12

    to me
    This is in response to your email to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In your email, you wanted to know if covering a serial number of a firearm with tape be constituted as obscuring.

    Under Federal law, it shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed,
    obliterated, or altered, or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported
    in interstate or foreign commerce.

    Merely, attaching black tape to a firearms serial number does not constitute a violation of Federal law.

    Should you have additional questions, please contact your local ATF office. A listing of ATF office phone numbers can be found at: http://www.atf.gov/field.



    Regards,

    Firearms Industry Programs Branch, ATF
    So; as the e-mail says I have a piece of black tape over the serial number on my carry piece; will it stop LEO from running the number if he wants? NO. BUT it will make him cross a "red line" and if it goes that far one more "violation" in a 42 USC 1983 suit, or at the least a constitutional rights violation in a letter of complaint to internal affairs.
    Last edited by F350; 06-19-2013 at 11:28 AM.

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    Campaign Veteran MSG Laigaie's Avatar
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    Quote Originally Posted by F350 View Post
    ........ I have a piece of black tape over the serial number on my carry piece.........
    I, too, have a small piece of electrical tape covering the serial number on my EDC. If it is removed (seized) "for officer safety" and the tape is taken off that would be an unlawful search.
    "Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference .When firearms go, all goes, we need them every hour." -- George Washington

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    Regular Member March Hare's Avatar
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    A piece of security tape that reads VOID when it's removed would be a nice touch!

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    Regular Member Difdi's Avatar
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    Quote Originally Posted by March Hare View Post
    A piece of security tape that reads VOID when it's removed would be a nice touch!
    There are different grades of adhesives too. Would it be too smartass to have a very solidly stuck-on sticker with the words "get a warrant" over the serial number, with an easier to remove bit of tape stuck over it? So long as the under layer is removable without damaging the engraved serial number, it shouldn't count as defacing...

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    Regular Member rapgood's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    some cursory research came up with Hicks v. Arizona a SCOTUS ruling involving some police officers who entered an apartment due to someone firing shots from said apartment and after arresting the occupants and securing the guns an officer wrote down serial numbers on a stereo and found them to be stolen, charging the apartment occupants with possession of stolen property. that conviction was overturned on the basis that the stereo had nothing to do with the warrantless entry into the apartment as they already secured the shooter and weapons.
    Incorrect.

    Quote Originally Posted by F350 View Post
    I think you are missing the most salient point of Hicks; the stereo equipment was "in plain view" and the officers attempted to use the "plain sight exemption" to run the serial numbers. EXCEPT the court ruled that since the equipment had to be moved to see the serial numbers, the numbers were not in plain view and required probable cause/warrant to conduct a search, invalidating the arrest.
    Correct (although the legal concept is "plain view exception"). This scenario raises the question of whether the handgun was lawfully seized at the onset. In order for LEO to seize the handgun for "officer safety," arguably there must be more than the mere possibility that the owner "could have" used the weapon. There must be some evidence that the owner actually created a clear and present threat to the safety of others. There mere lawful possession of the weapon is not sufficient to entail that clear and present danger. I believe that the majority of times that LEO seize a weapon "for their own safety," they do so in violation of BOR 2 Am and 4 Am, and Art. I, sects. 3 and 24 of the WA Const.
    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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    Regular Member Difdi's Avatar
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    Quote Originally Posted by rapgood View Post
    In order for LEO to seize the handgun for "officer safety," arguably there must be more than the mere possibility that the owner "could have" used the weapon.
    A person COULD use his bare hands to attack an officer. He COULD use his feet to kick. He COULD use his teeth to bite. None of these COULDs justify putting everyone police talk to into full handcuffs, manacles and facemask. Humans kill other humans with their bare hands (sometimes with a single punch) every year. So why is seizure of a holstered firearm based on what a citizen COULD do allowed?

    For that matter, a police officer could snap under the pressure of the job (which they always assure us is very hard and stressful) and start shooting everyone he sees. He's certainly well-equipped to do so. Does the fact that he COULD do that justify anything? Why not?

    Double standards annoy me.
    Last edited by Difdi; 06-19-2013 at 03:57 PM.

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    simple solution is to make the part of the gun that usually has a serial # yourself .. ie make your own gun.

    You need not affix a serial # to a homemade gun.

    Then what they gonna run?

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    Regular Member Vitaeus's Avatar
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    The other part to "running the serial number " is that it requires at the least an "investigative detention". You are no longer free to go if the LEO has your rather expensive firearm, unless there is some reasonable suspicion of a crime relating to the firearm, this is most definitely a both a seizure and a search.

    http://www.find-laws.com/courtcases/...e-v-harrington

    For anyone that does not already know of a valuable resource, here it is again

    "The Law Enforcement Digest is prepared by Ms. Shannon Inglis of the Washington State Attorney General's Office as a service to criminal justice practitioners. Each month Ms. Inglis selects court cases she feels are significant to the law enforcement community."

    articles from the State Attorney General's Office on how LEO should operate based on cited cases and decisions.

    https://fortress.wa.gov/cjtc/www/ind...=137&Itemid=80

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    Regular Member hermannr's Avatar
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    The whole encounter with LE should be based on one question: "Are you suspected of a CRIME?" (or criminal activity) IF you are suspected of criminal activity, then LE has a reasonable reason to disarm you. If the stop is only for a traffic VIOLATION (not a CRIME) there is absolutely no reason for them (or you) to even bring your carry into the discussion.

    In 43 years, I have never been asked for my carry, or my CPL. I have also never been accused of any CRIME. As I OC almost all the time (weather is the only reason it may be concealed), and I know it has been seen (Skagit Co Sheriff's deputy..."nice gun, what is it?"), I believe my understanding of the laws involved are correct.

    IF LE were to ask for my carry, I would simply refuse, and point out...while in it's holster, my carry is a danger to no-one. Once out of it's holster, the trigger can be accessed, and it becomes a danger to anyone in range.

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    Regular Member F350's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    simple solution is to make the part of the gun that usually has a serial # yourself .. ie make your own gun.

    You need not affix a serial # to a homemade gun.

    Then what they gonna run?
    I have 3 80% AR lowers due to arrive any day now

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    Regular Member hermannr's Avatar
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    Quote Originally Posted by DamonK View Post
    I'm trying to find the case law that makes LEOs running your serial number at a traffic stop illegal. Kind of having a brain fart today though. Any assistance would be greatly appreciated.
    You could look at Delaware V Prouse. A stop just to check for a license for a licensed activity is a no-no

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    Quote Originally Posted by F350 View Post
    I have 3 80% AR lowers due to arrive any day now
    80% better than 100 !

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    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    80% better than 100 !

    Yep! They definitely are in some respects....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by sudden valley gunner View Post
    Yep! They definitely are in some respects....
    Just requires all kinds of tools I don't have, but the aspect of having a gun you made yourself certainly has a pride factor to it,in addition to no records being kept
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Do be careful with what you use to cover the SN. Permanently or attempting to permanently remove or alter the SN of the firearm is a federal crime.

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    Campaign Veteran MSG Laigaie's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    Just [I]requires all kinds of tools [/I]I don't have, but the aspect of ,having a gun you made yourself certainly has a pride factor to itin addition to no records being kept
    WRONG ANSWER!!
    I can finish an 80% lower with nothing more than a drill press. A cheap US$50 drill press and a bit of patience is all that is required. I have several ARs with NO roll marks. It makes them look better without all those little words and numbers all over the place.
    Last edited by MSG Laigaie; 06-20-2013 at 01:31 PM.
    "Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference .When firearms go, all goes, we need them every hour." -- George Washington

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    Regular Member EMNofSeattle's Avatar
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    Quote Originally Posted by MSG Laigaie View Post
    WRONG ANSWER!!
    I can finish an 80% lower with nothing more than a drill press. A cheap US$50 drill press and a bit of patience is all that is required. I have several ARs with NO roll marks. It makes them look better without all those little words and numbers all over the place.

    Really? I always thought it required either a CNC machine or a tool shop with a skilled machinist...

    guess i'm going to go order an 80 percet lower now
    Last edited by EMNofSeattle; 06-20-2013 at 01:59 PM.
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

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    Regular Member Difdi's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    Really? I always thought it required either a CNC machine or a tool shop with a skilled machinist...

    guess i'm going to go order an 80 percet lower now
    Anything you can do with almost any kind of power tool can be done with hand tools. It's just really slow.

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    Regular Member Freedom1Man's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    Really? I always thought it required either a CNC machine or a tool shop with a skilled machinist...

    guess i'm going to go order an 80 percet lower now
    They sell jigs to make drilling out of the lowers much easier, even on the drill press.

    It might be fun to build my own jig.
    Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. --- These matters obviously lie outside the orbit of congressional power. (Railroad Retirement Board v Alton Railroad)

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    Campaign Veteran MSG Laigaie's Avatar
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    Attachment 10545

    They are pretty and you could do it with a dremel, but it takes a long time.
    "Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth (and) keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference .When firearms go, all goes, we need them every hour." -- George Washington

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    Quote Originally Posted by MSG Laigaie View Post
    Attachment 10545

    They are pretty and you could do it with a dremel, but it takes a long time.
    Bead blast and Duracoat.

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    Quote Originally Posted by MSG Laigaie View Post
    Attachment 10545

    They are pretty and you could do it with a dremel, but it takes a long time.
    I saw a video on youtube of one guy doing just that .... with a dremel ...

    But a drill press or mill is easier .... just some drill bits and some end mills are needed.

    Making a receiver is relatively an easy affair ... a 80% conversion AK only requires a drill press ... an AR conversion takes more time for the lower; the completion of an AK takes a little bit more time than an AR ...

    I have made quite a few of both over the years ... most with drill presses ... a mill is nice and safer but really not a requirement.

    From 80% to a fully operational firearm ~ 2.5 hrs for me ... you can design your own too ... I have made "improvements" to both the AR and AK designs...and basically made a new designed gun. And you can make a AR/AK without using a 80% finished receiver..there are plans online using 3/16 plate stock and even plastic materials...

    Once one makes a gun of their own or a build of their own, they may never buy another gun again.

    Pass all the gun laws they want, one can simply design a gun that gets around the provisions of a law...just think of the law as a patent & get around the patent, like any American entrepreneur.

    Maybe I should start a build-your-own gun club and have build parties .... fun fun fun .. manly fun.

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