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Thread: Open Carry, LEO have the right to "search my firearm"?

  1. #1
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    Open Carry, LEO have the right to "search my firearm"?

    preemptively I'd like to say, I dont currently own a hand gun and the purpose of this thread was mostly to answer some questions I have regarding specific scenarios i've witnessed on youtube and in other states.

    been watching those crazy videos of markedguardian OCing in oregon. For those who do not know who he is, he is a law abiding citizen which is exercising his rights by OCing a semi-auto rifle and usually a handgun of some sort as well. Each video i watch he usually tells the LEOs "I do not consent to a search of my body or firearms". Yet in some of the videos the LEO still removes the firearm and inspects it, etc.

    I understand for the purpose of safety an AZ LEO has the right to detain a firearm. But is this only with probable cause first?

    For example
    lets say joe shmoe is walking down mill avenue OCing a handgun. He's not breaking any laws he's of age and has no felonies or any other means to consider him a "Prohibited Possessor", being quiet and content. LEOs spot Mr. Shmoe and decide to see what he's up to (which i doubt most LEOs would do here in AZ).. Do they have a right to then detain his gun and "search/inspect" it for the duration of the conversation? Or would they have to have probable cause first?

    I personally wouldn't have a problem rendering my firearm to the LEO, but getting constantly harassed as I OC would get quite old..

    I'm sure this scenario is very specific and will probably be hard to answer, was more looking for opinions and discussion on this but actual first-hand experiences from az LEOs or fellow OC'ers would be cool too.

  2. #2
    Regular Member 1245A Defender's Avatar
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    Soooo,,,,

    You have been on OCDO nearly 6 years.
    Says you have 5 posts,,, but 4 must have been removed!
    You live in Arizona, but watch and ask questions about a guy that makes youtube vids about Oregon?

    Just want to make sure I got that all straight!

    Sooo you really must have been studying for all this time,,, What are you? About 17??

    Terry V. Ohio,,, Florida V. J.L.,,, St. John V. Alamagordo,,, et. al.
    Tell everybody that,,, No, absent RAS or PC of a crime, the cops can NOT detain you!
    Since they can NOT detain you, they can NOT take your gun for the duration of a STOP that they can NOT make!!!

    Thank you for coming by...
    Please come back again and play again!

    Oh,,, and welcome back to OCDO!
    We didnt know you,,, we didnt miss you,,, oh well.....
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

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    Quote Originally Posted by 1245A Defender View Post
    You have been on OCDO nearly 6 years.
    Says you have 5 posts,,, but 4 must have been removed!
    You live in Arizona, but watch and ask questions about a guy that makes youtube vids about Oregon?

    Just want to make sure I got that all straight!

    Sooo you really must have been studying for all this time,,, What are you? About 17??

    Terry V. Ohio,,, Florida V. J.L.,,, St. John V. Alamagordo,,, et. al.
    Tell everybody that,,, No, absent RAS or PC of a crime, the cops can NOT detain you!
    Since they can NOT detain you, they can NOT take your gun for the duration of a STOP that they can NOT make!!!

    Thank you for coming by...
    Please come back again and play again!

    Oh,,, and welcome back to OCDO!
    We didnt know you,,, we didnt miss you,,, oh well.....
    First off, whats with the personal attacks? I guess i'm confused.. i thought opencarry.org was a forum used to discuss topics relating to open carrying, irregardless of the state. I saw those videos and the question came up about how his actions would apply to Arizona law. Seeing as several of the incidents seem to breach 1st and 4th ammendment rights.

    That being said. Im 26, used to OC but sold off my hand guns for the time being. For someone who obviously has shown interest in my history on OC.org, i was young and decided i wasnt ready to OC or carry at the time i made the responsible choice to sell off my hand guns at 20.

    Getting back to the topic at hand as im sure you dont want my life story,
    I've read all of ARS 3102 and its related statutes and did not see any specifics. Other than chap 13, sub section K of 3102...

    K. If a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.
    That quote is pretty generic in terms of, what exactly is "contacts"... The way i read that is in my example above, the LEO has every right to detain and search my firearm. Which could be confusing considering the obvious federal 1st/4th.

    but in all seriousness thanks for posting those cases, ill read up on them. I was looking for more information/discussion specific to Arizona i suppose.
    Last edited by ndboost; 08-22-2013 at 05:50 AM.

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    @1245ADefender - those cases that you presented were great information. I read through Terry v Ohio and St John v Alamogordo. They provided a wealth of information and definitely cleared a lot up.

    Thank you for the information. I am still reading through other similar cases, obviously just case synopsis's.
    Last edited by ndboost; 08-22-2013 at 05:55 AM.

  5. #5
    Regular Member 1245A Defender's Avatar
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    Well,,,

    OK, I understand you and I will try being nice...

    The term "contact" doesnt mean,,, any time a cop comes up to you to have a talk!
    It means, when a cop has RAS or PC to "force his will upon you"

    Unless a cop has RAS or PC he can NOT force a "contact".
    He can only wish for a visit with your "consent"!
    Otherwise,,, you are free to just walk away!
    we will talk more




    ETA: I see you are reading,,, very good stuff...
    Last edited by 1245A Defender; 08-22-2013 at 06:05 AM.
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

  6. #6
    Regular Member March Hare's Avatar
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    Quote Originally Posted by 1245A Defender View Post
    You have been on OCDO nearly 6 years.
    Says you have 5 posts,,, but 4 must have been removed!
    You live in Arizona, but watch and ask questions about a guy that makes youtube vids about Oregon?

    Just want to make sure I got that all straight!

    Sooo you really must have been studying for all this time,,, What are you? About 17??

    Terry V. Ohio,,, Florida V. J.L.,,, St. John V. Alamagordo,,, et. al.
    Tell everybody that,,, No, absent RAS or PC of a crime, the cops can NOT detain you!
    Since they can NOT detain you, they can NOT take your gun for the duration of a STOP that they can NOT make!!!

    Thank you for coming by...
    Please come back again and play again!

    Oh,,, and welcome back to OCDO!
    We didnt know you,,, we didnt miss you,,, oh well.....
    Lighten up, since when is it wrong to ask questions?

    I thought that was why we were here, to learn and educate, not attack other members.

    Ease off on the Snarkasm.

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    Quote Originally Posted by 1245A Defender View Post
    OK, I understand you and I will try being nice...

    The term "contact" doesnt mean,,, any time a cop comes up to you to have a talk!
    It means, when a cop has RAS or PC to "force his will upon you"

    Unless a cop has RAS or PC he can NOT force a "contact".
    He can only wish for a visit with your "consent"!
    Otherwise,,, you are free to just walk away!
    we will talk more




    ETA: I see you are reading,,, very good stuff...

    As long as we include a few things for readers' understanding. Primarily, that law doesn't immediately translate into tactics. If a fella doesn't have a lawyer and wants to figure out tactics all on his own, he needs to see more of the picture:

    http://forum.opencarry.org/forums/sh...e-Cop-has-RAS&
    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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    Regular Member Fallschirmjäger's Avatar
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    Here is the law in question...
    13-3102. Misconduct involving weapons; defenses; classification; definitions

    The sub-paragraph being referred to...
    K. If a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.

    And the sub-paragraph that the dissenting judge is likely referring to from the same ARS...
    M. For the purposes of this section:
    1. "Contacted by a law enforcement officer" means a lawful traffic or criminal investigation, arrest or detention or an investigatory stop by a law enforcement officer that is based on reasonable suspicion that an offense has been or is about to be committed.

    One will note that "contact" has a certain definition and is not a carte blanch authority to seize at any and all times.

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    Quote Originally Posted by Citizen View Post
    As long as we include a few things for readers' understanding. Primarily, that law doesn't immediately translate into tactics. If a fella doesn't have a lawyer and wants to figure out tactics all on his own, he needs to see more of the picture:

    http://forum.opencarry.org/forums/sh...e-Cop-has-RAS&
    That is an amazingly useful thread, full of information and probably explains things the clearest of all Id hazard to say. Thanks for posting it.

    Quote Originally Posted by Fallschirmjäger View Post
    Here is the law in question...
    13-3102. Misconduct involving weapons; defenses; classification; definitions

    The sub-paragraph being referred to...
    K. If a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.

    And the sub-paragraph that the dissenting judge is likely referring to from the same ARS...
    M. For the purposes of this section:
    1. "Contacted by a law enforcement officer" means a lawful traffic or criminal investigation, arrest or detention or an investigatory stop by a law enforcement officer that is based on reasonable suspicion that an offense has been or is about to be committed.

    One will note that "contact" has a certain definition and is not a carte blanch authority to seize at any and all times.
    Thats what makes sense, so once the LEO has determined RAS, they can conduct an "investagory stop",then they can then search, and detain your firearm as needed. Im curious to know of actual statistics of how many OCers get harassed in AZ and how many actually get detained for similar purposes. Seems much less prevalent here in AZ than other states.. such as Oregon.

    By now that markedguardian dude is probably well-known by the LEOs and dispatchers throughout the various cities and suburbs in Oregon state so he's probably pretty common place. Kid was obviously looking for attention and looking to make a bold statement, yet i'm surprised we haven't seen more of these videos for other states. Seems mostly to do with states who are mostly on the "other side" of the political party .
    Last edited by ndboost; 08-22-2013 at 03:45 PM.

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    Quote Originally Posted by ndboost View Post
    SNIP yet i'm surprised we haven't seen more of these videos for other states.
    The reason is two-fold.

    First, most OCers are OCing handguns.

    Second, since 2006 when OCDO was started, most PDs know a) we're gonna OC, b) we know the legalities, including the limits of their authority, and c) we'll fight back after an illegal detention with press, videos, formal complaints, and lawsuits.
    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 Citizen View Post
    The reason is two-fold.

    First, most OCers are OCing handguns.

    Second, since 2006 when OCDO was started, most PDs know a) we're gonna OC, b) we know the legalities, including the limits of their authority, and c) we'll fight back after an illegal detention with press, videos, formal complaints, and lawsuits.
    Exactly right, have you been hanging out her for a while?
    Throw me to the wolves and I will come back leading the pack.

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    Quote Originally Posted by Fallschirmjäger View Post
    Here is the law in question...
    13-3102. Misconduct involving weapons; defenses; classification; definitions

    The sub-paragraph being referred to...
    K. If a law enforcement officer contacts a person who is in possession of a firearm, the law enforcement officer may take temporary custody of the firearm for the duration of that contact.

    And the sub-paragraph that the dissenting judge is likely referring to from the same ARS...
    M. For the purposes of this section:
    1. "Contacted by a law enforcement officer" means a lawful traffic or criminal investigation, arrest or detention or an investigatory stop by a law enforcement officer that is based on reasonable suspicion that an offense has been or is about to be committed.

    One will note that "contact" has a certain definition and is not a carte blanch authority to seize at any and all times.
    You don't have to choose between the second and fourth amendments, you can exercise them simultaneously. I challenged "k" on the side of the road with a half dozen deputies, they weren't happy but they never touched my firearm, and aside from being wrongly detained for over half an hour, was not cited, charged, or arrested.


    http://forum.opencarry.org/forums/sh...p-in-handcuffs

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    Quote Originally Posted by Citizen View Post
    The reason is two-fold.

    First, most OCers are OCing handguns.

    Second, since 2006 when OCDO was started, most PDs know a) we're gonna OC, b) we know the legalities, including the limits of their authority, and c) we'll fight back after an illegal detention with press, videos, formal complaints, and lawsuits.
    Don't forget we can also send them to FOIA hell.
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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    Quote Originally Posted by HILLBILLYDELUXE View Post
    You don't have to choose between the second and fourth amendments, you can exercise them simultaneously. I challenged "k" on the side of the road with a half dozen deputies, they weren't happy but they never touched my firearm, and aside from being wrongly detained for over half an hour, was not cited, charged, or arrested.
    "Somewhere-between-the-4th-amendment-and-SB1108-I-wound-up-in-handcuffs"
    And you were perfectly within your rights to do so, unless as in (k) the stop was investigatory in nature.

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    Quote Originally Posted by ndboost View Post
    That quote is pretty generic in terms of, what exactly is "contacts"... The way i read that is in my example above, the LEO has every right to detain and search my firearm. Which could be confusing considering the obvious federal 1st/4th.
    Contacts are defined by looking a little further down in that section. See ARS 13-3102.M.1

    We (AzCDL) are looking into proposed legislation to tighten that even further.

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    Quote Originally Posted by azcdlfred View Post
    Contacts are defined by looking a little further down in that section. See ARS 13-3102.M.1

    We (AzCDL) are looking into proposed legislation to tighten that even further.

    Fred

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    http://azcourts.gov/Portals/0/Opinio...%2011-0675.pdf

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    I hadn't seen this thread before and since it got resurrected I might as well add this to address one of the questions posed by the OP.

    Even when the officers have the lawful authority to take temporary possession of your firearm "for their safety" they do not have the right to conduct a warrantless search of it. What some courts have said is that if the serial number is in plain view on the gun, then observing the serial number and "running it" (to see if it is stolen, etc.) does not constitute a search. However, if the serial number is covered with something like a piece of electrical tape, removing the piece of tape does constitute a search. Therefore some folks have taken to covering their serial numbers with opaque tape or some other non-permanent substance. I say non-permanent because possessing a firearm with an obliterated serial number is illegal. Non-permanently obscured does not equal obliterated.

    Since peeling off a piece of tape and replacing it could be done clandestinely if you really wanted to go over the top you could buy some small tamper-evident labels and put one over your serial number. The ones at the link will leave behind the word "VOID" in silver foil if removed. Google search for "tamper evident labels" if the link is dead at some point.

    Hope that helps.
    Last edited by BrianB; 11-30-2013 at 06:20 AM.
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    Quote Originally Posted by Boatlover View Post
    This case is a good reason why you do not talk with officers if you do not want things like this to happen. Most peace officers are not going to stop you because they are trying to protect you and your rights; most of them are stopping you and trying to start conversation because they are digging for probable cause to arrest. He never asked if he was free to leave; he never asked if he had to answer any of their questions; he never attempted to walk away; and most importantly, he answered the officers' questions regarding his activity and most important, his firearm. Basically, he got his self arrested. Why he even believes the Motion to Suppress would have been granted is beyond me, as he never tried to refrain from speaking with the officers.

    DO NOT SPEAK WITH OFFICERS IF YOU DON'T WANT TO GET CAUGHT UP IN SOMETHING. This goes back to what I am always saying about people needing to KNOW their rights. If we only know our rights concerning the keeping and bearing of arms and not our other rights then we really don't know anything. I have studied case law for years now, and I still learn new things every day. We must also remember that laws are always changing and new case law is always coming from the courts. We have to stay informed on every matter that may affect our day to day lives if we wish to remain free.

    I witness this every day people. I would say well over 90% of people that get arrested in my county get themselves arrested because they don't know their rights. If you don't know your rights then it is no one's fault but your own if you fail to recognize when an encounter is consensual and when it isn't.

    In this situation I would have asked if I was free to leave, and if they had said no, then from that moment on it would have no longer been a consensual encounter. This would mean they would have to either have RAS to continue with the encounter or allow me to go on my way. Now having said that, given the totality of the circumstances in this situation, I believe the courts would have recognized RAS existed and determined the stop was allowed under Terry v. Ohio and other precedent. The area and the history of the area involved mixed with his actions and the bulge on his side would constitute RAS in our screwed up justice system. Due to the bulge under his clothes they would have been able to conduct a frisk for weapons, and they would have still located the firearm that led to his arrest. Our "justice" system gives peace officers too much discretionary authority when determining what constitutes RAS in my opinion.
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    Thanks for the link to an interesting product. I have asked, "Are custom imprints available, COURT ORDER REQUIRED?"
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by BrianB View Post
    I hadn't seen this thread before and since it got resurrected I might as well add this to address one of the questions posed by the OP.

    Even when the officers have the lawful authority to take temporary possession of your firearm "for their safety" they do not have the right to conduct a warrantless search of it. What some courts have said is that if the serial number is in plain view on the gun, then observing the serial number and "running it" (to see if it is stolen, etc.) does not constitute a search. However, if the serial number is covered with something like a piece of electrical tape, removing the piece of tape does constitute a search. Therefore some folks have taken to covering their serial numbers with opaque tape or some other non-permanent substance. I say non-permanent because possessing a firearm with an obliterated serial number is illegal. Non-permanently obscured does not equal obliterated.

    Since peeling off a piece of tape and replacing it could be done clandestinely if you really wanted to go over the top you could buy some small tamper-evident labels and put one over your serial number. The ones at the link will leave behind the word "VOID" in silver foil if removed. Google search for "tamper evident labels" if the link is dead at some point.

    Hope that helps.
    I tried the tape thing. Regular electrical tape showed the imprint of the SN if one pressed down on it, so I got some of that bright orange cloth-like tape used for drywall and covered my SN with it. No matter how much you press, the SN below does not show through.
    Not content with the tape alone, I added a little message that makes everything more clear: "SN check = lawsuit". I then added a layer of clear tape to protect my handiwork.

    But those tamper-evident labels look a little nicer than my job, so I'm definitely interested. If custom prints are available, I'd like to 2nd (pun) the "COURT ORDER REQUIRED" idea.
    Last edited by Rusty Young Man; 11-30-2013 at 03:09 PM.
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  21. #21
    Regular Member papa bear's Avatar
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    to the OP. you can decline the search doesn't mean it won't happen. you could object to being BFed by the police but we have had a case of that just recently

    but it also behooves the violated citizen to protest and protest loudly, and take legal action. no one will care for your rights like you should.

    but too many people now a-days will not stand up for their rights

    also thger is a legal defense there too. if they violated your rights and found something (happens all the time), more then likely it will not hold up in court
    Luke 22:36 ; 36Then said he unto them, But now, he that hath a purse, let him take it, and likewise his scrip: and he that hath no sword, let him sell his garment, and buy one.

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  22. #22
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    I don't understand how a gov't employee can just walk up to you and steal your gun .... don't you have the gun to protect yourself from that same gov't employee?

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