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Thread: Legal Search?

  1. #1
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    There seams to be a common action during a stop for OC by LEO. They always want to check the chamber if you dont have a CFP. To me if there is no evidence that a law is being broken, then assumption of guilt (one in the chamber) is illegal. Appears no different than pulling over cars just to check for their occupants compliance with citizenship (papers please!). I am sure there is something that I am missing as relates to an officers legal standing with safety or situation control. Where is the line? What are the legal actions given the officer, by law, during a stop while I am walking down the sidewalk? Can they disarm me, take my baby and then return it to me if/when they feel it appropriate? What happens if they dont feel like giving it back to me? Call me paranoid, but I dont like ANYBODY short of God himself to handle my guns without my concent. Are they really able to put their sticky fingers on my shiney Kimber any time they want? Am i concenting to search by walking out my front door? This has always bothered me. Even in a traffic stop, are they able to disarm me at their discression? I am hoping that the LEO's among us will give some insight as to their understanding of the law.

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    Bflamante wrote:
    Call me paranoid, but I dont like ANYBODY short of God himself to handle my guns without my concent.
    And at least HE is smart enough to know that a holstered firearm is a heck of a lot safer than one in the hands of a cop (or anyone else! no cop-bashing here...).


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    I don't think they can articulate reasonable suspicion to justify searching your weapon, so I think checking your chamber is an illegal search.

    The problem is that this falls into an area of where police very often get away with illegal actions. It's such a minor nuisance that hardly anyone is going to bother suing over it, because there are no damages and courts are unlikely to make any punitive awards. Maybe if there's a well-documented and long-established pattern...

    OC'ers in Utah who get stopped with an empty chamber should refuse consent to any searches, and file a formal complaint if the officer does it anyway. If it happens regularly, the complaints will document the abusive pattern.

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    Bflamante wrote:
    Even in a traffic stop, are they able to disarm me at their discression? I am hoping that the LEO's among us will give some insight as to their understanding of the law.
    I am NOT a police officer; I don't necessarily like all of our laws or the court decisions that too often create or ignore the law; and I don't write of how I wish things were, but as they currently are, according to my best understanding. With that:

    My understanding is that once as officer has legal reason to initiate formal contact he has VERY BROAD discretion in disarming you "for his own safety." This would include at routine traffic stops once he discovers you are armed.

    Now, the Utah Supreme Court has ruled that police officers cannot routinely ask you if you have a gun or other weapons during routine traffic stops. So if you are carrying non-loaded and want to keep the gun out of site but not concealed (I find a zippered soft sided gun case works well, others have suggested Tupperware which has a certain irony if your favored firearm is a Glock.), there would need to be some reason for the officer to even discover you have a gun. (I presume a box of shells clearly visible would be justification for him to ask.)

    But, if you have a permit and are in possession of a concealed (and/or loaded??) firearm pursuant to that permit you must inform.

    In either this case, or the case of permitless (and unloaded) OC in a vehicle, the officer now knows you are armed and we are back to VERY BROAD discretion to disarm you. Once you he has your gun, it seems reasonable for him to verify the condition of the chamber. How often do YOU pick up a gun without verifying the chamber?

    Of course, this is for a traffic stop where the officer has, presumably, observed something that gives him legal cause to stop you. The problem we have is whether or not seeing you walking down the street with a gun OC'd is legal cause to stop you in the first place. Once he has legal cause to initiate official contact, he does have broad discretion to disarm you.

    You and I, of course, would argue that merely having a visible gun peaceably holstered (as opposed to violently or dangerously holstered), is NOT, in and of itself, legal cause for an officer to initiate contact. Sure, the gun MIGHT be Utah loaded and the person MIGHT not have a permit. But by that rational, every driver on the road MIGHT be driving on an expired license, MIGHT be intoxicated, and MIGHT have 100 pounds of pure cocaine sitting in the back seat. But until there is some readily observed evidence of ANY of the foregoing, the police do NOT get to make random stops of cars to search them. So too, we would argue, neither should police be able to make random stops of anyone with a gun just to make sure the gun is unloaded or that a valid permit is possessed.

    That said, I doubt this is CURRENT legal thinking in very many departments or court rooms. And I'd bet the police would offer a host of reasons why they should be able to stop anyone with a gun, or why they were legally justified in initiating contact in any given case. Unfortunately, "man with a gun" 911 calls and similar complaints are treated as evidence of some crime rather than being treated as we might expect the police to react to a "man with a car" or "man with a dog" call. (911 Dispatch: "So what exactly is this man DOING with his car that makes you think a crime is in progress?") Or 911: "So is this dog in a prohibited area? Is it off leash or acting aggressively or leaving a mess? What makes you believe a crime is being committed?")

    My suggestion would be NOT to file a complaint based on being disarmed or the chamber inspected. RATHER, file a complaint based on the lack of legal reason to initiate the official contact in the first place. Once you concede (even implicitly) that the contact was legally justified, the cops have all the top cover (from SCOTUS itself) they need to disarm you, inspect the firearm, and return it to you unloaded or even field stripped; all in the name of "officer safety" of course.

    IANAL, YMMV, etc, etc, etc.

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    I think Utahbagpiper hit the nail on the head here. Sadly once the police have a reason to talk to you (probable cause), they can disarm you. Now what that reason is can vary, but beleive me cops are at no shortage of reasons. Ihad a neighbor who wasdetained because he fit the description of a bank robber (aka white male between 5'9"-6' weighing 220-260) when really they were looking at him for another crime but didn't have enough evidence to search him for that crime yet. Now everyone knows thatsomething like500,000 guys fit that description in the area... but it was enough to top him allowing them to get him for the crime he did commit.

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    utbagpiper wrote:
    My suggestion would be NOT to file a complaint based on being disarmed or the chamber inspected. RATHER, file a complaint based on the lack of legal reason to initiate the official contact in the first place.
    Agreed. I was unclear, but yes, the focus of the complaint would be the illegal detention. The fact of the search, against your will, proves that the encounter was a detention, not a voluntary interaction. If you don't object, the officer can claim that you voluntarily allowed him to check your gun.

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    xmirage2kx wrote:
    I think Utahbagpiper hit the nail on the head here. Sadly once the police have a reason to talk to you (probable cause), they can disarm you.
    It's a terminology quibble, but the cops don't need probable cause to stop and disarm you. All they need is reasonable suspicion that you have committed, are committing or are about to commit a crime. "Reasonable suspicion" just means they have to be able to state something about the circumstance that would appear suspicious to a reasonable person with their expertise.

    "Probable cause", on the other hand, basically means evidence that you have committed a crime. They don't have to have enough evidence to prove it, but they have to have something tangible, more than a circumstantial hunch. An eyewitness report of you committing the crime, personal observation (the norm in traffic stops) of you committing the crime, some piece of physical evidence... something more than just a suspicion.

    If the standard for a stop were probable cause, I don't think matching such a vague description would have been enough to justify it stopping your neighbor.

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    This is the only thing I can find that would be close to a reason to inspect your weapon.

    76-10-505. Carrying loaded firearm in vehicle or on street.
    (1) Unless otherwise authorized by law, a person may not carry a loaded firearm:
    (a) in or on a vehicle;
    (b) on any public street; or
    (c) in a posted prohibited area.
    (2) A violation of this section is a class B misdemeanor.


    But then they would have to come up with some reason to believe that there was a round in the chamber.

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    Right, Decoligny. It's illegal to openly carry a loaded weapon (without a CFP -- if you have one 76-10-523 exempts you from 76-10-505). As utahbagpiper pointed out, it's also illegal to drive with an expired license. Seeing a man with a gun no more gives reason to suspect that the gun is illegally loaded than seeing a man with a car gives reason to suspect that he's driving without a valid license.

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    This is personally why I like my XD. Without having to take it out of the holster I have two ways to show unloaded: chamber indicator and cocking indicator. Given the Glock does have a chambered indicator but in my holster you can't see that. With the XD I can show, without removing it from the holster, it is Utah "unloaded."

    I personally think "officer safety" is too broad for this type of thing. Given I want our "men in (whatever color their agency uniform is)" to be safe, but not at the expense of my rights.

    All they need is reasonable suspicion that you have committed, are committing or are about to commit a crime.
    I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
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    Outsider wrote:
    SNIP I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    Which is why I advocate refusing consent to the encounter itself at the outset. It clearly demarks that it now must bea Terry Stop based on legitimate reasonable suspicion or the officer's personnel file is in jeopardy.

    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?

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    Citizen wrote:
    Outsider wrote:
    SNIP I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    Which is why I advocate refusing consent to the encounter itself at the outset. It clearly demarks that it now must bea Terry Stop based on legitimate reasonable suspicion or the officer's personnel file is in jeopardy.
    Very very good point and this is why we all should have voice recorders!!!
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    Outsider wrote

    I personally think "officer safety" is too broad for this type of thing. Given I want our "men in (whatever color their agency uniform is)" to be safe, but not at the expense of my rights.

    All they need is reasonable suspicion that you have committed, are committing or are about to commit a crime.
    I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    I completely agree with the need for office safty. Given that statement, what are the laws? If officer safety is needed and laws do not allow disarming a citizen, then change is appropriate. I just want LEO to have to follow the law.

    My other concern is why does having a law abiding citizen OC constitute a danger to an officer? Officers dont confiscate keys to cars during traffic stops. Holsters are considered a secure storage for a gun. So whats the big deal. What happened to trusting citizens? Maybe I am just being naive.

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    Bflamante wrote:
    Outsider wrote

    I personally think "officer safety" is too broad for this type of thing. Given I want our "men in (whatever color their agency uniform is)" to be safe, but not at the expense of my rights.

    All they need is reasonable suspicion that you have committed, are committing or are about to commit a crime.
    I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    I completely agree with the need for office safty. Given that statement, what are the laws? If officer safety is needed and laws do not allow disarming a citizen, then change is appropriate. I just want LEO to have to follow the law.

    My other concern is why does having a law abiding citizen OC constitute a danger to an officer? Officers dont confiscate keys to cars during traffic stops. Holsters are considered a secure storage for a gun. So whats the big deal. What happened to trusting citizens? Maybe I am just being naive.
    A cop told me a few days ago -"When we get a "MWAG" call we don't know that you are law-abiding".

    I said something to the affect that "a law-abiding person KNOWS that he/she MIGHT be approached by a LEO and has nothing to worry about. A Criminal does NOT want the "Attention" STP ( So Too Speak)"

    He just looked at me :what:.



    TJ

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    Outsider wrote:
    Citizen wrote:
    Outsider wrote:
    SNIP I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    Which is why I advocate refusing consent to the encounter itself at the outset. It clearly demarks that it now must bea Terry Stop based on legitimate reasonable suspicion or the officer's personnel file is in jeopardy.
    Very very good point and this is why we all should have voice recorders!!!
    And if you don't have a voice recorder, make an effort to get a witness. If a Wal-mart manager calls the police on you, for example, ask the manager to please note that you refused to consent to the encounter or to any searches, but that you complied with the officer's request.

    I think even an individual who doesn't like you carrying a gun, will honor a specific request to take note of a particular action and to include it in their witness report.

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    UTOC-45-44 wrote:
    A cop told me a few days ago -"When we get a "MWAG" call we don't know that you are law-abiding".
    Yeah? What about when they get a "Man with a baseball bat" call?

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    swillden wrote:
    UTOC-45-44 wrote:
    A cop told me a few days ago -"When we get a "MWAG" call we don't know that you are law-abiding".
    Yeah? What about when they get a "Man with a baseball bat" call?
    On the ten o'clock news, they will refer to the "man with a gun" as a "gunman", but I am still waiting for them to refer to the "man with a baseball bat" as a "batman"........

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    911: "911, what's your emergency?"

    Caller: "THE MAN HAS A BASEBALL CAP AND IT'S RED!!!"

    911: "I'm sorry, did you just say a man has a baseball cap and that it is blue?"

    Caller: "YES! AND I DON'T LIKE THE COLOR RED!!! REMINDS ME OF UNIVERSITY OF UTAH AND I'M A BYU GRADUATE!!! HE IS DISTURBING MY PEACE!"

    911: ...silence...

    Caller: "Well!?"

    911: ...silence...

    Caller: "HE IS DISTURBING THE PEACE AND IS CONDUCTING HIMSELF DISORDERLY AND MESSING UP MY WEEKEND!!! SEND THE SWAT TEAM!!!"

    911: "Have a good day." *click*

    (This was not a real call. If this had been a real call the 911 Dispather probably would have sent the cops and "disarmed" him of his red baseball camp as a matter of public and officer safety until they cited him with Disturbing the Peace and Disorderly Conduct. Thank you.)

    Okay, so not real and sorry for my remarks, but still...
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    Outsider wrote:
    911: "911, what's your emergency?"

    Caller: "THE MAN HAS A BASEBALL CAP AND IT'S RED!!!"

    911: "I'm sorry, did you just say a man has a baseball cap and that it is blue?"

    Caller: "YES! AND I DON'T LIKE THE COLOR RED!!! REMINDS ME OF UNIVERSITY OF UTAH AND I'M A BYU GRADUATE!!! HE IS DISTURBING MY PEACE!"

    911: ...silence...

    Caller: "Well!?"

    911: ...silence...

    Caller: "HE IS DISTURBING THE PEACE AND IS CONDUCTING HIMSELF DISORDERLY AND MESSING UP MY WEEKEND!!! SEND THE SWAT TEAM!!!"

    911: "Have a good day." *click*

    (This was not a real call. If this had been a real call the 911 Dispather probably would have sent the cops and "disarmed" him of his red baseball camp as a matter of public and officer safety until they cited him with Disturbing the Peace and Disorderly Conduct. Thank you.)

    Okay, so not real and sorry for my remarks, but still...


    dont forget to throw in the Nuisance laws too. As it was annoying the person and endangered their comfort

    76-10-803

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    Take note here

    (1) A public nuisance is a crime against the order and economy of the state and consists in unlawfully doing any act or omitting to perform any duty, which act or omission:


    So in order for that law to work, you should have to be breaking the law.

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    Bflamante wrote:
    Outsider wrote

    I personally think "officer safety" is too broad for this type of thing. Given I want our "men in (whatever color their agency uniform is)" to be safe, but not at the expense of my rights.

    All they need is reasonable suspicion that you have committed, are committing or are about to commit a crime.
    I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    I completely agree with the need for office safty. Given that statement, what are the laws? If officer safety is needed and laws do not allow disarming a citizen, then change is appropriate. I just want LEO to have to follow the law.

    My other concern is why does having a law abiding citizen OC constitute a danger to an officer? Officers dont confiscate keys to cars during traffic stops. Holsters are considered a secure storage for a gun. So whats the big deal. What happened to trusting citizens? Maybe I am just being naive.
    Not to start an argument, BUT...

    Agreed on officer safety. As some of you may know, my brother is active LE and my father is retired LE. I would never want anything bad to happen to them, or any LE for that matter!

    That being said, there are lots of things that are illegal. During a traffic stop we all agree we are being detained on suspicion of violating traffic law. During such a detention, the officer may disarm you for his safety. But...

    It's illegal to have marijuana. Does the fact that he found a pack of Marlboros in my pocket during the pat down give the officer the right to search the pack of cigarettes to make sure there's no joints in there?

    It's illegal to hire a prostitute. Does the fact that a good looking woman is in my car give the officer the right to detain and interrogate her to make sure she's not 'working'?

    It's illegal to carry a loaded gun without a permit. Does the fact that my firearm was temporarily seized for officer safety give the officer the right to search it to verify it is not chambered? I would suggest not. He may temporarily seize it for officer safety. Unless I give him permission to search it (ALWAYS POLITELY REFUSE), he has illegally searched, and whether it is loaded or not, the results of his search would violate the exceptions granted under Terry and be inadmissable.

    Those who may disagree, let me only point out that the firearm is not being seized as evidence of a crime (in which case the police are free to search and conduct whatever tests upon it they desire in order to acquire incriminating information), but rather to protect officer safety. I believe this distinction was made in the Terry case to limit the infringement upon the 4th amendment. Clearly there is a need for officer safety, but that need is limited in scope. The permitted temporary seizure in the name of officer safety ensures I do not shoot the officer, not that the property violates any laws. As such, so long as the officer is safe from having said firearm used against him, he should not be permitted any further liberties with my property. Sitting on his seat, chambered or not, the firearm no longer represents a threat of my using it to shoot him, which is the only reason he was able to seize it in the first place.

    OTOH, without a permit, those who may OC a Glock (and maybe other pistols) should be cognizant of the "chambered" indicator tab. It's obviously recommended you do not depend on such a tab (and manually clear the weapon to verify it is not loaded), the presence of that tab, and the positive indication thereof should in fact be enough reasonable cause to justify the search to determine whether the weapon is actually loaded.

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    timf343 wrote:
    It's illegal to carry a loaded gun without a permit. Does the fact that my firearm was temporarily seized for officer safety give the officer the right to search it to verify it is not chambered? I would suggest not. He may temporarily seize it for officer safety. Unless I give him permission to search it (ALWAYS POLITELY REFUSE), he has illegally searched, and whether it is loaded or not, the results of his search would violate the exceptions granted under Terry and be inadmissable.
    While an interesting legal argument (and while I don't care for current, laws and rulings giving police such broad powers to disarm) I think any officer can make a very find case based on standard and accepted SAFETY rules of conduct when handling any firearm. What is the FIRST thing YOU do when picking up a firearm? Double checking the chamber is certainly not an unusual thing for many of us to answer there.

    Indeed, one can make the case that any gun you are not about to shoot, nor carrying for self defense should be unloaded.

    IOW, the officer is not necessarily "searching" the weapon to see whether it is loaded or not. He is simply practicing reasonable and well accepted safe handling procedures. Again, I don't necessarily care for the laws that allow officers to disarm so broadly in the first place. But once an officer has legal cause to take your gun, it seems only prudent for him to check the chamber and drop the magazine just as so many of us would do when picking up a firearm.

    Now, whether the results of this safety procedure should be admissable as evidence is another very interesting question.
    All experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. Thank heaven we do not permit a few to impose anarchy.

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    timf343 wrote:
    Bflamante wrote:
    Outsider wrote

    I personally think "officer safety" is too broad for this type of thing. Given I want our "men in (whatever color their agency uniform is)" to be safe, but not at the expense of my rights.

    All they need is reasonable suspicion that you have committed, are committing or are about to commit a crime.
    I think a lot of officers that stop to check OCers if they are legal don't meet this requirement and think that "officer/public safety" clears them to disarm a law-biding citizen and check his weapon.
    I completely agree with the need for office safty. Given that statement, what are the laws? If officer safety is needed and laws do not allow disarming a citizen, then change is appropriate. I just want LEO to have to follow the law.

    My other concern is why does having a law abiding citizen OC constitute a danger to an officer? Officers dont confiscate keys to cars during traffic stops. Holsters are considered a secure storage for a gun. So whats the big deal. What happened to trusting citizens? Maybe I am just being naive.
    Not to start an argument, BUT...

    Agreed on officer safety. As some of you may know, my brother is active LE and my father is retired LE. I would never want anything bad to happen to them, or any LE for that matter!

    That being said, there are lots of things that are illegal. During a traffic stop we all agree we are being detained on suspicion of violating traffic law. During such a detention, the officer may disarm you for his safety. But...

    It's illegal to have marijuana. Does the fact that he found a pack of Marlboros in my pocket during the pat down give the officer the right to search the pack of cigarettes to make sure there's no joints in there?

    It's illegal to hire a prostitute. Does the fact that a good looking woman is in my car give the officer the right to detain and interrogate her to make sure she's not 'working'?

    It's illegal to carry a loaded gun without a permit. Does the fact that my firearm was temporarily seized for officer safety give the officer the right to search it to verify it is not chambered? I would suggest not. He may temporarily seize it for officer safety. Unless I give him permission to search it (ALWAYS POLITELY REFUSE), he has illegally searched, and whether it is loaded or not, the results of his search would violate the exceptions granted under Terry and be inadmissable.

    Those who may disagree, let me only point out that the firearm is not being seized as evidence of a crime (in which case the police are free to search and conduct whatever tests upon it they desire in order to acquire incriminating information), but rather to protect officer safety. I believe this distinction was made in the Terry case to limit the infringement upon the 4th amendment. Clearly there is a need for officer safety, but that need is limited in scope. The permitted temporary seizure in the name of officer safety ensures I do not shoot the officer, not that the property violates any laws. As such, so long as the officer is safe from having said firearm used against him, he should not be permitted any further liberties with my property. Sitting on his seat, chambered or not, the firearm no longer represents a threat of my using it to shoot him, which is the only reason he was able to seize it in the first place.
    If the officer handles it, he better empty it. I have seen many a cop put their finger on the trigger while handling a firearm.The firearm needs to be made safe if not in the holster for the safty of the officer and the citizen. The only way to do that is lock slide with no mag or empty the cylinder. If he happens to find one in the chamber when making safe that would be no different than pulling you over for speeding and finding the 10 pounds of pot sitting in the back seat. If safty is the basis for handling the arm, then anything in the process of making safe is fair game. When they find one in the chamber then they would at that point verify for legal compliance for open carrying a loaded weapon.

  24. #24
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    Bflamante wrote:
    If the officer handles it, he better empty it. I have seen many a cop put their finger on the trigger while handling a firearm.The firearm needs to be made safe if not in the holster for the safty of the officer and the citizen. The only way to do that is lock slide with no mag or empty the cylinder. If he happens to find one in the chamber when making safe that would be no different than pulling you over for speeding and finding the 10 pounds of pot sitting in the back seat. If safty is the basis for handling the arm, then anything in the process of making safe is fair game. When they find one in the chamber then they would at that point verify for legal compliance for open carrying a loaded weapon.
    I do not necessarily disagree with you here...clearing a firearm is SOP.

    However, a cop putting their finger on the trigger?? Especially of an UNKNOWN weapon??? At risk of smudging fingerprints possibly incriminating of an as-yet unknown crime? The excepted infringement upon the 4th amendment is to protect the suspect from shooting the cop. It is NOT to protect the cop from being a complete moron.

    With your example, the 10 pounds of pot is clearly visible. If it were under the seat, there's no reason the cop should find it. Again, he's not allowed to illegally search, so he can't look under the seat even though he's temporarily seized you and your car to investigate the suspected traffic infraction.. In the same way, he's disarmed you legally, but only to prevent the weapon from being used against him, not because the weapon is part of his investigation or suspected evidence. In that way, he should not be permitted to search it.

    To go one step further, what if I'm wearing a paddle holster, and after explaining he will be disarming me for his safety, I suggest he simply remove the entire holster. It not only satisfies the reason he is allowed to disarm me in the first place, but also maintains a secure state of the weapon by also eliminating (most of) the risks of handling an unknown weapon. Would he still be justified in unholstering the pistol and clearing it? I of course understand not everyone wears paddle holsters, just a thought...

    Notwithstanding anything I just said, utbagpiper raises a very interesting question - in the process of clearing the weapon, despite my objection, would any discovered incriminating evidence be admissable?

    And since you're never wrong if you stand on both sides of the fence, I'll go ahead and do just that. :-) An officer may not search your shed without a warrant...but if he's in the process of chasing a bad guy who decides to hide in your shed, the officer does not need a warrant to enter the shed to capture him. If he discovers a stash of pot, he may collect it as evidence and possibly charge the shed owner with possession. An obvious defense would be that the bad guy, nearing capture, ditched the stash to try and avoid compounded charges, but the warrantless search is still legal.

    I just wish it were clearer. It's hard enough to try to understand all the laws you're expected to obey, especially considering "ignorance is no excuse", but when you make an effort to understand as many laws as possible, and the language is ambiguous or open to interpretation, how can ANYONE be sure they're not breaking any laws?

  25. #25
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    timf343 wrote:
    Bflamante wrote:
    If the officer handles it, he better empty it. I have seen many a cop put their finger on the trigger while handling a firearm.The firearm needs to be made safe if not in the holster for the safty of the officer and the citizen. The only way to do that is lock slide with no mag or empty the cylinder. If he happens to find one in the chamber when making safe that would be no different than pulling you over for speeding and finding the 10 pounds of pot sitting in the back seat. If safty is the basis for handling the arm, then anything in the process of making safe is fair game. When they find one in the chamber then they would at that point verify for legal compliance for open carrying a loaded weapon.
    I do not necessarily disagree with you here...clearing a firearm is SOP.

    However, a cop putting their finger on the trigger?? Especially of an UNKNOWN weapon??? At risk of smudging fingerprints possibly incriminating of an as-yet unknown crime? The excepted infringement upon the 4th amendment is to protect the suspect from shooting the cop. It is NOT to protect the cop from being a complete moron.

    With your example, the 10 pounds of pot is clearly visible. If it were under the seat, there's no reason the cop should find it. Again, he's not allowed to illegally search, so he can't look under the seat even though he's temporarily seized you and your car to investigate the suspected traffic infraction.. In the same way, he's disarmed you legally, but only to prevent the weapon from being used against him, not because the weapon is part of his investigation or suspected evidence. In that way, he should not be permitted to search it.

    To go one step further, what if I'm wearing a paddle holster, and after explaining he will be disarming me for his safety, I suggest he simply remove the entire holster. It not only satisfies the reason he is allowed to disarm me in the first place, but also maintains a secure state of the weapon by also eliminating (most of) the risks of handling an unknown weapon. Would he still be justified in unholstering the pistol and clearing it? I of course understand not everyone wears paddle holsters, just a thought...

    Notwithstanding anything I just said, utbagpiper raises a very interesting question - in the process of clearing the weapon, despite my objection, would any discovered incriminating evidence be admissable?

    And since you're never wrong if you stand on both sides of the fence, I'll go ahead and do just that. :-) An officer may not search your shed without a warrant...but if he's in the process of chasing a bad guy who decides to hide in your shed, the officer does not need a warrant to enter the shed to capture him. If he discovers a stash of pot, he may collect it as evidence and possibly charge the shed owner with possession. An obvious defense would be that the bad guy, nearing capture, ditched the stash to try and avoid compounded charges, but the warrantless search is still legal.

    I just wish it were clearer. It's hard enough to try to understand all the laws you're expected to obey, especially considering "ignorance is no excuse", but when you make an effort to understand as many laws as possible, and the language is ambiguous or open to interpretation, how can ANYONE be sure they're not breaking any laws?
    According to the justice system, that's YOUR problem, not theirs.....

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