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Legal Search?

Bflamante

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Mar 3, 2008
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119
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Bountiful, Utah, USA
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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.
 

ScottyT

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Apr 7, 2008
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Salt Lake City, Utah, USA
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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...:lol:).
 

swillden

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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.
 

utbagpiper

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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? :D

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.

Charles
 

xmirage2kx

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Lehi, Utah, USA
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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.
 

swillden

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Dec 9, 2007
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Firestone, Colorado
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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.
 

swillden

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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.
 

Decoligny

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Nov 29, 2007
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Rosamond, California, USA
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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.
 

swillden

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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.
 

Outsider

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May 22, 2008
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Orem, Utah, USA
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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.
 

Citizen

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Nov 15, 2006
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Location
Fairfax Co., VA
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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.
 

Outsider

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Orem, Utah, USA
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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!!!
 

Bflamante

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Mar 3, 2008
Messages
119
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Bountiful, Utah, USA
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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.
 

UTOC-45-44

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Morgan, Utah, USA
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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
 

swillden

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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.
 

colormered

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Aug 5, 2007
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Cache county, Utah, USA
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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"........
 

Outsider

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Orem, Utah, USA
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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...
 

usSiR

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Apr 26, 2008
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Ogden, UT, ,
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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
 

thx997303

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Lehi, Utah, USA
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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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