Custody Clarity

imported post

[align=left]Edit: Wow, my post formatting has gone all to hell. O.O[/align][align=left]
My question, is what constitutes custody? Certainly, a
firearm sent off to the DOJ crime labs is in the custody of law
enforcement. However, I am curious, how this pertains to the 12031 (e)
checks?[/align][align=left]
[/align][align=left]Ideally the officer would check the magwell, rack the slide- or in the case of revolvers, open and close the cylinder- and return the firearm,
but we all know this is more the rarity than the rule.

12031(e) checks often times remove the firearm from our persons and our immediate vicinity
(ie, back to the patrol car) so that they might determine whether the firearm is stolen
and perhaps to whom it is registered.

Does this seizure constitute custody of the firearm?
Are we entitled to a reciept?
Of course, more often then not our firearms are taken from us with great haste over
any objection to it being removed from our vicinity.

Preventing the officer from running his entitled (e) check constitutes probably cause,
would it be preventing the officer from running his (e) check if there were a retention cord affixed to
the firearm preventing it from being removed from your vicinity?

Thanks guys. [/align][align=left]
[/align]

imported post

This seems kinda self-defeating. An officer takes your sidearm to unlawfully check the serial number, you ask for a receipt which involves recording the serial number, the officer happily obliges, and now has a legal reason to record your serial number. You just help him circumvent Hicks.

Having said that, I don't think a court would rule that the simple temporary taking of a person's belongings equates to taking custody of said belongings. Imagine having to write receipts for every item you take out of a subject's pockets and place out of his reach. Or if you get pulled over and give the officer your license. It would seem to me that the courts would rule that a police officer's job entails sometimes temporarily removing objects from a person for safety or investigatory reasons.

As far as the retention cord goes, there is some thread on the topic somewhere. I think the conclusion of that thread was the retention cord would be a useful idea and would prevent an officer from taking your handgun away from your person.

imported post

bigtoe416 wrote:

This seems kinda self-defeating. An officer takes your sidearm to unlawfully check the serial number, you ask for a receipt which involves recording the serial number, the officer happily obliges, and now has a legal reason to record your serial number. You just help him circumvent Hicks.

Having said that, I don't think a court would rule that the simple temporary taking of a person's belongings equates to taking custody of said belongings. Imagine having to write receipts for every item you take out of a subject's pockets and place out of his reach. Or if you get pulled over and give the officer your license. It would seem to me that the courts would rule that a police officer's job entails sometimes temporarily removing objects from a person for safety or investigatory reasons.

As far as the retention cord goes, there is some thread on the topic somewhere. I think the conclusion of that thread was the retention cord would be a useful idea and would prevent an officer from taking your handgun away from your person.

Click to expand...

But, it still would not prevent the officer from looking at the serial number and recording it to run through the system when he gets back to the car.

imported post

Which...is indeed lawful....

imported post

They have to give you a receipt for ANY piece of property they take from you... firearms just require a special receipt.

IMO, taking custody means they are seizing it under some sort of statutory authority, and don't intend to return it to you within a "reasonable" time.

I imagine the courts would view this much like the difference between being 'arrested' and being 'detained'. One requires a lot of paperwork; the other requires none.

imported post

heliopolissolutions wrote:

Which...is indeed lawful....

Click to expand...

Maybe... depends on if he is legally entitled to handle the gun in the first place. And even if he is, not all guns' serial numbers are in plain view. If the officer had to remove a part - a pistol grip, for example - then he is conducting a search which is prohibited by the 4th Amendment.

Further, the 'authority' granted by 12031(e) is unconstitutional. So far, state case law flies in the face of the Terry Doctrine... but if a case ever makes it to the 9th Circuit or SCOTUS, 12031(e) is done.