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Thread: Running serial number/e-trace during traffic stop... legal?

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    I know that if you are stopped by an officer for a traffic violation, the officer can take your weapon for the remainder of the stop to ensure his safety. I know that many officers run the serial number of the gun to check to see if it is stolen or not.

    I am wondering if it is legal for the officer run the serial number. As I would think that would be classified as a search/confiscation.

    Also, what if you handed the gun to the officer holstered (with the holster covering the serial numbers) and telling him that you do not consent to him running the serial number or putting the gun into any databases. Would that be legal?

    Its not that I have any illegal or stolen guns, but the fact that whether we like it or not, our info may be entered into e-trace, etc... Obviously, most of us would rather not have the government have a list of all the guns we own. I mean heck, people say, "gun confiscation would never happen in this country" or "this or that could never happen here", but just look at what happened in New Orleans, look at what happened to the Japanese-Americans during WWII.

    Comments or insight?

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    If you have the option of handing over the holster, too, that should legally prevent the officer from running the number.

    If you're wearing the gun, though, the officer probably isn't going to allow you to mess around with taking the holster off. He'll want you to keep your hands visible while he unholsters your firearm for you.

    I thought about putting some electrician's tape over the serial numbers, until I realized there's a copy of the SN on the chamber, visible through the ejection port. That can't be covered without affecting the performance of the gun, and of course it's illegal to remove or damage the mark.

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    hmm, good point... I wouldn't want the officer in my pocket grabbing my gun with where it is pointing... Same for my Supertuck... don't really want to get shot in the back or butt...

    I can't remember the exact law, but it pretty much says that the cop can take the gun to ensure his/her safety... So, wouldn't taking the gun and running the serial number go beyond that "permission and reason" for the officer to take your gun... I think that running the serial number would constitute a search (he is searching to see if you have anything on you illegally... which he cannot do without probable cause. If he runs your CWP and finds that it is valid, he has no probable cause that you have a gun illegally... Thoughts???

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    YoZUpZ wrote:
    I can't remember the exact law, but it pretty much says that the cop can take the gun to ensure his/her safety... So, wouldn't taking the gun and running the serial number go beyond that "permission and reason" for the officer to take your gun... I think that running the serial number would constitute a search (he is searching to see if you have anything on you illegally... which he cannot do without probable cause. If he runs your CWP and finds that it is valid, he has no probable cause that you have a gun illegally... Thoughts???
    I think once he has taken your gun, the visible serial number then falls under the "plain sight" rule. He can easily obtain the number without having to perform a "search", and once he has the number he can do what he likes with it.

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    NavyLT wrote:
    It is illegal for the cop to run the serial number of the gun during a traffic stop.

    Arizona v. Hicks

    http://supreme.justia.com/us/480/321/case.html
    I don't think that applies.

    What the court held was that when the officers moved the objects in order to obtain their serial numbers, that constituted a search. When the officer takes your gun, during a traffic stop, he doesn't have to do anything make the serial number visible.

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    NavyLT wrote:
    swillden wrote:
    NavyLT wrote:
    It is illegal for the cop to run the serial number of the gun during a traffic stop.

    Arizona v. Hicks

    http://supreme.justia.com/us/480/321/case.html
    I don't think that applies.

    What the court held was that when the officers moved the objects in order to obtain their serial numbers, that constituted a search. When the officer takes your gun, during a traffic stop, he doesn't have to do anything make the serial number visible.
    And you have to remember a few things regarding the serial number search and running it....

    First of all, the serial number is never in "plain sight". Do you know where every serial number is on every gun? If I hand you my Taurus Millenium Pro right now, would you be able to obtain the serial number just by me handing it to you? NO. You still have to look for it. Also, the serial number only came into plain sight by the action of the officer disarming the subject. The serial number was not in plain sight sitting in the subject's holster. In other words, just like in Hicks v. Arizona, the gun has to be MOVED in order to obtain the serial number.

    Second you also have to consider that calling the serial number in was conducting a search. It was a search for evidence the firearm was stolen. Calling in the serial number was an ACTION taken by the cop. That clearly violates the plain sight rule as well.
    Thats the same thought process I was thinking... If the officer forces you to disarm a properly holstered firearm for his safety, so be it... But he should not be able to disarm me with the intent to "search me and my weapons for reason to incriminate me without reasonable cause" under the pretext that he is disarming me for his safety...

    If an officer were to disarm me, I would make sure to let him know that I will comply with him disarming me for his safety and that is it, and that I do not consent to him running or recording my serial numbers. If he does, I would consider that a violation of privacy and an unreasonable search and seizure, and would press charges. Is there any way to get information about the officer's communications with dispatch and/or information of what the officer puts into his computer under the freedom of information act?

    Or if you consented to being disarmed, but told the officer to "keep the gun holstered for safety"? (there is no reason to take the gun out of a pocket holster/supertuck) Could you demand that the officer keeps your guns visible where you can see him? I mean heck, I don't want him stealing ammo/fiddling with the gun...

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    swillden wrote:
    YoZUpZ wrote:
    I can't remember the exact law, but it pretty much says that the cop can take the gun to ensure his/her safety... So, wouldn't taking the gun and running the serial number go beyond that "permission and reason" for the officer to take your gun... I think that running the serial number would constitute a search (he is searching to see if you have anything on you illegally... which he cannot do without probable cause. If he runs your CWP and finds that it is valid, he has no probable cause that you have a gun illegally... Thoughts???
    I think once he has taken your gun, the visible serial number then falls under the "plain sight" rule. He can easily obtain the number without having to perform a "search", and once he has the number he can do what he likes with it.
    I see where you are coming from and what the officer would argue, but the gun would not be in plain sight, it would be holstered... If the officer demanded the gun with the intent to "search for robbery evidence", that would be an illegal search...

    If the cop demands the gun for his safety, then he can take it, and set it down where I can't easily access it, that is fine.

    If he demands the gun for his safety, but then "takes it from me and runs the serial numbers/enters info into a database"he would a) be putting us both at risk by him fiddling with it, moving it around looking for the serial number. and b) be taking the gun for a reason other than "his safety"

    The reason I am asking all of these questions is because I have nothing wrong with letting the cop know I'm armed to diffuse the situation, but if I have to worry about the cop disarming me and possibly discharging the weapon and having it put into a database which local, state, federal, and foreign governments have access to the information through, I would rather not let the officer know that I am armed.

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    NavyLT wrote:
    First of all, the serial number is never in "plain sight". Do you know where every serial number is on every gun? If I hand you my Taurus Millenium Pro right now, would you be able to obtain the serial number just by me handing it to you?
    Nearly all common semi-automatics have the serial number stamped on the chamber, visible through the ejection port. According to photos I googled, your Pro also has the number stamped on the slide just below the ejection port. A glance is all it takes, and that is "plain sight".
    Also, the serial number only came into plain sight by the action of the officer disarming the subject. The serial number was not in plain sight sitting in the subject's holster. In other words, just like in Hicks v. Arizona, the gun has to be MOVED in order to obtain the serial number.
    The officer does not take the gun in order to see the serial number, he takes the gun for officer safety. Having done so, the serial number is now in plain sight. This really is the essence of the plain sight rule: Anything the officer observes in the course of his duty is information he can use.

    For example, suppose the officer has reason to believe you beat someone up with a baseball bat, giving him probable cause to search your vehicle for the weapon. If, while searching, he spots drugs in the trunk he can confiscate them and use them as evidence to prosecute you for possession. If, however, he finds the drugs in your glove box, he can't. He was searching for a baseball bat, which could not have been in the glove box, so he had no reason to look there. Both the trunk and the glove box must be opened, but the trunk counts as plain sight while the glove box does not, because of the nature of the already-justified search.

    Maybe a better example: Suppose you had a baggie of cocaine in your holster. When the cop takes your gun (for his safety), the baggie falls to the ground. He can use his observation of the drugs to arrest you and the observation is admissible evidence in court. The fact that he first took an action (removing the gun from the holster) which caused the baggie to fall out is irrelevant. His action was allowed for officer safety, and anything he observed as a result of that allowed action is also allowed.

    Second you also have to consider that calling the serial number in was conducting a search. It was a search for evidence the firearm was stolen. Calling in the serial number was an ACTION taken by the cop. That clearly violates the plain sight rule as well.
    The fourth amendment protections against unlawful search protect you from searches of YOUR property and papers. They in no way restrict what the officer can do with his property -- or, in this case, the department's database. Having taken your firearm to protect himself, the serial number is in plain sight, so he is able to observe it. Having observed it, he is free to follow up on the information he has lawfully obtained.

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    YoZUpZ wrote:
    if I have to worry about the cop disarming me and possibly discharging the weapon and having it put into a database which local, state, federal, and foreign governments have access to the information through, I would rather not let the officer know that I am armed.
    Then I wouldn't tell him you're armed.

    Keep in mind that even if the courts were to rule that he cannot copy your serial number into a database, you have no way to know that he did, and therefore no real recourse. Should that record ever be used as evidence to prosecute you for a crime, you could challenge it on fourth amendment grounds (assuming the courts ruled he wasn't supposed to put your number in the database) and get it thrown out.

    But if your concern is that the database might be used for confiscation, or something else that is unconstitutional, the question of how the number was acquired and linked to you will be completely irrelevant.

    The only way to be sure that some person or organization doesn't have a piece of information about you is to make sure that you never give it to them (or anyone else who might give it to them, or anyone else who might give it to someone who might give it to them, etc.).

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    If someone is detained isn't the investigation supposed to be limited to the reason for the detention? If someone was detained for open carry why would it be legal to investigate if the handgun was stolen?

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    YoZUpZ wrote:
    I know that if you are stopped by an officer for a traffic violation, the officer can take your weapon for the remainder of the stop to ensure his safety.
    I don't think that is necessarily true. Does your state even require that you inform that you have a gun.

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    Utah has weird laws, you do not have to notify, but if you do/the cop finds out you have a weapon, he can take it for the remainder of the traffic stop...

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    It's a fact that answering questions in an effort to be co-operative, peaceable and harmless can be used for any purpose against you. Honest Americans can't seem to learn how to respectfully decline consenting to things they don't want, like making statements and the consequences that result.

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    kwikrnu wrote:
    If someone is detained isn't the investigation supposed to be limited to the reason for the detention? If someone was detained for open carry why would it be legal to investigate if the handgun was stolen?
    SINCE NO CRIME HAS BEEN COMMITTED IN UTAH FOR OPEN CARRY THERE IS NO JUSTIFICATION TO "SEE IF THE GUN HAS BEEN STOLEN!" It is just a plain and simple FISHING expedition!
    RIGHTS don't exist without RESPONSIBILITY!
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    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    NavyLT wrote:
    Let me ask you this, please. What is the purpose of the officer checking the serial number of the gun?
    Doesn't matter, because the serial number is in plain sight. Just as a baggie of cocaine that fell out of your holster would be in plain sight. The situations are identical.

    The cases you cited are irrelevant, because they involved an unjustified search, but the situation we're talking about requires no search at all. In Knowles in particular, the officer conducted a "full search" of the car, and found marijuana and a pipe under the driver's seat. The floor of the vehicle underneath the seat is clearly not in plain sight.

    You make much of the officer having to take a "specific action" to get the serial number, but there's nothing in the law or jurisprudence that restricts the officer from taking "specific actions" like looking at a gun that is in his hand, or searching a government database.

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    NavyLT wrote:
    JoeSparky,

    You do realize the you and kwikrnu are saying exactly the same thing...
    OR I was answering his RETORICAL question without realizing that it was a retorical question.... AGAIN!
    RIGHTS don't exist without RESPONSIBILITY!
    If one is not willing to stand for his rights, he doesn't have any Rights.
    I will strive to stand for the rights of ANY person, even those folks with whom I disagree!
    As said by SVG--- "I am not anti-COP, I am PRO-Citizen" and I'll add, PRO-Constitution.
    If the above makes me a RADICAL or EXTREME--- So be it!

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    2nd amendment says.... "...The right of the people to keep and bear arms SHALL NOT BE INFRINGED!"

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    NavyLT wrote:
    swillden,

    Let me ask you this, please. What is the purpose of the officer checking the serial number of the gun?
    The same as running the plate on your car to see if it's stolen when an officer pulls you over for improper signal.

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    Didn't arizona v hicks decide this? Or another one?

    I like this quote from stanley v georgia;

    "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.' Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting)."




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    NavyLT wrote:
    The plain sight rule for the serial number of the gun is simply ludicrous. You take a gun out of my holster for your safety and try to tell me that the mere act of removing the gun from my holster causes the serial number to come into plain view and you can obtain it and call it in without having to actually look for it.
    Would it also be ludicrous for the officer to arrest you for a baggie of weed that fell out of your holster when the officer removed the firearm?

    You have repeatedly ignored this parallel scenario. Please address it. Would it be different? If so, why?

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    kwikrnu wrote:
    Didn't arizona v hicks decide this?
    No. In Arizona v. Hicks, the court ruled that although the stereo equipment was in plain view, the serial numbers were not. The officers had no reason to handle or move the equipment, but had to do so in order to make the serial numbers visible. Therefore, the court concluded that that movement of the equipment constituted a search.

    In the scenario we're discussing, the officer does have a reason to handle your gun.

    I don't see how Stanley v Georgia is relevant.

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    NavyLT wrote:
    The officer must take ADDITIONAL and UNWARRANTED action, an ADDITIONAL SEARCH in order to check that the gun is a stolen item.
    This, I believe, is the crux. What additional search are you referring to? The search of the police database? I challenge you to find anything that says you have a fourth amendment protection against that. Police can search their own databases all they want.

    Consider fingerprints. Per your argument, it would be illegal for a police officer to pick up a Coke can you dropped in the garbage, dust it for prints and then search the police databases to see if you were at some crime scene. But it's not. Courts have ruled that it is legal for police to search garbage without a warrant. Having legally acquired your garbage, they can legally extract any and all information they can from it, including your fingerprints. Having legally acquired your fingerprints, there's nothing restricting them from searching their database.

    Basically, to make your case you have to argue that looking at the gun in his hand constitutes an illegal search by the officer. I think that's a very tough argument to make.

    This is why I draw the parallel with the weed. You correctly point out that possession of marijuana is a crime (except in CA) while possession of a gun may not be. But that doesn't matter because in both cases the information about the possession comes to the officer in the same -- completely legal -- way. Once the officer has lawfully obtained that information, he has it, and he may then use it to pursue whatever other legal avenues of investigation make sense.

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    swillden wrote:
    NavyLT wrote:
    The officer must take ADDITIONAL and UNWARRANTED action, an ADDITIONAL SEARCH in order to check that the gun is a stolen item.
    Consider fingerprints. Per your argument, it would be illegal for a police officer to pick up a Coke can you dropped in the garbage, dust it for prints and then search the police databases to see if you were at some crime scene. But it's not. Courts have ruled that it is legal for police to search garbage without a warrant. Having legally acquired your garbage, they can legally extract any and all information they can from it, including your fingerprints. Having legally acquired your fingerprints, there's nothing restricting them from searching their database.



    I'd agree if they found a gun in the garbage. However, when sezingthe gun for safety they shouldn't be doing ballistic tests,lifting fingerprints, testingfor powder residue, checking for dna,or running the serial # unless they have probable cause it was stolen or used in a crime.



    As I quoted earlier We have the right to be free.


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    NavyLT wrote:
    The US Supreme Court has ruled that officers may conduct a search during a Terry/traffic stop to temporarily seize weapons FOR OFFICER SAFETY ONLY and they have repeatedly ruled that they cannot overstep that reason and go beyond the scope of officer safety.
    Cite?

    The Terry ruling says nothing about not being able to act on information they collect as a result of disarming a suspect for officer safety. It does limit the search they can perform to a pat-down, but even then the "plain feel" doctrine says that any obvious contraband they find can be legally seized and used as evidence. Plain view is the same.

    I think that if you could demonstrate that the officer seized your firearm for the purpose of running the serial number, then you'd have a case. But as long as he took it for his safety, I can't see anything that would prevent him from observing the serial number, and having done that, there's nothing that would stop him from looking it up.

    Answer me this:

    In the hypothetical scenario, at exactly which step does the officer cross the line, and why is it impermissible?

    1. When he takes your gun.
    2. When he looks at your gun.
    3. When he reads the serial number.
    4. When he types the serial number into his computer.

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    If the officer is taking the gun for officer safety why is he inspecting it? Is it a gun safety inspection stop? Running the serial # is not related to officer safety and terry stop investigations must be limited to the reason for the stop. Unless RAS or PC show that the gun was stolen, imported illegally, or transfered illegally there is no reason for the serial # investigation.

    Soon I'm going to have a sixth circuit 1983 case against a cop and city who disgree with me. The cop told me to put the handgun on the ground, I was searched and told me they knew who I was. My ID checked and then at the end he checked my handgun and called it in. There was no suspicion it had been stolen. They knew who I was that I had a valid carry permit, and that I wasn't a criminal before I was stopped. Each state has different laws, but I'd be surprised if Utah law says they can check the serial # of a handgun in this manner. There is no exception in the 4th amendment for handguns and the court was unanimous in this with JL v Florida. By that I mean for cops to run watches, cameras, cell phones, or whatever else they find on a person during a terry stop is not allowed unless the reason for the stop was related to item theywant tocheck. For example the cop had PC orRAS to believe a person stole a watch. If during the stop a watch is discovered I can see no reason why the cop couldn't run the serial number.

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    kwikrnu wrote:
    I'd be surprised if Utah law says they can check the serial # of a handgun in this manner.
    Utah law says nothing one way or another, which means that unless you can argue that some point in the process is a fourth amendment violation, it's legal. What's not illegal is legal.

    kwikrnu wrote:
    There is no exception in the 4th amendment for handguns and the court was unanimous in this with JL v Florida. By that I mean for cops to run watches, cameras, cell phones, or whatever else they find on a person during a terry stop is not allowed unless the reason for the stop was related to item theywant tocheck.
    Huh?

    JL v. Florida had nothing to do with running serial numbers on anything. If you mean to say that in JL the court declined to carve out a special exception for handguns, which would allow an anonymous tip of a gun to constitute probable cause, then you're right, but I don't see the relevance to the discussion at hand.

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