• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

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

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

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.
 

kwikrnu

Banned
Joined
May 14, 2008
Messages
1,956
Location
Brentwood, Tennessee
imported post

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.
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

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.
 

kwikrnu

Banned
Joined
May 14, 2008
Messages
1,956
Location
Brentwood, Tennessee
imported post

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.
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

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.
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

NavyLT wrote:
We've already given you cites, swillden. You can let cops do whatever you want to with your gun. A cop runs the serial number of my gun during a traffic stop, and I am going to take it to a judge. We are at an impasse and neither of us is going to change each other's opinion and we've given the readers all we have to make up their own minds.
Why don't you answer my question? At which point is it that the police officer violates your fourth amendment rights?



EDIT: Also, please don't make snide comments like "You can let cops do whatever you want to with your gun". They're of no help to a useful discussion. I have no wish to have a police officer run my serial number and I've even considered trying to find a way to cover up my serial numbers so that they can't be seen without doing something that would clearly be a search.

As a matter of fact, I just looked and noticed that two of the three serial numbers on my XD are covered. I covered them about six months ago, then noticed the number on the chamber/barrel couldn't be covered without impairing operation, and never uncovered the other two.
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

NavyLT wrote:
swillden wrote:
Why don't you answer my question? At which point is it that the police officer violates your fourth amendment rights?
When the cop looks for evidence of an unrelated crime with the serial number of your gun, he changes the scope of the search and seizure for officer safety into a search for evidence and that is when he violates your 4th amendment rights. A cop CANNOT search for evidence of a crime that he has no RAS has been or is about to be committed.
You didn't answer the question. At what point does the officer violate your 4th amendment rights?

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.
 

colormered

Regular Member
Joined
Aug 5, 2007
Messages
116
Location
Cache county, Utah, USA
imported post

I've been following this thread from the beginning, wondering how best to put in my 2 cents worth. Sixty seconds ago, I had my epiphany of how to best express my opinion.

here goes.

If I were on the jury, the 4th amendment is violated when the officer does anything substantially different than just securing the weapon for the duration of the encounter for the officer's safety, i.e. handling the weapon in such a way as to facilitate the reading of the serial number. I don't know what any prior court rulings have said about the issue, and as a juror, I DON'T CARE. The jury, and by extension, each juror, has the power to come to any conclusion it feels is just. Until I sit on the jury, I'm sure the court is not in the least interested in my opinion, but as a juror, "that's my story, and I'm stickin' to it."

Your mileage may vary, but it doesn't affect mine.
 

JoeSparky

Centurion
Joined
Jun 20, 2008
Messages
3,621
Location
Pleasant Grove, Utah, USA
imported post

Gentlemen,

In my quick perusal of your exchanges these are the thoughts I remember having.

In Utah the Law says basically IF IT AIN'T ILLEGAL then it is LEGAL. I agree with this 100% provided it is used to LIMIT the actions of government against the citizen.

Too use it otherwise as in "if the law does not make it illegal for the government to do ..., then it is legal, goes 100% against the Constitution. The POWER of Government or its agents are LIMITED per the Constitution (pick US or UTAH).
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

colormered wrote:
If I were on the jury, the 4th amendment is violated when the officer does anything substantially different than just securing the weapon for the duration of the encounter for the officer's safety, i.e. handling the weapon in such a way as to facilitate the reading of the serial number.  I don't know what any prior court rulings have said about the issue, and as a juror, I DON'T CARE.  The jury, and by extension, each juror, has the power to come to any conclusion it feels is just.  Until I sit on the jury, I'm sure the court is not in the least interested in my opinion, but as a juror, "that's my story, and I'm stickin' to it."
Unfortunately, as a juror you wouldn't even hear this question. These are questions of law, not questions of fact, so they're decided by judges not juries -- and the jury isn't in the room to hear any of the debate over them, and the defense attorney isn't allowed to bring them up lest the jury be "tainted".
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

JoeSparky wrote:
Too use it otherwise as in "if the law does not make it illegal for the government to do ..., then it is legal, goes 100% against the Constitution. The POWER of Government or its agents are LIMITED per the Constitution (pick US or UTAH).
I understand the sentiment, Joe, but the fact is that it's just as impossible for the law to enumerate everything that police officers can legally do as it is for it to enumerate everything citizens can do. So, the law specifies boundaries, and anything within those boundaries is acceptable.

It isn't unconstitutional because the constitutions grant the various governments (city, county, state, federal) authority to have police forces, and to define the regulations for the conduct of those forces. The laws (both constitutions and statutes) specify various limitations on what the police can do, and judicial opinions interpret the details of what those laws mean. Within those laws, and the interpretations of those laws, police are free to exercise their authority as they see fit, and as their department policies indicate.
 

JoeSparky

Centurion
Joined
Jun 20, 2008
Messages
3,621
Location
Pleasant Grove, Utah, USA
imported post

Anything done by GOVERNMENT or its agents that EXCEED the limits placed upon them by the CONSTITUTION is UNCONSTITUTIONAL even if it is NOT UNUSUAL!

In the context of taking my weapon from me for "CLAIMED" officer safety that results in ANY INSPECTION or Examination or REVIEW of serial number to be an UNREASONABLE SEARCH and is without Constitutional Authority! The Government agents possession of my property for that limited time frame should not allow for a "registration" check ESPECIALLY in a State with NO WEAPONS REGISTRATION!

IF the circumstances are such that the Governmental agent has a RAS of criminal activity on my part involving the UNLAWFUL use of a weapon or that Iam not a LAWFUL possessor of a weaponis NOT EXTRA-CONSTITUTIONAL.

The courts may have ruled otherwise and where they have, THEY ARE WRONG!
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

JoeSparky wrote:
The courts may have ruled otherwise and where they have, THEY ARE WRONG.
I should point out that I'm focusing on the law as it is, not as it should be.

We should have a law that bars police from checking or (especially!) storing serial numbers of firearms without cause, but we don't. Ideally, this law would be part of the state or federal constitution, rather than an ordinary statute, to make it harder to overturn.
 

SecondAmendmentStudents

Regular Member
Joined
May 7, 2007
Messages
75
Location
, ,
imported post

swillden wrote:
As a matter of fact, I just looked and noticed that two of the three serial numbers on my XD are covered. I covered them about six months ago, then noticed the number on the chamber/barrel couldn't be covered without impairing operation, and never uncovered the other two.

I just wanted to point out that you could probably find a replacement barrel for your XD which doesn't have a serial number stamped on it. Then, with your other two serial #'s covered with electrical tape or something like that, you'd have a stronger argument that they performed a search by removing the tape.

Lone Wolf Distributors makes such after-market barrels for Glocks, not sure if there's someone doing something similar for XD's
 

swillden

Regular Member
Joined
Dec 9, 2007
Messages
1,189
Location
Firestone, Colorado
imported post

YoZUpZ wrote:
The bag of weed is obviously illegal... Having a gun in your vehicle is completely legal.
That's irrelevant. The question is whether or not the officer can legally observe the information (presence of weed/serial number), not the legal implications of the information.
 

redreed

Regular Member
Joined
Dec 25, 2009
Messages
58
Location
Bristow, VA, USA
imported post

I believe that if an officer, who is justified in removing a weapon from a holster that you are wearing, removes a gun from the holster to place it on the hood of your car for his safety, causes pot to fall from the holster, then he can arrest you for it, because HE WAS NOT LOOKING FOR IT. It just popped out as a result of a reasonable action.

However, if your gun was in a holster in the center console and you handed him the gun still in the holster and the officer removed the gun from the holster, then it would not be admissible in court because the officer had to take the additional step of removing the gun from the holster, which was not necessary for his safety. Therefore it could be construed as "searching the holster".

Just like when the cop entered the apartment and saw evidence that made him think the guy was a thief and ran the serial numbers of the stereos he saw. The stereos were plainly visible, but he had to look at and write down the serial numbers which was unreasonable search. Therefore this was ruled inadmissable evidence.

If it were illegal to have a serial number on a gun, and he saw it when the gun was handed to him, that would fall under the plain sight rule. However to examine the serial number in order to call it in would be unreasonable because it would take an extra effort to remember that difficult letter number combination. One would only do so in an effort to collect evidence which was not related to the reason for the stop.

It is not so much that the serial number was not in plain sight, it is simply that it would take an obvious effort designed specifically to conduct further search for incriminating evidence that makes it an unreasonable search. Serials numbers are not "Plainly visible" they are small and often complex. You would have to hold the gun up close to your eyes and actively read it. Not that that matters. The act of reading and taking note of the serial number can only be construed by a reasonable person as one thing,a fishing expedition for evidence of a crime outside the bounds of the traffic stop.

As to the earlier question posed as to which step the officer crossed the line, I would say, that when he took step 3, reading the serial number, in order that he might perform step 4, calling it in. Neither act is necessarily illegal, but the information gained by that act is unreasonable search under the circumstances, and therefore can not be used against you in a court of law, nor can it be used to justify any further search, which would result in the evidence being tainted as "fruit of the poisonous tree".

Now if during the morning briefing he was told that a gun with the number 5 painted on the side in red fingernail polish was stolen from the a murder victim and used to kill him, and the serial number of that gun was known, and your weapon fit that description, then he could resonably be justified in examining the serial number in more detail in order to call it in and find out if it was the same. But, if all that was know about the murder weapon was that is was a Glock 22, a common model, then he would not be justified, just because yours was also a Glock 22.

If Joe Blows fingerprints were found in a burglarized home where guns were stolen and serial numbers of the stolen guns were known, and your name is Joe Blow, then the officer is justified in reading the numbers and calling it in. He has resonable cause to suspect that you might be in possesion of one of those stolen guns.

To examine the coke can analogy, the coke can in a garbage can by the curb was abandoned, and therefore no longer your property. However, the firearm was clearly not abandoned property, and therefore, being private property, cannot be examined without reasonable suspicion, a search warrant, or consent of the owner. Only private property is protected from unreasonable search. The coke can does not enjoy that protection because it is no longer private property.

This is my belief based upon my life experience.

WHoa! I forgot the original question.....
 

Bushidonate

Regular Member
Joined
Apr 13, 2009
Messages
31
Location
Clearfield, Utah, USA
imported post

Here I go kicking an old wasps nest...
When I go shooting I usually have sevral guns in a range bag. Say I get pulled over, officer asks if I have any weapons, I say yes. He wants to hold them for his safety. I hand him the bag tell him they are in it and I do not consent to a search. He would have no reason to open or search the bag. So if he did it would be a illegal search correct?
 

SecondAmendmentStudents

Regular Member
Joined
May 7, 2007
Messages
75
Location
, ,
imported post

IANAL, but by my understanding, yeah, he probably violated some rights to be free of unreasonable searches. However, in the real world, I wouldn't expect that to get you very far. If your guns were actually illegal (stolen, SBR / MG without papers, filed off serial #, etc.), you might be able to get a judge to throw out the evidence against you since it wasa bad search, but that's probably the best you'll get, and I'm not even sure that's a slam dunk. If you want to sue some police officer for civil damages for violating your rights by checking the serial #'s of your guns (all of which presumably, turned out to be legal and were returned to you at the end of the stop), good freakin' luck. I doubt you'll find many juries in America that would by sympathetic to that argument. Just my $0.02
 

zekester

Regular Member
Joined
Mar 28, 2010
Messages
664
Location
Uvalde, Texas
imported post

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

This case will not work......if you read it all...

That lack of relationship always exists with regard to action validated under the "plain view" doctrine; where action is taken for the purpose justifying the entry, invocation of the doctrine is superfluous. Mincey v. Arizona, supra, in saying that a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," 437 U.S. at 437 U. S. 393 (citation omitted), was addressing only the scope of the primary

search itself, and was not overruling by implication the many cases acknowledging that the "plain view" doctrine can legitimate action beyond that scope.

Justification was the weapon...
 
Top