DamonK
Regular Member
I'm trying to find the case law that makes LEOs running your serial number at a traffic stop illegal. Kind of having a brain fart today though. Any assistance would be greatly appreciated.
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LEOs running serial numbers
- Thread starter DamonK
- Start date
EMNofSeattle
Regular Member
I don't think the act of running a serial number is in and of itself illegal... it would be like any other search, depending upon consent and/or probable cause of a crime to conduct said search....
some cursory research came up with Hicks v. Arizona a SCOTUS ruling involving some police officers who entered an apartment due to someone firing shots from said apartment and after arresting the occupants and securing the guns an officer wrote down serial numbers on a stereo and found them to be stolen, charging the apartment occupants with possession of stolen property. that conviction was overturned on the basis that the stereo had nothing to do with the warrantless entry into the apartment as they already secured the shooter and weapons.
I suppose that could be applied to a gun since during a traffic stop if you're lawfully carrying the gun is not evidence of a traffic violation. but it's a stretch
some cursory research came up with Hicks v. Arizona a SCOTUS ruling involving some police officers who entered an apartment due to someone firing shots from said apartment and after arresting the occupants and securing the guns an officer wrote down serial numbers on a stereo and found them to be stolen, charging the apartment occupants with possession of stolen property. that conviction was overturned on the basis that the stereo had nothing to do with the warrantless entry into the apartment as they already secured the shooter and weapons.
I suppose that could be applied to a gun since during a traffic stop if you're lawfully carrying the gun is not evidence of a traffic violation. but it's a stretch
MKEgal
Regular Member
You'll want to look for 4A case law (search & seizure), because taking the pistol is a seizure and running the serial # is a search.DamonK said:
If it's not connected to the reason they stopped you (tail light out, ran a red light) they have to either get your permission for a search or seizure, or have a warrant (not likely), or have RAS of a crime (and several circuits have ruled that simply possessing a firearm, in states where such is legal, is not RAS).
There's a Volokh blog post on the topic:
http://www.volokh.com/2009/10/01/po...simply-because-hes-openly-carrying-a-handgun/
"Mr. St. John’s lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."
St. John v. McColley
The Third Circuit found that an individual’s lawful possession of a firearm in a crowded place did not justify a search or seizure.
United States v. Ubiles (3rd Cir. 2000)
The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
United States v. King (10th Cir. 1993)
"The Claim and exercise of a Constitutional Right cannot be converted into a crime."
Miller v. U.S.
"The mere presence of firearms does not create exigent circumstances."
WI v. Kiekhefer
F350
Regular Member
I think you are missing the most salient point of Hicks; the stereo equipment was "in plain view" and the officers attempted to use the "plain sight exemption" to run the serial numbers. EXCEPT the court ruled that since the equipment had to be moved to see the serial numbers, the numbers were not in plain view and required probable cause/warrant to conduct a search, invalidating the arrest.
I think many cops take a firearm as a matter of standard practice for chickensh..... er I mean "officer" safety (permitted in the law here in Colorado) then use the plain sight exemption to run the serial numbers. Below is an e-mail exchange I had with BATFE...
So; as the e-mail says I have a piece of black tape over the serial number on my carry piece; will it stop LEO from running the number if he wants? NO. BUT it will make him cross a "red line" and if it goes that far one more "violation" in a 42 USC 1983 suit, or at the least a constitutional rights violation in a letter of complaint to internal affairs.
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MSG Laigaie
Campaign Veteran
I, too, have a small piece of electrical tape covering the serial number on my EDC. If it is removed (seized) "for officer safety" and the tape is taken off that would be an unlawful search.
March Hare
Regular Member
A piece of security tape that reads VOID when it's removed would be a nice touch!
-MH
-MH
Difdi
Regular Member
There are different grades of adhesives too. Would it be too smartass to have a very solidly stuck-on sticker with the words "get a warrant" over the serial number, with an easier to remove bit of tape stuck over it? So long as the under layer is removable without damaging the engraved serial number, it shouldn't count as defacing...
rapgood
Regular Member
Incorrect.
Correct (although the legal concept is "plain view exception"). This scenario raises the question of whether the handgun was lawfully seized at the onset. In order for LEO to seize the handgun for "officer safety," arguably there must be more than the mere possibility that the owner "could have" used the weapon. There must be some evidence that the owner actually created a clear and present threat to the safety of others. There mere lawful possession of the weapon is not sufficient to entail that clear and present danger. I believe that the majority of times that LEO seize a weapon "for their own safety," they do so in violation of BOR 2 Am and 4 Am, and Art. I, sects. 3 and 24 of the WA Const.
Difdi
Regular Member
A person COULD use his bare hands to attack an officer. He COULD use his feet to kick. He COULD use his teeth to bite. None of these COULDs justify putting everyone police talk to into full handcuffs, manacles and facemask. Humans kill other humans with their bare hands (sometimes with a single punch) every year. So why is seizure of a holstered firearm based on what a citizen COULD do allowed?
For that matter, a police officer could snap under the pressure of the job (which they always assure us is very hard and stressful) and start shooting everyone he sees. He's certainly well-equipped to do so. Does the fact that he COULD do that justify anything? Why not?
Double standards annoy me.
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davidmcbeth
Banned
simple solution is to make the part of the gun that usually has a serial # yourself .. ie make your own gun.
You need not affix a serial # to a homemade gun.
Then what they gonna run?
You need not affix a serial # to a homemade gun.
Then what they gonna run?
Vitaeus
Regular Member
The other part to "running the serial number " is that it requires at the least an "investigative detention". You are no longer free to go if the LEO has your rather expensive firearm, unless there is some reasonable suspicion of a crime relating to the firearm, this is most definitely a both a seizure and a search.
http://www.find-laws.com/courtcases/view/washington-167-wn2d-656-state-v-harrington
For anyone that does not already know of a valuable resource, here it is again
"The Law Enforcement Digest is prepared by Ms. Shannon Inglis of the Washington State Attorney General's Office as a service to criminal justice practitioners. Each month Ms. Inglis selects court cases she feels are significant to the law enforcement community."
articles from the State Attorney General's Office on how LEO should operate based on cited cases and decisions.
https://fortress.wa.gov/cjtc/www/index.php?option=com_content&view=article&id=137&Itemid=80
http://www.find-laws.com/courtcases/view/washington-167-wn2d-656-state-v-harrington
For anyone that does not already know of a valuable resource, here it is again
"The Law Enforcement Digest is prepared by Ms. Shannon Inglis of the Washington State Attorney General's Office as a service to criminal justice practitioners. Each month Ms. Inglis selects court cases she feels are significant to the law enforcement community."
articles from the State Attorney General's Office on how LEO should operate based on cited cases and decisions.
https://fortress.wa.gov/cjtc/www/index.php?option=com_content&view=article&id=137&Itemid=80
hermannr
Regular Member
The whole encounter with LE should be based on one question: "Are you suspected of a CRIME?" (or criminal activity) IF you are suspected of criminal activity, then LE has a reasonable reason to disarm you. If the stop is only for a traffic VIOLATION (not a CRIME) there is absolutely no reason for them (or you) to even bring your carry into the discussion.
In 43 years, I have never been asked for my carry, or my CPL. I have also never been accused of any CRIME. As I OC almost all the time (weather is the only reason it may be concealed), and I know it has been seen (Skagit Co Sheriff's deputy..."nice gun, what is it?"), I believe my understanding of the laws involved are correct.
IF LE were to ask for my carry, I would simply refuse, and point out...while in it's holster, my carry is a danger to no-one. Once out of it's holster, the trigger can be accessed, and it becomes a danger to anyone in range.
In 43 years, I have never been asked for my carry, or my CPL. I have also never been accused of any CRIME. As I OC almost all the time (weather is the only reason it may be concealed), and I know it has been seen (Skagit Co Sheriff's deputy..."nice gun, what is it?"), I believe my understanding of the laws involved are correct.
IF LE were to ask for my carry, I would simply refuse, and point out...while in it's holster, my carry is a danger to no-one. Once out of it's holster, the trigger can be accessed, and it becomes a danger to anyone in range.
F350
Regular Member
I have 3 80% AR lowers due to arrive any day now :lol::lol:
hermannr
Regular Member
You could look at Delaware V Prouse. A stop just to check for a license for a licensed activity is a no-no
davidmcbeth
Banned
80% better than 100 !
sudden valley gunner
Regular Member
EMNofSeattle
Regular Member
Yep! They definitely are in some respects....
Just requires all kinds of tools I don't have, but the aspect of having a gun you made yourself certainly has a pride factor to it,in addition to no records being kept
sirpuma
Regular Member
Do be careful with what you use to cover the SN. Permanently or attempting to permanently remove or alter the SN of the firearm is a federal crime.
MSG Laigaie
Campaign Veteran
WRONG ANSWER!!
I can finish an 80% lower with nothing more than a drill press. A cheap US$50 drill press and a bit of patience is all that is required. I have several ARs with NO roll marks. It makes them look better without all those little words and numbers all over the place.
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EMNofSeattle
Regular Member
Really? I always thought it required either a CNC machine or a tool shop with a skilled machinist...
guess i'm going to go order an 80 percet lower now
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