Open Carrier's gun seized after DUI arrest. Police won't return

[Rune]

So maybe I'm missing something here.... but doesn't this:

RCW 9.41.098
Forfeiture of firearms — Disposition — Confiscation.

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:
(e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW;

indicate that the confiscation is in fact legal?

Confiscate means to take...doesn't say anything about giving back.

It was a DUI, it was in a glovebox (concealed) therefore a CPL was required. Seems to me that meets the requirement to confiscate. It would almost seem that from the cops perspective it would be on her to prove that it is "her" firearm, not his. Doesn't make any of this right... but I also have zero tolerance for DUI. But thats just me.

 

[sirpuma]

I read the underlined, and I read the law...DOES NOT APPLY TO PRIVATE SALES...end of that. The state wants to save money, they can stop recording licensed sales too, that is a waste of money.

Who is/was Lowry He was the biggest mistake for a gov that this state ever made... see http://en.wikipedia.org/wiki/Mike_Lowry

RCW 9.41 was highly modified in 1994, compliments of Lowry...and his gang of !@#$%^ over half of that legislation was thrown out by the Supreme Court as unconstitutional. We need a gov and legislature that will get rid of the rest of his "legacy". Just look at RCW 9.41 and see how much was messed with in 1994.

E-gads he looks like a weasel. (Sorry weasels). My point is made again. The "registry" is only applicable to handguns transferred through licensed dealers and not to private sales. And my opinion is that the pistol transfer process is useless and is only there to create a registry of handgun owners and it's not all that effective as that.

 

[gogodawgs]

Who says the law has anything to do with it. I've been specifically talking about being combative and rude to cops conducting an investigation. You will be put in cuffs in a heart beat and threatened with death. Ask me how I know. Just ask me. You guys talk all big about being a rude tough guy to cops, but really, you think they will tolerate it? HA. And please, if a firearm you are REGISTERED as having purchased winds up as evidence in a criminal investigation, you don't think that is probable cause to ask you what happened to it? WOW

They do not need PC to ask.
They do need PC to take me into custody.

Let's see....no finger prints of mine found on the gun.
Let's see....no physical proof of any kind found at the scene.
Let's see....no motive for the crime.
Let's see....no intent for the crime.

Four key components must be present: intent, conduct, concurrence, and causation.

The Police may request my presence for questioning with only a recovered firearm, but that is all that would happen without intent, conduct, concurrence and causation.

I do not need to be rude nor all big, that is a bogus false statement you are making. Asserting my rights is not rude.

 

[Jeff Hayes]

You guys talk all big about being a rude tough guy to cops, but really, you think they will tolerate it? HA.

It seems to me that you have ran out of logical argument so now you are resorting to mild insults, you have no evidence to back up your claim that I am all talk.

Been there done that and yes they will tolerate it. They do not like it but then I really do not care what they like. You have no idea what I have done or where I have been so why the conjecture???

 

[sirpuma]

Please cite the law that covers probable cause for questioning anyone about anything.

Let's start with "Probable Cause".

http://apps.leg.wa.gov/RCW/default.aspx?cite=10.31.100

RCW 10.31.100
Arrest without warrant.


A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section.

(1) Any police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.

http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.040

RCW 9.41.040
Unlawful possession of firearms — Ownership, possession by certain persons — Restoration of right to possess — Penalties.

(1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.

(b) Unlawful possession of a firearm in the first degree is a class B felony punishable according to chapter 9A.20 RCW.

http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.080

RCW 9.41.080
Delivery to ineligible persons.

No person may deliver a firearm to any person whom he or she has reasonable cause to believe is ineligible under RCW 9.41.040 to possess a firearm. Any person violating this section is guilty of a class C felony, punishable under chapter 9A.20 RCW.

http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.76.020

RCW 9A.76.020
Obstructing a law enforcement officer.

(1) A person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties.

(2) "Law enforcement officer" means any general authority, limited authority, or specially commissioned Washington peace officer or federal peace officer as those terms are defined in RCW 10.93.020, and other public officers who are responsible for enforcement of fire, building, zoning, and life and safety codes.

(3) Obstructing a law enforcement officer is a gross misdemeanor.

So, transferring a firearm to a prohibited individual is a felony, hindering an officer during his appointed duties is a gross misdemeanor. An officer can arrest you if he has PC that you committed a felony or if you commit a gross misdemeanor in his presence. So your gun is found at the scene of a crime. Whether or not your finger prints are on the weapon there is PC that you are involved because your firearm was involved. This gives them reason to investigate and ask you questions. You tell the cops to F off or "Pound Sand" as you guys love to say. That hinders his investigation. He will assume your combative behavior is because you committed a felony in transferring a firearm to a prohibited person and since you committed a gross misdemeanor in his presence, boom, the cuffs come out. Sorry, but this is the reality of things. And cops don't need to have a law giving them probable cause to ask you questions about a crime. Investigation is part of the job and asking questions is the most basic form of investigation.

 

[Jeff Hayes]

PROBABLE CAUSE. A reasonable belief that a person has committed a crime. PC has nothing to do with questioning or the ability to question someone.

Keep answering Cops questions and you may very well unknowingly give them PC to arrest you.

Cops routinely lie to people and threaten people to make them talk only fools, those lacking intestinal fortitude and egotists that think they can out fox the Cops fall for that line. The rest of us simply refuse to chat with them, there is nothing confrontational or rude about exercising you rights. The Cops also do a pretty good job of making people think it would be rude but once again only fools fall for that line form a Cop.

 

[Rune]

Uh...the debate is good and all...but can we go back to the original topic..... I myself am interested in what the law actually says.

 

[sirpuma]

I do not need to be rude nor all big, that is a bogus false statement you are making. Asserting my rights is not rude.

Telling a cop QUOTE " Pound Sand" isn't rude? Sure sounds rude to me. How about, "I won't answer any questions without my lawyer present." That you most certainly can do and they will happily accept. But if you make their investigation hard, they can and probably will make things hard on you. But this is all neither here nor there. However if you ever get the chance to record yourself literally telling a cop to "pound sand" when he's asking if you will help with a criminal investigation, I would really love to see it and the results. Call it an experiment. They really don't care about our rights, I've been in the silver bracelets simply for not answering some questions because I was legally armed. So you can't tell me they will be all happy if you tell them off.

 

[Vitaeus]

just a wee bit of testosterone floating around in here.

Oh, key "fact" missing from the original story, was the firearm loaded or not? If not, follow the recovery comments, if it was...

 

[sirpuma]

Uh...the debate is good and all...but can we go back to the original topic..... I myself am interested in what the law actually says.

I tried but some folks love to say how they will tell cops off and get away with it and get all worked up over certain key words like "registration", "probable cause", "questions", etc.

Frankly I hope the friend gets his gun back, but it may be a while being that it involves a DUI.

 

[Jeff Hayes]

Let's start with "Probable Cause".



So, transferring a firearm to a prohibited individual is a felony, hindering an officer during his appointed duties is a gross misdemeanor. An officer can arrest you if he has PC that you committed a felony or if you commit a gross misdemeanor in his presence. So your gun is found at the scene of a crime. Whether or not your finger prints are on the weapon there is PC that you are involved because your firearm was involved. This gives them reason to investigate and ask you questions. You tell the cops to F off or "Pound Sand" as you guys love to say. That hinders his investigation. He will assume your combative behavior is because you committed a felony in transferring a firearm to a prohibited person and since you committed a gross misdemeanor in his presence, boom, the cuffs come out. Sorry, but this is the reality of things. And cops don't need to have a law giving them probable cause to ask you questions about a crime. Investigation is part of the job and asking questions is the most basic form of investigation.

In the U.S., the only way for one to protect one's rights fully is to refuse answering any questions beyond giving one's name and identifying papers if requested and to refuse giving consent to anything (such as a search) prior to one's arrest. Below is the link to the full text.

http://en.wikipedia.org/wiki/Right_to_silence

Generally, obstruction charges are laid when it is discovered that a person questioned in an investigation, other than a suspect, has lied to the investigating officers. However, in most common law jurisdictions, the right to remain silent allows any person questioned by police merely to refuse to answer questions posed by an investigator without giving any reason for doing so. (In such a case, the investigators may subpoena the witness to give testimony under oath in court, See the full text in the link below.

http://en.wikipedia.org/wiki/Obstruction_of_justice

 

[American Pride!]

SPD likes to run ballistics too. I don't really know how they got the gun, but after my dad passed away I got a call from SPD asking me to come get "my" gun a few months after he passed. I asked what took so long to contact me and they said they had to run ballistics on it first. Really? An H&R .22 revolver from 1970?

The weird part came a month later when I got another call from a LT asking about my interaction and what conversation took place. He asked what I was told about the wait...when I told him he pulled the" Ohhh really?"

Sounded like somebody was talking above their pay grade.

Anyway, any gun seized during a crime being committed, they check ballistics.

And yes, DUI is a crime. NO EXCUSE!

 

[Vitaeus]

hmm, first the moment I hear that a firearm that i am recorded as having purchased is part of a crime, I certainly hope the next words out of my mouth are "I am done talking without my lawyer", since as was pointed out earlier, it is a FELONY they are investigating.

 

[Stretch]

 

[Tacitus42]

sirpuma , love to see that cite.

 

[theaero]

I tried but some folks love to say how they will tell cops off and get away with it and get all worked up over certain key words like "registration", "probable cause", "questions", etc.

Frankly I hope the friend gets his gun back, but it may be a while being that it involves a DUI.

Why? A DUI is unrelated to firearms. It isn't a felony, so no loss of firearms/CPL there. It isn't a violent crime, so no loss of firearms/CPL there. The gun wasn't checked in to evidence, it was checked into "property" I believe, or something along those lines. Why would it be awhile to retrieve a firearm? Is he going to have to wait until his pre-trial court date to ask the judge to get his firearm back?

I was doing some thinking tonight, and thought of this:

If in the time my sisters boyfriend was attacked, and unable to defend himself because he was unable to retrieve his firearm, and therefore is longer armed... What flack would the police get? Probably none legally... but I wonder how the media would look at it? Not suggesting anything here, just imagining scenarios. If it were me, and I only owned one self-defense/carry gun, and that was taken from me for whatever reason, just or not, and I was in a situation shortly after where having my firearm could have saved mine/others lives..... hmm...

 

[Lammo]

Sounds to me like there needs to be some more boating accidents around here.

While I agree that the State has created a registry of guns purchased from licensed dealers and that dealers are required to fill out and process the form required by RCW 9.41.090, I disagree that the law requires these forms to become a "registry". By it's very language, RCW 9.41.129 indicates that the DOL MAY keep copies of the forms that licensed dealers are required to submit; the law does not require DOL to do so. The way I learned English that "MAY" is permissive, not mandatory. So, while we may have a de facto system of gun registration, we do not have a registration requirement.

Now, to return to the OP's issue. Big Dave has correctly pointed out (post #7) that the Glock pistol in question "MAY" (there's that word again) be subject to forfeiture under RCW 9.41.098(1)(e). One key piece of information is missing: Was the pistol loaded? If not, then no CPL was required for it to be possessed in the vehicle and the forfeiture provision of subsection (1)(e) would not apply. Since it is likely that the pistol was loaded (they aren't good for much if they aren't) that provision probably applies to this situation.

The OP's sister's friend probably wouldn't get far arguing there was no grounds to seize the pistol. As I read the facts given, the LEO's were told the pistol was in the car after or as it was being impounded. In any event, the impound inventory would have revealed the presence of the pistol. I think the friend has two choices. One, wait out the prosecution of his DUI and argue against forfeiture at the close of the case or two, make a pre-trial motion for return of property similar to that provided for under CrRLJ 2.3(e). This rule does not directly apply as it covers seizures by search warrant and it appears the pistol was seized without a warrant. I would contact one of rapgood's lawyers and ask them to make an analogous motion using the language of the rule as the pistol would not be relevant as evidence in the prosecution of the DUI.

So long as the pistol is not reported stolen, and isn't subject to forfeiture under RCW 9.41.098, it can and should be returned to the possessor it was seized from without any requirement to prove how it was acquired. Possession being 9/10ths of the law (especially if you get busted for possession) it seems to me they should have to prove the pistol lawfully belongs to some other person before they can refuse to return it.

PS: It should go without saying that any significant change in the facts given could render all of the above as useless as a three dollar bill and, as always, it does not constitute legal advice.

 

[theaero]

Sounds to me like there needs to be some more boating accidents around here.

While I agree that the State has created a registry of guns purchased from licensed dealers and that dealers are required to fill out and process the form required by RCW 9.41.090, I disagree that the law requires these forms to become a "registry". By it's very language, RCW 9.41.129 indicates that the DOL MAY keep copies of the forms that licensed dealers are required to submit; the law does not require DOL to do so. The way I learned English that "MAY" is permissive, not mandatory. So, while we may have a de facto system of gun registration, we do not have a registration requirement.

Now, to return to the OP's issue. Big Dave has correctly pointed out (post #7) that the Glock pistol in question "MAY" (there's that word again) be subject to forfeiture under RCW 9.41.098(1)(e). One key piece of information is missing: Was the pistol loaded? If not, then no CPL was required for it to be possessed in the vehicle and the forfeiture provision of subsection (1)(e) would not apply. Since it is likely that the pistol was loaded (they aren't good for much if they aren't) that provision probably applies to this situation.

The OP's sister's friend probably wouldn't get far arguing there was no grounds to seize the pistol. As I read the facts given, the LEO's were told the pistol was in the car after or as it was being impounded. In any event, the impound inventory would have revealed the presence of the pistol. I think the friend has two choices. One, wait out the prosecution of his DUI and argue against forfeiture at the close of the case or two, make a pre-trial motion for return of property similar to that provided for under CrRLJ 2.3(e). This rule does not directly apply as it covers seizures by search warrant and it appears the pistol was seized without a warrant. I would contact one of rapgood's lawyers and ask them to make an analogous motion using the language of the rule as the pistol would not be relevant as evidence in the prosecution of the DUI.

So long as the pistol is not reported stolen, and isn't subject to forfeiture under RCW 9.41.098, it can and should be returned to the possessor it was seized from without any requirement to prove how it was acquired. Possession being 9/10ths of the law (especially if you get busted for possession) it seems to me they should have to prove the pistol lawfully belongs to some other person before they can refuse to return it.

PS: It should go without saying that any significant change in the facts given could render all of the above as useless as a three dollar bill and, as always, it does not constitute legal advice.

I think the pre-trial motion is the way to go. I think his public defender is going to say the same thing. Very helpful post btw, and much appreciated.

EDIT: If a round was not in the chamber, can it really have that drastic of a difference on the outcome of a situation like this, since RCW 9.41.098(1)(e) wouldn't apply? Asking out of personal curiosity, not relevance to this particular situation.

 

[Lammo]

SNIP

It was a DUI, it was in a glovebox (concealed) therefore a CPL was required. SNIP.

Only if it was loaded (the pistol, not the driver). If unloaded no CPL required and since in glove box not concealed on the person so no CPL required.

 

[Lammo]

I think the pre-trial motion is the way to go. I think his public defender is going to say the same thing. Very helpful post btw, and much appreciated.

EDIT: If a round was not in the chamber, can it really have that drastic of a difference on the outcome of a situation like this, since RCW 9.41.098(1)(e) wouldn't apply? Asking out of personal curiosity, not relevance to this particular situation.

Under Washington's definition of loaded (RCW 9.41.010(a) & (d). Link: http://apps.leg.wa.gov/RCW/default.aspx?cite=9.41.010), a Glock with ammunition in the chamber, OR with a magazine with ammunition in it inserted in the grip is loaded. It makes a difference in this situation because in order to place a loaded pistol in a vehicle you have to have a CPL. That turns the vehicle into a "place in which a concealed pistol license is required" and if a person is under the influence in a vehicle with a loaded pistol that pistol may then be subject to forfeiture under RCW 9.41.098(1)(e). If the pistol is not loaded then the vehicle is not a place where a CPL is required and that would make the pistol not subject to forfeiture under that provision. This is one of several places where Washington's definition of loaded can cause us Glock owners (and owner of all other semi-autos) difficulty if we aren't paying attention. Washington varies from at least one other state that I know of. In Utah, for which I have a CFP, a semi-auto is loaded only if there is ammunition in the chamber. A full magazine can be inserted in the grip but the pistol will not be considered loaded. See Utah Code 76-10-502. Link: http://le.utah.gov/~code/TITLE76/htm/76_10_050200.htm.