Search and Seizure

[FFD941 20]

First and foremost, I do not know the whole story so this post is based solely on the video below.

http://www.poughkeepsiejournal.com/article/20130528/NEWS01/130528022/VIDEO-Local-gun-owner-arrested-under-SAFE-Act-speaks-Journal

Given the circumstances during a traffic stop, if an officer is informed of a concealed carry permit, whether it be verbally or visualizing a license, does this give him/her the right to search and seizure or the need to physically exam the weapon or weapons on said license?

[SageVigiles 1,194]

I would also be curious to see the legality behind this. Fortunately I've never been stopped while carrying, but I know enough to tell the Officer that I was carrying with a permit, but beyond asking for my permit, I don't know what the Officer can legally do in terms of searching me/my vehicle.

[RES24CUE 168]

I believe in this instance, the aggravated unlicensed operation is a criminal offense. The arresting officer would have the option of taking the subject into custody or issuing a desk appearance ticket that would allow him to simply show up at a court date. So, its essentially a double-edged sword. If you decline to allow the officer to search you and your vehicle then it is pretty much guaranteed that he will be taking you to jail for the unlicenced operation. Once you are in custody, then he has the right to search you and your vehicle. If you allow him to search you and your vehicle knowing that you have a firearm in your posession that exceeds the amount of ammunition permitted by the SAFE act, then he will eventually find said weapon and take you to jail. I would say that the best thing that an individual could do would be to inform the officer that you are carrying a firearm and be as amenable as possible (respectful, not argumentative, allowing him to search your vehicle, etc.) with the hope that he will either overlook the firearms violation or give you a pep talk and let you take a couple rounds out of your weapon to make it compliant with the SAFE act and give you the desk appearance ticket for the suspended license. That would be way better a few hours in jail and having to get your vehicle out of impound.

[SOUSGT 357]

With regard to the search and seizure issues raised:

1. Was the gun on his person or in the car?
2. If he was arrested for Aggravated Unlicensed Operation (or any charge), he would have been searched proir to being secured in the troopers car and most likely the firearm seized for officer’s safety. In clearing the weapon, the amount of rounds would have been observed. Any contraband found on his person would be admissible.
3. The courts have held that LEOs may conduct a search of the “immediate area of the subjects control” for officers safety. Again no search and seizure issues. They can also ask he exit the vehicle and the officers perform a pat down for officer’s safety if they feel it is warranted under the circumstances.
4. If the subject was not able to turn the vehicle over to a licensed driver, the vehicle was most likely impounded and towed. Prior to towing, many departments require an inventory search of the vehicle’s contents in order to prevent lawsuits for “missing items”. Providing that it is done uniformly on all impounds, it’s been upheld as a reasonable action. Any item found in the vehicle (with certain exceptions) is admissible in court.
5. Any item in “plain view” is also admissible.

With the amount of information provided in the story, it seems that the weapon would have been lawfully discovered under a number of scenarios.

Given the limited course of events identified in the story, I am glad that the DA chose not to prosecute for the two extra bullets. I am hoping that this action sounds loud and clear in Albany. As many of you have seen, I feel that the law and the politicians that enacted this piece of trash legislation belong in the trash.

[PC_420 28]

Take hold of your Fourth and Second Amendments people. Just saying

[everybodygoes 331]

cop had no right to search the magazine. Why do you think the DA failed to prosecute, cause it is far better to do that then it is to make the entire NYSP look like fools. Already discussed this with attorney slash LE Commissioner Father in law.

[INIT915 1,119]

cop had no right to search the magazine. Why do you think the DA failed to prosecute, cause it is far better to do that then it is to make the entire NYSP look like fools. Already discussed this with attorney slash LE Commissioner Father in law.

You and your "attorney slash LE Commissioner Father in law" got all that out of that article posted above? Given the scant details, it's impossible to know what happened at that car stop. What if the search was by consent? If it was, there's no Forth Amendment violation. I have no idea if it was by consent or not, but since the article doesn't give us the details, it's impossible to form an educated opinion. We need more details to decide.

[SRS131EMTFF 471]

You and your "attorney slash LE Commissioner Father in law" got all that out of that article posted above? Given the scant details, it's impossible to know what happened at that car stop. What is the search was by consent? If it was, there's no Forth Amendment violation. I have no idea if it was by consent or not, but since the article doesn't give us the details, it's impossible to form an educated opinion. We need more details to decide.

Would I be correct in assuming that once the firearm was discovered, either through voluntary admission or by search that the weapon would be secured by the LEO for the LEOs protection?

Furthermore would I be correct in assuming that during the process of securing the weapon, the amount and location of rounds could be easily observed under normal circumstances by the LEO and that the number of rounds observed could be used against the individual if found in violation of any laws or regulations?

Additionally, is it legal to have a loaded firearm in a vehicle in NYS?

Edited May 31, 2013 by SRS131EMTFF

[INIT915 1,119]

Would I be correct in assuming that once the firearm was discovered, either through voluntary admission or by search that the weapon would be secured by the LEO for the LEOs protection?

Furthermore would I be correct in assuming that during the process of securing the weapon, the amount and location of rounds could be easily observed under normal circumstances by the LEO and that the number of rounds observed could be used against the individual if found in violation of any laws or regulations?

Additionally, is it legal to have a loaded firearm in a vehicle in NYS?

There's no black and white answer to your questions. It would depend on the particulars of the case. And yes, having a loaded firearm is not per se unlawful, again, that could change based on the specifics of a case. In many cases, it would be perfectly lawful to have a loaded firearm in the vehicle. Again though, this article offered above doesn't really give you the details needed to know the answers in this particular case.

[mvfire8989 22]

For those who know better than I do, lets say this was the situation. He was stopped for speeding and during the course of the traffic stop he identified himself as possessing both valid pistol license and the firearm listed on his permit was on his person and loaded. Now the the officer is aware of the firearm what can be required of this individual under the new gun laws.

Here are my questions

1. Regardless of what would be polite or nice, does does a duty exist for someone with a concealed carry permit need to notify the officer at all?

2. Can the individual be required to surrender the pistol during the course of the encounter with law enforcement?

3. If the pistol comes into the officers possession, but the person is not being arrested, what can the officer do to render that firearm safe. Does emptying the magazine entirely of all rounds constitute a search more that what would be necessary to make the firearm safe?

[INIT915 1,119]

1. Regardless of what would be polite or nice, does does a duty exist for someone with a concealed carry permit need to notify the officer at all?

2. Can the individual be required to surrender the pistol during the course of the encounter with law enforcement?

3. If the pistol comes into the officers possession, but the person is not being arrested, what can the officer do to render that firearm safe. Does emptying the magazine entirely of all rounds constitute a search more that what would be necessary to make the firearm safe?

1. No (See PL Sec 400)

2. I would say yes. How would one confirm the pistol possessed is the one on the permit without examining the serial number. There have been a few cases that I would argue support this.

3. Who knows? Ironically, the Columbia County case, if prosecuted, probably would have created the case law necessary to answer your question. I guess we will have to wait and see on this one.

[INIT915 1,119]

1. No (See PL Sec 400)

2. I would say yes. How would one confirm the pistol possessed in the one on the permit without examining the serial number. There have been a few cases that I would argue support this.

3. Who knows? Ironically, the Columbia County case, if prosecuted, probably would have created the case law necessary to answer your question. I guess we will have to wait and see on this one.

I should add, there are States that are "must-inform" States. So the laws vary depending on where your traffic stop occurred.

[JM15 386]

Thanks INIT95 for some CORRECT information!

[STAT213 332]

I take a few things away from this article :

1) New Yorkers have let their lawmakers trample their rights.

2) Don't drive when your license is suspended.

3) Don't drive your suspended licensed self around in a car with broken stuff on it.

4) When breaking two laws, try to avoid interacting with the police.

5) When breaking laws, don't be carrying a handgun and be shocked when the police ask to hold on to it for a minute.

6) Here in NY, don't be a test case for the SAFE Act, especially when numbers 2 thru 5 apply to you.

[ltjay157 10]

The PC (probable cause) of the motor vehicle stop was the out marker lamp. Upon running the license learn that it is suspended, take him in for a custodial arrest (even though it is only a misdemeanor). The car will be inventoried prior to being towed. The firearm is unloaded by the officer for safe storage in a evidence locker (safe keeping while being processed). The magazines stay with the gun & the ammo goes into a different locker (guns & ammo are never kept together). So the officer now finds more rounds than permitted by law. This results in an additional charge.

If his only violation was the marker lamp, I doubt they would've searched him or his car. Since he was placed under arrest for a crime (suspended license), I don't see how this would violate his 4th amendment rights.

[STAT213 332]

What's the level of offense for too many cartridges in your magazine?

And have they resolved the LEO exemption yet?

[INIT915 1,119]

What's the level of offense for too many cartridges in your magazine?

And have they resolved the LEO exemption yet?

In general, there is little clarity with this law here in NY.

[everybodygoes 331]

Its clear, update your Penal law, it is a class D felony. Possession of child pornography is a Class E, go figure. And for pointing out that my father in law couldn't possibly know what he is talking about, the fact that he went to law school AND is a State Law Enforcement commissioner would preclude him from not knowing the facts, also include being a prosecutor in NYC for 10 years would make him quite knowledgable in the decline to prosecute area. But I left that out since it wasnt pertinent.

[INIT915 1,119]

Its clear, update your Penal law, it is a class D felony. Possession of child pornography is a Class E, go figure. And for pointing out that my father in law couldn't possibly know what he is talking about, the fact that he went to law school AND is a State Law Enforcement commissioner would preclude him from not knowing the facts, also include being a prosecutor in NYC for 10 years would make him quite knowledgable in the decline to prosecute area. But I left that out since it wasnt pertinent.

No one is questioning your father-in-law's qualifications. I'm sure he's a very able attorney. What he probably doesn't know, just as you don't and I don't, and everyone else here doesn't know, is the specifics of this case. You said the "cop had no right to search the magazine". That's a very definitive statement. There is no way for you, your father-in-law- or me to know that based on this newspaper article. The only way you could say that with 100% certainty is if your father-in-law is personally involved in this case. Is that the case here? If it is, such as he's involved in this arrest or prosecution, he probably shouldn't be discussing it with you, and if he is, you shouldn't be posting it on a public forum. If he's just assuming the officers had an unlawful search, that's different from saying the "cop had no right to search the magazine". And your right, there is no doubt as to the classification of the law. The uncertainty lies in the application. But, you know that right?

(P.S. It's a Class "B" Misdemeanor, not a Class "D" Felony, so I might suggest you update your Penal Law.)

[crcocr1 8]

Based on all that has been discussed, I would have to agree with those individuals who said to arrest based on the Aggravated Unlicensed Operation, search the person's grabbable area (which is different from many states where you can search the car even if you ask the person to step out of vehicle), and later conduct an inventory search of the vehicle. I think many departments have the policy of vouchering ammo from the gun itself and see no legal impediment to doing so for safety reasons.

In NYC, with DATs, the person would be cuffed, searched for any contraband on his/her person, and then brought to precinct for issuance of a DAT.

Insofar as the "if an officer is informed of a concealed carry permit, whether it be verbally or visualizing a license, does this give him/her the right to search and seizure or the need to physically exam the weapon or weapons on said license," I think it gives the officer the right to exam the weapon to see if the person is properly licensed. Outside of the inventory search, I don't see a need to examine the magazine unless it is an arrest for CPW as it would be a search covered under the fourth amendment.

The decline to prosecute on this case could be due to any number of reasons, including lack of prosecutorial merit, if the Columbia County District Attorney thinks prosecuting under the SAFE ACT would be unduly harsh and improper.

[SOUSGT 357]

When I was a road boss, I was called to the scene of a simple auto accident by a police officer who had an un-usual circumstance:

The officer was dispatched to a non injury accident to file a report. It was determined that one of the drivers had a suspended license (for failure to answer a summons). The subject had his mother-in-law in the car whom he transporting to work. As the mother in law did not have a license, the officer instructed the arrested subject that he was going to tow the vehicle. He would arrange for a cab to take the mother in law home or to work. The subject was given his Miranda warnings, frisked and handcuffed. The subject asked to speak to his mother in law before being transported to police HQ. The two then had a conversation in Italian. The subject was secured in the radio car and the officer kept a close watch over the mother in law. The officer then requested a supervisor to the scene.

The unknown to the two, the officer spoke Italian. The conversation consisted of the subject telling his mother in law to take the gun from under the driver’s seat and put it in her handbag. Upon arrival, the officer advised of the events and was unsure of we could conduct a warrantless search under the conditions. Under the circumstances I advised that the search would be valid and we then confronted the mother in law and she surrendered her handbag. In her bag was a loaded .38 caliber revolver.

The subject was advised that we had recovered the handgun and would be arresting both parties. The subject denied any knowledge of the firearm and wanted to know how we found it. The officer told him in Italian what he said to his mother in law. The expression on their faces was priceless.

Both subjects were booked and the DA accepted all of the charges. The defendant was offered a chance in court to admit the gun was his and the charges against his mother in law would be dropped. He declined.

As a side note, I received a phone call at the booking desk from the subject’s wife. I was expecting her to tear my head off for having her mother arrested. She never addressed the issue, she wanted to know what gives us the right to arrest her husband. Thinking that he had not told her what had happened, I filled her in on the days events. Her reply was “Big deal, everyone in the Bronx carries a gun”! My only reply was “this isn’t the Bronx” !

You can't make this stuff up!