Apolgies For Your Delayed Afternoon Eastside Commute

[jwh20]

There is nothing special about a firearm or the fact that you have a LTCH that gives the officer cause to run its serial number just to be sure. If that were the case, he could also have said "give me your cell phone, your laptop computer, your [fill in the blank]" so that I can run its serial number and see if it's stolen.

There must be probable cause otherwise the 4th Amendment is violated. The fact that it's a firearm does NOT mean the 4th is null and void.

I cannot imagine that your State Trooper didn't know that. This is "law and procedure 101". Hopefully his supervisor will have him attend a refresher.

 

[jwh20]

Oh, and refusing a search is NOT probable cause! Just like taking the 5th Amendment doesn't mean you are guilty. It's that you choose to exercise your constitutional rights.

 

[PX4me]

Seeing all of these incidents regarding carry and the LEO's occasionally not knowing the laws regarding it, I have decided to print out the applicable IC's. There will be copies in the glove box. Makes it easier than trying to memorize them all.

 

[cordex]

No other questions. I dont believe that information is connected to your BMV info.

Not to your plate, but it is reported when your driver's license is run.

Sounds like an overzealous cop with an attitude. Needs to read his case-law book again.

Good on the Sgt.

 

[jwh20]

>>Good on the Sgt.

Hopefully, at least in Indiana, you don't get to be a Sgt. in the ISP without knowing your business. This, however, is so basic that any ISP trooper should know better as well.

If this had been an actual criminal encounter and the proper procedures were not followed, the criminal's lawyer would get the case dismissed on a technicality. I guess, perhaps foolishly, that the ISP was more professional about their work!

There is ABSOLUTELY NO room in ISP or any police agency for improperly handling any incident. At BEST someone's rights are infringed and in the event of a real crime, the perp gets off! At WORST, the trooper or an innocent bystander gets killed!

There is just no excuse for this.

 

[nkdninjafrog]

Seeing all of these incidents regarding carry and the LEO's occasionally not knowing the laws regarding it, I have decided to print out the applicable IC's. There will be copies in the glove box. Makes it easier than trying to memorize them all.

would you mind sharing that with us? i for one wouldn't mind having a copy or two

 

[TaurusJR]

Good Read... Found this as well, may be helpful for some...

http://blog.motorists.org/wp-content/uploads/aor.pdf

 

[lww]

There is nothing special about a firearm or the fact that you have a LTCH that gives the officer cause to run its serial number just to be sure. If that were the case, he could also have said "give me your cell phone, your laptop computer, your [fill in the blank]" so that I can run its serial number and see if it's stolen.

There must be probable cause otherwise the 4th Amendment is violated. The fact that it's a firearm does NOT mean the 4th is null and void.

I cannot imagine that your State Trooper didn't know that. This is "law and procedure 101". Hopefully his supervisor will have him attend a refresher.

Right, but the situation gets murky once "officer safety" is invoked. The argument put forth by some of our resident LEOs is that if your gun is seized for "officer safety" the serial number is now in plain sight, so there is no violation of the 4th. Personally, I think that this practice represents bottom-of-the-barrel police work, but I am not a judge. YMMV in court.

Another previous poster asked if it would matter if the gun was on your person instead of in the glove compartment, as in this case. Maybe? In Washington v. Indiana the gun was under the front seat, Mr. Washington had a valid LTCH, was cooperative and did not behave in any threatening way. The search was tossed because "the officer lacked an articulable basis of concern for officer safety." So, Washington v. Indiana makes it clear that the mere presence of a gun in the car of a licensed individual is not sufficient to trigger a valid "officer safety" claim. It will all depend on how much the officer plays up the "officer safety" angle, and wether or not the judge/appeals court buys the officer's [STRIKE]histrionics[/STRIKE] legitimate concerns. So, be nice and smile for the dash cam.

Disclaimer: IANAL, but I can read and write.

--Bill

 

[MikeDVB]

Good Read... Found this as well, may be helpful for some...

http://blog.motorists.org/wp-content/uploads/aor.pdf

Nice.

 

[SideArmed]

I'm glad I don't drive out that way anymore Shame on you

Amazing how you post this right after we just had a big thread about running the serial numbers during a traffic stop. Sounds like the trooper made the mistake of saying the wrong thing. Instead of seizing it for officer safety, for the duration of the stop, he decided to say he was seizing it to run the numbers.
On top of that, he was dumb enough to say not consenting to a search, gives him probable cause to do a search.
That's Criminal Justice 101 right there.

But he still could have seized it for officer safety, if he didnd't screw up, couldn't he? Bet he is kicking himself right now LOL

Just because he changes the wording around doesn't make it any less illegal.

Right, but the situation gets murky once "officer safety" is invoked. The argument put forth by some of our resident LEOs is that if your gun is seized for "officer safety" the serial number is now in plain sight, so there is no violation of the 4th. Personally, I think that this practice represents bottom-of-the-barrel police work, but I am not a judge. YMMV in court.

Another previous poster asked if it would matter if the gun was on your person instead of in the glove compartment, as in this case. Maybe? In Washington v. Indiana the gun was under the front seat, Mr. Washington was cooperative and did not behave in any threatening way. The search was tossed because "the officer lacked an articulable basis of concern for officer safety." So, Washington v. Indiana makes it clear that the mere presence of a gun in the car of a licensed individual is not sufficient to trigger a valid "officer safety" claim. It will all depend on how much the officer plays up the "officer safety" angle, and wether or not the judge/appeals court buys the officer's [STRIKE]histrionics[/STRIKE] legitimate concern. So, be nice and smile for the dash cam.

Disclaimer: IANAL, but I can read.

--Bill

If the firearm is seized for "officer safety", then apparently you present a danger to that officers safety, correct? If so, then under IC 35-47-14-3, ask for a reciept of the siezed firearm, and in not so many words, tell the officer you will see him in court to retrieve your firearm, so that he can articulate to the Judge why he felt you were a danger and why he needed to sieze your firearm.

 

[MikeDVB]

If the firearm is seized for "officer safety", then apparently you present a danger to that officers safety, correct? If so, then under IC 35-47-14-3, ask for a reciept of the siezed firearm, and in not so many words, tell the officer you will see him in court to retrieve your firearm, so that he can articulate to the Judge why he felt you were a danger and why he needed to sieze your firearm.

I've seen this a few times before... Personally I'd take the firearm back and then follow up with an attorney if you were so bothered.

It can be 180+ days before you get it back, and likely quite a bit more than that. Beyond that, you're then in court with a prosecutor against you trying to prove that you're dangerous and, guess what, if they manage to succeed somehow you just lost your license to carry. Beyond that, doing this essentially forces you to acquire an attorney and defend yourself where as if you choose to accept the weapon back it's optional. That said - when defending yourself you'll definitely have to pay for the attorney - your only recourse for getting funds back would be a civil suit after the criminal investigation/trial/etc.

My advice is to keep a recorder in your car (voice recorder, at least), assert your rights, and consult an attorney afterwards if your rights were violated.

 

[SideArmed]

I've seen this a few times before... Personally I'd take the firearm back and then follow up with an attorney if you were so bothered.

It can be 180+ days before you get it back, and likely quite a bit more than that. Beyond that, you're then in court with a prosecutor against you trying to prove that you're dangerous and, guess what, if they manage to succeed somehow you just lost your license to carry. Beyond that, doing this essentially forces you to acquire an attorney and defend yourself where as if you choose to accept the weapon back it's optional. That said - when defending yourself you'll definitely have to pay for the attorney - your only recourse for getting funds back would be a civil suit after the criminal investigation/trial/etc.

My advice is to keep a recorder in your car (voice recorder, at least), assert your rights, and consult an attorney afterwards if your rights were violated.

Prosecutor?? What am I being prosecuted for??

IC 35-47-14-3
Warrantless seizure of firearm from individual believed to be dangerous
Sec. 3. (a) If a law enforcement officer seizes a firearm from an individual whom the law enforcement officer believes to be dangerous without obtaining a warrant, the law enforcement officer shall submit to the circuit or superior court having jurisdiction over the individual believed to be dangerous a written statement under oath or affirmation describing the basis for the law enforcement officer's belief that the individual is dangerous.
(b) The court shall review the written statement submitted under subsection (a). If the court finds that probable cause exists to believe that the individual is dangerous, the court shall order the law enforcement agency having custody of the firearm to retain the firearm. If the court finds that there is no probable cause to believe that the individual is dangerous, the court shall order the law enforcement agency having custody of the firearm to return the firearm to the individual.
(c) This section does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.
As added by P.L.1-2006, SEC.537.

 

[MikeDVB]

You can't pick and choose the parts of the code you like

IC 35-47-14-5
Requirement of hearing on whether firearm should be returned or retained
Sec. 5. (a) Not later than fourteen (14) days after a return is filed under section 4 of this chapter or a written statement is submitted under section 3 of this chapter, the court shall conduct a hearing to determine whether the seized firearm should be:
(1) returned to the individual from whom the firearm was seized; or
(2) retained by the law enforcement agency having custody of the firearm.
(b) The court shall set the hearing date as soon as possible after the return is filed under section 4 of this chapter. The court shall inform:
(1) the prosecuting attorney; and
(2) the individual from whom the firearm was seized;
of the date, time, and location of the hearing. The court may conduct the hearing at a facility or other suitable place not likely to have a harmful effect upon the individual's health or well-being.
As added by P.L.1-2006, SEC.537.

I suppose the prosecuting attorney could decline to pursue/charge - but it's a chance I'd prefer not to take myself.

 

[lww]

My advice is to keep a recorder in your car (voice recorder, at least), assert your rights, and consult an attorney afterwards if your rights were violated.

++;

 

[SideArmed]

You can't pick and choose the parts of the code you like

I suppose the prosecuting attorney could decline to pursue/charge - but it's a chance I'd prefer not to take myself.

Ahh, Yes. I see now. I guess I hadn't fully read and comprehended Sec 4 & 5. I had missed the "or a written statement is submitted under section 3 of this chapter", part in sect 5.

Thank you.

Lets hope that since none of us would pose a danger to officer safety that the prosecutor would choose not to try and keep the firearm. I still dont' see what they could charge you with though.

 

[Hammerhead]

Let's not forget the fact that the trooper blatantly violated both the intent and the exact ruling in Richardson v. IN.

+1 for knowing and standing up for your rights.

 

[PeaShooter]

Seeing all of these incidents regarding carry and the LEO's occasionally not knowing the laws regarding it, I have decided to print out the applicable IC's. There will be copies in the glove box. Makes it easier than trying to memorize them all.

Hopefully you don't keep it in the glove compartment with your handgun... it could get awkward when you reach in to get the paper during a stop....

 

[PeaShooter]

OP. I Drove right by you as the 2nd officer was pulling up. I saw the first officer talking rather animatedly to you through the drivers window. I wondered to myself what you might have done to get pulled over....guess now I know!

 

[buckwacker]

OP. I Drove right by you as the 2nd officer was pulling up. I saw the first officer talking rather animatedly to you through the drivers window. I wondered to myself what you might have done to get pulled over....guess now I know!

He did get a little animated. There was a little Barney Fife in that one.

 

[buckwacker]

Not to your plate, but it is reported when your driver's license is run.

Sounds like an overzealous cop with an attitude. Needs to read his case-law book again.

Good on the Sgt.

Are you sure that info is included when they run your license. I was told that it was not.

Right, but the situation gets murky once "officer safety" is invoked. The argument put forth by some of our resident LEOs is that if your gun is seized for "officer safety" the serial number is now in plain sight, so there is no violation of the 4th. Personally, I think that this practice represents bottom-of-the-barrel police work, but I am not a judge. YMMV in court.

Another previous poster asked if it would matter if the gun was on your person instead of in the glove compartment, as in this case. Maybe? In Washington v. Indiana the gun was under the front seat, Mr. Washington had a valid LTCH, was cooperative and did not behave in any threatening way. The search was tossed because "the officer lacked an articulable basis of concern for officer safety." So, Washington v. Indiana makes it clear that the mere presence of a gun in the car of a licensed individual is not sufficient to trigger a valid "officer safety" claim. It will all depend on how much the officer plays up the "officer safety" angle, and wether or not the judge/appeals court buys the officer's [STRIKE]histrionics[/STRIKE] legitimate concerns. So, be nice and smile for the dash cam.

Disclaimer: IANAL, but I can read and write.

--Bill

Im sorry but officer safety does not nullify the 4th Amendment. If he believes his "safety", or percieved lack thereof, is more important than a citizens rights, he should find another occupation. I will protest just as determinedly to a unlawful seizure for "officer safety".