This is a discussion on LEO encounter/motor accident within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by Treo I'm curious, suppose the weapon in question is a pristine ( Intsert high dollar firearm of choice here) and the cop ...
Terry v. Ohio
Mapp v. Ohio
MN vs. Dickerson
Florida vs. Bostick
Florida vs. Jimeno
N.J. vs. T.L.O
Florida vs. Riley
Arizona vs. Gant
If you do not like the law that is one thing. Work to get it changed. However, until then...
Also, since you are from Missouri, you will know that Missouri pretty much exclusively follows the decisions of the USSC. Indiana isn't as dependent on federal courts, but in this area of law, they are.
"Just blame Sixto"
Sixto, my understanding is the police can only search a vehicle with concent or if the vehicle is used in commision of a crime, which a parking lot scrape isn't. I see no probable cause for a legally carried and secured firearm. What "federal standard" allows this. "Standards" aren't law.
Couldn't the OP simply had said no to the request to open the car? I can understand the officer asking to secure the firearm if the OP was still carrying it, but with it locked up there was no threat.
Still, no reason to disassemble it. I believe a call to superiors is in order.
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Standards for operational procedure do become law. That is why understanding case law and what it does is so important.
Yes, the OP could have said no, but he didn't.
And yes, even though I'm presenting the other side of the argument, I agree it was a bit much to disassemble or even get it out of the truck in the first place.
"Just blame Sixto"
And your experience is the exact reason I do not offer the 'courtesy' of my carry status to any officer unless asked (Arizona law). The less it's handled, the safer it is.
Some officers will appreciate it, some will abuse the 'courtesy' offered. You just never know which you'll get during contact. I choose to err on the side of safety.
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I agree with you about the officer taking a weapon, for officer safety and the case law you present, However, I believe you are missing an important factor. The weapon was in a locked unattended vehicle. There was no Officer safety issue. The officer requested that it be unlocked. I'm not a lawyer, but I believe this now constitutes a search and seizure of the weapon without a warrent. Additionally, the officer now has the right to visually search the inside of the vehicle, since the OP volunteered to unlock the vehicle.
As for the Field stripping the weapon the Officer has opened up a whole can of worms as for liability. There is to much possibility of lost or damaged parts. The Officer is way beyond his scope of practice and a call should be made to a supervisor with a formal complaint.
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We hear about a lot of good LEO stops here on the forum but you're always going to get an idiot every once in awhile. As a whole I think most LEOs are respectful when you present your permit. I think the poster did all the right steps he just got an idiot for a LEO.
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Wow, field stripping is over the top. I can understand why the TC would inform when he doesn't have to, as a sign of respect. But the officer seemed to take advantage of that. From the threads I've read, most of the police that aren't in "must inform" states really appreciate the un-required heads up. Now the TC is a LOT less likely to inform when he doesn't have to. Kinda like the one bad apple screws it up for the rest of 'em.
Sixto is correct on a couple of different points.
The cases cited are all relevant. Also, don't forget Carroll v US as it applies to warrantless vehicle searches.
The second point Sixto made is also very good and worth special note "Read up on case law before spouting off." You can always tell someone who spouts off a personal opinion as if it were the law. They haven't read any statutes or court rulings and probably couldn't find them if they looked, if they knew where to look. They want to sound like an expert but they don't even realize they just embarrassed themselves by posting comments as if they were facts which are completely contrary to current rulings. But they'll yell and scream when proven wrong as if they think that will give them credibility and somehow make them right. Heck, if a person does even know what "USSC" meant then they've already lost any credibility.
The law isn't what you want it to be just because you want it to be a certain way. Sixto made another good comment. "If you do not like the law that is one thing. Work to get it changed. However, until then..."
All these self proclaimed experts do by spouting off things they have no knowledge of is just confuse those who truly want to learn. If you don't know anything about an engine then don't tell your mechanic how to replace a cam shaft. But when it comes to legal questions all of a sudden everyone thinks they're legal experts.
BTW, another point of clarification. In the cases cited by Sixto in each of them since their initial rulings there have been countless subsequent rulings supporting and clarifying in more detail the original cases. It takes more than just reading an individual ruling and suddenly you're going to be an expert. It's going to take research and follow up on subsequent rulings. In addition, it's going to take the ability to understand what a person reads. That is often the most difficult case for people. Law is written at the 8th grade reading comprehension level but the average American reads at the 3rd grade comprehension level.
As far as the OP's situation, again Sixto is correct. There was no search involved.
And I also think the LEO was a bit excessive by field stripping a firearm. Securing a firearm is reasonable. Just because everything is calm and quiet when the LEO arrives doesn't mean the situation will remain such. Anyone who has been a LEO for any length of time has seen a seemingly stable calm situation suddenly go into a major situation. Tempers flare in a second and the situation suddenly deteriorates for no apparent reason.
Here is some good reading for those of us that are confused about what "search and seizure" actually is and how the 4th applies;
I copied that straight from Wiki; Hardly an authority on legal matters, but I felt it did a pretty good job explaining things.The Fourth Amendment to the United States Constitution provides that:
“ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and Warrants shall not be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”
The text of the amendment is brief, and most of the law determining what constitutes an unlawful search and seizure is found in court rulings. The general rule under the Constitution is that a valid warrant is required for a valid search. There are, however, several exceptions to this rule, based on the language of the fourth amendment that "the people" are to be "secure ... against unreasonable searches and seizures".
For instance, the owner of the property in question may consent to the search. The consent must be voluntary, but there is no clear test to determine whether or not it is; rather, a court will consider the "totality of the circumstances" in assessing whether consent was voluntary. Police officers are not required to advise a suspect that he may refuse. There are also some circumstances in which a third party who has equal control, i.e. common authority, over the property may consent to a search.
When an individual does not possess a "reasonable expectation of privacy" that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search for Fourth Amendment purposes, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, the Court has held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.
DEA investigators found $5.6 million hidden in a ceiling compartment of a truck during a seizure (Operations Reciprocity, 1997)
There is also a lowered expectation of privacy inside of motor vehicles. This "automobile exception" has been summarized by St. Mary's University law scholar Professor Gerald Reamey in "Reamey's Rule" as "never, ever, ever put anything in your vehicle that you do not want the police to see". Nevertheless, a 'bright line' has been drawn at the doorstep of person's homes, however, so that whenever the government intrudes inside, their action is considered a search for Fourth Amendment purpose and must always be accompanied by a search warrant (absent exigent circumstances).
Courts have also established an "exigent circumstances" exception to the warrant requirement. "Exigent circumstances" simply means that the officers must act quickly. Typically, this is because police have a reasonable belief that evidence is in imminent danger of being removed or destroyed. Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present.
Certain limited searches are also allowed during an investigatory stop or incident to an arrest. These searches are called refined searches.
While the interpretations of the U.S. Supreme Court are binding on all federal courts interpreting the U.S. Constitution, there is some variance in the specifics from state to state, for two reasons. First, if an issue has not been decided by the U.S. Supreme Court, then a lower court makes a ruling of "first impression" on the issue, and sometimes two different lower courts will reach different interpretations. Second, virtually all state constitutions also contain provisions regarding search and seizure. Those provisions cannot reduce the protections offered by the U.S. Constitution, but they can provide additional protections such that a search deemed "reasonable" under the U.S. Constitution might nonetheless be unreasonable under the law of a particular state.
The primary remedy in illegal search cases is known as the "exclusionary rule". This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial. There are some narrow exceptions to this rule. For instance, if police officers acted in good faith—perhaps pursuant to a warrant that turned out to be invalid, but that the officers had believed valid at the time of the search—evidence may be admitted.
Forfeiture laws are covered under Title 18, part I, chapter 46 of the United States Code.
 Figurative or constructive searches
In corporate and administrative law there has been an evolution of Supreme Court interpretation in favor of stronger government in regards to investigatory power. In the Supreme Court case Federal Trade Commission v. American Tobacco Co,, the federal court ruled that the FTC, while having been granted a broad subpoena power, did not have the right to a general "fishing expedition" into the private papers, to search both relevant and irrelevant, hoping that something would come up. Justice Holmes ruled that this would go against the "the spirit and the letter" of the Fourth Amendment.
Later, in the 1946 Oklahoma Press Pub. Co. v. Walling,, there was a distinction made between a "figurative or constructive search" and an actual search and seizure. The court held that constructive searches are limited by the Fourth Amendment, where actual search and seizure requires a warrant based on “probable cause”. In the case of a constructive search where the records and papers sought are of corporate character, the court held that the Fourth Amendment does not apply, since corporations are not entitled to all the constitutional protections created in order to protect the rights of private individuals.
"Just blame Sixto"
Given how far backward the guy bent himself to accommodate the cop, there was no reason to take the gun. There was certainly no reason at all to disassemble the gun. What if he broke something by taking the gun apart incorrectly? What if the result was an accidental discharge which harmed someone? I suspect that the cop would deny that he'd ever disassembled the gun at all, much less that he did so contrary to policy. That's why you use a voice recorder where lawful to do so.
I agree with the person who suggested that there will now be one LESS person rendering that "courtesy" to the police.
He should file a formal complaint.
Had it been me, I believe, I would have kindly asked him to re-assemble the gun, if not, maybe a call to the PD and ask for a Supervisor to respond to the location, and have the officer reassemble the gun in front of the Supervisor, this way, the Sup knows what happened, and the officer might be asked why he did the disassembly procedure. Just my opinion here.
BTW, please take the gun to the range ASAP to see if it functions properly, as you don't want to be in a situation that your defensive tool doesn't wwork when you really need it.
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