June 9th, 2010 11:05 AM
I've heard of it happening a few times in various firearms forums. It seems quite rare though, and usually tied to attitude problems on the part of the LEO who does it. I'd bet that if you could look into the personnel folders of the LEOs who do it, there'd be complaints about other behaviors as well. It's not something you'd do unless you were trying to "prove" something to the owner of the firearm.
Originally Posted by CLASS3NH
I'm wondering what he'd have done if the firearm had been a revolver, especially a Colt. I certainly wouldn't eat an expensive repair to a non-replaceable firearm because of somebody else's misbehavior.
June 9th, 2010 11:50 AM
Ok, here is a very relevant thread regarding a leo field-stipping a motorist's handgun.
The leo is a member of another forum and he admitted to doing that, and it created a lot of discussion about it.
Have fun, it's a good read IIRC:
Ccw Traffic Stop Protocol - BayouShooter.com Forums
Turn the election's in 2014 to a "2A Revolution". It will serve as a 1994 refresher not to "infringe" on our Second Amendment. We know who they are now.........SEND 'EM HOME. Our success in this will be proportional to how hard we work to make it happen.
June 9th, 2010 12:16 PM
I would be upset too. But I generally agree that it was necessary to inform the dispatcher in the first place.
June 9th, 2010 12:19 PM
I'm kind of wondering if he field stripped it while doing the paperwork, then couldn't get it back together? Sometimes easier to take something apart than to put it back together. Seems like an hour would be long for this type of report, but what do I know, I'm no LEO. Sounds like he may have made up a story to cover is inability to re-assemble.
June 9th, 2010 12:21 PM
rofl. that would be horrible!
Originally Posted by Snowman23
June 9th, 2010 12:25 PM
It is my opinion that there is no valid reason for field stripping a handgun on a traffic stop or an accident.
If an officer wants to secure the gun, fine. Taking it apart leaves him and the dept. open to liability.
Can an officer field strip every gun that he encounters and do it correctly? I mess with lots of handguns and some of them have their own little quirks when it comes to field stripping. Some of them definitely have a learning curve. What happens if a small part launches itself into the grass while you are taking it apart?
What happens if it is assembled wrong, and the person uses it for a justified shootout later that day?Are they going to find him dead with a malfunctioning handgun laying by him? Sure, it sounds far-fetched, but anything can and will happen.
There is no good reason for a cop to field strip someone else's firearm due to a traffic stop.
If someone did that to me, I'd be ticked enough to bring it to the attention of the CLEO. There is plenty of case law that supports an LEO securing a weapon during a stop, so we don't need to get into that. I doubt that there is any that supports field stripping a weapon due to a traffic stop.
It could put enough liability on the Dept. and on the officer that it needs to be evaluated. That is one word that Police Dept's hate and some of them are scared to death of it...Liability. And for what? No good reason.
I would rather stand against the cannons of the wicked than against the prayers of the righteous.
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June 9th, 2010 12:29 PM
Like I said I agree with the Officer safety issue, And I appreciate the read. It was nice to see it again.
But it also bring up exactly my point. In the OP case he volunteered to unlock his Vehicle. In doing this he consented to a search. IMO this was a unspoken request by the officer to conduct a search. This is no diffent than the officer making a traffic stop and asking to search the vehicle. Sure he can ask but you can always say no.
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".
A Locked vehicle is no differnet than a sealed envelope. Sure the DEA found 5.6 million in the head liner. Bet they had a warrent to be looking there too.
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.
Here is the KEY phrase of this section:
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)
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
of a home.
The vehicle was Locked and the weapon is Enclosed inside it. There is an expectation of privacy requiring a warrent if access is not volunteered
cur·ti·lage /ˈkɜrtlɪdʒ/ Show Spelled[kur-tl-ij] Show IPA
–noun Law .
the area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed.
And searches can occur if a crime or belief of a crime is present.
However, in this case there was by what the OP posted, no reasonable belief or evidence of a crime.
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.
Like I said I'm not a lawyer and don't claim to be, so take it for what it's worth and it won't get you a cup of coffee most places.
June 9th, 2010 12:39 PM
You might be onto something here. For a simple parking lot PDO (property damage only) it would take me mere minutes to fill out the necessary paperwork. Especially considering that this type of accident doesn't even meet the criteria for a full fledged MV-104A State Accident report.
Originally Posted by Snowman23
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June 9th, 2010 12:49 PM
Originally Posted by doctruptwn
The LEO went in the truck, after the OP unlocked it, with the specific purpose of retrieving the handgun. That was done, nothing more. There was no search. There was no seizure. And actually, if you really want to get down to the nuts and bolts of things, a locked vehicle is very much different than a sealed envelope. There is plenty of case law to support that too. Google it. Go to a local university and spend some time in their law library. It will be worth your time and effort.
June 9th, 2010 12:54 PM
He doesn't say anything about field stripping it. He stated that he went to clear it as he always does. I got no issue with an officer doing that. Actually feild stripping it is a problem.
Originally Posted by ppkheat
June 9th, 2010 12:57 PM
He says "I actually take the slide off on most weapons." in his first post.
Originally Posted by doctruptwn
June 9th, 2010 01:06 PM
Agreed that when the vehicle was unlocked this discussion became a mute point. As for search. I will bet My Nighthawk Custom that the officer looked around inside the truck; ie. searched. He may not have climbed in and started removing door panels, But I guarentee he looked. I've got too many LEO buddies and they tell me SOP to do a visual search on every contact, and since plain sight search is perfectly legal I have no issue with that either.
Originally Posted by SIXTO
As for the Law Library, The closest one is about 200 miles away so I don't see that happening any time soon.
June 9th, 2010 01:09 PM
Ahhhh #4 I missed it the first time I read it.
Originally Posted by BlueNinjaGo
June 9th, 2010 01:19 PM
What fool. So much for being up front and being honest.
Last edited by SIXTO; June 9th, 2010 at 03:22 PM.
Reason: edited for language
June 9th, 2010 01:20 PM
A plain sight "search" is not a search as defined law. I'm sure he looked too. There is no issue with that.
Originally Posted by doctruptwn
I don't expect him to put a blindfold on and reach in to an unknown vehicle to retrieve the pistol.
With all that said, I think we all agree that it would have been better off left alone for all parties involved.
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