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Sheepdawg
Regular Member
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Posted: Sun Oct 18th, 2009 08:10 pm |
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timf343 wrote: Glad you got your gun back! This seems to be the norm on traffic stops - placing the gun out of your control till the cop leaves - ...did he take all the rounds out of your magazine, or just put the loaded magazine in a separate bag?
It was a revolver, so he put the gun in one bag and the rounds in the other.
Every report I've heard of similar incidents (minor traffic infraction in which the alleged violator was OC or CC) include these unlawful orders to open your private storage to inspection (aka SEARCH). Officer safety may be a justifiable reason to temporarily seize a weapon in some circumstances (the armed individual must be considered "dangerous" (cite please!) and the stop must be non-consensual), but treating every individual as DANGEROUS on every stop is IMHO abusive.
I realize police officers are allowed to LIE to you, and it's considered an effective interrogation tactic, but why LIE to regular citizens as a matter of practice? Arrest you for not having your blue card? Maybe the officer simply doesn't know the blue card isn't required to be carried with you. Such intimidation should only be used when there is UNQUESTIONABLE AUTHORITY. The officer not knowing whether it's required to be carried is far from unquestionable authority. If the officer KNEW (wrongfully of course) the blue card must be carried, it's a major training issue that needs to be resolved immediately!
To me, this officer safety intrusion only goes so far. What if you had refused to open your saddle bags to search? How would the weapon have been returned in a manner which made the officer feel safe? Hand you the unloaded weapon and place the magazine on the seat of your bike and order you not to move until he pulls away? Place a zip tie around the action of the firearm so he has time to pull away? Field-strip and remove the barrel? Any number of ways to handle it other than to demand an unlawful search of your bags.
I knew I was waiving my rights by opening my saddle bags, but the stop was almost over and I just wanted to be on my way. I knew what he was up to and the bags were empty so I agreed. What bothers me is most citizens wouldn't know that they could refuse.
I don't drive a bike (though I'd like to learn - any suggestions on riding school?), and haven't been pulled over for a while now, I think mainly because I drive a throw-away economy car that doesn't like to go very fast. ;-)
Check out the Motorcycle Safety Foundation website. They should have some classes in the area. Its a great class for people who have never ridden. And after you pass the class you can take the card they give you down to the DMV and they will put the endorsement on your license without taking their written or road test.
However, next time (and I know there will be a next time!) I get pulled over, I will take one for the team and refuse everything I am lawfully able to refuse. I know this is difficult for many people because of the intimidation factor, the hassle factor (this probably results in the stop being as long and painful as allowed under the law), and the threat of going to jail for a traffic infraction as a form of punishment for my noncompliance (which the Supreme Court upheld as permissible - see ATWATER et al. v. CITY OF LAGO VISTA).
Ugh, I'm so frustrated. Reading these reports really inspire me to take another Strip walk, anyone else want to join me? I won't be carrying ID or anything else for that matter. I'll have socks, shoes, jeans, underwear, belt, shirt, holster, gun, voice recorder. No ID, no cash, no credit card, no blue card, nothing else other than what I listed. Maybe I'll stick my CCW and DL in my shoe just in case the cops try to lie and accuse me of concealing without a permit. I'm thinking November 2. That's the day AFTER the deadline for the mandatory OC training.
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inNV
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Posted: Sun Oct 18th, 2009 08:13 pm |
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Tim,
No we are not in NC and there wasn't a frisk involved, so again that does not apply here. But what you wrote in parentheses is pretty much what I am saying isn't it?
Sheep,
Your rights were not violated, a PO is well within the law to secure your weapon. It may not be fun, you may not like it, but it's the law. Your rights were not violated, he did not need to think you were dangerous to secure a weapon in plain sight. Lobby to change the law if you don't like it.
It's funny how people we will agree with and stand behind someone that is completely wrong, just because it sounds right.Last edited on Sun Oct 18th, 2009 08:18 pm by inNV
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Sheepdawg
Regular Member
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Posted: Sun Oct 18th, 2009 08:14 pm |
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inNV wrote: None of the case law you presented applies to this case. What you posted has to do with reasonable (or unreasonable) searches for weapons. The officer in this case did not violate the OP's 4th Amendments, he instead saw it, plain as day on his hip, and secured it. Therefore there was no need for a "reasonable suspicion" that the subject in this instance was dangerous in order for the officer to search the subject, because there was no search done to begin with. The case law you tried to apply to this situation is not case on point.
If having a gun on your hip automatically makes you dangerous, how do cops get away with it? Should I call 911 every time I see a cop because there is a "dangerous" man around?
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Sheepdawg
Regular Member
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Posted: Sun Oct 18th, 2009 08:15 pm |
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Double tap
Last edited on Sun Oct 18th, 2009 08:17 pm by Sheepdawg
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inNV
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Posted: Sun Oct 18th, 2009 08:28 pm |
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| When a PO initiates a stop, or approaches an individual WITH CAUSE he is well with in the law to secure any weapon the individual is carrying while he is in contact with the individual. It is for the PO's safety, if you consider the kind of people he deals with on a daily basis. He doesn't know the OP from Adam, and it is with in the law to make sure he is safe while conducting a traffic stop. Like I said, if you don't like it, lobby to change it. Good luck with that though. Stop building straw men Sheepdawg, and stop looking at Tim's lack of interpretation of the law, and invalid case on point for your answers. The officer did not have to believe that the OP was dangerous to secure his weapon. Last edited on Sun Oct 18th, 2009 08:28 pm by inNV
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wrightme
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Posted: Sun Oct 18th, 2009 08:33 pm |
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inNV wrote: When a PO initiates a stop, or approaches an individual WITH CAUSE he is well with in the law to secure any weapon the individual is carrying while he is in contact with the individual. It is for the PO's safety, if you consider the kind of people he deals with on a daily basis. He doesn't know the OP from Adam, and it is with in the law to make sure he is safe while conducting a traffic stop. Like I said, if you don't like it, lobby to change it. Good luck with that though. Stop building straw men Sheepdawg, and stop looking at Tim's lack of interpretation of the law, and invalid case on point for your answers. The officer did not have to believe that the OP was dangerous to secure his weapon. Are we reading the same thread?
The LE threatened arrest, falsely, in an attempt to coerce compliance with unlawful demands..
The LE also threatened to confiscate a lawfully owned firearm in an attempt to coerce compliance with unlawful demands.
The acts of the LE went beyond any 'securing of weapon for officer safety.' The firearm was held hostage to continue detainment in an attempt to force compliance with non-existent requirements.
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inNV
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Posted: Sun Oct 18th, 2009 08:45 pm |
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| Yes we are reading the same thread. Again, know the law. A PO can tell you whatever he wants. Although I suspect in this encounter, he was not using intimidation methods, but rather was a little uninformed as to the law about the blue card. Don't forget, he was NHP, he could have just come to Clark County. Only Clark County has the silly blue card registration. It seemed that after the phone call he changed his tune, probably getting the correct information from a superior. So if the OP would like to pursue the matter, he could take it to court, and try to prove the officer was using intimidation tactics. But a quick call to the stand of whoever was on the other end of the phone will clear that right up. He would have to prove intent, and that he was targeted for his OC of a weapon. Pretty hard to do when the OP admitted to the two traffic infractions that initiated the stop. His rights were not violated, let it go.
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timf343
Campaign Veteran
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Posted: Sun Oct 18th, 2009 10:37 pm |
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inNV wrote: Tim,
No we are not in NC and there wasn't a frisk involved, so again that does not apply here. But what you wrote in parentheses is pretty much what I am saying isn't it?
Sheep,
Your rights were not violated, a PO is well within the law to secure your weapon. It may not be fun, you may not like it, but it's the law. Your rights were not violated, he did not need to think you were dangerous to secure a weapon in plain sight. Lobby to change the law if you don't like it.
It's funny how people we will agree with and stand behind someone that is completely wrong, just because it sounds right.
inNV:
What is the purpose of the frisk? It's purpose is to determine the presence of a weapon so that weapon may be temporarily seized for officer safety. Remember, this is an exception to the 4th amendment protection against search and seizure, because at this point, no probable cause has been formed to initiate an arrest.
The temporary intrusion upon 4th amendment rights has been upheld as permissible by the US Supreme Court in the name of officer safety, but comes with rules. As discussed previously, in order to conduct the frisk, an officer must be able to articulate reasonable suspicion that the suspect is both armed and dangerous. This is two separate suspicions. The fact that a suspect is armed is not by itself sufficient lawful authority to conduct the frisk. If being armed alone were enough, there would not be the "and dangerous" part. Do we agree on this part?
Remember, the 4th amendment protects against search (frisk) and seizure (confiscate weapon). If a suspect admits to possession of a firearm, or if he is open carrying, the officer needn't conduct the frisk to determine the presence of a weapon. But in order to override the suspect's 4th amendment right (in this case, only seizure, since a search is not needed), the officer must still be held to the same strict requirement the Supreme Court has laid out - armed and dangerous.
Tim
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inNV
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Posted: Sun Oct 18th, 2009 11:23 pm |
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Listen, I'm not going to argue about this anymore. He wasn't frisked, his OC'ed weapon was secured -not seized- for officer protection, which is well within the law. If you don't like it, like I said lobby to change it. Here is Law.coms definition of seizure-seizure
n. the taking by law enforcement officers of potential evidence in a criminal case. The constitutional limitations on seizure are the same as for search. Thus, evidence seized without a search warrant or without "probable cause" to believe a crime has been committed and without time to get a search warrant, cannot be admitted in court, nor can evidence traced through the illegal seizure.
There was no criminal case, and there was no evidence.
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wrightme
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Posted: Sun Oct 18th, 2009 11:28 pm |
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inNV wrote: Listen, I'm not going to argue about this anymore. He wasn't frisked, his OC'ed weapon was secured -not seized- for officer protection, which is well within the law. If you don't like it, like I said lobby to change it. Here is Law.coms definition of seizure-seizure
n. the taking by law enforcement officers of potential evidence in a criminal case. The constitutional limitations on seizure are the same as for search. Thus, evidence seized without a search warrant or without "probable cause" to believe a crime has been committed and without time to get a search warrant, cannot be admitted in court, nor can evidence traced through the illegal seizure.
There was no criminal case, and there was no evidence. While it is likely that it was not a "seizure," it WAS a threat of arrest twice, and a threat of confiscation while the property was secured by the officer. At a minimum, this should qualify as a detainment without RAS. The multiple requests for the blue card, and subsequent "return in the saddlebags" have the appearance of a 'fishing expedition' absent a search warrant. As you state, there was no criminal case. The LE was fishing for one without RAS. Part of this was after the 20 minute phone call. The LE persisted in this knowing he had nothing. (he had already been on the phone for about 20 minutes. He most likely already was aware he had noting except a traffic stop, and seemed to desperately desire more).
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inNV
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Posted: Mon Oct 19th, 2009 01:33 am |
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wrightme wrote:While it is likely that it was not a "seizure," it WAS a threat of arrest twice, and a threat of confiscation while the property was secured by the officer. At a minimum, this should qualify as a detainment without RAS. The multiple requests for the blue card, and subsequent "return in the saddlebags" have the appearance of a 'fishing expedition' absent a search warrant. As you state, there was no criminal case. The LE was fishing for one without RAS. Part of this was after the 20 minute phone call. The LE persisted in this knowing he had nothing. (he had already been on the phone for about 20 minutes. He most likely already was aware he had noting except a traffic stop, and seemed to desperately desire more).
1. A cop can tell you they found your DNA on a dead body if they feel like it, there is nothing against them saying things that might not be true to maybe get you to say something.
2. He was not detained, he was lawfully pulled over for traffic infractions that he admitted to. The officer has every right to do things-like secure a weapon- during such a stop. What he said is irrelevant. OP was not handcuffed or any such thing, merely questioned by an officer during a lawful traffic stop.
I am not condoning the officers actions, merely speaking up against the people who are crying wolf. There was no wolf here. His actions of securing the weapon, and asking questions is with in the law. He can threaten whatever he wants, it doesn't matter-the fact is..his RIGHTS weren't VIOLATED. End of story.
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timf343
Campaign Veteran
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Posted: Mon Oct 19th, 2009 02:37 am |
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inNV wrote: Listen, I'm not going to argue about this anymore. He wasn't frisked, his OC'ed weapon was secured -not seized- for officer protection, which is well within the law. If you don't like it, like I said lobby to change it. Here is Law.coms definition of seizure-seizure
n. the taking by law enforcement officers of potential evidence in a criminal case. The constitutional limitations on seizure are the same as for search. Thus, evidence seized without a search warrant or without "probable cause" to believe a crime has been committed and without time to get a search warrant, cannot be admitted in court, nor can evidence traced through the illegal seizure.
There was no criminal case, and there was no evidence.
I guess we'll just have to agree to disagree.
I realize there was no frisk. I was merely pointing out that a frisk is a prerequisite to finding a concealed weapon which is not required in the case of a OC weapon.
4th amendment: Search and Seizure
Officer safety exception: Armed and dangerous
I see it this way:- A frisk is a search to determine whether a suspect is armed. In the case of OC, no frisk is needed since observation determines the suspect is armed.
- Taking the weapon is seizure, and is only lawful if there is reasonable suspicion the suspect is dangerous.
Whether a frisk reveals a concealed weapon or observation reveals a open weapon, the burden of reasonable suspicion (that the suspect is dangerous) still lies with the officer. In the case of the frisk, presumably this burden has already been met if the frisk is lawful. In the case of no frisk, and merely observing an OC weapon, there must be other circumstances of fact to justify the seizure. Again, if the weapon were CC rather than OC, would the officer have had authority to conduct a frisk? He would not have authority if he could not point out reasonable suspicion that the suspect is armed and dangerous. Thus, it holds that if OP was CC rather than OC, and the officer would not have frisked him, seizing the OC weapon was beyond his scope of authority.
Also, the officer was clearly conducting a criminal investigation - failure to register a firearm by a Clark County resident is a misdemeanor, and OP was interrogated about it's registration status. For the sake of argument, let's say the officer could articulate a reason the OP was considered dangerous and his temporary seizure of the firearm was lawful. The intrusion is allowed for officer safety, but it is limited to removing the firearm from the situation. It does not grant the officer authority to run the serial number to verify its registration status or otherwise. In this officer's case, pistol grips prevented him from abusing this authority, but I'm relatively confident that if the grips were not there, the serial number would have been checked. How is that related to officer safety?
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wrightme
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Posted: Mon Oct 19th, 2009 03:14 am |
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inNV wrote: wrightme wrote:While it is likely that it was not a "seizure," it WAS a threat of arrest twice, and a threat of confiscation while the property was secured by the officer. At a minimum, this should qualify as a detainment without RAS. The multiple requests for the blue card, and subsequent "return in the saddlebags" have the appearance of a 'fishing expedition' absent a search warrant. As you state, there was no criminal case. The LE was fishing for one without RAS. Part of this was after the 20 minute phone call. The LE persisted in this knowing he had nothing. (he had already been on the phone for about 20 minutes. He most likely already was aware he had noting except a traffic stop, and seemed to desperately desire more).
1. A cop can tell you they found your DNA on a dead body if they feel like it, there is nothing against them saying things that might not be true to maybe get you to say something.
2. He was not detained, he was lawfully pulled over for traffic infractions that he admitted to. The officer has every right to do things-like secure a weapon- during such a stop. What he said is irrelevant. OP was not handcuffed or any such thing, merely questioned by an officer during a lawful traffic stop.
I am not condoning the officers actions, merely speaking up against the people who are crying wolf. There was no wolf here. His actions of securing the weapon, and asking questions is with in the law. He can threaten whatever he wants, it doesn't matter-the fact is..his RIGHTS weren't VIOLATED. End of story.
inNV wrote:
His property was removed and not returned. Until it was returned, he was detained! End of story. Until his bluffs were called, the OP was not free to leave without leaving his personal possessions. Thus, he was detained, with no RAS of a crime. There IS a "wolf" here.
Last edited on Mon Oct 19th, 2009 03:15 am by wrightme
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timf343
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Posted: Mon Oct 19th, 2009 03:22 am |
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wrightme - He was detained for allegedly violating traffic laws.
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wrightme
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Posted: Mon Oct 19th, 2009 03:25 am |
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timf343 wrote: wrightme - He was detained for allegedly violating traffic laws.
Correct.
A traffic stop should not have been "RAS" for the ensuing fishing expedition. Once the weapon was secured, and traffic stop concluded, the weapon should have been returned and he should have been released to go on his way.
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calmp9
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Posted: Mon Oct 19th, 2009 03:54 am |
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wrightme wrote: timf343 wrote: wrightme - He was detained for allegedly violating traffic laws.
Correct.
A traffic stop should not have been "RAS" for the ensuing fishing expedition. Once the weapon was secured, and traffic stop concluded, the weapon should have been returned and he should have been released to go on his way.
The officer knew. He was being a dick.
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Sheepdawg
Regular Member
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Posted: Mon Oct 19th, 2009 03:57 am |
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inNV wrote: When a PO initiates a stop, or approaches an individual WITH CAUSE he is well with in the law to secure any weapon the individual is carrying while he is in contact with the individual. It is for the PO's safety, if you consider the kind of people he deals with on a daily basis. He doesn't know the OP from Adam, and it is with in the law to make sure he is safe while conducting a traffic stop. Like I said, if you don't like it, lobby to change it. Good luck with that though. Stop building straw men Sheepdawg, and stop looking at Tim's lack of interpretation of the law, and invalid case on point for your answers. The officer did not have to believe that the OP was dangerous to secure his weapon.
inNV I fully respect your opinion on this matter. But it seem that everyone else agrees with Tim's interpretation. Even if he is incorrect he has posted facts for our interpretation so we can form an opinion of our own. You keep saying its "the law" but have not provided a specific cite for this. If you can please do so and prove us wrong. If we are wrong then I completely agree with you and we need to begin the journey to get this changed. We need to keep LEOs in check. I completely understand the LEO's want for safety while conducting his duties, I believe safety is the main reason most of us carry. My issue is what makes his safety more important than mine? Why is he special, why does he get special privileges? He may be an agent of the government but bottom line, he is just a citizen just like us.
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Lostlittlerobot
Regular Member
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Posted: Mon Oct 19th, 2009 05:27 am |
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I'm not sure who's side to take here. Good points all around. Here's some citations that could help. I don't see the armed and dangerous, just armed WITH a dangerous weapon AND is a threat...
I think tims "and dangerous" part is from the supreme court decisions, and not these nevada statutes, but it might help anyway. This is in the case of a crime...which might not be accurate for traffic stops, or might...
I don't want to add fuel to any fire - but I like learning the very specifics, since every situation has its nuances and only by hammering them to death can we all learn our full rights and prepare for each situation.
NRS 171.1232 Search to ascertain presence of dangerous weapon; seizure of weapon or evidence.
1. If any peace officer reasonably believes that any person whom he has detained or is about to detain pursuant to NRS 171.123 is armed with a dangerous weapon and is a threat to the safety of the peace officer or another, the peace officer may search such person to the extent reasonably necessary to ascertain the presence of such weapon. If the search discloses a weapon or any evidence of a crime, such weapon or evidence may be seized.
NRS 171.123 Temporary detention by peace officer of person suspected of criminal behavior or of violating conditions of parole or probation: Limitations.
1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.....
4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested.
Last edited on Mon Oct 19th, 2009 07:19 am by Lostlittlerobot
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inNV
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Posted: Mon Oct 19th, 2009 05:54 am |
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The first one, 171.1232, says it perfectly. Although I do not like the word "seize" because I believe this NRS pertains to actually seizing the gun from a criminal. But it also applies here. You know you wouldn't hurt an officer, but he doesn't know that. He is well within the law to secure your gun, and give it back to you when he is done. I also found an article pertaining to this, notice what it says:
http://www.louisianasportsman.com/details.php?id=1226
The courts have held a law-enforcement officer has the right to take reasonable actions to ensure his safety while conducting an investigation. This extends to the right to secure a firearm or other weapon from a vehicle while issuing a traffic citation — to keep the person receiving the citation from grabbing the gun and using it against the officer.
But if the crime is a traffic violation, the officer has no legal right to keep a gun found in the course of the investigation. In other words, while issuing a citation. At the end of the investigation (i.e. the issuance of the citation), the officer should return the gun. If he does not, he has committed an illegal act.
Although this is LA, it still applies in NV, and pretty much around the country.
Also Sheep, if you notice, Tim's case law is not case on point. You can't take different case law, and try to interpret them to mean something different to try and make your point.
Fact is the officer legally secured his weapon. He asked him to open the bags, and he complied. No rights violated, this is all I'm trying to say.Last edited on Mon Oct 19th, 2009 05:55 am by inNV
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Sheepdawg
Regular Member
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Posted: Mon Oct 19th, 2009 06:42 am |
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Thank you robot for the cite. inNV you have my apologies and I stand corrected. As you said its the law. The only part of the statue I have a problem with is reasonably suspects is a threat to the officer or others. I wonder what factors he used to reasonably determine i was a threat to him? I do ride a bada$$ Harley, carry a big gun(Ruger Redhawk .44 mag 7 1/2 in. barrel), and have tattoos all over my arms. But that sounds a lot like sterotyping, which I don't agree with. I wish the law had a definition of what would constitute "reasonably a threat". That is something I would like to change. I am still going to file a complaint about the threatening arrest and keeping my gun because I couldn't prove that it was registered. Hopefully this will result in NHP being reeducated on certain laws. After all one of the other reasons we carry is to educate. Cheers
"The final weapon is the mind. All else is supplemental." JOHN STEINBECK
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