Grant County District Court

[sudden valley gunner]

Found one citation from WA State supreme court.

http://www.mrsc.org/dtsearch/dtisap...Form=/wa/courts/index_dtsearch_form.html#hit1

The court states that an officer does not get a free pass on information found during other justified actions. The 4th amendment provides extensive protection and only "limited" exceptions should be allowed. The link is to an extensive decision which limits the "plain view" exception and has multiple examples of "seizures" that were outside the scope of the consensual or warrant'ed searches

And since we have to check a weapon to go to court, or restricted access, we are being forced by law to turn in our weapons, a plain view search should not apply to that situation since it is outside the normal expectations that would apply. And they wouldn't be justified running numbers. Plus this just goes beyond the State's simple requirement they check provide storage, either lock box or person.

Any where that doesn't have lock boxes I think as a group we could raise enough money to install them so as not to be a "burden" upon the tax payers.

 

[MSG Laigaie]

In most states only LE can enter with a firearm and there are no civilian lockboxes... Go with the flow, it's their courthouse. We look like asses every time we nitpick when the law is good to start with.....

"Go with the flow" .......... This is not vermont ..... this is not "most states". This is Washington and it is MY courthouse. I do not want my "numbers run" when I store my weapon. I purposly put a small piece of electrical tape over my serial number to prevent this from happening. If it does happen, you can see the tape moved. If you turn the weapon in with the holster, zip ties work really well. I do not wish to "go with the flow" because other states do not have the freedoms we enjoy in Washington. Is this "nit picking", I think not. ( see 'give an inch take a mile') I will stand my ground and attempt to improve rather than recede.

 

[PALO]

Reread my post, I am not talking about plain view etc.

I also was expressing my opinion on enumerated powers and the constitutionality of what happened. I am a strong believer of enumerated powers and that governments and their agencies don't have "rights".

State in the RCW's where they have the right to unload your weapon or unholster if turning it in inside a holster, this is why I feel they do this purposely to run numbers? This is not a traffic, stop or even a consensual encounter where the the OP can walk away, so I would feel (this is a liberty lovers opinion not based on case law) they have no right to run your numbers or do any type of search of your ID or person.

To me there is much "case" law that is plain unconstitutional and needs to be overturned.

again, i am not making a normative argument, so let's stick to what i said.

that aside, GENERALLY speaking, the RCW's do not "State" where LEO's have the "right" (you mean, 'authority' ) to do a lot of things. mostly, where this authority comes from is common law, general principles etc. AS LONG AS said actions are not overturned by judicial review.

in SOME cases, RCW's make certain authority explicit (like deadly force law, which is often looser standard for NONcops, but either way is rather explicitly defined), but in most cases, the RCW's do not

again, it's like when an anti-gunner asks you "where does the RCW say you can open carry?"

the RCW does not. case law does. see: the rule of lenity.

the primary limiters on LEO/Govt behavior in situations like this are two documents: the US constitution, and the WA constitution, the latter being more restrictive, of course.

again, i am offering my OPINION about the legality of said behavior based on literally hundreds of search and seizure cases i have read, and WA supreme court commentary on same (iow dicta).

to the best of my knowledge, there is no specific decision one way or the other, which is the case with many search and seizure issues, and which is why new case law is constantly being made

 

[PALO]

"Go with the flow" .......... This is not vermont ..... this is not "most states". This is Washington and it is MY courthouse. I do not want my "numbers run" when I store my weapon. I purposly put a small piece of electrical tape over my serial number to prevent this from happening. If it does happen, you can see the tape moved. If you turn the weapon in with the holster, zip ties work really well. I do not wish to "go with the flow" because other states do not have the freedoms we enjoy in Washington. Is this "nit picking", I think not. ( see 'give an inch take a mile') I will stand my ground and attempt to improve rather than recede.

in most county courts, even LEO's cannot enter the inner courthouse offices/courtrooms while armed UNLESS on official duty.

iow, this differentiates from bars, etc. where LEO's have a "special privilege" to carry.

as regards courthouse, in many (like king county/seattle) if an LEO is not on duty or there for DEPARTMENT business, he cannot carry either and must turn in his gun if he is wearing it

by putting tape over the serial #, that scenario differs from the case i analyzed (where it was merely in a holster). i would not be surprised if in that case, if a cop removed the tape, that this would be viewed as an unlawful search, and any evidence would be suppressed

i'm not SURE either way, but i certainly think it's at least likely to be the case

 

[sudden valley gunner]

again, i am not making a normative argument, so let's stick to what i said.

that aside, GENERALLY speaking, the RCW's do not "State" where LEO's have the "right" (you mean, 'authority' ) to do a lot of things. mostly, where this authority comes from is common law, general principles etc. AS LONG AS said actions are not overturned by judicial review.

in SOME cases, RCW's make certain authority explicit (like deadly force law, which is often looser standard for NONcops, but either way is rather explicitly defined), but in most cases, the RCW's do not

again, it's like when an anti-gunner asks you "where does the RCW say you can open carry?"

the RCW does not. case law does. see: the rule of lenity.

the primary limiters on LEO/Govt behavior in situations like this are two documents: the US constitution, and the WA constitution, the latter being more restrictive, of course.

again, i am offering my OPINION about the legality of said behavior based on literally hundreds of search and seizure cases i have read, and WA supreme court commentary on same (iow dicta).

to the best of my knowledge, there is no specific decision one way or the other, which is the case with many search and seizure issues, and which is why new case law is constantly being made

Law of lenity, and the English rule of if it's not illegal it's legal does not apply to government. So comparing our "right" to Open Carry is not a proper analogy. I am a firm believer in enumerated government powers, unless spelled out they have no authority. Vaiteus presented a case law that shows plain view search does not always apply.

Regardless of the "case law" this to me stinks of a search the OP didn't consent to, after all we have no choice to check a weapon into court.

 

[hermannr]

A comment on the "federal officer" comment. You are wrong A federal officer must abide by the state law of teh state he is in. He may be enforcing a federal statute, but he cannot violate state law in the process.

There is a big fuss over in Wyoming right now where there is a sheriff that will not allow any federal aget to do anything without his consent, and he is winning...(at least up to now)

Just like Sheriff Palmer down in Grant County, OR. He went to the Forest service and asked then by who's athority they wer ticketing people in his county...The Forest service answered "by our agreement, here" Sheriff Palmer told them, there is no more agreement. stop any police action without notifying me first, End of discussion. First, by acknowledging the "agreement" the Forest Service was also acknowledging the NEED for an agreement.

 

[sudden valley gunner]

A comment on the "federal officer" comment. You are wrong A federal officer must abide by the state law of teh state he is in. He may be enforcing a federal statute, but he cannot violate state law in the process.

There is a big fuss over in Wyoming right now where there is a sheriff that will not allow any federal aget to do anything without his consent, and he is winning...(at least up to now)

Just like Sheriff Palmer down in Grant County, OR. He went to the Forest service and asked then by who's athority they wer ticketing people in his county...The Forest service answered "by our agreement, here" Sheriff Palmer told them, there is no more agreement. stop any police action without notifying me first, End of discussion. First, by acknowledging the "agreement" the Forest Service was also acknowledging the NEED for an agreement.

9th and 10nth amendments are on the rise.

 

[Trigger Dr]

A comment on the "federal officer" comment. You are wrong A federal officer must abide by the state law of teh state he is in. He may be enforcing a federal statute, but he cannot violate state law in the process.

There is a big fuss over in Wyoming right now where there is a sheriff that will not allow any federal aget to do anything without his consent, and he is winning...(at least up to now)

Just like Sheriff Palmer down in Grant County, OR. He went to the Forest service and asked then by who's athority they wer ticketing people in his county...The Forest service answered "by our agreement, here" Sheriff Palmer told them, there is no more agreement. stop any police action without notifying me first, End of discussion. First, by acknowledging the "agreement" the Forest Service was also acknowledging the NEED for an agreement.

You are 100% correct on this one.
As a retired Fed Leo, there were time that we served search warrants on the residences of federal employees suspected of theft of Govt property. We always had a deputy sheriff or city leo accompany us to initiate the contact.

 

[PALO]

Law of lenity, and the English rule of if it's not illegal it's legal does not apply to government. So comparing our "right" to Open Carry is not a proper analogy. I am a firm believer in enumerated government powers, unless spelled out they have no authority. Vaiteus presented a case law that shows plain view search does not always apply.

Regardless of the "case law" this to me stinks of a search the OP didn't consent to, after all we have no choice to check a weapon into court.

again, make it clear. i'm NOT TALKING NORMATIVELY.

for the 100th time.

this is my analysis, my OPINION, of how the courts WOULD rule on this. *not* how i think they necessarily should rule

i disagree with much of the case law surrounding, for example, the commerce clause and the SCOTUS

however, when analyzing hypotheticals as to my belief as to HOW the courts WILL rule, not how i WANT them to rule, i rely on past precedent, etc.

i am well aware of WA case law vis a vis plain view and open view.

i am saying that IN MY OPINION, removing a gun from a holster and then running a serial # WHEN THE GUN IS ADMINISTRATIVELY properly in the custody of a LEO is NOT an unlawful search

for the reasons given (expectation of privacy vis a vis holsters etc.)

you can disagree. groovy. but understand i am NOT speaking normatively

 

[Vitaeus]

I seek better understanding PALO, I could see the court dismissing a case due to a lack of "harm". I could also see the court affirming that it is a lawful "plain view" exception. I disagree that the court would consider it NOT a search. WA case law seems to have upheld the precedent set in the case I linked earlier.

The most difficult part of this issue io sustaining standing to pursue a civil case, the criminal case would be a dead letter since how many District Attorney's in WA would press any charge against a LEO in this State(not bashing, in Kitsap I cannot find a single time the DA has charged an officer in an "officer involved " incident), the court would find no "harm" if the check resulted in no impoundment or other charge.

 

[PALO]

A comment on the "federal officer" comment. You are wrong A federal officer must abide by the state law of teh state he is in. He may be enforcing a federal statute, but he cannot violate state law in the process.

There is a big fuss over in Wyoming right now where there is a sheriff that will not allow any federal aget to do anything without his consent, and he is winning...(at least up to now)

Just like Sheriff Palmer down in Grant County, OR. He went to the Forest service and asked then by who's athority they wer ticketing people in his county...The Forest service answered "by our agreement, here" Sheriff Palmer told them, there is no more agreement. stop any police action without notifying me first, End of discussion. First, by acknowledging the "agreement" the Forest Service was also acknowledging the NEED for an agreement.

i am referring (primarily) to constitutional issues.

federal officers are not bound by STATE CONSTITUTIONAL rights. iow, any state can (and most do) recognize MORe expansive rights than the federal constitution does

when feds are operating within any state, however, they are only bound CONSTITUTIONALLY by the federal constitution

for example, if a federal agent is operating in Wa state, the rules for search/seizure etc. that apply to WA officers (and are much more strict) do not apply to the federal officer (as long as the case will be filed in federal court)

when local officers operate on a joint task force, WHEN that task force has a case they take federally, then both the state and the local officers only have to comply with the looser federal standard

most issues with federal (and local) cop actions are limited by the constitutional issues. obviously, when it comes to legislative issues, it is not necessarily binding, but sometimes is

for example, in WA (state) officers when arresting are supposed to read the "admin rights" upon arrest when reasonably practicable. these are a subset of miranda (right to attorney and attorney will be appointed without cost ... note when INTERROGATING, of course state officers must employ full miranda.

however, a FEDERAL officer arresting in the state is NOT bound by the admin rule vis a vis the rights warning. however, if interrogating, of course he is bound by miranda v. arizona

 

[PALO]

I seek better understanding PALO, I could see the court dismissing a case due to a lack of "harm". I could also see the court affirming that it is a lawful "plain view" exception. I disagree that the court would consider it NOT a search. WA case law seems to have upheld the precedent set in the case I linked earlier.

The most difficult part of this issue io sustaining standing to pursue a civil case, the criminal case would be a dead letter since how many District Attorney's in WA would press any charge against a LEO in this State(not bashing, in Kitsap I cannot find a single time the DA has charged an officer in an "officer involved " incident), the court would find no "harm" if the check resulted in no impoundment or other charge.

first of all, i am not saying it would not be a search (not necessarily) . i am saying EVEN IF IT IS A SEARCH, it is still not ipso facto unlawful unless that search violated a privacy interest.

THAT's my point.

read my post again. i said IMO it would not be an "UNLAWFUL SEARCH"

i did NOT say, it would not be a "search"

i try to be precise in my language, so please try to read for same.

DA's charge cops for crimes all the time. if you are referring to crimes related to unlawful searches, you have to realize that just because something is not an admissible search does not mean it rises to the level of criminal conduct. among other things, there is a mens rea requirement or other factors.

look at it this way. courts disagree all the time with themselves (5-4) on whether a search is justified, and then different appeals vs. scotus etc. can even disagree with the lower court as well

it would be pretty ridiculous to say a search was criminally actionable, when you can't even get unanimity with 20/20 hindsight by the reviewing judge panel as to whethr it was even JUSTIFIED, let alone criminal

iow, a suppressable or "illegal" search =/= criminally actionable conduct

the right half of the equation is a much more limited set than the former.and imo, that is how it should be

similarly, with noncop conduct, there's LOTs of stuff that the prosecutor may decline charges (iow not criminally actionable in their opinion) but may instead be civilly actionable

in the recent 9th circuit taser case (mcpherson iirc), the 9th ruled the tasing was not only unjustified but ALSO was 'bad' enough that qualified immunity was vitiated. however, iirc it was not criminally charged as a crime

similarly, at least in my state, there are plenty of noncop uses of force that end up being civilly actionable but due to our strong self defense legal protections do not rise ot the level of criminality

DA's also realize that, like it or not, juries are VERY hesitant to find cops guilty of an actual crime (iow not merely civilly liable) in regards to a lot of on duty stuff

the paul schene case is an example. imo, that deputy CLEARLY committed Assault IV, however he was tried... twice. jury hung both times (and note in WA , it is rare for prosecutors to retry on a misdemeanor for a hung jury, but they went the extra mile because it was a cop and they didn't want to appear soft)

among the factors that a DA considers when charging is likelihood of conviction.

here's the mcpherson case...

http://www.ca9.uscourts.gov/datastore/opinions/2009/12/28/08-55622.pdf

imo, cops have been (although they are getting much more restrained) way too liberal in using tasers. partly "new toy" syndrome and partly lack of well written UOF guidelines and relevant case law

mcpherson reigned in the requirements and that's a GOOD thing. well, at least in the 9th, which WA is in

imo, this tasering was CLEARLY unjustified

 

[1245A Defender]

Well,,, OK..... Ugh..

again, make it clear. i'm NOT TALKING NORMATIVELY.

for the 100th time.

this is my analysis, my OPINION, of how the courts WOULD rule on this. *not* how i think they necessarily should rule

i disagree with much of the case law surrounding, for example, the commerce clause and the SCOTUS

however, when analyzing hypotheticals as to my belief as to HOW the courts WILL rule, not how i WANT them to rule, i rely on past precedent, etc.

i am well aware of WA case law vis a vis plain view and open view.

i am saying that IN MY OPINION, removing a gun from a holster and then running a serial # WHEN THE GUN IS ADMINISTRATIVELY properly in the custody of a LEO is NOT an unlawful search

for the reasons given (expectation of privacy vis a vis holsters etc.)

you can disagree. groovy. but understand i am NOT speaking normatively

You sure have a lot to say about nothing.

At least you are Not speeking NORMATIVELY!!!!!
What does that even mean??

we often talk about how courts should rule, based on the Law!
we dont often ask how courts have ruled, based on twisted logic and the basteredized rape of our constitution.

And I do mean that in my most NOT NORMATIVELY way of typing.

 

[PALO]

You sure have a lot to say about nothing.

At least you are Not speeking NORMATIVELY!!!!!
What does that even mean??

we often talk about how courts should rule, based on the Law!
we dont often ask how courts have ruled, based on twisted logic and the basteredized rape of our constitution.

And I do mean that in my most NOT NORMATIVELY way of typing.

it differentiates between discussing the law/case law/legal issues as they ARE vs. as i wish they were

in a perfect world, our (federal) constitution would have a right to privacy. in a perfect world, the SCOTUS would not have completely demolished the commerce clause (raich etc.). in a perfect world, EVERY state in the union would recognize the right to keep and bear arms

however, in THIS case, i was not analyzing based on my view of how i wish the law WAS, i was analyzing based on how the law IS

feel free to look up normative. try dictionary.com

hth

i am also amused by the way some people (no names mentioned... but i'm talking about you) feel a constant need to instantly devolve to attacks and criticisms of the PERSON vs. discussion of the issue. iow, we are having a perfectly civil discussion of the ISSUE, and you jump in with

"You sure have a lot to say about nothing."

etc.

it's not like the signal/noise ratio on the internet isn't already low. you don't have to make it worse

 

[PALO]

You sure have a lot to say about nothing.

At least you are Not speeking NORMATIVELY!!!!!
What does that even mean??

we often talk about how courts should rule, based on the Law!
we dont often ask how courts have ruled, based on twisted logic and the basteredized rape of our constitution.

And I do mean that in my most NOT NORMATIVELY way of typing.

it differentiates between discussing the law/case law/legal issues as they ARE vs. as i wish they were

in a perfect world, our (federal) constitution would have a right to privacy. in a perfect world, the SCOTUS would not have completely demolished the commerce clause (raich etc.). in a perfect world, EVERY state in the union would recognize the right to keep and bear arms

however, in THIS case, i was not analyzing based on my view of how i wish the law WAS, i was analyzing based on how the law IS

feel free to look up normative. try dictionary.com

hth

 

[sudden valley gunner]

again, make it clear. i'm NOT TALKING NORMATIVELY.

for the 100th time.

this is my analysis, my OPINION, of how the courts WOULD rule on this. *not* how i think they necessarily should rule

i disagree with much of the case law surrounding, for example, the commerce clause and the SCOTUS

however, when analyzing hypotheticals as to my belief as to HOW the courts WILL rule, not how i WANT them to rule, i rely on past precedent, etc.

i am well aware of WA case law vis a vis plain view and open view.

i am saying that IN MY OPINION, removing a gun from a holster and then running a serial # WHEN THE GUN IS ADMINISTRATIVELY properly in the custody of a LEO is NOT an unlawful search

for the reasons given (expectation of privacy vis a vis holsters etc.)

you can disagree. groovy. but understand i am NOT speaking normatively

Why are you arguing then? Show me where I said it was unlawful? Just that it stinks of a search, and expressed my opinion of that and how it shouldn't be lawful?

Hopefully you at least understand that what is lawful for citizens isn't necessarily lawful for "authorities".

Here is some facts of the OP....

The gun was in holster when turned in, it was obviously unholstered to be unloaded when handed back....they have no authority granted to them to do this

Because the serial number may have been covered by the holster it possibly wasn't in plain view when handed to them....it was their extra steps that put it into plain view...

The b.s. line that it is store it safely is b.s.....in fact we all know them handling the weapon increases the likely hood of a discharge.

So I stand by my original assessment this stinks of a search, lawful or not it stinks....

...and if you go way back it is why I talked about zip tying it...

 

[PALO]

Why are you arguing then? Show me where I said it was unlawful? Just that it stinks of a search, and expressed my opinion of that and how it shouldn't be lawful?

Hopefully you at least understand that what is lawful for citizens isn't necessarily lawful for "authorities".

Here is some facts of the OP....

The gun was in holster when turned in, it was obviously unholstered to be unloaded when handed back....they have no authority granted to them to do this

Because the serial number may have been covered by the holster it possibly wasn't in plain view when handed to them....it was their extra steps that put it into plain view...

The b.s. line that it is store it safely is b.s.....in fact we all know them handling the weapon increases the likely hood of a discharge.

So I stand by my original assessment this stinks of a search, lawful or not it stinks....

...and if you go way back it is why I talked about zip tying it...

dood, i really don't have a problem with what you are saying at all. in fact, i think your posts are pretty well thought out. i disagree with you on some stuff, but that's GOOD. circle jerks of people just mindlessly agreeing with each other are kind of boring

as i said, i am not denying it is a SEARCH. saying it's a search is NOT saying the same thing as "it's an UNLAWFUL search". that's my point

when you say "they have no authority to do this " (unholster the gun) this is what i disagree with, based on my analysis of common practice, case law, WA constitution, etc. GENERALLY speaking, there is not going to be a law, admin code that says "you as a cop have the authoritah to do X". but what the LEO does has to fit within the constraints of federal and state constitution and case law. and god knows there is a metric buttload of case law on this stuff, but nothing, as far as i know on this specific issue

the issue is, to me (for the purpose of analysis) - is it reasonable for a cop, in lawful possession of a gun for admin purposes, to unholster that gun?

my opinion: yes

since the serial # is apparent when the gun is unholstered, is running that # through a database to check for stolen unreasonable?

imo: no

again, i have explained why (the purpose of holsters, reasonable expectation of privacy, plain/open view etc.)

also, fwiw, running a serial # to check for stolens is roughly equivalent to running a license plate etc. it's not "intrusive". it is merely checking a status - stolen or not stolen of an item.

again, i respect and understand your position. and like i said, it's refreshing to discourse with somebody that offers rational, informed opinions, and does so without a lot of "derp derp" ad homs which sadly seems pretty common amongst a small but vocal cadre here.

again, to me the primary important factor is the whole "holster" thing. again, ime and i think based on common sense (and this is where the 'reasonable person' etc. analysis comes in which is key in deciding if a person's perceived privacy interest is viewed as reasonable) is that holsters are not (generally) used to conceal serial #'s or as a device to protect privacy matters. they are used for the reasons i mentioned (cover the trigger guard/trigger, protect the gun, offer a way to carry a gun, etc. etc.

it would be INTERESTING to see what, if any, WRITTEN policy the dept had on how to handle guns in their possession in cases like this. that would be relevant

i do agree with you wholeheartedly though, that MANIPULATING a gun to unload it is where MANY unintentional discharges occur, and i would hope that since they apparently do it, they better have a proper unloading device to point the barrel into when they do it.

 

[sudden valley gunner]

I appreciate your posts too. And yep on somethings we'll have to agree to disagree.

 

[TechnoWeenie]

You guys are missing a HUGE portion of the whole 'plain sight' deal.

Even IF a serial number is visible, you're conducting a CRIMINAL investigation absent ANY information or RAS that a crime has been committed.

If an officer disarms you for 'officer safety', then goes and runs the serial number, he has just conducted a criminal investigation, attempting to ascertain whether or not the firearm is stolen. Without RAS that the firearm is stolen, there can be no 'sidebar' investigation. If the purpose of the traffic stop (for example) was to issue you a citation, he cannot start a criminal investigation without RAS. The same would be said of an officer saying he has to run the serial number on your stereo to make sure it's not stolen... Can't do it. So when the officer takes your firearm, then starts a criminal investigation without RAS (delaying you), the lawful detention (traffic stop) turns into an unlawful detention, as the officer is now conducting a criminal investigation instead of issuing you a citation.

The question in this case seems to be, whether being in the care of an officer, or a lock box, is relinquishing your privacy rights.

I would say no. The purpose of the law in terms of checking firearms is SOLELY to keep temporary possession of them. If a woman asks an officer to hold onto her purse while she uses the rest room, does that give the officer permission to search the purse? In the limited scope that the officer has been given to 'hold' the purse, while he has temporary possession of it, does not infer the right to search it as the limit of the consent was mere possession.

There may be a grey area when an officer perceives that you surrendering your weapon is giving them complete custody of it, to do as they please. Ya know, the whole 'It was an honest mistake!' bit...

I would surmise, that instructing them NOT to remove it from the holster, and NOT run the serial number, would be similar to limiting the scope of a consensual search. Ie .. 'you can search the car, but don't look in the glovebox or the trunk'...

 

[1245A Defender]

well,,,

thank you teckno,,, well said!
I reakky have no more to add,,,, you said it all,,,, well... thanks.