The Firing Line Forums - View Single Post - SAFE Act Arrest Something to watch for Tresmond and company, as well as other NY'ers.

GJSchulze · October 18, 2013, 02:28 PM

Brian, of course it's clear as mud, but this is what page 10 of the NYS Police Guide says:

Right to check and inspect magazines v. firearms
Absent some indication of criminal activity, there is no right to inspect the contents of a magazine to ensure that it meets the requirements under the Safe Act. If an officer has probable cause to believe that a particular magazine is unlawful, he or she may seize and inspect it. If there is founded suspicion of criminal activity, the officer may ask for consent to check the magazine. However, the mere existence of a magazine, which may or may not be legal, does not provide probable cause to believe that any law is being broken.
If the weapon is one for which a permit is required, police will be justified in checking the permit to ensure that the person lawfully possesses the firearm. If a permit cannot be produced, the officer would be legally justified in seizing the firearm and conducting an inventory of its contents. In this case, the inventory would include checking the magazine in order to account for each round. However, if the person produces a permit and there are no indications of unlawful conduct, an inspection of the magazine would be unnecessary. In this case, the weapon should be secured temporarily, in the same condition as it was found, for the duration of the stop and returned to the motorist at the conclusion of the encounter.

In a large box it says:
Unless there is probable cause to believe the law is being violated, there is no justification for checking a magazine to determine whether or not it contains more than 7 rounds.

I'm not sure if this really clarifies it because it says "the law" without saying which one. This might be a legal or police "term of art" referring to the entire penal code, but I don't know.

I've been told that a traffic stop is a violation and not criminal activity. It seems pretty clear that they have to suspect you of some kind of criminal activity before they can inspect the magazine. Seeing how many rounds it holds would seem to indicate that an inspection had been made.

In this particular case, we don't know if it was reported accurately or in its entirety. We don't know if the LEO asked to inspect the gun or just asked to clear it. If he asked to inspect it, then does this overcome probable cause, since there was none on the passenger's part.

According to Wikipedia, a Terry Stop is reasonable suspicion of criminal activity, but is short of probable cause.

In NY, everyone in a car is in possession of a gun in the car, so if the guy had a permit he's safe, but the driver may not be because the gun was not on the owner's person.

Again, this will depend on the judge and DA. Lockport is small and may not want a law suit. To a lay person this seems that it could go either way, but maybe to a lawyer it is crystal clear.

October 18, 2013, 02:28 PM	#13
GJSchulze Senior Member Join Date: May 3, 2013 Location: Western New York Posts: 454	Brian, of course it's clear as mud, but this is what page 10 of the NYS Police Guide says: Right to check and inspect magazines v. firearms Absent some indication of criminal activity, there is no right to inspect the contents of a magazine to ensure that it meets the requirements under the Safe Act. If an officer has probable cause to believe that a particular magazine is unlawful, he or she may seize and inspect it. If there is founded suspicion of criminal activity, the officer may ask for consent to check the magazine. However, the mere existence of a magazine, which may or may not be legal, does not provide probable cause to believe that any law is being broken. If the weapon is one for which a permit is required, police will be justified in checking the permit to ensure that the person lawfully possesses the firearm. If a permit cannot be produced, the officer would be legally justified in seizing the firearm and conducting an inventory of its contents. In this case, the inventory would include checking the magazine in order to account for each round. However, if the person produces a permit and there are no indications of unlawful conduct, an inspection of the magazine would be unnecessary. In this case, the weapon should be secured temporarily, in the same condition as it was found, for the duration of the stop and returned to the motorist at the conclusion of the encounter. In a large box it says: Unless there is probable cause to believe the law is being violated, there is no justification for checking a magazine to determine whether or not it contains more than 7 rounds. I'm not sure if this really clarifies it because it says "the law" without saying which one. This might be a legal or police "term of art" referring to the entire penal code, but I don't know. I've been told that a traffic stop is a violation and not criminal activity. It seems pretty clear that they have to suspect you of some kind of criminal activity before they can inspect the magazine. Seeing how many rounds it holds would seem to indicate that an inspection had been made. In this particular case, we don't know if it was reported accurately or in its entirety. We don't know if the LEO asked to inspect the gun or just asked to clear it. If he asked to inspect it, then does this overcome probable cause, since there was none on the passenger's part. According to Wikipedia, a Terry Stop is reasonable suspicion of criminal activity, but is short of probable cause. In NY, everyone in a car is in possession of a gun in the car, so if the guy had a permit he's safe, but the driver may not be because the gun was not on the owner's person. Again, this will depend on the judge and DA. Lockport is small and may not want a law suit. To a lay person this seems that it could go either way, but maybe to a lawyer it is crystal clear.