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Old October 17, 2013, 04:48 PM   #1
JimDandy
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SAFE Act Arrest Something to watch for Tresmond and company, as well as other NY'ers.

NY Safe Act first arrest I've seen But I'm not sure it'll pass the sniff test, given the guidelines for inspecting a magazine.

Being next to someone who commits a criminal act has not always been held to confer probable cause/reasonable suspicion on you. I don't remember the name of the case, but it was a 4A case, a guy from out of town standing next to friends. Nobody ran (at first) he said he was leaving, they said he couldn't, which contradicted their later claim he wasn't in a custodial relationship. I'll have to look for it again later. But the gist was that just because he was standing there next to someone else who was wanted (as I recall) didn't confer probable cause/reasonable suspicion to him. And they performed too much of a search on the guy which resulted in evidence being thrown out. (I'll look for it again when I have a couple free minutes and add it in here with an edit)

In this case, with those guidelines, I'm not sure they'll be able to sustain inspecting the magazine, as he wasn't the driver.
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Old October 17, 2013, 05:31 PM   #2
Tom Servo
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This is interesting. According to a field guide recently distributed to police officers,

Quote:
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.
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Old October 17, 2013, 05:38 PM   #3
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I thought so. That's what got me thinking of this other case I'm looking for now. I can remember snippets, but it's not bringing it up in google. I want to say officers drove past an alley and saw folks in it. They wanted to stop and talk but drove on, and called for more officers. When more arrived THEN they approached the group. They performed a Terry Stop on everyone. One of the guys had a firearm, and tried to leave, but they wouldn't let him. The officer kept his ID, and grabbed his arm which led the court to decide he was in custody... I'll keep looking.
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Old October 17, 2013, 05:46 PM   #4
Al Norris
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And the reason for this? Without probable cause, such a search is unreasonable.

Even the lowly Lockport PD should know enough about current 4A standards to have known better. It shouldn't have needed a State Police field guide to determine this.

The stop was lawful. The question by the officer (any weapons?) was fine. Voluntarily handing over the firearm and the permit, OK. The officer should have cleared the firearm and placed it in safekeeping until the end of the stop (according to Terry). After removing the magazine and clearing the chamber, that is the extent of a reasonableness "Terry Frisk" (even if it wasn't a real "frisk"). Removing the ammunition to count the number of rounds, without probable cause, counts as an unlawful search.

But this is NY. With a court system that replaces the word "residency" with "domicile," who really knows how this will turn out!

Jim the case you are looking for is, US v. Black, No. 11-5084, a CA4 case that was rendered back on Feb. 13, 2013.
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Old October 17, 2013, 05:48 PM   #5
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That's something of the point/question we're on Al. And I found the case that came to mind, but I'll have to read it again late tonight/early tomorrow to remember why. Part of why it wasn't showing up is it's 4th circuit, not SCOTUS. US V Nahaniel Black
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Old October 17, 2013, 06:02 PM   #6
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Jim, try US v Black.
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Old October 17, 2013, 07:04 PM   #7
62coltnavy
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This was a strange case, at least the way it was reported--the news article stated that he was arrested for having an illegal magazine, i.e., one that had a CAPACITY greater than SEVEN rounds. I thought they changed that to say you could have a ten round mag, just you couldn't load it with more than seven rounds, no? Or perhaps the reporter got it wrong as to the actual charge....
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Old October 17, 2013, 07:22 PM   #8
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They may have changed how the magazine becomes illegal without changing the name of the offense i.e. a magazine with 10 rounds is an illegal magazine, a magazine with 7 rounds is a legal magazine.

US V Black was indeed what I was looking for, but while it strongly suggests the passenger isn't subject to individualized suspicion simply for being a passenger, that's about all it did.

Reading through Justia's cliff notes on the fourth amendment and vehicular searches I think this guy is in trouble. IF the news article is accurate, I would assume they arrested the driver(as she was charged with at least three offenses in the story), which made a search of the vehicle legal (See the first page, right after Texas v Brown) and under New York v. Belton - 453 U.S. 454 (1981) They can make a contemporaneous search of the passenger compartment, including closed containers. It would take quite a tap dance to argue a magazine in a firearm in the glove box isn't a closed container.

So I'm guessing unless the political winds are blowing quite hard against law enforcement in a post stop-and-frisk world, this search may well stand up. I hope the SAF, Tresmond, or the NRA start whispering in his lawyer's ear on the 2A part of his defense. He may need it.

Something along the lines of an exemption for ranges and competitions that aren't part of the core right as defined by SCOTUS making the core right more burdened than tertiary aspects of the right being ludicrous and unconstitutional maybe.

Edit to add, which doesn't mean there isn't a chance that Black will say/suggest that since the Officer got the firearm via a Terry Stop and he didn't have a reasonable reason to individualize the suspicion to conduct that Stop. But I wouldn't bet my freedom on that. Especially in NY which I don't believe is in the 4th Circuit.

Last edited by JimDandy; October 17, 2013 at 07:43 PM.
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Old October 17, 2013, 08:17 PM   #9
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This is definitely a can of worms. Hopefully a plea to something else or completely dropping the case will happen. It will depend on which way the DA leans. Lockport is in Western NY, so there's a chance.

Last edited by GJSchulze; October 17, 2013 at 08:25 PM.
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Old October 17, 2013, 09:18 PM   #10
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Jim, the officer didn't "get" the firearm as a result of a reasonableness test. The officer asked whether or not there were any firearms in the vehicle. The passenger, being a good citizen, said yes, and handed over the firearm and his permit.

Reasonableness ended when the officer made the firearm safe.

Counting the number of rounds in the mag went beyond reasonableness and broached 4A territory. The NYSP field guide lays it all out. The field guide was given to all NY PD's (this according to what has been posted at the State Police website - hat tip to members of NY Firearms.org) as a means of applying the new laws.

The only real questions I have at this point? How accurate is the reporting?
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Old October 18, 2013, 10:14 AM   #11
Brian Pfleuger
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If the officer "cleared" the firearm, as in eject the magazine and empty chamber, the odds are very high that he would see that the magazine held more than 7 rounds, as many magazine have indicators.

I don't know what the rules are on what an officer just happens to see in the otherwise exercise of his duties but I would assume that seeing something that may not be legal would justify an additional inspection. As per the "Guide", if they have reason to believe that the magazine may not be lawful he may seize and inspect it.

Consider that virtually all magazines for virtually all (save micro-guns and 1911s) common handguns are capable of being "unlawful" in that they hold more than 7 rounds.

Is the mere fact that the magazine is presumably capable of holding more than 7 rounds "probable cause to believe" that it is unlawful?

What if the officer knows the firearm and KNOWS that the magazine holds more than 7 rounds?

What if in the course of clearing the firearm he SEES that it contains more than 7 rounds?

Don't get me wrong, I despise the SAFE Act but I'm curious about those technicalities that may apply under other than SAFE Act conditions.

Most officers won't/don't enforce it, BTW. I have friends in State, they have "special words" for their compatriots who enforce the SAFE Act.
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Old October 18, 2013, 02:05 PM   #12
JimDandy
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Al, he would have gotten the firearm as part of the reasonableness. It was in the glove compartment when the traffic stop was made. To be perfectly honest, I guess I'm more than a little surprised the State has so far conceded the passenger was in possession of the firearm, given the urban legends about how strict the laws are in NY. Maybe that's City not State. Maybe the State hasn't gotten around to it yet, or who knows.

I'm under the impression that asking if anyone is armed is all but the definition of the beginnings of a Terry Stop. I'm also under the impression a Terry Stop does not preclude an eventual seizure and arrest. Nor do I understand the seizure of driver and passenger as part of a traffic stop prevent the Terry portion of a stop.

Given the rationale for the Terry Stop in the first place, I just don't see the court holding that performing a Terry Stop then negates the reasonableness of an otherwise legal warrant-less search executed right after the officer-protection aspects of a Terry Stop has been completed.
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Old October 18, 2013, 02:28 PM   #13
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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.
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Old October 18, 2013, 05:30 PM   #14
rebs
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This safe act is so screwed up even the cops don't know what is right and what is wrong, most are not pushing it or enforcing it. A higher up in the state police said they hope no one registers their "assult weapon' because if people don't register then the entire safe act won't work. It depends on honest people registering which is the only people it infringes on. It does nothing to deter crime.
Maybe the Lockport cop is a rookie ? Most every cop I know is a decent guy, but a few rookies are hell bent on regulations and laws. Seems all they know is bookem Deno, just make the arrest and then let the courts figure it out.
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