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View Full Version : WA state refusal to search car after shooting gun leads to impound.


YubaRiver
06-13-2010, 7:10 PM
Fellow shoots his gun, (into the air he says, to warn off others with guns)
and then refuses search of his car by police. So they impound the car till
they get a warrant.

It this how it would be done in CA too? Impound the car?

http://seattletimes.nwsource.com/html/theblotter/2012105864_beer_and_a_shot_more_gunplay_a.html

Scratch705
06-13-2010, 7:12 PM
most likely.

that is what they threaten those in the import scene when they don't consent to opening their hoods for "inspection". they know that if they find nothing, at least the impound fees will make them some money.

Carsgunsandchics
06-13-2010, 7:19 PM
For a PD impound they have to inventory the car, as in look inside of everything. This way if anything is missing when you pick up your car from the impound lot it can be noted for court. But half the time the PD misses anything of real value that somehow walks away on it's own. I've had my share of pistols become dislodged from seats when towed to the yard, and they love it when you notify them of your findings later.

BigDogatPlay
06-13-2010, 8:06 PM
If the officer(s) are investigating a provable crime, they believe evidence of the crime to be in the vehicle but the subject refuses consent, then yes, they could impound and seek a warrant. The purpose of the impound in that circumstance is to preserve evidence which might otherwise be lost or destroyed.

LEOs can't impound or store cars just because they feel like it.

alex00
06-13-2010, 8:21 PM
I'm not sure about all the facts as presented in the article. If I ran into a scenario like the article states, I wouldn't need consent or a warrant to search the car. I also wouldn't need to impound it. If, in a California hypothetical, I am pointed to a car by witnesses who tell me a person fired a shot, I see a handgun, and that person leads me to where he fired the shot I would have enough probable cause to conduct a warrantless search of the car.

The only times I have impounded cars for a search are when there was a particularly violent crime that occurred in or near the car. If someone is shot in, or from the car, raped, kidnapped, etc. I have impounded the car. I have never impounded a car to search it for something simple like drugs or guns.

My guess is that the car was impounded so crime scene technicians could recover the gun and save it for finger printing, and the techs were not available to come to the scene at the time. With all the presented facts in the article, this is not something my agency would impound for to investigate a simple unlawful discharge.

CalNRA
06-13-2010, 9:08 PM
most likely.

that is what they threaten those in the import scene when they don't consent to opening their hoods for "inspection". they know that if they find nothing, at least the impound fees will make them some money.

that's job creation for ya...

snobord99
06-13-2010, 10:00 PM
I'm not sure about all the facts as presented in the article. If I ran into a scenario like the article states, I wouldn't need consent or a warrant to search the car. I also wouldn't need to impound it. If, in a California hypothetical, I am pointed to a car by witnesses who tell me a person fired a shot, I see a handgun, and that person leads me to where he fired the shot I would have enough probable cause to conduct a warrantless search of the car.

The only times I have impounded cars for a search are when there was a particularly violent crime that occurred in or near the car. If someone is shot in, or from the car, raped, kidnapped, etc. I have impounded the car. I have never impounded a car to search it for something simple like drugs or guns.

My guess is that the car was impounded so crime scene technicians could recover the gun and save it for finger printing, and the techs were not available to come to the scene at the time. With all the presented facts in the article, this is not something my agency would impound for to investigate a simple unlawful discharge.

Searching the car absent consent here could be a bad move. There's no probable cause to believe he committed a crime other than firing the gun. I'd question if there was reasonable suspicion to do a Terry search. Yes, he may have committed a crime (firing the gun into the air). You would be allowed to go in the car to "look" for the evidence of that crime, but it's already visible and based on the bare facts we have here I don't think you could search the whole car; you could just go in and grab the gun. You could hold the car and wait for a warrant; why would you not wait for the warrant and risk having whatever else you find suppressed?

You could obviously argue that you were looking for other guns, but it really would depend on the judge based on these facts (they guy admitted to firing the gun and has a CCW...I'm not sure that's enough reasonable suspicion to search the car sans warrant...and if you don't have PC, don't even think about an automobile exception); it's not a super clean search, I wouldn't risk suppression.

SVT-40
06-14-2010, 12:09 AM
In most California cities reckless discharge is a misdemeanor crime. So coupled with the discharge and the weapon in plain sight protruding from under the seat it would be reasonable for an officer to obtain the weapon AND search for other evidence such as additional firearms, ammo ect. in the passenger compartment during his investigation. In addition the officer could preform a loaded check, and also verify that the firearm was in fact one of the firearms authorized on the CCW permit. Both of these issues would authorize the officer to obtain the firearm from the vehicle.

The article is also not detailed about the subjects sobriety. That would be very important as it could be a violation of his carry permit restrictions in addition to decision making process which led up to him firing the shot.

In addition the info from the security guards is not very detailed. I'm sure they have more info than is indicated in the news article.

Not real difficult.

alex00
06-14-2010, 3:31 PM
Searching the car absent consent here could be a bad move. There's no probable cause to believe he committed a crime other than firing the gun. I'd question if there was reasonable suspicion to do a Terry search. Yes, he may have committed a crime (firing the gun into the air). You would be allowed to go in the car to "look" for the evidence of that crime, but it's already visible and based on the bare facts we have here I don't think you could search the whole car; you could just go in and grab the gun. You could hold the car and wait for a warrant; why would you not wait for the warrant and risk having whatever else you find suppressed?

You could obviously argue that you were looking for other guns, but it really would depend on the judge based on these facts (they guy admitted to firing the gun and has a CCW...I'm not sure that's enough reasonable suspicion to search the car sans warrant...and if you don't have PC, don't even think about an automobile exception); it's not a super clean search, I wouldn't risk suppression.

As SVT-40 pointed out, firing a gun is at least a misdemeanor in most urban areas. The section of town I work is completely encompassed by a no shooting zone. There are no lawful areas to discharge a weapon. Although discharging a weapon is lawful under certain circumstances, the act of firing in the air as a warning is almost always unlawful. That alone would give me probable cause to search.

A Terry search would also, most likely, be allowable because I have reasonable suspicion to believe the person committed a crime, and is likely armed. Vehicles are often exempt from the Fourth Amendment necessity for a warrant based on their mobile nature. If given all the 'facts' presented in the article, I would be confident in the probable cause standing up to court scrutiny. A warrant may offer additional protection from suppression of evidence, but the probable cause necessary to obtain the warrant would be the same that allowed for the warrantless search of the vehicle.

It's a much different animal than searching a house. There is a limited scope for searching a house without a warrant. While searching a house on plain sight and finding a gun I would need to stop and request a warrant. I do not need to stop a warrantless search of a car upon finding new evidence. The new evidence just adds additional probable cause to continue with the warrantless search of a car.

Courts have ruled that officers may search a car for license, registration and insurance documents if they are not presented upon lawful demand. The scope of the search is limited to areas that are reasonably likely to contain those documents. If I discover contraband during a search for those documents, I can expand the scope of my search without seeking a warrant.

Again, in very serious crimes, detectives may request a warrant as a way of crossing all the "Ts" and dotting all the "Is". It's more of a way to preserve the probable cause with less room for dispute later.

snobord99
06-14-2010, 4:33 PM
As SVT-40 pointed out, firing a gun is at least a misdemeanor in most urban areas. The section of town I work is completely encompassed by a no shooting zone. There are no lawful areas to discharge a weapon. Although discharging a weapon is lawful under certain circumstances, the act of firing in the air as a warning is almost always unlawful. That alone would give me probable cause to search.

A Terry search would also, most likely, be allowable because I have reasonable suspicion to believe the person committed a crime, and is likely armed. Vehicles are often exempt from the Fourth Amendment necessity for a warrant based on their mobile nature. If given all the 'facts' presented in the article, I would be confident in the probable cause standing up to court scrutiny. A warrant may offer additional protection from suppression of evidence, but the probable cause necessary to obtain the warrant would be the same that allowed for the warrantless search of the vehicle.

It's a much different animal than searching a house. There is a limited scope for searching a house without a warrant. While searching a house on plain sight and finding a gun I would need to stop and request a warrant. I do not need to stop a warrantless search of a car upon finding new evidence. The new evidence just adds additional probable cause to continue with the warrantless search of a car.

Courts have ruled that officers may search a car for license, registration and insurance documents if they are not presented upon lawful demand. The scope of the search is limited to areas that are reasonably likely to contain those documents. If I discover contraband during a search for those documents, I can expand the scope of my search without seeking a warrant.

Again, in very serious crimes, detectives may request a warrant as a way of crossing all the "Ts" and dotting all the "Is". It's more of a way to preserve the probable cause with less room for dispute later.

First, Terry search = reasonable suspicion, not probable cause ;).

For the most part, what you say is correct, except you've missed my point. You could Terry search the car if you have reasonable suspicion to believe that there may be something in the car which may be a threat to you (generally speaking) or you could search the car with probable cause to believe that there is evidence of a crime is in the car; I think we both agree there?

The facts I see are: 1) there was a report of a shot fired, 2) a guy admits to discharging a firearm into the air, 3) he has a CCW, 4) he tells you where the gun is, and 5) you see the gun under the seat where he said it would be. Let's assume that at this point, the only crime you suspect him of is discharging a firearm. Well, you have the gun that was used (assume you know this was the gun), if you search the vehicle past that, it could very well go beyond the scope of what you're allowed to search (this was the point I was making...the scope of the search).

The automobile exception to search warrants exists, but "automobile" isn't a magical word that allows you to search the car under all conditions; you still need PC or reasonable suspicion (the guy wasn't arrested so that throws out the inventory search and search incident to arrest).

On these facts, I wouldn't assume right away that there's reasonable suspicion for a Terry search or the required probable cause for a warrantless search in a judge's eye. You have the gun used, going beyond that could easily be beyond the scope of your allowable search. You can't really tell the judge I had PC or reasonable to search the car for the gun used even though I already knew where the gun was.

alex00
06-14-2010, 5:40 PM
First, Terry search = reasonable suspicion, not probable cause ;).

That's what I said ;).

For the most part, what you say is correct, except you've missed my point. You could Terry search the car if you have reasonable suspicion to believe that there may be something in the car which may be a threat to you (generally speaking) or you could search the car with probable cause to believe that there is evidence of a crime is in the car; I think we both agree there?

Yes, I think we agree. However, it is my understanding that a Terry pat only extends to the outer layer of clothing while looking for weapons. I've not seen an example of a Terry frisk applied to a car. It may be something that is done, but I've never heard of it.

The facts I see are: 1) there was a report of a shot fired, 2) a guy admits to discharging a firearm into the air, 3) he has a CCW, 4) he tells you where the gun is, and 5) you see the gun under the seat where he said it would be. Let's assume that at this point, the only crime you suspect him of is discharging a firearm. Well, you have the gun that was used (assume you know this was the gun), if you search the vehicle past that, it could very well go beyond the scope of what you're allowed to search (this was the point I was making...the scope of the search).

I think this is where I disagree with you. It may or may not be the gun that was used. I would not be expected to stop my search until I had checked all areas likely to contain a firearm or related evidence, that I am lawfully allowed to. I see your point about the scope of the search, but it is my understanding that the PC to search does not evaporate when the first item of contraband is discovered. Now if I start opening small cases that can't contain a firearm or other evidence of the original crime, I might run into some problems.

The automobile exception to search warrants exists, but "automobile" isn't a magical word that allows you to search the car under all conditions; you still need PC or reasonable suspicion (the guy wasn't arrested so that throws out the inventory search and search incident to arrest).

On this I think we still agree. I will still contend that in California discharging the firearm into the air or other reckless manner would be good probably cause.

On these facts, I wouldn't assume right away that there's reasonable suspicion for a Terry search or the required probable cause for a warrantless search in a judge's eye. You have the gun used, going beyond that could easily be beyond the scope of your allowable search. You can't really tell the judge I had PC or reasonable to search the car for the gun used even though I already knew where the gun was.

I again disagree. This may or may not be the only gun in the car, or for that matter the gun used in the crime. Scope, as it refers to the search relates to areas allowed to be searched, and for what items. As long as I keep the scope of my search related to firearms or items related to the discharge, I am within the scope of the allowable search. Simply finding a gun does not mean that my probable cause to search is no longer valid.

If this were a drug sales incident, I would not need to stop searching if I found a scale or drugs. I could continue searching for more paraphernalia and drugs.

For the most part I think we are on the same page, with minor differences in application.

snobord99
06-14-2010, 6:53 PM
That's what I said ;).

It went back and forth (both terms used). I was just clarifying ;).

Yes, I think we agree. However, it is my understanding that a Terry pat only extends to the outer layer of clothing while looking for weapons. I've not seen an example of a Terry frisk applied to a car. It may be something that is done, but I've never heard of it.

Does extend to a car. I can't think of a good example to use, but I assume you've been told that you can check the passenger compartment with reasonable suspicion but you need PC for the trunk? That passenger compartment search is a Terry search.

I think this is where I disagree with you. It may or may not be the gun that was used. I would not be expected to stop my search until I had checked all areas likely to contain a firearm or related evidence, that I am lawfully allowed to. I see your point about the scope of the search, but it is my understanding that the PC to search does not evaporate when the first item of contraband is discovered. Now if I start opening small cases that can't contain a firearm or other evidence of the original crime, I might run into some problems.

No no, I knew the "is that the only gun" question would be the issue, that's why I said to assume (for the sake of argument) that you know that that was the gun used. If you know it was the gun used, what reasonable suspicion do you have from these facts that there's another gun in the car?

On this I think we still agree. I will still contend that in California discharging the firearm into the air or other reckless manner would be good probably cause.

I don't disagree. In most cases, I think you'll have enough PC since there are always other factors involved. I'm saying in a vacuum on just those 5 facts I listed, I wouldn't assume outright you have reasonable suspicion (let alone PC) for the search.

I again disagree. This may or may not be the only gun in the car, or for that matter the gun used in the crime. Scope, as it refers to the search relates to areas allowed to be searched, and for what items. As long as I keep the scope of my search related to firearms or items related to the discharge, I am within the scope of the allowable search. Simply finding a gun does not mean that my probable cause to search is no longer valid.

Again, I think the analysis is different if you know it was the gun used. Scope refers to the areas that you're allowed to search; my point was that once you find the gun and know it's the gun used, you no longer need to search the car for evidence of the crime (discharging a firearm).

If this were a drug sales incident, I would not need to stop searching if I found a scale or drugs. I could continue searching for more paraphernalia and drugs.

I would distinguish the drug situation since with the drugs, you might be looking for if the guy has enough to be charged with selling. In the gun case, you've found the gun that was used and don't have reason to look for anything else.

For the most part I think we are on the same page, with minor differences in application.

Agreed. Truth be told, most judges would most likely agree with you; I'm just saying it's not a slam dunk and I'd certainly expect a 1538.5 to be filed.

3 characters.

alex00
06-14-2010, 8:00 PM
Does extend to a car. I can't think of a good example to use, but I assume you've been told that you can check the passenger compartment with reasonable suspicion but you need PC for the trunk? That passenger compartment search is a Terry search.

I'm not saying you're wrong, but I was unaware that RS would grant me into a passenger compartment for a Terry. I've always based a search on PC, and not RS.

No no, I knew the "is that the only gun" question would be the issue, that's why I said to assume (for the sake of argument) that you know that that was the gun used. If you know it was the gun used, what reasonable suspicion do you have from these facts that there's another gun in the car?

I see what you are saying. Assuming I KNOW this is the gun used, I would still search for indicia in the car, ammunition, and other spent cases. I guess that what I am saying is that I would perform as thorough a search as the law allows. Even if all the facts show that I know this was the gun used, I would still have the probable cause to search for the above listed items.

I don't disagree. In most cases, I think you'll have enough PC since there are always other factors involved. I'm saying in a vacuum on just those 5 facts I listed, I wouldn't assume outright you have reasonable suspicion (let alone PC) for the search.

I think in the vacuum of this case alone, I would have PC based on; unlawful discharge, witness pointing out the person/car, and seeing the gun in the car. Him showing me the shell casing and admitting to shooting in the air is just icing on the proverbial cake.

Again, I think the analysis is different if you know it was the gun used. Scope refers to the areas that you're allowed to search; my point was that once you find the gun and know it's the gun used, you no longer need to search the car for evidence of the crime (discharging a firearm).

I still fall back on the earlier answer about a thorough search.

I would distinguish the drug situation since with the drugs, you might be looking for if the guy has enough to be charged with selling. In the gun case, you've found the gun that was used and don't have reason to look for anything else.

Again, more ammunition, spent casings, paperwork showing ownership of vehicle/firearm. There is always more to search for.

Agreed. Truth be told, most judges would most likely agree with you; I'm just saying it's not a slam dunk and I'd certainly expect a 1538.5 to be filed.

Agreed as well. I think yours and my only point of contention is when the search is over.:D


Dot dot dot.

SigSoldier
06-14-2010, 8:22 PM
Vehicles are often exempt from the Fourth Amendment necessity for a warrant based on their mobile nature.

You can't possibly be serious. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" I fail to see how a vehicle could be exempt since it falls under effects (property) and if mobility was a reason for exemption then "persons" would be exempt since "persons" are also mobile. The fourth amendment was not simply to protect our houses from unreasonable searches it was to protect all property.

Also as far as impounding vehicles as a round about way to conduct a search (although in the case stated here I would say a search was reasonable) the 5th amendment states "nor be deprived of life, liberty, or property, without due process of law". You can hardly call an officers actions "due process of law". But also that would extend far beyond what we are used to today as in an impounding of a drunk drivers vehicle. Could you imagine not impounding drunk drivers cars?

alex00
06-14-2010, 8:42 PM
You can't possibly be serious. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" I fail to see how a vehicle could be exempt since it falls under effects (property) and if mobility was a reason for exemption then "persons" would be exempt since "persons" are also mobile. The fourth amendment was not simply to protect our houses from unreasonable searches it was to protect all property.

Also as far as impounding vehicles as a round about way to conduct a search (although in the case stated here I would say a search was reasonable) the 5th amendment states "nor be deprived of life, liberty, or property, without due process of law". You can hardly call an officers actions "due process of law". But also that would extend far beyond what we are used to today as in an impounding of a drunk drivers vehicle. Could you imagine not impounding drunk drivers cars?

I am very serious. I do not make the court decisions, I just follow them. The high courts have ruled time and again that vehicles may be searched without a warrant when probable cause exists. It doesn't mean I can just rifle through your car without reason. If I have the probable cause necessary to obtain a warrant, I may skip the warrant, and search the car.

People are exempt. If I have probable cause I may search a person, their belongings and their clothing without a warrant. I only need reasonable suspicion to do a pat search, a standard even lower than probable cause. Again, I don't make the rulings, I just follow them.

Don't confuse impounding a car in order to search a car with impounding a car to take it to a secure yard for processing. When I store/impound a car, I am obligated to search it for valuables. If I find contraband, during my inventory, these items are often admissible in court if I had a valid reason to impound the car. Look at VC 22651, and 14602.6 for all the ways we can tow a car, either as storage or impound. The courts have long upheld that as long as the officer had a legitimate reason to tow the car, the inventory search was permissable.

The other scenario is towing/impounding the car when probable cause already exists, and the car is being taken to a facility to conduct that search.

I'm not trying to be cavalier, but there are plenty of warrantless searches that don't violate the Fourth Amendment. The above seizure don't deprive one of their Fifth Amendment rights because the seizure is temporary, not permanent.

SigSoldier
06-14-2010, 11:04 PM
I am very serious. I do not make the court decisions, I just follow them. The high courts have ruled time and again that vehicles may be searched without a warrant when probable cause exists. It doesn't mean I can just rifle through your car without reason. If I have the probable cause necessary to obtain a warrant, I may skip the warrant, and search the car.

People are exempt. If I have probable cause I may search a person, their belongings and their clothing without a warrant. I only need reasonable suspicion to do a pat search, a standard even lower than probable cause. Again, I don't make the rulings, I just follow them.

Don't confuse impounding a car in order to search a car with impounding a car to take it to a secure yard for processing. When I store/impound a car, I am obligated to search it for valuables. If I find contraband, during my inventory, these items are often admissible in court if I had a valid reason to impound the car. Look at VC 22651, and 14602.6 for all the ways we can tow a car, either as storage or impound. The courts have long upheld that as long as the officer had a legitimate reason to tow the car, the inventory search was permissable.

The other scenario is towing/impounding the car when probable cause already exists, and the car is being taken to a facility to conduct that search.

I'm not trying to be cavalier, but there are plenty of warrantless searches that don't violate the Fourth Amendment. The above seizure don't deprive one of their Fifth Amendment rights because the seizure is temporary, not permanent.
OK well the 4th amendment does allow searches with probable cause so I guess thats not really an exemption. The rest of your post also made a lot of sense and was very clear. Thanks for clearing that up. I guess the only objections would be based upon a very strict interpretation of the 4th and 5th.