Weapons, Guns, Firearms Search Incident to arrest

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48Steven

New Member
Jurisdiction
Alaska
A search of premises incident to arrest produced a gun, in an unlocked safe. Arresting offense was a State DUI, search resulted in additional charge of felon in possession of a firearm. State felon in possession dismissed upon motion, based on 10 year statute. While pursuing trial against DUI charge, state prosecutor referred gun charge to United States Attorney and federal indictment followed, (including ACCA enhancement). State DUI charge later dismissed.

How does the gun survive as admissible evidence?

Where is the arguement against the federal felon in possession 922(g), after the arresting offense is dismissed?
 
You need an attorney. There isn't enough information here to tell if the search was reasonable or not (I'm assuming the "safe" was actually a storage device in the car itself).

There's no "argument" that says just because some other offense was dismissed that any remaining or new ones must be dismissed. As long as there was PROBABLE CAUSE for the original arrest even if the charges are dismissed, that is fine. As long as the SEARCH met the requirements for such, the evidence of the gun possession can be used on the new charge.
 
48Steven said:
How does the gun survive as admissible evidence?
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Uh, it's kept in a box in the evidence room.

48Steven said:
Where is the arguement against the federal felon in possession 922(g), after the arresting offense is dismissed?
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There is no argument. The US government and the state government can convict you of the same offense based on the dual sovereignty doctrine.

Just last week the US Supreme Court, (in a 7-2 decision) upheld that doctrine in Gamble vs. United States:

https://www.supremecourt.gov/opinions/18pdf/17-646_new_o759.pdf
 
We're you on probation or parole at the time of arrest?
Right off the bat the search sounds bad... unless you happened to be in the immediate vicinity of it at the time of arrest.
Did you happen to give permission to search?

I agree you need an attorney for what you are asking. I would expect if the search was unreasonable that would have already come out... it just sounds suspicious the way you presented it.
 
adjusterjack said:
There is no argument. The US government and the state government can convict you of the same offense based on the dual sovereignty doctrine.
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Actually, it appears that even without dual sovereignty there's might no double jeopardy here. The "dismissed upon motion" sounds like the trial may not yet have begun.

Anyhow the "argument" he as asking I think was whether they can pursue the gun charges after the DUI was dismissed (that was the "arresting offense"). And of course, the answer is hell yes. Again, even without the multiple courts involved, you can be prosecuted for things different than the what the original arrest was for.

Unless the original arrest was shown to be without articulable, reasonable suspicion, it isn't going to poison the subsequent discoveries and prosecutions.
 
mightymoose said:
We're you on probation or parole at the time of arrest?
Right off the bat the search sounds bad... unless you happened to be in the immediate vicinity of it at the time of arrest.
Did you happen to give permission to search?

I agree you need an attorney for what you are asking. I would expect if the search was unreasonable that would have already come out... it just sounds suspicious the way you presented it.
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No supervision. No consent. Defendant was in company trailer (on site sleeping quarters, and security post) on job site. Safe was in trailer.
 
There may be room to argue the search of the safe was not reasonable, especially since it was a DUI warrant arrest and there was no evidence to be searching for to preserve. The farther away from the safe he was the better that argument is. You will need an attorney to review the details of the case and find out if there is some wiggle room there. I would expect this has already been done, . But since the gun charge had been tossed maybe they never got that far.
Anyway, the search incident to arrest is not a fishing expedition to see what they can pile on. The purpose is to remove weapons from the suspect and the immediate area where they may be accessible, and also to preserve evidence of the crime.
So, unless they had reason to believe he was armed, and that safe was immediately accessible, they might have trouble justifying their search of the safe, even though it was unlocked.
 
In Alaska, the car was likely impounded subsequent to the DUI arrest (I don't know how "warrant" fits into the situation, moose). An inventory of the contents at that point is allowed and the contents of unlocked compartments (which is what I assume he meant by safe, a gun storage unit that could be locked but wasn't) is fair game.
 
flyingron said:
In Alaska, the car was likely impounded subsequent to the DUI arrest (I don't know how "warrant" fits into the situation,
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There is no car in this scenario. The information is that the arrest was made at a residence (a trailer) for DUI (apparently I was mistaken that it was an arrest warrant for DUI), but it apparently was not in the course of a traffic stop. During this arrest a search of the residence was made, during which a gun was found in an unlocked safe. Some explanation is needed for why the safe was searched at all under these circumstances.What evidence of a DUI would be found in the safe?
 
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mightymoose said:
There is no car in this scenario. The information is that the arrest was made at a residence (a trailer) on an arrest warrant for a DUI. During this arrest a search of the residence was made, during which a gun was found in an unlocked safe. Some explanation is needed for why the safe was searched at all under these circumstances.
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I disagree - the arrest was made at a place of work (a security post) that also has a bed for the worker to sleep in.

EDIT: I also suspect that the gun was visible, since the safe was "unlocked", implying "open".
 
Sorry, don't know why I thought this was a car. Worked with safes for my entire professional career. Not even possible to tell by visual inspection if a closed safe is locked or not. That's why we had little "OPEN / CLOSED" signs to let us know we had an open safe.

The original poster's problem didn't challenge the search, only whether the subsequent dismissal of the charges for which the initial arrest was done means anything here. Since there appears to have been a valid warrant for that charge, the fact that the arrestee was innocent doesn't make it unlawful or change what resulted afterward.

If the safe door was open, we don't have a search. The find of the gun is likely valid.
If the employer consented to the police search, then it matters not what the arrestee did.
I guess if the safe was big enough to hold the accused and they hadn't found him yet they were free to attempt to open a closed safe to see if he was hiding in there.
 
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Zigner said:
I disagree - the arrest was made at a place of work (a security post) that also has a bed for the worker to sleep in.

EDIT: I also suspect that the gun was visible, since the safe was "unlocked", implying "open".
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Could be, which is why I asked about those circumstances. As provided it sounds suspicious.

Whether his residence or a sleeping quarters at work, there is an expectation of privacy.

Also, an unlocked safe is not necessarily an open safe. Not knowing where it was located (maybe under the bed) we can't assume plain view.

I wonder.... What was the original reason the gun charge was thrown out? A motion was mentioned.... What was the justification?
 
To clear up my warrant comment.... When I read of a DUI arrest made somewhere other than the side of the road I jumped to the conclusion it was a DUI warrant, though no warrant was mentioned.
There are certainly other circumstances that could have led police to the arrestee during a fresh investigation..
 
Since the homework issue has been brought up...Do "we" answer homework questions here or is it generally preferred that we don't?
 
flyingron said:
In Alaska, the car was likely impounded subsequent to the DUI arrest (I don't know how "warrant" fits into the situation, moose). An inventory of the contents at that point is allowed and the contents of unlocked compartments (which is what I assume he meant by safe, a gun storage unit that could be locked but wasn't) is fair game.
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It wasnt a vehicle search. The police claimed there was an anonymous call in about an impaired driver. They later(about an hour) showed up at the job site trailer knocking at the door, asking for a breathalyzer test. No arrest was made at or in a vehicle. The safe was in the trailer. The state gun charge (ten year statute on completion of felony probation) and DUI (lack of evidence) were dismissed, but the state referred the gun to the feds. How does a search based on a state charge, that later gets dismissed on lack of evidence, produce a federal felon in possession indictment? The search of that trailer has what relevance to an anonymous call in about an impaired driver?
 

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