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Search Incident to arrest Weapons, Guns, Firearms

Discussion in 'Criminal Charges' started by 48Steven, Jun 25, 2019.

  1. 48Steven

    48Steven Law Topic Starter New Member

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    Why does that matter? You think individual rights of prior felons are of less importance? It's not all the law abiding citizens that obtained your constitutional rights in America.
     
  2. Zigner

    Zigner Well-Known Member

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    If the search was valid at the time, then the fact that the original charges were dismissed doesn't make the search invalid.
     
  3. Zigner

    Zigner Well-Known Member

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    It matters because some (most) of us don't like wasting time on hypotheticals.
     
  4. 48Steven

    48Steven Law Topic Starter New Member

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    Okay. I guess the recourse has to do with how they could expect to find evidence in the safe to support the DUI?
     
  5. justblue

    justblue Well-Known Member

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    Who are you in this situation? Or is this a homework/hypothetical question?
     
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  6. Zigner

    Zigner Well-Known Member

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    These would be great questions for the felon's attorney to answer.
     
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  7. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    They don't have to be looking for DUI related evidence. The Chimel rule allows a protective sweep of the area within the arrestee’s immediate control.
     
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  8. 48Steven

    48Steven Law Topic Starter New Member

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    Fair enough. I appreciate all the insights.
     
  9. flyingron

    flyingron Well-Known Member

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    Again, the disposition of the charges is IRRELEVANT to the issue at hand.
    Any legally obtained evidence can be submitted to any law enforcement organization they care to.

    You've still not provided all the timeline so your hypothetical is missing them or you don't know them or what to look.

    Let's invent this hypothetical before I give up on this.

    Police arrive on a report of suspicious driver. They're allowed to request a breath test (whether the subject is required to provide one or not depends on more circumstances). If they have probable cause (he fails the test, he gives other signs of intoxication, etc...), they can make an arrest. Probable cause for the arrest is a lower standard than prevailing at the trial.

    Now, the important part to the defendant is how they discovered the gun. If during this discussion (request for breath test, questioning), the gun is in plain sight, then the fact that is legally valid evidence. Since the officers reasonably knew the subject to be a felon and hence prohibited person (federally if not state), they have cause to arrest him. The evidence is enough to convict him on the federal charges.

    Now, the other hand is what if the gun isn't readily visible during this. Again, it depends how things play out. If the cops ask to look around, or at least the subject doesn't stop them from roaming, then again, if they discover the evidence is likely valid. If the cops conduct an illegal search, i.e., the subject has the authority and does deny them the right to search and they start opening up safes (locked or otherwise), then there's a possible argument to exclude this.

    Note, that the principle that you keep harping on... the fact that the other charges were dismissed is immaterial. The fact that Alaska automatically restores the rights under state law doesn't change the fact it is still a federal crime.

    What also bodes poorly for the subject, in this case, is that he was at a place of business and not apparently traveling (or attempting to do so). This means the cops don't even need a reason to question him. Had he been traveling, they'd need to have an articulable, reasonable suspicion that a crime had been committed. That's a low standard, and it's quite possible the tip on drunk driving meets that.
     
  10. mightymoose

    mightymoose Moderator

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    Chimel only permits a search for weapons and evidence in the immediate area where the arrestee is located, generally an arms reach away. The location of the safe relative to the arrest is important.
    Since it was a DUI arrest it is probably not reasonable that the officers feared for their safety and needed to search for weapons, and it certainly is not reasonable that they expected to prevent destruction of DUI evidence by searching the safe.
    The search is not a fishing expedition and is unreasonable and requires a warrant otherwise- perhaps the only exception being plain view which does not seem to be the issue here.

    A protective sweep of a residence is a search for people in places people might be found, not for weapons or other evidence.
     
  11. mightymoose

    mightymoose Moderator

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    Just to add, for this to apply it would have to all occur prior to the arrest, and the subject must be present and able to refuse permission. Once the subject is in custody this is out the window. That the subject was intoxicated also clouds whether he understood what was happening and was able to grant or refuse permission to search.

    Since this is described as a search incident to arrest we can presume the arrest for DUI had already been made, the arrest was probably not in the room, and he could not reasonably grant or deny permission.
     
  12. mightymoose

    mightymoose Moderator

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    I suppose that is up to the individual choosing to respond.
    This does not seem to be the case though. It is too elaborate as where those questions usually key in on a particular topic.
    Also, considering the time of year, probably not.
     
  13. mightymoose

    mightymoose Moderator

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    I would still like to know:

    Where was the safe located relative to the arrestee at the time of the arrest?
    Was he arrested inside or outside?
    Was the safe reasonably within his reach or was it on the other side of the room or in another room?
    The safe was unlocked, but was it open, with the gun in pain view to anyone in the room?
     
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  14. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Since it was a guard shack and I assume the gun was there for the guard (OP) in case of an emergency I'm willing to bet it was accessible.
     
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  15. mightymoose

    mightymoose Moderator

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    Not if he was outside, and not if it was across the room. I wonder if this is a mobile home or a little travel trailer.

    It is quite common in such a situation to ask the person to step outside. Less likely that the officers went inside to do a sobriety test, especially if it was a small trailer.
     
  16. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    You seem to be assuming a lot of details that weren't in the original post.
     
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  17. mightymoose

    mightymoose Moderator

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    I haven't assumed... I've asked questions that aren't answered yet.
     

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