Any legal defense for guns seized in illegal arrest?

[dance varmint]

Just musing about trying to obey the patchwork of state and local firearm laws, especially with certain municipalities that have started thumbing their nose at their own state supreme court. What if I were pulled over for something minor, like one tail light a little smaller than the other one, and they decided to arrest me against state law (out of ignorance or contempt of said law). Then what if they found gun-related contraband in that locality, perhaps an unserialized cartridge or a fleck of smokeless powder. Could they prosecute based on those items, or do I have Constitutional protection against unreasonable search and seizure because they had no legal business arresting me in the first place? Is there any case law relevant to this?

 

[jlbraun]

Google "FOPA". It generally protects you in transit if the firearm is unloaded and not accessible.

 

[coloradokevin]

If I am reading you correctly, you would probably fall under the legal concept of "fruit of the poisonous tree" (FOTPT) idea... This is a legal metaphor used to explain how evidence obtained through a unlawful (tainted) search is also unlawful (tainted).

That is, in a sense, that any evidence gained as the result of an illegal search would be excluded (in this case it is illegal because of a lack of a crime that would allow for a search incident to arrest).

The metaphor comes from the idea that "if the tree is poisonous, then any 'fruit' of the tree is also tainted".

It is a commonly referenced idea concerning search and seizure cases.


Now, let me add to that a couple of things:

If the guns were illegal to begin with (non-NFA machine guns, carried by a felon, etc) then the owner of these weapons would not get them back. In other words, "contraband" in FOTPT cases isn't typically returned in these situations, but you couldn't be charged criminally for the action.

As a case-in-point, consider drug cases. Lets say I saw Joe-crackhead the local dope dealer driving down the street... Now lets assume that I hypothetically stopped him without a valid reason, simply because I knew he was a dope dealer. Now, assume that he gives me consent to search his vehicle, and as a result of this consent I gain information to obtain a warrant on his house. This warrant later lands us with 10 kilos of coke.

I could very easily have the evidence excluded based on "fruit of the poisonous tree". In other words, had I not unlawfully stopped the driver, I would not have gained the information to execute this hypothetical warrant. As such, the warrant (and evidence obtained through it) was tainted by the initial unauthorized stop.

However, the dope dealer would not get his drugs (contraband) back. He would simply not be criminally liable.

 

[Pat-inCO]

What if you get a scenario that can happen?

If you drive around looking like a gang banger, a hood or a miscreant, AND flip off the officer or call him/her a pig, expect to be arrested. If you don't do any of those, why worry?

 

[NavyLCDR]

Google "FOPA". It generally protects you in transit if the firearm is unloaded and not accessible.

FOPA only protects individuals who are traveling interstate. It offers no protection to a person traveling within one state, especially their state of residence.

 

[csmkersh]

And protects you not at all in New York.
​

 

[blkbrd666]

From what I have heard, they really should check your passport before you cross the border into New York.

 

[KyJim]

Hot off the presses . . .

Ruled on today.

In the only decision of the day, the Supreme Court ruled unanimously on Wednesday that police do not act unconstitutionally if they conduct a search following an arrest, even if the arrest violated a state law. The ruling, written by Justice Antonin Scalia, came in Virginia v. Moore (06-1082) involving the discovery of crack cocaine in a search of a driver who had been stopped for driving on a suspended license.

So long as the police had probable cause to make the arrest, the Court said, it makes no difference that a state law barred police from making an arrest when the crime involved was only a misdemeanor traffic offense. “An arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure” of evidence after the arrest, the opinion added.

In the circumstance that confronted David Lee Moore of Portsmouth, Va., in 2003, police were supposed to give him only a ticket. But, instead, they arrested him, took him to a hotel where they conducted a personal search of Moore, finding about 16 grams of cocaine in a jacket pocket and $516 in cash in a pants pocket. The evidence was used to convict Moore of possession of cocaine with intent to distribute it. He was sentenced to five years in prison, with 18 months of the sentence suspended.

The Court noted that, with its policy on ticketing only after a traffic offense, “Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires.” But, it added, that choice does not make a resulting search invalid under the federal Constitution.

“Moore would allow Virginia to accord enhanced protection only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures,” Scalia wrote.

The opinion was joined by all of the members of the Court except Justice Ruth Bader Ginsburg. She supported the result only, saying she would read the historical record differently.

http://www.scotusblog.com/wp/

Apparently, Virginia does not suppress the fruits of a search in violation of a statute, only the U.S. Constitution.

 

[DMF]

Google "FOPA". It generally protects you in transit if the firearm is unloaded and not accessible.

Only in states you are passing through in interstate transit, not the origin or destination, and not if the trip was not an interstate trip.

 

[Guitargod1985]

If I am reading you correctly, you would probably fall under the legal concept of "fruit of the poisonous tree" (FOTPT) idea... This is a legal metaphor used to explain how evidence obtained through a unlawful (tainted) search is also unlawful (tainted).

Google "State of Virginia v. David Moore"

 

[refrey]

State of Virginia vs David Moore

http://news.yahoo.com/s/ap/20080423/ap_on_go_su_co/scotus_search;_ylt=Ajd87X1MfQGU_iYL9mWCmhSs0NUE

 

[Jimmy Dean]

that does not sound good.

What it sounds like, is that a officer could pull me over for speeding, request to search my truck, I refuse, he arrests me, and then is legally allowed to search my truck.

If I am wrong, can you please correct me?

 

[General Geoff]

^^Refusal of consent does not constitute probable cause.

 

[Aguila Blanca]

Google "FOPA". It generally protects you in transit if the firearm is unloaded and not accessible.

Only in states you are passing through in interstate transit, not the origin or destination, and not if the trip was not an interstate trip.

No, the FOPA also covers you in the states of origin and destination, but ONLY for the period of time involved in the actual trip. Once you arrive at the destination location (i.e. the "travel" has been concluded), FOPA is not a free pass to continue carting a firearm around in your vehicle.

You are correct, though, that the FOPA has no bearing on intrastate travel.

 

[Vang]

General Geoff, that's not what he was suggesting. Under Virginia v Moore, if the officer is angry at you for refusing to consent to the search, he can arrest you for anything (something totally made up), then search the car incident to that arrest, then release you later. Any evidence found would be admitted (unless the state has its own exclusionary rule), and your only recourse would be a civil rights claim.

 

[KyJim]

if the officer is angry at you for refusing to consent to the search, he can arrest you for anything (something totally made up), then search the car incident to that arrest, then release you later. Any evidence found would be admitted (unless the state has its own exclusionary rule), and your only recourse would be a civil rights claim.

No, that's not what the case says. Some states have laws that say police cannot arrest for very minor violations that would only carry a fine like a broken tail light. Virginia v. Moore says that as long as there is probable cause to believe a person has violated a criminal law, that is all the federal constitution cares about. Police have traditionally been allowed to make these kinds of arrests. As part of the arrest, police are allowed to search you and certain areas for weapons. Anything they find, like drugs, can be used as evidence. Under the federal constitution, it does not matter if the police officer was angry or not, there only has to be probable cause for the arrest.

 

[Jimmy Dean]

Um, Virginia vs. Moore there was no probable cause for the arrest. That is the entire point with it.

 

[Deanimator]

If you drive around looking like a gang banger, a hood or a miscreant

Can you provide a detailed list of criteria?

Do ALL police have that list?

 

[romma]

I personally have had cars ripped apart because police have claimed to smell marijuana.

There you go, I can search your vehicle, because I am almost certain I smell dope!

 

[Frog48]

More than likely, the guns will be seized as contraband, regardless if the search/arrest was legal or not. Getting them back will initially depend on the LE agency's policy, and if they arent willing to give them back voluntarily, you'll likely have to obtain a court order.

At my office, when deputies seize a gun but the DA chooses not to pursue the case, the Constable and/or Chief Deputy usually have no objection to returning the gun to the owner without court order, provided that the person is not otherwise "prohibited person" under Federal law.

 

[KyJim]

Virginia vs. Moore there was no probable cause for the arrest.

No, there was probable cause to make an arrest under the federal constitution. The fact Virginia statutorily limited arrests for this type of violation does not effect whether there is a violation of the U.S. Constitution. Otherwise, you could have the U.S. Constitution applied differently in each state. When the Constitution was adopted, there were only felonies and misdemeanors and police could arrest for either one.

 

[Jimmy Dean]

In other words, we can be arrested for every misdemeanor or traffic violation that there is. And subsequentially serached.

Again, there is a problem with this.

Or can you show me where in the constitution it explains laws for arrest with regards to traffic citations?

 

[coloradokevin]

No, that's not what the case says. Some states have laws that say police cannot arrest for very minor violations that would only carry a fine like a broken tail light. Virginia v. Moore says that as long as there is probable cause to believe a person has violated a criminal law, that is all the federal constitution cares about. Police have traditionally been allowed to make these kinds of arrests. As part of the arrest, police are allowed to search you and certain areas for weapons. Anything they find, like drugs, can be used as evidence. Under the federal constitution, it does not matter if the police officer was angry or not, there only has to be probable cause for the arrest.

That's pretty much what I got out of it.

As an example, under typical circumstances we are not authorized (by my department) to arrest people for driving under suspension (a designated criminal violation in Colorado). However, we are allowed to arrest by state law for that violation.

By the same token, I believe this ruling is saying that if the search was permisible at the Federal level under the premis that it was an arrest-worthy offense, then the "search incident to arrest" will also be accepted at the state level.

Either way, interesting timing for that ruling... And, I'll need to look into it a good bit more before I try to give more than an educated guess on that one!

 

[Flyboy]

they decided to arrest me against state law

the legal concept of "fruit of the poisonous tree"

coloradokevin: You're still clinging to that ancient concept known as the exclusionary rule? Go read Scalia's opinion stating that, in today's more "professional" police forces, such rule is no longer necessary, and the appropriate remedy is to sue.

Also, look at (as others have posted) Virginia v. Moore, in which The Nine Blessed Chalices of the Sacred Effluvium ruled that just because the arrest is illegal, doesn't mean the State can't use the evidence gathered therein.

 

[KyJim]

I believe this ruling is saying that if the search was permisible at the Federal level under the premise that it was an arrest-worthy offense, then the "search incident to arrest" will also be accepted at the state level.

Almost right. The states can set up their own exclusionary rule based on the state constitution or state statute. I understand Virginia does not do this. Kentucky does not either. Kentucky only excludes evidence which violates the federal constitution, not state arrest laws.

Now, this may sound harsh but the Va. v. Moore case is a set of "bad facts." In one case I was involved with, police were called because a guy entered an office tower and stole some items from a woman's purse when she wasn't looking. He was originally arrested for the theft and use of a credit card. Under state law, it was a misdemeanor if he charged less than $300 and a felony if $300 or more. The officer could not immediately determine the amount and arrested him. Turns out, he had charged less than $300 and it was a misdemeanor. State law, however, prohibits an arrest on a misdemeanor unless done in the officer's presence. This wasn't. As part of the arrest and search, police found other evidence and charged him with a separate felony theft charge. Defendant claimed it should be suppressed because the arrest was unlawful under state law. The state made the same argument as in Moore, that it was not a violation of federal constitutional law and the state only suppressed evidence seized in violation of the U.S. Constitution. The state prevailed and the state court of appeals even mentioned the defendant's remedy was not to suppress the evidence but to sue for false arrest (by this time the statute of limitations to sue had expired).

Sorry for the long war story but I just wanted to show the application of the principle of law under different facts.