NC - Man Surrenders Gun to Police After Accident, Can't Get it Back!

[stillaftermath]

This seems like a clear violation of unreasonable search and seizure to me!

Gun owner says police violating his rights

George Boggs thought he was doing police a favor last week when he handed over the firearm he kept in his car after he was in a wreck.

Boggs has a permit to carry a concealed weapon, and he wanted his handgun secured while he went to the hospital, he said. The permit requires him to notify police of his weapon.

On Monday, when he went to the Fayetteville Police Department to retrieve his gun, he couldn't get it back. He was told that police first wanted to fire the gun to see if the spent shell casing and round would match data in a nationwide ballistics inventory used to solve crimes.

The gun is scheduled to be test-fired today, he was told.

Boggs complained to police supervisors that his new gun has never been fired. The ballistics test, he said, would diminish the value of the .45-caliber Taurus Millennium he bought last month for $399 at a local gun store.

He said the city is violating his Fourth Amendment rights that protect him from unreasonable searches and seizures.

Police defend their decade-old policy of checking most handguns that come into their custody - no matter the reason - to see if they have been used in a crime. They say public safety outweighs any inconvenience to the owner.

Boggs said he did nothing wrong. He was not arrested. The gun was not taken from a crime scene. The other driver in the Aug. 14 accident was cited, a police report says.

"If they can get away with this, then they can get away with other things," he said.

Boggs, 70, is a retired Army sergeant first class who is running for City Council this fall against incumbent Robert Massey in District 3. He said his fight over the police policy is not politically motivated.

Sgt. John Somerindyke said in situations such as this, police can't assume a weapon has never been used.

"We have to be consistent with our policy," he said. "We have had some hits doing this."

Somerindyke said that since 2003, the ballistics tests have identified 32 guns that were used in crimes in Cumberland County.

Since 1999, the Police Department has sent most handguns taken into custody to the Cumberland County Sheriff's Office, where the ballistics examination is done free for law enforcement agencies. The information is entered into the Integrated Ballistics Identification System, which is like a database of fingerprints for guns. Shell casings recovered at crime scenes can be matched with guns previously entered into the database.

Since January, the police agency has sent 331 guns and 315 shell casings and rounds to the Sheriff's Office for testing.

Boggs said he is talking with officials at the National Rifle Association about his situation. A representative of the NRA could not be reached for comment this week.

Tiffanie Sneed, the Police Department's lawyer, said the gun-testing policy helps make the community safer. People sometimes buy guns not knowing they have been used in crimes. The weapons are returned to their owners if the tests show they were not used in crimes, she said.

"Due to the gravity of the subject matter, we don't deviate from this policy, as long as the weapon meets the IBIS criteria," she said.

Boggs said others with concealed-weapon permits could be less likely to tell police they have a gun, for fear of it being taken and tested.

According to Debbie Tanna, a Sheriff's Office spokeswoman, all firearms are tested at the factory before being sent to dealers. Bernard Barr, who helps manage Guns Plus in Spring Lake, said he doesn't believe that's true. Some manufacturers don't test weapons before shipping them, he said. That includes the Taurus Millennium model that Boggs bought, he said.

Barr said firing a new weapon for ballistics doesn't necessarily lower its value.

Barr said he personally has no qualms with the police testing weapons seized as evidence - but not guns voluntarily surrendered for safe-keeping.

"It's like taking DNA from every citizen," he said. "Why investigate something that is not a crime? It just doesn't make sense."

 

[Dr. Tad Hussein Winslow]

"We have to be consistent with our policy," he said. "We have had some hits doing this."

No kidding? Well, shoot-fire, if it will help improve the arrest rate and crime-solve rate, then I'm all for it, no matter how much it tramples on people's rights!! Coincidentally, Mr. Policeman, it would also improve the arrest rate and crime-solve rate if you set up a checkpoint on a road and forced every passenger of every vehicle to submit to a urine and blood test, and get fingerprints, to check for DNA and fingerprint matches for unsolved crimes, and check for drug use. So if *results* is the only criteria you use, then I could also think of about 100 other things which will help solve crimes. In fact, just bust down people's doors at their homes at random, and search for contraband - now THAT would cause you to get "some hits doing this."!!

 

[scotthsi]

The ballistics test, he said, would diminish the value of the .45-caliber Taurus Millennium he bought last month for $399 at a local gun store.

ASIDE FROM THE OBVIOUS BREACH OF RIGHTS....

Yeah...right...great arguing point about the "value" of a run-of-the mill gun. And, the rocket scientist award for carrying an untested, unfired gun goes go...drum roll, please...

 

[AKElroy]

no kidding? Well, shoot-fire, if it will help improve the arrest rate and crime-solve rate, then i'm all for it, no matter how much it tramples on people's rights!! Coincidentally, mr. Policeman, it would also improve the arrest rate and crime-solve rate if you set up a checkpoint on a road and forced every passenger of every vehicle to submit to a urine and blood test, and get fingerprints, to check for dna and fingerprint matches for unsolved crimes, and check for drug use. So if *results* is the only criteria you use, then i could also think of about 100 other things which will help solve crimes. In fact, just bust down people's doors at their homes at random, and search for contraband - now that would cause you to get "some hits doing this."!!

+11111111111111111111111111111111111111111111111111111111111111

 

[stillaftermath]

No kidding? Well, shoot-fire, if it will help improve the arrest rate and crime-solve rate, then I'm all for it, no matter how much it tramples on people's rights!! Coincidentally, Mr. Policeman, it would also improve the arrest rate and crime-solve rate if you set up a checkpoint on a road and forced every passenger of every vehicle to submit to a urine and blood test, and get fingerprints, to check for DNA and fingerprint matches for unsolved crimes, and check for drug use. So if *results* is the only criteria you use, then I could also think of about 100 other things which will help solve crimes. In fact, just bust down people's doors at their homes at random, and search for contraband - now THAT would cause you to get "some hits doing this."!!

Assuming the numbers they give for this year are an average, that means they "come into possession" of about 500-600 guns a year in this county (This is MY county, by the way!)

The article says they've had 32 hits since 2003. So the rough math says out of 3000 guns, they'll average 1% of all firearms tested resulting in a hit.

If that's a high enough success rate for justification, how many results do you think they'd get if they just randomly searched homes? I'd bet it'd be a lot more than 1%!

Also, I'm not sure on this, but hasn't a ballistics test been ruled to be circumstantial evidence? I.e, there's a "probability" that it's the same weapon, but it is not conclusive, and has to be considered as such in court?

What do you think his chances are of ever getting it back if it comes back with a circumstantial match against a weapon used in a crime?

The bit about decreasing it's value is a bit silly; I wouldn't even have mentioned that. It distracts from the real cause for concern in this case.

Also, note that the guy is not Joe Average - He's retired military and running for City Council. And regarding the untested firearm for carry - He's had it less than a month. Probably just hasn't had time to get it to the range. If it's his only firearm, I'd still carry it; an untested firearm is still better than none at all.

 

[AirForceShooter]

Why did he surrender it in the first place?

AFS

 

[stillaftermath]

He had to be taken to the hospital. The hospitals here in Cumberland County are Gun Free Zones, for one thing. He could not legally take his firearm with him. Even if they weren't, he'd have to surrender it to somebody sooner or later, for x-rays or MRI's or whatever he needed to have done, or leave it locked in the car at the mercy of any low-rent employee of the tow truck agency.

Logic indicates giving it to the police for safe-keeping is the best course of action in that situation, but that falls into the trap of thinking gun laws are logical in any way...

 

[scotthsi]

And regarding the untested firearm for carry - He's had it less than a month. Probably just hasn't had time to get it to the range. If it's his only firearm, I'd still carry it; an untested firearm is still better than none at all.

Um, this guy has a concealed carry permit, is a 70 year old retired Army Sergeant First Class and only owns ONE handgun he could possibly carry? Somehow I highly doubt that. And, size/weight wouldn't have been a "carry issue" since the article said he kept it in the car and not on his person.

And, I wouldn't be so quick to think your last sentence is correct, either, especially if he fumbled with it or it failed.

 

[stillaftermath]

Then maybe he bought it, it's NOT his primary weapon, and he just never bothered to take it out of the trunk?

Who knows. If I run into the guy, I'll ask.

In the meantime, it's thread derailment; the issue here is the search and seizure of property without even probable cause, much less a warrant.

 

[GojuBrian]

I hope he sues their pant off and mr. policeman "we've had hits doing this" has to find a new job.

It's ok to violate people rights who are trying to follow the law?? Pathetic!

 

[beatcop]

Ok, the guy hands his gun to the police and then complains when they follow a statute?

My speculation: The cop at the scene says, "sure, it will be at the PD" and books it in with the property officer....the end of his involvement. The property book officer follows the State statute and proceeds to send a bullet out to the crime lab.

This is a non-issue...he was not compelled to turn it over to LE. If he had gone to the hospital, the firearm would have been secured by their security dept along with his valuables. It's not like he would have been denied treatment or have been arrested because he was brought in in an ambulance.

 

[stillaftermath]

Again... all hospitals in Cumberland County are Gun Free Zones. It is illegal to carry a firearm onto the property. By taking it to hospital and "checking it with security" he would have committed a crime.

Also, this is not an NC Statute. It is Fayetteville PD police policy. Policy is not law. This particular policy is unconstitutional in both the state and the federal level.

 

[beatcop]

^ My state has the "statute" version of this, so if it's an internal policy I agree that you should be able to fight it.

If you are brought to a hospital in a "gravely disabled" condition (meaning that the PD would likely force you to go due to the extent of your injuries (yes, they can do that in my state), then the liklihood of being arrested is slim...just my .02.

 

[One-Time]

Why would anyone carry a gun for SD thats never been fired?

I can deal with his alleged collector value of a lower end gun, and other things mentioned, but this-

Boggs complained to police supervisors that his new gun has never been fired

-is just crazy, i would NEVER carry a gun, even an HK thats never been fired PERIOD

 

[Mello]

This article does seem to indicate that there are 4th Amendment issues of unreasonable search and seizure. There does not seem to be probable cause for the government action. I do not see how the police could have probable cause that a criminal act could have occurred in their coming into possession of the handgun. They have seized the property of the individual for evidentiary purposes by keeping it beyond the reasonable time to secure it from falling into the hands of someone who might have stolen it or caused harm.

"A seizure of property occurs when there is meaningful interference by the government with an individual's possessory interests, such as when police officers take personal property away from an owner to use as evidence." Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)

"The Supreme Court ruled that some searches and seizures may violate the reasonableness requirement under the Fourth Amendment, even if a warrant is supported by probable cause and is limited in scope." Warden v. Hayden, 387 U.S. 294 (1967)

 

[Warhawk83]

Serious infringement on rights, for junk science. The rifle that killed Martin Luther King was test fired 18 times. Not one bullet looked the same. The scary thing, we have people sitting in jail convicted based on this crap.

 

[beatcop]

^Nice try, you're on to something, but it was probably closer to a "community caretaker function". It wasn't seized (initially), but it is being "searched" in a manner when they take a ballistic sample.

 

[FHBrumb]

No reasonable or probable suspicion? No right to keep his firearm, nor test fire for comparison. They might as well also create a policy to drug screen him while they are at it.

Definately not a 4th Amendment Compliant Policy.

Just because a local Office has a policy, doesn't make it a law. Unless they can swear before a Judge, that there is reasonable or probable cause to believe that firearm has been used in a crime, then they should return it unfired. That's what the 4th requires, is it not?

A Similar incident happened to me in TN about 14 or 15 years ago. My pistol was returned to me the next day, as I walked into the Police Department and requested it. They were not, however, allowed to give me back the ammo inside. An Officer walked me to my car, and handed me the lose rounds out there. All present and accounted for.

 

[stillaftermath]

IANAL, IANALEO.

Community caretaker function would indeed be relevant, I think. I would say however that the seizure complaint would be valid, because in all case history I can find in NC, community caretaker is usually invoked when somebody argues that the police had no reason to be there to find the illegal items on their person or witness the illegal activity for which they were arrested.

I.e, cop sees a car at the side of the road, but not doing anything illegal, cop approaches car to see if the vehicle is disabled or in need of assistance, cop sees drugs on the passenger seat, cop arrests suspect. Suspect argues that there was no violation of law to initiate the stop, moves to have the evidence suppressed, etc.

This is a bit different, because it is an entirely legal item surrendered to the police in good faith for safe keeping. The man committed no crime, and yet his property is being withheld from him for an indefinite amount of time, and at least in his eyes, is being damaged in the interim.

Also, in community caretaker cases I can find, no search was conducted until there was probable cause. There's no justification of probably cause in this.

Again. IANAL, IANALEO.

 

[scotthsi]

i would NEVER carry a gun, even an HK thats never been fired PERIOD

I sure as hell wouldn't either but, apparently, stillaftermath thinks it's okay.

 

[Coyote3855]

Never mind.

 

[beatcop]

This could be an interesting case if it plays out just right....

-there is no initial "seizure" (and thereby no 4th ammend. issues) if the item was voluntarily handed over to LE. The "voluntariness" could come into question if the owner was compelled in some manner to hand it over, but then again there was no arrest involved, so I'm not sure if that's a factor.

-the degree to which it may be examined is kind of interesting, but if LE came into possession of it lawfully....?

I'm not a case law expert, but I would imagine that the firearm must be returned upon demand (barring any statutes saying otherwise).

It's my guess that by turning the voluntary surrender into a seizure (saying we won't give it back until it's tested) a warrant for a forensic examination would be needed. If the PD conducted the exam prior to the owner demanding the return of the pistol, it could go the other way.

 

[Old Fuff]

One Time:

...i would NEVER carry a gun, even an HK thats never been fired PERIOD

But that's you.

Many people buy a gun, load it, and then carry it. This used to be more common years ago when quality-brand pistols did actually work, out-of-the-box. More so with revolvers.

Nowhere is it written that because you (or for that matter, I) would do something a certain way, others have too do the same.

A police department's policy doesn't give them the right to do something unless the "something" is backed by a statute. In this instance the police had absolutely no evidence or reason to believe the pistol was involved in a crime, and if a lawsuit should come along it won't be hard for the gun owner to show that firing his previously unfired gun did reduce its value.

But that isn't the core issue. What is, is the department policy that demands that any handgun (maybe any firearm) that comes into their possession for any reason must be test fired for a ballistics test, regardless of circumstances.

What happens if they pick up a 19th century/black powder antique?

 

[pbearperry]

Well,at least they didn't impound his car to go over it with a fine toothed comb to see if it was ever involved in a hit and run?Maybe they should demand a blood sample from the hospital to see if the guy was ever wanted for murder or if he was a rapist?I usually defend cops because of my background,but the Chief of this Dept. should be set straight by a law suit.Some Chiefs are becoming control freaks.

 

[stillaftermath]

I sure as hell wouldn't either but, apparently, stillaftermath thinks it's okay.

This isn't what this thread is about, and that's not what I said. The potential circumstances around it were already discussed.

If you're just here to snipe, there's plenty of other threads you can do it in.