New Mexico Supreme Court: warrantless seizure of gun OK

Paslode · 05-24-2011, 20:31

Quote:

Supreme Court: warrantless seizure of gun OK

The New Mexico Supreme Court has ruled that police can seize visible guns from vehicles without a warrant.

The ruling overturned district and appeals court decisions that said police had overstepped their authority in searching a vehicle after a lawful traffic stop.

At issue was a 2008 case in Hobbs. Police saw a handgun in the vehicle and then searched it.

They ran a background check and found that a passenger, Gregory Ketelson, had a prior felony conviction. Officers arrested him for being in unlawful possession of a gun.

Ketelson's lawyers argued that an officer does not have authority to enter a car and seize an object absent a search warrant consent or emergency circumstances.

In overturning the lower courts, the Supreme Court said the key issue was whether a police officer could remove a visible weapon from a vehicle to keep it away from those who had just been pulled over.

The court unanimously said: "... We are mindful of the grave need for officer safety in the midst of
the dangers and uncertainties that are always inherent in traffic stops. ... It was constitutionally reasonable for the officer to remove the firearm from the vehicle. Therefore, the evidence should not have been suppressed."

http://elpasotimes.typepad.com/newme...of-gun-ok.html

Quote:

NM Court: Traffic Cops Can Seize Guns Even if No Law Has Been Broken
Legal, Politics & 2nd Amendment - 05.24.2011
Story by: Jesse Woods
Past Articles (20)
Follow

The New Mexico Supreme Court ruled unanimously this week that police may legally confiscate a gun from a motor vehicle during a traffic stop, even if they have no reasonable suspicion that the motorists pose a threat. The Supreme Court justices asserted that police officers are justified in removing a firearm resting in plain sight inside of a vehicle, so long as the act of doing so protects the safety of the officers involved. If the seizure is conduction as such, said the justices, it does not represent a violation of the Fourth Amendment, which protects individuals against unreasonable search and seizure.

The case in question involved a 2008 traffic stop in which police spotted a handgun resting on the rear floor of a vehicle that was stopped for expired license plates. Officers promptly confiscated the gun and arrested a passenger, Gregory Ketelson, after determining not only that he was the owner of the firearm, but also a convicted felon in the neighboring state of Texas.

In writing the Court’s opinion, Justice Petra Jimenez penned, “We conclude that removing [the] defendant's firearm from the vehicle in order to ensure that it was beyond the reach of any of the occupants of the stop was a reasonable and minimal intrusion, which does not outweigh legitimate concerns of officer safety.”

The decision was hailed as a victory for police safety by some, and scorned by others as a blatant shirking of both the Second and Fourth Amendments.

New Mexico Attorney General Gary King praised the ruling, saying, “We are pleased that the safety of police officers was held as being the most important issue in this case. As the justices pointed out, our police officers face danger and uncertainly in almost every traffic stop.”

Critics of the decision are left to wonder if the “danger and uncertainty” posed during “almost every traffic stop” are an excuse to temporarily ignore the rights guaranteed by the Second Amendment. This sentiment was echoed by documents filed in the case by the NRA, which stated, “Even a short-termed violation of the statutory right to possess a firearm — if effectuated solely because a motorist is exercising his right to carry while traveling — contravenes the express language of the law. For this reason alone, the per se seizure of a lawful firearm in a vehicle is intolerable.”

The Supreme Court also clarified that their ruling did “not depend on any requirement of particularized suspicion that an occupant is inclined to use the firearm improperly.” In other words, suspicion on the part of police officers is apparently not a prerequisite for seizure of a visible firearm during a traffic stop.

Previously, both District and Appellate Courts ruled that there was no basis for police to seize the defendant’s gun.

http://www.guns.com/nm-court-traffic...en-broken.html

Hand · 05-25-2011, 04:56

The article doesn't say whose gun it was. I believe that there is a stipulation with some types of felonies that you cannot own a firearm, nor can you be within reach of one that is not specifically in the 'possession' of someone you are in the presence of. Given that an occupant of the vehicle (passenger) was a felon, I don't blame the officer a bit. If the weapon actually was legally registered to another occupant and the weapon was not returned after the stop, then I would be of a different mind.

**Pete** · 05-25-2011, 05:16

Quote:

Originally Posted by Hand

The article doesn't say whose gun it was. I believe that there is a stipulation with some types of felonies that you cannot own a firearm, nor can you be within reach of one that is not specifically in the 'possession' of someone you are in the presence of. Given that an occupant of the vehicle (passenger) was a felon, I don't blame the officer a bit. If the weapon actually was legally registered to another occupant and the weapon was not returned after the stop, then I would be of a different mind.

"..................They ran a background check and found that a passenger, Gregory Ketelson, had a prior felony conviction. Officers arrested him for being in unlawful possession of a gun..................."

Once again a ruling that appears reasonable - at the time and for that incident.

But once again a ruling that appears to expand police powers beyond the intent.

Now to change the subject - Correct me if I'm wrong but all you folks packin' after the Tornado's hit NC were breaking the law. I do think Bev declared a state of emergency. And that goes for folks transporting weapons from their storm damaged house to a friends home.

Well, maybe you were safe that time. Bev was missing and so was the Lt Gov.

"...14‑288.7. Transporting dangerous weapon or substance during emergency; possessing off premises; exceptions.

(a) Except as otherwise provided in this section, it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area:

(1) In which a declared state of emergency exists; or

(2) Within the immediate vicinity of which a riot is occurring.

(b) This section does not apply to persons exempted from the provisions of G.S. 14‑269 with respect to any activities lawfully engaged in while carrying out their duties.

(c) Any person who violates any provision of this section is guilty of a Class 1 misdemeanor. (1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c).)..............."

As a mater of fact the whole 14-288 is worth a quick glance through...

http://law.onecle.com/north-carolina.../14-288.1.html

rdret1 · 05-25-2011, 06:57

Quote:

Originally Posted by Pete

"..................They ran a background check and found that a passenger, Gregory Ketelson, had a prior felony conviction. Officers arrested him for being in unlawful possession of a gun..................."

Once again a ruling that appears reasonable - at the time and for that incident.

But once again a ruling that appears to expand police powers beyond the intent.

Now to change the subject - Correct me if I'm wrong but all you folks packin' after the Tornado's hit NC were breaking the law. I do think Bev declared a state of emergency. And that goes for folks transporting weapons from their storm damaged house to a friends home.

Well, maybe you were safe that time. Bev was missing and so was the Lt Gov.

"...14‑288.7. Transporting dangerous weapon or substance during emergency; possessing off premises; exceptions.

(a) Except as otherwise provided in this section, it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area:

(1) In which a declared state of emergency exists; or

(2) Within the immediate vicinity of which a riot is occurring.

(b) This section does not apply to persons exempted from the provisions of G.S. 14‑269 with respect to any activities lawfully engaged in while carrying out their duties.

(c) Any person who violates any provision of this section is guilty of a Class 1 misdemeanor. (1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c).)..............."

As a mater of fact the whole 14-288 is worth a quick glance through...

http://law.onecle.com/north-carolina.../14-288.1.html

Section 7 of her State of Emergency order stated that the order did not trigger the weapons provision.

http://www.governor.nc.gov/NewsItems...ewsItemid=1807

**Pete** · 05-25-2011, 07:01

Quote:

Originally Posted by rdret1

Section 7 of her State of Emergency order stated that the order did not trigger the weapons provision.

http://www.governor.nc.gov/NewsItems...ewsItemid=1807

Did 100% of the cops in NC know that at the time?

Was section 7 stressed in the news reports that said a State of Emergency existed?

Did all the citizens of NC know section 7 existed when the press covered the State of Emergency.

Could a citizen with a weapon have known and a cop not? Just think of that encounter.

rdret1 · 05-25-2011, 07:09

Quote:

Originally Posted by Pete

Did 100% of the cops in NC know that at the time?

Was section 7 stressed in the news reports that said a State of Emergency existed?

Did all the citizens of NC know section 7 existed when the press covered the State of Emergency.

Could a citizen with a weapon have known and a cop not? Just think of that encounter.

That is one of those "what if" scenarios that you could argue all day and never reach a conclusion.

Richard · 05-25-2011, 07:09

Seems to me that most of this kinda stuff boils down to the many vaguaries of the individual situation as it unfolds, common sense, and the luck of the draw as to the amount of common sense held by all those involved.

Richard

**Pete** · 05-25-2011, 07:27

Quote:

Originally Posted by rdret1

That is one of those "what if" scenarios that you could argue all day and never reach a conclusion.

No "what if".

I asked if 100% of the cops knew about section 7. Were 100% of the cops in NC instructed that section 7 existed and civilians with weapons (legal) were not to be harrassed?

I asked - based on the news reporting - if the citizens of NC knew about sec 7. I was watching the news and I don't recall section 7 being mentioned. Didn't hear it mentioned on the car radio Sunday either. So I would say most didn't.

So the "what if" part was could a civilian who knew about sec 7 run into a cop who didn't? I can picture that encounter in my mind. Gun packing Civilian following the law runs into Cop who does not know the law. Don't we have thread about that somewhere around here?

So back to the original question. When NC LEOs were notified that a State of Emergency existed in NC were they informed of section 7? I'm not an LEO so I don't know. Do you?

Richard · 05-25-2011, 07:33

Quote:

Originally Posted by Pete

When NC LEOs were notified that a State of Emergency existed in NC were they informed of section 7?

Sheriff Andy Taylor knew...but I'm not sure whether Deputy Fife got the word or not.

Richard

rdret1 · 05-25-2011, 07:57

Quote:

Originally Posted by Pete

No "what if".

I asked if 100% of the cops knew about section 7. Were 100% of the cops in NC instructed that section 7 existed and civilians with weapons (legal) were not to be harrassed?

I asked - based on the news reporting - if the citizens of NC knew about sec 7. I was watching the news and I don't recall section 7 being mentioned. Didn't hear it mentioned on the car radio Sunday either. So I would say most didn't.

So the "what if" part was could a civilian who knew about sec 7 run into a cop who didn't? I can picture that encounter in my mind. Gun packing Civilian following the law runs into Cop who does not know the law. Don't we have thread about that somewhere around here?

So back to the original question. When NC LEOs were notified that a State of Emergency existed in NC were they informed of section 7? I'm not an LEO so I don't know. Do you?

Actually, taking weapons from citizens due to a declared state of emergency was probably never even discussed in roll calls across the affected areas. I know it wasn't in the Wilson area. That was not on the priority list of issues that had to be dealt with.

**Pete** · 05-25-2011, 09:23

Quote:

Originally Posted by rdret1

Actually, taking weapons from citizens due to a declared state of emergency was probably never even discussed in roll calls across the affected areas. I know it wasn't in the Wilson area. That was not on the priority list of issues that had to be dealt with.

In other words "NO" they were not.

So Deputy Fife driving down the road during the State of Emergency spots a weapon in a car and ................. enforces the law.

**The Reaper** · 05-25-2011, 09:50

I think this NC emergency issue is with the law, not with the LEOs.

TR

**Pete** · 05-25-2011, 10:01

Quote:

Originally Posted by The Reaper

I think this NC emergency issue is with the law, not with the LEOs.

TR

I have no problem with LEOs enforcing the Law. As long as everybody knows what Law is in effect at that moment in time.

When did you find out about "Section 7"? It was today for me.

mark46th · 05-25-2011, 10:11

If a cop sees a gun in a car with a convicted felon, the gun is going to get confiscated and the ex-convict is going to jail. If the cop doesn't take the gun, then that gun is used in a crime, the cop will have some 'splainin to do...

rdret1 · 05-25-2011, 10:21

Quote:

Originally Posted by Pete

I have no problem with LEOs enforcing the Law. As long as everybody knows what Law is in effect at that moment in time.

When did you find out about "Section 7"? It was today for me.

For me as well, when you mentioned the state of emergency. It is a moot point anyway as no seizures of firearms were made. The original point of this thread however was the seizure of a weapon from a convicted felon, which by reading the article, was warranted and legal.