NM Supreme Court rules cops can take away guns during routine traffic stops

[Little-Acorn]

This bunch seems to have ruled that "officer safety" overrules the U.S. Constitution.

Did anyone remind them, that the primary purpose of the 2nd amendment, was to deliberately DECREASE "officer safety", to make government officials worry about law-abiding citizens legally carrying guns?

I know, the guy in question turned out to be a felon who could not legally carry a gun. But the cops didn't know that when they took away the gun - the guy was completely cooperative and non-threatening, and the cops thought they were taking the gun from a law-abiding citizen with zero probable cause.

BTW, did the cops take the car keys away from the driver during the stop, too? More cops get killed by cars, than by guns.

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http://www.thetruthaboutcars.com/2011/05/new-mexico-supreme-court-lets-cops-grab-guns-during-stops/

New Mexico Supreme Court Lets Cops Grab Guns During Stops

By The Newspaper on May 31, 2011

Police officers in New Mexico can take guns away from drivers who pose no threat. The state supreme court ruled on May 20 that “officer safety” is more important than any constitutional rights a gun-owning motorist might have. The ruling was handed down in deciding the fate of Gregory Ketelson who was a passenger in a vehicle pulled over on November 13, 2008.

During the stop, Hobbs Police Officer Miroslava Bleau saw a 9mm handgun on the back seat floorboard. Ketelson and the driver of the car were ordered out and away from the car while Officer Shane Blevins grabbed the gun. The officers later learned that Ketelson, as a convicted felon, could not legally possess a firearm. The court, however, only considered whether the officers acted properly in taking the gun before they had any reason to suspect Ketelson, who was entirely cooperative during the encounter, of committing a crime.

Ketelson and the National Rifle Association argued that even a brief seizure of a firearm without cause violates fundamental, constitutionally protected rights. Ketelson also argued the gun could not have been taken without a search warrant, consent or exigent circumstances. A district court and the court of appeals agreed with this reasoning. State prosecutors countered that anyone with a gun ought to be considered “armed and dangerous” and thus the gun could be seized at any time. The high court agreed with this line of reasoning.

“Neither the defendant nor the driver was restrained, and thus the risk that one of them would access the firearm was especially potent,” Justice Petra Jimenez Maes wrote for the court. “Under such circumstances, Officer Blevins could constitutionally remove the firearm from the vehicle because he possessed a reasonable belief based on specific and articulable facts which warranted him in believing that defendant was armed and thus posed a serious and present danger to his safety.”

Because a gun would only taken for the duration of the traffic stop, the court decided such seizures were reasonable.

“The retrieval of the gun from the vehicle during the limited context of the traffic stop was at most a minimal interference with the suspect’s possessory interest,” Maes wrote. “Our decision in this case, which addresses a temporary separation of a firearm from the occupants of a car during the duration of a traffic stop, does not depend on any requirement of particularized suspicion that an occupant is inclined to use the firearm improperly.”

The decision overturned statements made in a previous ruling, New Mexico v. Garcia.

“It would be anomalous to treat the mere presence of a firearm in an automobile as supporting a reasonable suspicion that the occupants are inclined to harm an officer in the course of a routine traffic stop,” the court held in 2005.

A copy of the decision is available in a 140k PDF file at the source link below.

Source: New Mexico v. Ketelson (Supreme Court of New Mexico, 5/20/2011):
http://www.thenewspaper.com/rlc/docs/2011/nm-gungrab.pdf

[fj1200]

Seems reasonable, cops have no idea what could happen at the next stop they make and to see a 9mm sitting on the floorboard expectedly raises concerns.

[Little-Acorn]

Seems reasonable, cops have no idea what could happen at the next stop they make and to see a 9mm sitting on the floorboard expectedly raises concerns.

Of course it raises concerns.

Just one little problem: The Constitution forbids them from taking that gun away.

Aside from that, they have perfect authority to take it. :poke:

Remember:
1.)The people in the car were completely cooperative and non-threatening.
2.) The cops had already asked both of them to step out of the car, and both did, peaceably. At that point there was no POSSIBLE danger to the cops from the pistol on the floorboards of the back seat. So, taking the gun at that point did not increase "officer safety" in the slightest.

And, by the way, the Constitution still said that they were forbidden to take the gun away.

I believe that all the above points, were given insufficient consideration by both the cops on the scene, and by the Court later on. And that both the cops and the court were badly mistaken in their conclusions.

Tell me where I'm wrong....??

[fj1200]

Of course it raises concerns.

Just one little problem: The Constitution forbids them from taking that gun away.

Aside from that, they have perfect authority to take it. :poke:

Which part? Search and seizure? It was in plain view, they have no expectation of privacy.


Remember:
1.)The people in the car were completely cooperative and non-threatening.
2.) The cops had already asked both of them to step out of the car, and both did, peaceably. At that point there was no POSSIBLE danger to the cops from the pistol on the floorboards of the back seat. So, taking the gun at that point did not increase "officer safety" in the slightest.

1.) He was a convicted felon with a gun in plain sight? Hardly the choir boy you'd like to build your case around.
2.) The gun was "grabbed" and "seized" and then returned after the traffic stop? Hardly unreasonable.


And, by the way, the Constitution still said that they were forbidden to take the gun away.

I believe that all the above points, were given insufficient consideration by both the cops on the scene, and by the Court later on. And that both the cops and the court were badly mistaken in their conclusions.

Tell me where I'm wrong....??

So you believe, the NM SC believes otherwise.

[DragonStryk72]

Which part? Search and seizure? It was in plain view, they have no expectation of privacy.



1.) He was a convicted felon with a gun in plain sight? Hardly the choir boy you'd like to build your case around.

But again, the cops were unaware of this fact. Both men cooperated, hardly the attitude of someone who wishes harm against the police.

2.) The gun was "grabbed" and "seized" and then returned after the traffic stop? Hardly unreasonable.

The police being able to take guns away from even the law-abiding citizens doesn't at all strike you as being against the the 2nd Amendment right to Keep and Bear Arms? This also represents unreasonable seizure, same as if I came to your house about a noise complaint and seized all your guns and kitchen knives on the theory of what you "might" do.
;

[Kathianne]

;

Does New Mexico have a registered handgun law? If so, was the handgun registered? I feel as if something is missing here.

As things currently stand i think the police and state Supreme Court were wrong, but we're looking at a case where the gun owner shouldn't have been allowed to be.

[Little-Acorn]

Which part? Search and seizure? It was in plain view, they have no expectation of privacy.
No one's talking about privacy. The police took a gun away from someone who legally (they thought) owned it and was doing nothing illegal or even particularly scary with it. The ONLY reason they took it away, was because he had one.

And if the 2A wasn't written to prevent such things, then what WAS it written for?




1.) He was a convicted felon with a gun in plain sight?
No, he was a completely innocent man with no convictions of any kind... or so the cops thought when they were taking the gun away. They had ZERO probable cause for taking the gun. It wasn't until later that the cops found he was a convicted felon... so that had no bearing on their act of taking the gun. I know, the (later discovered) felony conviction will make a nice strawman argument to divert the subject... but in fact the cops were taking a gun from someone they believed was totally innocent of any wrongdoing or threat.


2.) The gun was "grabbed" and "seized" and then returned after the traffic stop? Hardly unreasonable.
Unreasonable, no. Unconstitutional, absolutely yes.

Which one is more important to you?

[Kathianne]

I'm confused. Is New Mexico without gun registration laws? If so, didn't the police run the gun?

Very confusing as the 'owner' shouldn't have a gun.

[Gaffer]

If a stop is made and a gun is found the officers will take it. For every ones safety. That's standard procedure any where. They would then run checks on the individuals and determine the owner and registration of the gun. With our modern communication systems it's easy to check if someone has a criminal record. The officers can access RCIC and NCIC directly from their cars now days.

As Kathi said we could use more information on the stop. Why were they stopped why were they checked out? What gun laws does NM have?

[Little-Acorn]

If a stop is made and a gun is found the officers will take it. For every ones safety. That's standard procedure any where.

Standard, probably.

Unconstitutional, absolutely.

As I have pointed out, the cops thought the occupants of the car were completely innocent (aside from expired tags), and had asked them to step outside the car, thus separating them from the gun they saw. No confiscation of the gun was needed. But the cops took it anyway... without probable cause, and without improving "officer safety" in the slightest.

They took the gun for no other reason than "he had one".

If the 2nd amendment wasn't written to prevent such a taking, then what WAS it written for?

[Kathianne]

Standard, probably.

Unconstitutional, absolutely.

As I have pointed out, the cops thought the occupants of the car were completely innocent (aside from expired tags), and had asked them to step outside the car, thus separating them from the gun they saw. No confiscation of the gun was needed. But the cops took it anyway... without probable cause, and without improving "officer safety" in the slightest.

They took the gun for no other reason than "he had one".

If the 2nd amendment wasn't written to prevent such a taking, then what WAS it written for?

Not if one can't produce registration, if required.

[Gaffer]

Standard, probably.

Unconstitutional, absolutely.

As I have pointed out, the cops thought the occupants of the car were completely innocent (aside from expired tags), and had asked them to step outside the car, thus separating them from the gun they saw. No confiscation of the gun was needed. But the cops took it anyway... without probable cause, and without improving "officer safety" in the slightest.

They took the gun for no other reason than "he had one".

If the 2nd amendment wasn't written to prevent such a taking, then what WAS it written for?

I can only speak from my own experience and Ohio laws. Making a stop for expired tags is a ticket stop. Seeing a gun on the floor board warrants further investigation. You have no idea what their intent was concerning the gun. It seems to have been tossed back there when the stop was made. They take the gun and then begin checking on the two men. Was the gun loaded at the time? If the men checked out to be okay then the gun would be given back. Being smiling and cooperative can also be a ploy to appear disarming and get the cops to relax their guard.

I'm not sure the seizure was unconstitutional based on what I've read so far and from my own experience and training.

You do find some interesting articles. Always make me reach back in my memory with these things. Laws change and tactics change and its been 20 years, but I try to give some of the logical reasons for cops to do what they do. As for the courts, I don't have a high opinion of courts.

[hjmick]

New Mexico: Open carry state. Your car is considered an extension of your home, it is therefore legal to have a gun in your car, concealed or otherwise. To the best of my knowledge, there is no waiting period to purchase a gun of any kind and no registration requirements.


Oh, and some suppresors are legal, as are most assault rifles provide they are not fully automatic.

I almost purchased a 50 cal. rifle, but I could figure out what I would do with it except keep the revenuers away...

[fj1200]

But again, the cops were unaware of this fact. Both men cooperated, hardly the attitude of someone who wishes harm against the police.

Gaffer can speak to what cops expect but those go out the window when a gun is spotted I would think. They're allowed to secure the gun, finish the business of the stop, and return the gun.


The police being able to take guns away from even the law-abiding citizens doesn't at all strike you as being against the the 2nd Amendment right to Keep and Bear Arms? This also represents unreasonable seizure, same as if I came to your house about a noise complaint and seized all your guns and kitchen knives on the theory of what you "might" do.

I don't think it's a 2nd Amendment issue so much as search and seizure, it's not that you can't have the gun but it will be secured during a traffic stop where you have just committed an offense. S&S? You have no expectation of privacy when you leave your gun in plain view, would lead to probable cause IMO. What if the stop had been more serious than just tags? Besides many hard core criminals have probably been stopped on lesser charges.

[fj1200]

No one's talking about privacy. The police took a gun away from someone who legally (they thought) owned it and was doing nothing illegal or even particularly scary with it. The ONLY reason they took it away, was because he had one.

And if the 2A wasn't written to prevent such things, then what WAS it written for?

Expectation of privacy (http://en.wikipedia.org/wiki/Expectation_of_privacy) goes to search and seizure which is more relevant to me. No one is disputing the right to keep and bear arms.


No, he was a completely innocent man with no convictions of any kind... or so the cops thought when they were taking the gun away. They had ZERO probable cause for taking the gun. It wasn't until later that the cops found he was a convicted felon... so that had no bearing on their act of taking the gun. I know, the (later discovered) felony conviction will make a nice strawman argument to divert the subject... but in fact the cops were taking a gun from someone they believed was totally innocent of any wrongdoing or threat.

A gun in plain sight would be probable cause to me. Gaffer?

And yet this "completely innocent man" was found to be in violation and in possession of the gun illegally, criminals have been arrested under just as benign circumstances.


Unreasonable, no. Unconstitutional, absolutely yes.

Which one is more important to you?

Your opinion not shared.


Standard, probably.

Unconstitutional, absolutely.

Unconstitutional standard procedures don't stay around very long. I'd say this one has probably been upheld prior.


As I have pointed out, the cops thought the occupants of the car were completely innocent (aside from expired tags), and had asked them to step outside the car, thus separating them from the gun they saw. No confiscation of the gun was needed. But the cops took it anyway... without probable cause, and without improving "officer safety" in the slightest.

They took the gun for no other reason than "he had one".

If the 2nd amendment wasn't written to prevent such a taking, then what WAS it written for?

I don't think the "police state" argument flies here. This is not the long arm keepin' a brother down especially as they would return the gun after the stop.

[Gaffer]

The gun in plain sight is definitely reason for more questioning and confiscation of the gun. I agree with fj, this is a search and seizure issue and it falls well within the parameters of being legal.

[DragonStryk72]

The gun in plain sight is definitely reason for more questioning and confiscation of the gun. I agree with fj, this is a search and seizure issue and it falls well within the parameters of being legal.

So, to get this straight, carrying a legal gun legally obtained, in the open where it can be clearly seen, even if it is the hand of anyone, is now cause for seizure, even when the owner is clearly not a threat of any kind and cooperating openly? At what point do we follow the 2nd and 4th amendments?

[Gaffer]

So, to get this straight, carrying a legal gun legally obtained, in the open where it can be clearly seen, even if it is the hand of anyone, is now cause for seizure, even when the owner is clearly not a threat of any kind and cooperating openly? At what point do we follow the 2nd and 4th amendments?

I don't know about NM laws concerning all this. But if he was a convicted felon not allowed to own or carry a fire arm, then it was not legally obtained.

If I stopped you and saw a gun in the back seat I would have you get out. Take the gun and then hold you for questioning to check out the legal ownership and be sure you really are not a threat.

Circumstances are important here. If your wearing the gun in a holster on your hip or concealed under a shirt or coat can make a difference in the response. Just cause it was on the floor of the car doesn't mean they weren't attempting to conceal it. It may have been under the seat and slide out. It was seen in the car and therefore a search of the car was necessary. It is a search and seizure issue, not a 2nd Amendment issue. And the reasonable cause was that it was in plain sight. If the court ruled as it did based on the 2nd Amendment it was wrong as this is clearly a 4th Amendment case. The judge needs to go back to school. I personally think 80% of judges have no business on the bench.

[DragonStryk72]

I don't know about NM laws concerning all this. But if he was a convicted felon not allowed to own or carry a fire arm, then it was not legally obtained.

If I stopped you and saw a gun in the back seat I would have you get out. Take the gun and then hold you for questioning to check out the legal ownership and be sure you really are not a threat.

Circumstances are important here. If your wearing the gun in a holster on your hip or concealed under a shirt or coat can make a difference in the response. Just cause it was on the floor of the car doesn't mean they weren't attempting to conceal it. It may have been under the seat and slide out. It was seen in the car and therefore a search of the car was necessary. It is a search and seizure issue, not a 2nd Amendment issue. And the reasonable cause was that it was in plain sight. If the court ruled as it did based on the 2nd Amendment it was wrong as this is clearly a 4th Amendment case. The judge needs to go back to school. I personally think 80% of judges have no business on the bench.

Like the article said in the OP, the cops had no idea he was a felon when they took the gun. it was a routine traffic stop, and the gun doesn't have to be showing.

Actually, in sight or not, they can take it, because you are required by law to inform the police if there are any firearms in your vehicle or on your person. They can take them too. It isn't even a matter of concealment, if you are on your way home from deer hunting, and you accidentally speed a bit too much, they can take all of your rifle off of the gun rack of your truck simply because they're there.

[fj1200]

It is a search and seizure issue, not a 2nd Amendment issue. And the reasonable cause was that it was in plain sight. If the court ruled as it did based on the 2nd Amendment it was wrong as this is clearly a 4th Amendment case. The judge needs to go back to school. I personally think 80% of judges have no business on the bench.

I reread the article and it doesn't sound like their line of reasoning was 2A, mostly 4A.


Like the article said in the OP, the cops had no idea he was a felon when they took the gun. it was a routine traffic stop, and the gun doesn't have to be showing.

That's the point, "the cops have no idea..." They don't know who they're stopping or what's going to happen, if they can temporarily secure the situation and then return all property at the end.


... they can take all of your rifle off of the gun rack of your truck simply because they're there.

And then give it back when you're on your way.

[Little-Acorn]

[QUOTE=fj1200;471889 This is not the long arm keepin' a brother down especially as they would return the gun after the stop.[/QUOTE]

Ah, yes. How silly of me. After all, the 2nd amendment says that "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed, unless a state or local policemen decides to take someone's gun away for a little while anyway".

And then there's that part that says "The Constitution shall be the supreme law of the land unless state or local officials decide to make a supremer one".

How could I forget? The NM cops had perfect authority to do what they did, since it's "Standard policy" and they thought they would be safer. As my quotes above show, they didn't violate the 2nd amendment at all.

Mea culpa. :poke:

[fj1200]

Ah, yes. How silly of me. After all, the 2nd amendment says that "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed, unless a state or local policemen decides to take someone's gun away for a little while anyway".

And then there's that part that says "The Constitution shall be the supreme law of the land unless state or local officials decide to make a supremer one".

How could I forget? The NM cops had perfect authority to do what they did, since it's "Standard policy" and they thought they would be safer. As my quotes above show, they didn't violate the 2nd amendment at all.

Mea culpa. :poke:

Perhaps you should reread where I repeatedly stated I thought it was a Search and Seizure issue and not the Second. You seem to keep ignoring that aspect which would be convenient as you've stumbled upon the inherent inconsistency in the Constitutuion where the 4th conflicts with the 2nd. "Sorry officer you can't search and seize my gun because my cold dead hands..." :rolleyes:

[Little-Acorn]

Perhaps you should reread where I repeatedly stated I thought it was a Search and Seizure issue and not the Second.

I appreciate your desire to convince people that government agents (cops) taking a gun away from an apparently innocent, non-threatening, fully cooperating citizen is not a 2nd amendment issue. That's like saying that robbing a bank is not a theft or property-rights issue. Hoping you can convince people it's not a 2A issue, undoubtedly comes from your conviction that you would get your clock cleaned in any argument where anyone pointed out the obvious truth: That seizing this gun, even for a moment, flagrantly violates the most basic intent and word of the 2A.

In fact, this falls so squarely into the 2nd amendment camp it's breathtaking. The only thing more surprising, is that anyone can think for even two seconds that it's not. Sure, the question of whether it falls under unwarranted-search-and-seizure is also relevant. But that doesn't change the most obvious and undeniable truth of its violation of the 2nd amendment.

As I have pointed out, the cops thought the occupants of the car were completely innocent (aside from expired tags), and had asked them to step outside the car, thus separating them from the gun they saw. No confiscation of the gun was needed. But the cops took it anyway... without probable cause, and without improving "officer safety" in the slightest.

They took the gun for no other reason than "he had one".

If the 2nd amendment wasn't written to prevent such a taking, then what WAS it written for?

[fj1200]

If the 2nd amendment wasn't written to prevent such a taking, then what WAS it written for?

That sure is a lot that you need to tell yourself but I think we covered each of those already.

But to your question I guess we can go with these (http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution ):


In no particular order, early American settlers viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes:

deterring undemocratic government;
repelling invasion;
suppressing insurrection;
facilitating a natural right of self-defense;
participating in law enforcement;
enabling the people to organize a militia system.


I'm not sure keeping your gun handy during a traffic stop fits in there.