D.Ariz.: Checking gun SN during frisk was unreasonable

By John Wesley Hall
Law Offices of John Wesley Hall

Jun 11, 2017

While an officer can take a gun during a frisk, the officer can’t run the serial numbers [compare New York v. Class on VINs] as a part of a frisk. United States v. Shipley, 2017 U.S. Dist. LEXIS 83985 (D. Ariz. March 3, 2017), adopted, 2017 U.S. Dist. LEXIS 83194 (D. Ariz. May 30, 2017):

However, concern for officer safety did not support Officer Rosado’s examination of the serial numbers and having the status or the weapons checked through dispatch. When a search is conducted under an exception to the warrant requirement, it must be “strictly circumscribed by the exigencies which justify its initiation.'” Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987) (quoting Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978) (citation omitted)). But see United States v. Mines, 883 F.2d 801, 804 (9th Cir. 1989) (officers permitted to inspect weapon’s serial number where defendant had consented to the search). Here, Officer Rosado testified that she had no information suggesting that the weapons were stolen or were used in another crime, but after being pressed admitted that the weapons were checked for those reasons. TR1:24-25. An investigatory search of this nature requires at least reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). With reasonable suspicion, an officer may “try to obtain information confirming or dispelling the officer’s suspicions.” Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Here, Officer Rosado admitted she had no suspicions about related to the weapons and was not entitled to go beyond securing the weapons for safety reasons. Cf. United States v. Clay, No. 2:06-CR-00056, 2006 U.S. Dist. LEXIS 101562, 2007 WL 37949, at * 7 (D. Nev. Jan. 3, 2007) (serial number of weapons seized to ensure officer safety could be examined because “the gun registration and serial numbers was reasonably related to the circumstances justifying the stop”). Accordingly, the Court finds that any investigation beyond briefly seizing the weapons for safety reasons violated the Fourth Amendment.

In reaching this conclusion, the Court rejects the Government’s contention that the review of the weapons’ serial numbers is much like the examination of a vehicle’s vehicle identification number (“VIN”). … New York v. Class,]