Q&A ONLY - Two Compliant Rifles Seized from one of our Members by Lancaster Police
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    Default Q&A ONLY - Two Compliant Rifles Seized from one of our Members by Lancaster Police

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    Well everyone, it has apparently already begun. One of our members and a friend had two rifles seized by the Lancaster PD on April 16. Here are the circumstances. They were shooting on private land with permission. A nearby resident who happened to be a retired police chief called the police and reported that there was shooting very close to his house and he found a round in his yard. He did not see the round fired or land but claimed it came from the quarry where these individuals were shooting. There were three guys total.

    When the police showed up they accused the three of firing the round into the chief's property. They all denied it. They had a large backstop and the distance was far. The bullet drop would have been at least 9 feet (distance of over 170 feet) and there is no way it hit the property. However even if it did, it would have been inadvertent and shooting regularly occurs on this property. The police demanded to know if they had permission to shoot there, they all said yes they had oral permission. The police then lied and stated that they are guilty of trespassing if the permission is not in writing. That is completely false. Our member then invoked his right to speak with an attorney, and the officer copped an attitude saying something to the effect so you think you are a smart guy and immediately cuffed him. All three were taken to the station. The rifles were locked in the trunk before the police arrived so they did not see them. They impounded the car. Our member was released, as was one of his friends. The individual firing the 9mm rounds that they claimed was the one that hit the property was charged with reckless endangerment. The police chief produced a pristine 9mm bullet and our member saw it and believes it was pulled from a case and never fired. Although they were released, the car was held until today.

    When our member went to retrieve his car, both rifles that were locked in the trunk were gone, as was their cases. They were not give a receipt or any notice of seizure. Neither has been charged at this time. The configuration of the rifles is as follows: our member's rifle was an AR-15 chambered in 5.56 with the ARMR2 device attached, it had features. The other rifle was a Beretta CX4 Storm chambered in 9mm. It was featureless. Neither was registered. Clearly the Beretta would not have to be registered under any scenario, it was featureless. Therefore the seizure of both is puzzling at this time. There are several possibilities: 1) they claim the rifles were non-complaint and were seized as being in violation of the Safe Act. However there was no discussion about whether the owners reasonably believe they were compliant, and the chance given to register. Nor were they charged. I would expect one of the two to occur. 2) they intend to charge him but have not done so yet. 3) they seized the rifles as instruments used in the commission of a crime (reckless endangerment). However that is also puzzling because they would have to be told the firearms were being held as evidence against the individual charged, and are entitled to a receipt. They did not get one. The only other possibility is that they actually claim the trespass was the crime. This type of trespass is not a crime even if it is true. It is only a violation. For it to constitute any crime, the entry of a building or a fenced in and posted area would be required.

    I felt this was significant enough that you all should be advised and forewarned. I cannot at this time state this is a Safe Act case yet because we just don't know yet. But something is rotten in Denmark. The member has been advised to call the police tomorrow and advise the rifles where compliant, they both had legal advice they were so, and that they believed in good faith they were compliant and registration was not required. They will ask for the return of the rifles. I will update you all. If we determine this has nothing to do with the Safe Act, I will immediately let you know. The member wanted me to post this so you all know about this. Right now, I believe they seized them as Safe Act violations. Nothing else makes any sense given the facts. Stay tuned.

    NOTE: I apologize a couple of points were incorrect. I did not have my notes when I posted this. The bullet was a 9mm round. Not 5.56. The backdrop was 50 feet high, and the bullet drop was 9 feet not 9 inches for that distance. He was not Mirandized at any time but was asked to consent to a search. He declined. That is why the search did not occur until after the impounding. I corrected the OP but wanted to make sure whoever already read it realized it was a 9mm round, not 5.56.


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    Quote Originally Posted by Bdubl77 View Post
    Thanks Shooter, I was waiting / hoping to see your post based on what you had stated in another thread. I realize the circumstances will be different for any others choosing you use their compliant rifles, but how do we safeguard against similar actions? Or are we stuck dealing with it as it comes?
    Right now, we don't even know what the police intentions are, so difficult to advise everyone on what to do. But I would advise everyone with a non-registered rifle not to fire them anywhere other than on your property, even if they are fully complaint as a safety precaution. Make sure there is no ordinance against the discharge of a firearm where your property is located. We will have to wait this one out. If it is a Safe Act case, it will be the first one charged with a modified rifle anywhere in the state as far as I know right now. So this will be the test case if he is charged. Our member is being brave and wants to help warn others just in case. I admire his courage.
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    Quote Originally Posted by Hamish View Post
    Shooter, can we assume you're legally representing this member, should he be charged? And if so, I assume you'll keep us up to date on this so long as you don't compromise the case?

    As usual, your posts mean a great deal to this community, and if this is the first unSAFE Act test case I hope there is a lot of media coverage when it blows up in Cuomo's face.

    FUAC!!
    It will be James Tresmond and I jointly if he is charged. Right now we are just trying to get the rifles back and avoid any charges. The reckless endangerment is rubbish.
    the right of the people to keep and bear arms, shall not be infringed.

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    Quote Originally Posted by scosgt View Post
    I suspect they are being held as "evidence".
    If the guns are "illegal" they should have been (or will be) arrested.
    If not, they should not have been taken - well, they were probably held for safe keeping as the result of an inventory search pursuant to arrest.

    So it could be they are being held pending a ballistics report as to whether they are "legal".

    The CX Storm, from the description, clearly appears legal.
    It will be very interesting to see what they have to say about the AR with the MR2 device.

    This is a pretty good test case IMHO because the underlying "crime" is basically a crock of ****.

    So the AR will not be an "add on" charge, it would be the MAIN charge, against someone who is not prohibited and is not accused of a serious Felony.
    As Airborneguy just said, the owner is absolutely entitled to a receipt, whether it is held as evidence against a third party or the owner himself. So the absence of a receipt is a problem for the Lancaster PD. This is a very bizarre situation, with the member left in limbo not even knowing officially why his rifle was seized.
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    Quote Originally Posted by prambo View Post
    Well, assuming the three guys were shooting carefully in a quarry, any ricocheted bullet would be mangled pretty badly.

    Is the "ex-chief" related to Officer Stompy?
    They were shooting against a large dirt backdrop. The member stated it was approximately 50 feet high.
    Last edited by Shooter; 04-21-2014 at 11:33 PM.
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    Quote Originally Posted by scosgt View Post
    Just a word of caution:
    We have now heard two sides of the story about the bullet.
    Every story has three sides:
    My side
    Your side
    And the TRUTH

    A ballistics test should and probably will be done on the recovered bullet. From that we should learn the truth.
    The chief gave the bullet to the police, the officer that cuffed our member showed it to him. He states the bullet was perfectly formed, which is highly unlikely if it struck anything. There were no rifling marks either. Of course I did not see the bullet. I have to take the member as truthful on this point right now. Remember he was not the one charged with firing it. The officer identified it as a 9mm round. He also identified a .223 round but that round was actually a 5.56 round.
    Last edited by Shooter; 04-21-2014 at 11:35 PM.
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    Quote Originally Posted by scosgt View Post
    You stated it was locked in the trunk and the car was towed. So I presume it was recovered as the result of an inventory search, possibly at a time the defendants were not available.

    In any case, I presume the AR is being held as evidence in the Felony case.
    I have vouchered contraband many times as part of an arrest. I NEVER gave the arrested person a receipt for contraband or arrest evidence, only evidence taken for safe keeping. I think this varies based on the jurisdiction. A copy of the voucher will certainly be available to the attorney.
    Well we don't know, but for those of you unfamiliar with impound procedures, the only way to legally search a car without a warrant after impound is if the department has a policy to inventory all vehicles. The purported reason for this is to insure that all of the property contained in the vehicle gets back to the owner. In reality this procedure was set up by 99 percent of all departments nationwide after a SCOTUS case declared impound searches without a warrant unconstitutional. They allowed an exception if it is policy to inventory all vehicles. So the policy was then created by departments to look for evidence of crimes and is just identified as a safety precaution for the owner and the department not being accused of taking items. In short, the policy is a sham. The goal is to search all cars without a warrant to get the owner if they can.
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    Quote Originally Posted by Shooter View Post
    The chief have the bullet to the police, the officer that cuffed our member showed it to him. He states the bullet was perfectly formed, which is highly unlikely if it struck anything. There were no rifling marks either. Of course I did not see the bullet. I have to take the member as truthful on this point right now. Remember he was not the one charged with firing it. The officer identified it as a .223 round but it was a 5.56 round.
    Maybe we shouldn't talk about the bullet since it seems so important to this case. Wouldn't want one of the involved officers reading this...
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    Good evening,

    As my esteemed colleague Mr. Bombardo has pointed out, we are waiting to see what happens tomorrow. We hoping for the best, but prepared for the worst.

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    Quote Originally Posted by truebeliever2013 View Post
    different departments have different policies and if the gun is a safe act contraband gun, a receipt does not have to issued because mere possession is a crime. And a recepits for arrest evidence was not always done by the NYPD as a matter of practice until relatively recently.
    An AR-15 is not necessarily a "contraband gun" in New York State. Contraband refers to goods that are prohibited from possession and/or ownership. A Thompson submachine gun is contraband because it is prohibited from possession. Not all AR-15s or "assault weapons" are prohibited from possession, and are not contraband. Here, police officers would have to make a determination as to whether a SAFE Act gun is lawfully possessed (i.e., the gun was purchased prior to the ban). Therefore, a receipt should be provided.

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    Just to make sure no one who initially read the OP did not miss the three corrections I just posted I tell you again the bullet shown by the chief was a 9mm round, not 5.56. There was another 5.56 round. I misunderstood which round our member was talking about. But that makes it even more puzzling since no 5.56 round was found on the chief's property yet his AR was still seized. The backdrop was 50 feet high, not 10.
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    Quote Originally Posted by Different Drummer View Post
    As I said earlier, they will always find a way if that is their intention. They knew the minute they arrived on scene and did not see any weapons that they were most likely locked n the trunk. They also knew they could not search the locked compartment. That is the only reason that car was towed from the area to the police impound. Solely to be able to perform the inventory search. Yup, they will always find a way.
    That is absolutely true, and why most likely he was cuffed after mentioning a lawyer, to get the search done by inventory. They were going to go through that car no matter what it appears. There were no grounds to arrest the driver. No alleged crime and no illegal firearm found at the time of arrest, nor reason to suspect an illegal firearm.
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    Quote Originally Posted by Shooter View Post
    That is absolutely true, and why most likely he was cuffed after mentioning a lawyer, to get the search done by inventory. They were going to go through that car no matter what it appears. There were no grounds to arrest the driver. No alleged crime and no illegal firearm found at the time of arrest, nor reason to suspect an illegal firearm.
    To highlight Mr. Bombardo's point, we need to determine whether they were cuffed for exercising their right to remain silent and right to counsel. Police officers cannot backdoor the Bill of Rights.

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    Quote Originally Posted by truebeliever2013 View Post
    different departments have different policies and if the gun is a safe act contraband gun, a receipt does not have to issued because mere possession is a crime. And a recepits for arrest evidence was not always done by the NYPD as a matter of practice until relatively recently.
    Well I agree if the rifle was contraband, but there is no way for it to be at the time of the search. First, it was modified so he had the chance to explain whether that was believed compliant in good faith, he was not given that chance. It was not per se contraband no matter what. Also if the rifle was non-compliant and seized as an illegal firearm, it makes no sense why he was not charged when he came to claim the vehicle. If they were holing it for ballistics and compliance evaluation, no crime charged yet, a receipt should be given.
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    Quote Originally Posted by truebeliever2013 View Post
    Even if shooter is telling as honestly as he can, the primary source of his information is the client who may not perceive what happened objectively or might be withholding info. Again, I don't know how the Beretta is compliant to the SAFE act.
    This is correct, the member could have the facts incorrect. But I do not believe that to be the case. Especially since that would be counterproductive to him presenting a viable defense. The member answered every question I asked him without hesitation. Of course there are some things he disclosed to me I cannot discuss here.
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    Quote Originally Posted by scosgt View Post
    I know it is late, but would not the correct determination be whether it was compliant, and if not whether it was registered?

    Non-complaint = contraband. Not registered and non complaint = ?? no one knows for sure. Maybe the 30 day grace period.
    You are forgetting this rifle was modified. So whether the modification was compliant is a genuine issue, and as long as the member genuinely believed it was compliant, then it is not contraband even if it was not compliant. They are required to do a subjective analysis of the owner's intentions and state of mind before they can charge with willful violation, and not merely a technical Safe Act violation.

    And yes John Stark the AR had features.
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    Quote Originally Posted by John Stark View Post
    Thanks for your response, and for editing your OP to correct discrepancies.

    We're going to need one mother-huge popcorn machine for this movie.
    You're welcome and of course I will always correct any errors. I never want anyone misunderstanding the law or facts. It goes without saying having the facts correct is critical.
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    Quote Originally Posted by scosgt View Post
    Yes, it is a genuine issue. And the only way the Police can resolve it is in Court.
    Even if the local Chief or DA decides the MR2 complies with the law, that would not be binding on anyone.

    My opinion, which is NOT an endorsement of the SAFE Act or of anyone being arrested, is that they would be totally within their powers to make the arrest upon seeing the "featured" AR-15 and let a Court decide, since there is absolutely no legal guidance on this issue anyplace.
    That is completely contrary to the law. Only a fully featured and unmodified unregistered AR would be an immediate arrestable offense. Any time they are looking at a modified firearm, they have to do the specific intent analysis. That clearly was not done here. He was never questioned about it, nor given a chance to explain whether he attempted to comply in good faith, including when he came to pickup the impounded vehicle.
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    Quote Originally Posted by truebeliever2013 View Post
    Police procedure is different than admitting evidence to the court. In general, everything that possibly be determined to be evidence in the case, real or circumstantial can be vouchered for evidence. The second rifle may have been vouchered to "paint the picture" that they had gone there to go shooting toward the reckless charge. We sometimes voucher a defendant's clothes at the time of arrest for possible other forensic tests that may probably never be done in some cases. Or just to show how they were dressed even if pictures may do the same. If they were shooting during a hunting trip, they might have vouchered their camo clothes to "paint the picture"

    Then the DA or the assigned detective determines what is important and what can be released back to the defendant before trial. The item doesn't have to be directly linked to the crime itself but the prosecutor's theory of what happened. The prosecutor might release the property but the property is documented as being present.
    Wel I know and agree the procedure for seizing and handling evidence is different than introducing it in court. But no voucher was given. So even if they did seize it as evidence on the reckless endangerment charge, there should have been a receipt given.
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    Quote Originally Posted by John Stark View Post
    ...

    Since this is a criminal matter, and IF this ends up being a cluster fark where the local/county/state authorities will not drop the charges or plead it down to a violation or whatever, does this expedite an UnSafe case, give it better standing, let it move ahead of a "theoretical" case like the NYSRPA case, or otherwise give an advantage in terms of attacking UnSafe due to "poisoned fruit" ripening?

    ...
    This is a great inference. The short answer to your question is "of course". Defending a criminal matter is synonymous with raising Constitutional issues. This is another avenue we have to directly fight the unSAFE Act. The battle is multifaceted, indeed.
    Last edited by ChrisWNY; 04-22-2014 at 12:22 AM.
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    Quote Originally Posted by John Stark View Post
    Okay, I have to ask one more question, because I had too much caffeine tonight and now Shooter and Mr. Tresmond have piqued my interest.

    Since this is a criminal matter, and IF this ends up being a cluster fark where the local/county/state authorities will not drop the charges or plead it down to a violation or whatever, does this expedite an UnSafe case, give it better standing, let it move ahead of a "theoretical" case like the NYSRPA case, or otherwise give an advantage in terms of attacking UnSafe due to "poisoned fruit" ripening?

    Whoever the NYF member is, and anyone else involved, I hope they get off Scott-free, since a gun charge can be life-shattering, but if this ends up as a "make an example of him" kind of case, what does that do to push the envelope against the State and its unconstitutional law?
    At a minimum it gives us the chance to thoroughly challenge the constitutionality of the law and also to have the court declare whether this or potentially other modifications are deemed compliant. The court would be forced to rule on the constitutionality because that would be the first defense presented by way of motion to dismiss. There could be no punting here. Once a court rules such is compliant, the police could never charge for that configuration again.
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    Quote Originally Posted by Malcontent View Post
    Was the magazine in the AR or out at the time of arrest?
    I must decline to answer that question right now.
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    Quote Originally Posted by Malcontent View Post
    Shooter the voucher is going to list the Ar it will also list all magazines found. Was there a magazine in the firearm at the time of arrest?
    They must give a receipt for everything unless it is deemed contraband. Airborneguy is absolutely spot on, if they did not identify the exact condition and configuration of both rifles at the time of seizure they will not be able to get a conviction even if a crime and will probably not be able to establish chain of custody since there is no original record of what was taken, only a police report written after the officer decided to take whatever action he will take.
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    Quote Originally Posted by Malcontent View Post
    Shooter the voucher is going to list the Ar it will also list all magazines found. Was there a magazine in the firearm at the time of arrest?
    decline this one as well sorry. Read the voucher!
    I don't want to answer about magazines so as not to compromise the case.
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    Quote Originally Posted by truebeliever2013 View Post
    The lack of a copy to the defendant at the time of arrest does not mean it was not vouchered properly with an established chain of custody. How many times has an auto voucher. especially the inventory voucher, been the last of the paperwork completed.
    Agreed if they give him one eventually. We will find out very soon.
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