Our next question is: Can you run the serial number of a firearm that you are holding during a traffic stop?
The answer is; most likely, but there are some caveats I want to go over.
First of all, we do know that if you are lawfully seizing a gun, for example, during a pat down at a traffic stop, even if it is a lawfully concealed carry, and you want to seize that gun during the traffic stop for your safety, that certainly is going to be upheld. That’s pretty clear.
Then when you have the firearm, normally the firearm’s serial number is in plain view; you can just look at it. And that’s not going to be a search under the Fourth Amendment. Right to be, right to see; that’s plain view.
But what happens when you are running the gun, and the gun itself has nothing to do with the traffic stop? It’s just a safety issue. For example, the traffic stop is for speeding, failure to maintain lane, and so forth.
The next legal question that we have to address is, does the running the gun extend the traffic stop? Because if it does, it could be prohibited under Rodriguez. So let’s go through this.
If you’re running the firearm, and the serial number is offered along with the suspect’s or the driver’s license information, and so forth, and dispatch gives you all that at one time, that’s not usually going to be an issue because it didn’t extend the stop. It’s part of the other things that you did. It did not measurably extend the stop. So that’s the first issue benefit.
If it does extend the stop; let’s say for example, dispatch tells you, “NCIC is taking a while to get back to us on this gun,” and everything else is completed on the traffic stop, and you are just waiting, there is an argument that that unrelated investigation is an extended stop. And if something is found as a result of that, it’s the fruit of the poisonous tree.
So keep that in mind. I think courts are going to bend over backwards to give you the tools you need to find stolen firearms and so forth. But just keep that in the back of your mind, that at some point, it could extend the stop.
The next issue is; what if the if the serial number is hidden from plain view? For example, if there’s a Hogue grip and that number is underneath? Some Rugers have their serial number plates there, and you have to actually remove a grip or you have to remove a firearm part. That is not plain view. That is a search under the Fourth Amendment.
I recommend that if you’re going to do that, and be that intrusive on the person’s firearm, have some reason to give to the court why you believed that running the firearm was reasonable. For example, if you believe that the person has a criminal history that would prohibit them from possessing a firearm, you’re going to check that. And you’re probably also going to run the gun at the same time.
Also, for any kind of gang affiliation, any kind of drug evidence, you should run it. Under federal law, and in probably most states, you cannot possess firearms if you are a habitual user of illegal narcotics. So what I’m saying is, if you’re going to do that, try to have something, anything, to justify the reason for being intrusive and actually removing parts of the firearm to find a certain number. Because that would not be plain view. That would be a search and it should be justified to some degree.
Now again, I do believe courts are going to bend over backwards to uphold what you’re doing out there with these firearms. They want the tone of the courts out there to seem to be strict with enforcement of firearm laws, especially in anti-gun states like New Jersey, New York and California.
I can’t see a trial court at the lower level overturning what you’re doing out there with firearms. I think at the the appellate level or the Supreme Court, they would have a little bit more reflection on it constitutionally, but at the lower level I think they’re going to be very motivated to uphold what you’re doing with firearms. That’s just my opinion.
But pro-gun states like Tennessee and Texas, at the lower level, they are probably going to be a little bit more picky about why you’re doing what you’re doing and they’re going to want you to have some reasons. I hope this helps. I don’t have a lot of cases on it so I’m giving you my opinion, but still, I think it moves the ball forward.