Oshkosh Searches, Seizures Should Require Warrants, Says SAF

[mike bell]

BELLEVUE, Wash., Aug. 2 /U.S. Newswire/ -- While there can be no doubt that police officers in Oshkosh, WI recently conducted a neighborhood search for a gunman who shot and wounded Officer Nate Gallagher July 17 with good intentions, there remain serious questions about the seizure of firearms from one of the residences without benefit of a warrant, the Second Amendment Foundation (SAF) said today.

"We've reviewed all the information we could get about this case," said SAF Founder Alan Gottlieb, "and we remain concerned that some innocent person's firearms were removed from his home, without him knowing about it, and without benefit of a search warrant. Although these searches were reportedly conducted with consent of the homeowners, taking someone's guns without telling him could be a serious legal breach, regardless of any concerns about catching an armed criminal.

"Police simply cannot get verbal consent to search, and then take property from a possible crime scene without a warrant, and without telling the owner," he continued. "Authorities in Oshkosh aren't helping matters any by sealing a search warrant obtained for one of the houses involved in the search, nor are police helping to allay concerns about the conduct of their neighborhood sweep by remaining silent.

"In situations like this," Gottlieb observed, "the public has a right to know what went on. If law enforcement is seen to be stonewalling legitimate inquiries, it could lessen the public trust in their local police. That doesn't help anyone but the criminal.

"Simply because someone has guns in his residence does not make him a suspect," Gottlieb added. "If law enforcement has a legitimate reason to confiscate firearms, then they should wait for a warrant.

"It is our understanding," he said, "that the firearms in question have been returned. Perhaps they should never have been taken in the first place. We want the gunman caught and prosecuted, but potentially trampling on the Constitution isn't the best way to do that."

The Second Amendment Foundation is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers & an amicus brief & fund for the Emerson case holding the Second Amendment as an individual right.


http://www.usnewswire.com/

[CalHunter]

Something about this doesn't add up right. The homeowner is presumably at the house to give consent (although the article doesn't say for sure) and then doesn't know that firearms are taken for evidence. Not sure why the homeowner didn't know the firearms were seized. then Gottlieb says that evidence can't be seized during a consent search without a warrant. WTF is he smoking????? If the property owner gives consent, the search is legal. If the search is legal, then evidence can be seized. I don't know enough about the whole incident to say if it was handled right or not but Gottlieb has his facts about search and seizure just plain wrong.

[Coastie]

Calhunter, there is a lot more conjecture on this than hard information. The following article perhaps sheds as much light on Alan Gotliebs position as anything I have found so far. Apparently some of these homes were entered, searched and weapons seized not only without a warrant or permission, but in the middle of the night without an attempt to get permission. One elderly lady awoke to find officers searching her home after having broken in.

Article Link: http://www.wisconsingunowners.org/

OSHKOSH POLICE CONDUCT DOOR TO DOOR GUN CONFISCATIONS

Shooting of Oshkosh police officer results in knee jerk neighborhood gun grab

Oshkosh, Wis. -- Following the shooting of an Oshkosh police officer Saturday night, area residents were forced from their homes, their lawful firearms being confiscated by police.

The Oshkosh Police Department's Special Weapons and Tactics Unit responded to the area, with a K-9 police dog in pursuit of the perpetrator who was reported to have fled on foot.

Citizens' guns were seized through searches of area homes. The police promised to return the firearms after forensic tests proved they were not involved in the crime. The injured officer's name was withheld, but media reports indicate his condition is not life-threatening.

"The message is: Hand over your guns, now!" said Corey Graff, executive director of Wisconsin Gun Owners Inc. "This is a blatant case of guilty-until-proven-innocent and an abuse of police power."

Still, residents in the area are furious about the home invasions by police and what they see as theft of their property. Although early reports are unclear, they indicate a search warrant was issued for two homes, yet additional home owners also had firearms confiscated.

"We want the perpetrator of this crime caught and brought to justice just like everyone else," said Graff. "But that doesn't mean the police should trample citizens' 4th amendment protections, steal lawful private property and enter the home without reasonable suspicion or warrant."

One homeowner in the area said his guns were taken by police, guns that hadn't left his gun safe since last hunting season. Another victim of the police searches -- an elderly women -- reported waking up to officers' searching her home in the early morning hours. (Gannon: Are the police trying to get shot???)

The Oshkosh Northwestern reported, "Residents were not being allowed to return to their homes by press time."

Gannon's Note: I have been following this story on the radio and one thing that isn't mentioned here is that the EXCUSE for confiscation is for forensic testing although the BULLET has NOT YET BEEN RECOVERED! Either way this is totally against the law..it is a warrantless search AND seizure (theft) and police are actually breaking into homes...
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[PacNWhunter]

Cali, I was a law enforcement officer here in Washington for 17yrs. I did searches with the consent of the home owner. If we found evidence of a crime, we stopped the search and optained a warrent for the evidence. Now in the case in Oshkosh from what I've read the police were doing a search for the suspect involved in the crime, for them to remove any evidence without a warrant is not to smart as a good def. lawyer will get it supresed. Just because you give permission to the police to search does not exclude them from obtaining a warrant to reamove anything and to do it with out your knowledge voilates the law. The aggency has to leave a list of items removed.

[CalHunter]

PacNWhunter, I agree with everything you're saying. If you find evidence during a consent search, you have generally established more than enough probable cause to obtain a search warrant. freeze the house, get your search warrant and then finish the search. However, the evidence you originally obtained during the consent part of the search is still seizable and forms the basic premise for obtaining the search warrant. I am still mystified as to how the property owner was able to give consent but somehow didn't have any clue that police qwere removing firearms.

Gottlieb, however, is saying something entirely different. "Police simply cannot get verbal consent to search, and then take property from a possible crime scene without a warrant, and without telling the owner," he continued.

Coastie's article and link provides a lot more details and makes one wonder as to the legality of some of the actions taken. I am all for police NOT trampling anybody's rights. That is what makes America such a great country and is something all good LEO's strive to protect. If something is being done improperly (or illegally), it should be addressed and corrected. I think that some people tend to shoot themselves in the foot when they spout off (like Gottlieb apparently has) about something they don't fully understand.

I'll be honest and admit that Coastie's article raises more questions for me than provides answers. If the article is correct (and there's no additional information), it sounds like somebody went way overboard and is making a mess of the whole incident. Still waiting for more details I guess. I've learned that initial information often undergoes a substantial revision as to legality once all of the facts are learned.

[Coastie]

Calhunter, there are several pages of references to this incident, but very little that is more than second guessing and conjecture. Most links are to sites such as this with concerned folks expressing their outrage over the report. Alan Gotlieb, like most politicians, and in this sense he is a politician, will say and do whatever they believe is necessary to get their point across. I wonder what he thinks of the sections of the U.S.C. that give the Coast Guard the jurisdiction and authority to conduct warrentless searches and seizures with no probable cause required.

[CalHunter]

Good points Coastie. I applaud Gottlieb standing up for the 2nd amendment and have even met him at a Shotshow in vegas. he was a nice guy and genuinely cared about our 2nd amendment rights. I have no doubt that his heart is in the right place, much like Wayne LaPierre. The problem is that they make such blanket statements without getting more of the facts or even qualifying their statements. Kind of hard to backtrack when you're out on such a thin limb.