Back in May, Tim Brown reported a story of a man who was believed to be the first NY SAFE Act arrest under the "7 bullet limit" provision. Gregory Dean was pulled over for a burnt out license-plate lamp and found with a legally registered pistol with a magazine that contained 9 bullets.

Paul Wojdan

Paul Wojdan

Well, it has happened again. This time the crime is 3 extra bullets because the magazine contained 10 rounds. 

The Wall Street Journal Reports:

An upstate New York man was arrested for violating the state's new gun law. What makes this case unusual is that the gun in question was legal and wasn't involved in a crime. The man faces up to a year in prison for loading it with too many bullets.

Paul Wojdan was a passenger in a car that was pulled over for speeding in the city of Lockport, N.Y., last weekend after a brief chase, according to the Buffalo News. Law Blog couldn't immediately reach him for comment.

After the officer inquired if there were any weapons inside the vehicle, the man handed over a holstered gun from the glove compartment. Mr. Wojdan had a permit for the gun, the newspaper reported. But he was taken into custody after the officer inspected the magazine and saw that it contained 10 rounds of ammunition, exceeding the legal limit by three bullets.

Under the New York Safe Act, a package of stricter gun restrictions approved this year, it's legal to possess a magazine that can store 10 rounds of ammunition, but that magazine may not be loaded with more than seven rounds.

The 26-year-old man was charged with unlawful possession of an ammunition-feeding device.

According to a legal guidance memo prepared by the New York State Police, authorities need probable cause to inspect the contents of a magazine.

I should note that the report of up to one year in prison appears to be incorrect. That is for a subsequent offense. Here is the letter of the law under the SAFE Act.

Penalties (possessing more than 7 rounds in magazine) PL 265.37

If the violation occurs within the home of the person:

1st offense = violation, subject to $200 fine

Subsequent offense = class B misdemeanor / subject to $200 fine / up to three months imprisonment.

 
 

If the violation occurs in any other location:

1st offense = class B misdemeanor / subject to $200 fine / up to six months imprisonment

Subsequent offense = class A misdemeanor / up to one year imprisonment.

The "probable cause" issue needs serious discussion. No matter what you feel about 2nd Amendment rights, if you have more than 7 bullets in a magazine, THAT WAS SEARCHED AS A RESULT OF PROBABLE CAUSE, you will be arrested in New York. But what "probable cause" do law enforcement officials have to inspect a magazine that has not been involved in any crime, comes from a legally registered firearm and was voluntarily turned over at a traffic stop? Furthermore, probable cause, under the Fourth Amendment, is only the beginning, as one must obtain a warrant, which is based on testimony that establishes what is to be searched and what items are to be searched for.

These are the guidelines that New York law enforcement officials are supposed to be following in regard to magazines and probable cause:

Right to check and inspect magazines v. firearms

Absent some indication of criminal activity, there is no right to inspect the contents of a magazine to ensure that it meets the requirements under the Safe Act. If an officer has probable cause to believe that a particular magazine is unlawful, he or she may seize and inspect it. If there is founded suspicion of criminal activity, the officer may ask for consent to check the magazine. However, the mere existence of a magazine, which may or may not be legal, does not provide probable cause to believe that any law is being broken. If the weapon is one for which a permit is required, police will be justified in checking the permit to ensure that the person lawfully possesses the firearm. If a permit cannot be produced, the officer would be legally justified in seizing the firearm and conducting an inventory of its contents. In this case, the inventory would include checking the magazine in order to account for each round. However, if the person produces a permit and there are no indications of unlawful conduct, an inspection of the magazine would be unnecessary. In this case, the weapon should be secured temporarily, in the same condition as it was found, for the duration of the stop and returned to the motorist at the conclusion of the encounter.

Unless there is probable cause to believe the law is being violated, there is no justification for checking a magazine to determine whether or not it contains more than 7 rounds.

Does it sound to you as if the officers met their own guidelines? Don't forget that Paul Wojdan was a passenger so you really can't even say that he was guilty of speeding.

It would seem to me that there is a little extra enforcement of the law going on in New York. Where I come from we don't call that justice. We call that a police state.

Not only does New York have some of the toughest gun laws in the country, they appear to be violating the 4th Amendment rights of their citizens in order to violate their 2nd Amendment rights.

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