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View Full Version : "PC 12031 (e)" Does it violate the 4A?


Window_Seat
12-24-2008, 2:57 PM
PC 12031 (e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.


I have often wondered whether this blatantly violates the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A person is not violating any laws if he/she is "lawfully" carrying openly according to PC12031 (g), and not concealing it, or it is not loaded.

Since the person carrying openly (with shirt tucked in, no jacket), it is NOT concealed, and it is NOT loaded, and a PO approaches (without there being a call to 911, other citizen calls of MWG) and uses 12031(e), has my 4A been blatantly violated? After all, I have not violated any regulations.

In order to determine whether or not a firearm is loaded for the purpose of enforcing this section

Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

IMO, a blatant violation of the 4A.

Why am I wrong?

Erik.

sorensen440
12-24-2008, 3:01 PM
absolutely

Shane916
12-24-2008, 3:06 PM
"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Dark&Good
12-24-2008, 3:19 PM
Do you have to let officers check your gun "in an incorporated city or prohibited area of an unincorporated territory" only?

sorensen440
12-24-2008, 3:30 PM
"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

just because state law says its ok does not make it constitutional

artherd
12-24-2008, 3:39 PM
"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Even under Terry, as well as the above, you need at least reasonable suspicion that a crime has been committed.

nobody_special
12-24-2008, 4:57 PM
I have often wondered whether this blatantly violates the 4th Amendment:
I agree that it is a 4th amendment violation; however, California courts have repeatedly ruled otherwise. Then again, I think PC 12031 is unconstitutional as well.

Then again, SCOTUS has ruled that "internal" border patrol checkpoints and DUI checkpoints are legal, too, even though those are also 4th amendment violations.

The 4th amendment isn't good for much these days...

Rogue187
12-24-2008, 5:06 PM
I think an officer can approach you and request to see your firearm to ensure that it is "unloaded" it is not a violation of the 4A.

The officers do not have x-ray eyes so they cannot see into the firearms to tell that it is unloaded. There maybe no mag in the magwell but what is there to having a round in the chamber. The officer may legally open the action to see if it is unloaded. What if you are carrying a revolver in a holster..the officer cannot see into the cylinder face to determine if it is unloaded so the cylinder must be opened.

I don't think any police officer will allow you to hand them the firearm to ensure that it is unloaded. They will remove it themselves.

artherd
12-24-2008, 5:35 PM
I think an officer can approach you and request to see your firearm to ensure that it is "unloaded" Under current law - yes.
it is not a violation of the 4A.

Actually, it quite is. There is no reason to belive a crime is being comitted.

This is akin to allowing any officer who can approach you, and request to see your genitals in order to swab them to make sure you haven't raped anyone today.

After all, they don't have x-ray eyes.

sac550
12-24-2008, 5:51 PM
I think there is something that many forget. The 4th Amend. only protects us from unreasonable searches. The courts have said it is not unreasonable for LEO to check an make sure a firearm is not loaded. They weigh how intrusive a search is with public and officer safety. That is how the courts have allowed DUI checkpoints. They are not unreasonable or overly intrusive. just my 2 cents.

nick
12-24-2008, 6:15 PM
I think an officer can approach you and request to see your firearm to ensure that it is "unloaded" it is not a violation of the 4A.

The officers do not have x-ray eyes so they cannot see into the firearms to tell that it is unloaded. There maybe no mag in the magwell but what is there to having a round in the chamber. The officer may legally open the action to see if it is unloaded. What if you are carrying a revolver in a holster..the officer cannot see into the cylinder face to determine if it is unloaded so the cylinder must be opened.

I don't think any police officer will allow you to hand them the firearm to ensure that it is unloaded. They will remove it themselves.

Well, they can't be sure you're not growing pot in your apartment, either. It doesn't eman they can just barge in and take a look to make sure. Well, maybe, in this state they can, but it still doesn't make it kosher with the 4th Amendment. Then again, I always wondered if judges are still human beings. They seem to be reading interesting things in the quite plain language of the Constitution.

Pvt. Cowboy
12-24-2008, 7:08 PM
"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Thankfully, not where I live. 'Castle Doctrine' extends to your motor vehicle, your horse, your canoe, or your Piper Cub aircraft. Your vehicle is legally regarded as an extension of your home.

For some reason, everyone wants to think that 'Castle Doctrine' is all about shooting burglars, or something.

adamsreeftank
12-24-2008, 8:42 PM
Let's not forget the 5th amendment. The supreme court has held that "testimony" goes beyond just speech. Answering whether or not your gun is loaded, or even the act of relinquishing it to a peace officer absent probable cause of a crime are both acts that could could reasonably be protected by the 5th.

This bares some similarity to Haynes v. U.S. (1968) where it was ruled that a felon could not be charged with failure to register a SBS since filing the registration would be admitting to being a felon in possession of a firearm.

Since the exercise of the 5th can not be used as probable cause of wrongdoing, denying an officer the right to inspect your weapon should not be probable cause to arrest you.

...

That said, and as a disclaimer, I am not a lawyer so don't take my word for it. I'm sure there are many people in prison for violating unconstitutional laws.

sorensen440
12-24-2008, 8:50 PM
I think there is something that many forget. The 4th Amend. only protects us from unreasonable searches. The courts have said it is not unreasonable for LEO to check an make sure a firearm is not loaded. They weigh how intrusive a search is with public and officer safety. That is how the courts have allowed DUI checkpoints. They are not unreasonable or overly intrusive. just my 2 cents.
I think you need to re-read the 4th amendment
The right of the people to be secure in there persons,houses,papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized


I have a few spare copies of the constitution if you would like one its just a pm away

M. Sage
12-24-2008, 9:07 PM
"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Evidence that a gun may be in the vehicle (in a gun case) may mean that there is a gun present, but it's not probable that there is a crime in progress (illegal loaded transport/carry).

Let's not forget the 5th amendment. The supreme court has held that "testimony" goes beyond just speech. Answering whether or not your gun is loaded, or even the act of relinquishing it to a peace officer absent probable cause of a crime are both acts that could could reasonably be protected by the 5th.

Taking that into consideration, if I have the bad luck to be stopped with a firearm in the next couple of weeks before I move out of state and the officer wants to "inspect" my firearms, I'll just let him arrest me then do his little investigation to find out my guns are unloaded.

artherd
12-24-2008, 9:59 PM
I think there is something that many forget. The 4th Amend. only protects us from unreasonable searches. The courts have said it is not unreasonable for LEO to check an make sure a firearm is not loaded. They weigh how intrusive a search is with public and officer safety.

Correct, and as many Supreme Court decisions have said throughout history; "the court erred".

nicki
12-25-2008, 1:37 AM
Well,

For those of us who are going to open carry, if you are doing so with a semi auto, perhaps you can just leave the slide locked back, mag out.

Should be easy for cop to see you have a "unloaded gun.

If you have a revolver, open the cylinder and put a pen or pencil in it to hold cylinder open.

Just my 2 cents.

Nicki

SOneThreeCoupe
12-25-2008, 6:03 AM
Why do we need to walk down the street cowering in fear of the police, enough so that we have the slide back or the cylinder open so we can avoid a 12031 check?

If they feel the need to check because an armed citizen is a threat to their power, it IS a 4A violation and it IS unconstitutional. It also IS another law they'll use to prevent people from carrying for fear of being stopping doing something perfectly legal. There is no public safety problem; crooks don't open carry.

Would you be all right with the police stopping you and popping your hood anytime they want because you have wider wheels, loud exhaust, and a cage?

Of course there is no outrage from the sheeple. They're not affected by this law. They're not affected by many laws. That's because they do as they're told and don't question the rampant stupidity of our government. They don't question a government which leaves the budget unbalanced but bans the use of handheld cell phones. They don't question the government that questions them, day in and day out.

We're on the brink of it being too late. We are the ones who can stop it.

Decoligny
12-25-2008, 9:49 AM
Do you have to let officers check your gun "in an incorporated city or prohibited area of an unincorporated territory" only?

Yes.

If you are in unincorporated territory, where it is legal to discharge a firearm, the Police have NO LEGAL AUTHORITY to apply 12031(e) to check if your firearm is loaded, because it is legal for it to be loaded.

If an officer demands to inspect my firearm in the above situation, I will tell him "Sir, you have no legal authority to inspect my weapon under 12031(e) as I am not in an incorporated city nor am I in an area of unincorporated territory where discharge of a firearm is prohibited by law. If you insist upon doing an inspection, I request you have a supervisor come, as I will be filing a official complaint and most likely a federal lawsuit."

Of course this will be recorded on a digital recorder for posterity and evidence.

sac550
12-25-2008, 11:04 AM
I think you need to re-read the 4th amendment



I have a few spare copies of the constitution if you would like one its just a pm away

Well you posted the 4th amend, but I don't think you are missing the meaning. You highlighted "probable cause" however, it says "no warrants" shall be issued without probable cause. That has nothing to do with an unreasonable search without a warrant. That just means a Judge can't issue a warrant without probable cause. That is why there is an "and" in there.

artherd
12-25-2008, 11:22 AM
Well you posted the 4th amend, but I don't think you are missing the meaning. You highlighted "probable cause" however, it says "no warrants" shall be issued without probable cause. That has nothing to do with an unreasonable search without a warrant.

Hah! Good one! There are to be NO SEARCHES AT ALL without a warrant :)

Firblitz
12-25-2008, 11:28 AM
Let's not forget the 5th amendment. The supreme court has held that "testimony" goes beyond just speech. Answering whether or not your gun is loaded, or even the act of relinquishing it to a peace officer absent probable cause of a crime are both acts that could could reasonably be protected by the 5th.

This bares some similarity to Haynes v. U.S. (1968) where it was ruled that a felon could not be charged with failure to register a SBS since filing the registration would be admitting to being a felon in possession of a firearm.

Since the exercise of the 5th can not be used as probable cause of wrongdoing, denying an officer the right to inspect your weapon should not be probable cause to arrest you.

...

That said, and as a disclaimer, I am not a lawyer so don't take my word for it. I'm sure there are many people in prison for violating unconstitutional laws.

Hmm. I wonder if it would be better to not consent to the search, be arrested, searched, and released to keep your 5A rights intact…

sac550
12-25-2008, 11:28 AM
Hah! Good one! There are to be NO SEARCHES AT ALL without a warrant :)

I wish it said there could be no searches without a warrant or probable cause. However, I don't get what I wish for in this lib state.

Gray Peterson
12-25-2008, 12:24 PM
Basically, this is what we call "Statutory Probable Cause". Also, you folks need to think about the state constitution in this as well. Up here in Washington, our version of the 4th amendment is stronger than the 4th amendment, and much to many police officer's chagrins, have repeatedly thrown out arrests that were permissible under the US constitution, but not permissible under state.

jacques
12-25-2008, 1:16 PM
They tromple on the 4th like they tromple on the 2nd. It is the same philosiphy. Lets take the rights away from all the law abiding citizens to stop the criminals. :mad:

antarius
12-25-2008, 1:49 PM
Take a look at the exceptions to the 4th amendment.

And for those who said it's because it's a threat to "their power," you're wrong.

The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day. When I see you walking around with your gun on your hip, I'm happy for you. I'm hoping for the day when you can legally buy your own AR-15's and carry concealed under your shirt, or open and loaded. I'm willing to fight for your 2nd amendment as much as you are willing to say I want to take it away from you. That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

To the person who said "you might be growing pot in your house but they cant just barge in to check." That's totally different. Apples to Oranges.

You are dealing with something in plainview, vs something not. Also, the courts have remained far more strict on household exceptions to the 4th amendemnt, than to a person or their vehicle.

jacques
12-25-2008, 2:28 PM
Take a look at the exceptions to the 4th amendment.

And for those who said it's because it's a threat to "their power," you're wrong.

The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day. When I see you walking around with your gun on your hip, I'm happy for you. I'm hoping for the day when you can legally buy your own AR-15's and carry concealed under your shirt, or open and loaded. I'm willing to fight for your 2nd amendment as much as you are willing to say I want to take it away from you. That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

To the person who said "you might be growing pot in your house but they cant just barge in to check." That's totally different. Apples to Oranges.

You are dealing with something in plainview, vs something not. Also, the courts have remained far more strict on household exceptions to the 4th amendemnt, than to a person or their vehicle.

I would agree with that. And for all practical purposes, it is necessary because of the dangers involved. However, it is unfortunate that the people who are doing nothing wrong, have their vehicle searched, their person searched, and can't just go around enjoying their rights because of the bad apples that are out there.

If it weren't for the people breaking the law, none of this would be necessary.

Shane916
12-25-2008, 2:31 PM
I would agree with that. And for all practical purposes, it is necessary because of the dangers involved. However, it is unfortunate that the people who are doing nothing wrong, have their vehicle searched, their person searched, and can't just go around enjoying their rights because of the bad apples that are out there.

If it weren't for the people breaking the law, none of this would be necessary.

Same goes for security checkpoints and searching any/all your items at an airport. It is unfortunate all of us have our belongings scanned and are scrutinized as criminals. Yet, it is as you said, necessary because of the dangers involved.

nobody_special
12-25-2008, 2:55 PM
That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

Baloney. You could also "ensure your safety" by simply shooting everyone you come across, but you don't do that either, do you?

It is not necessary to conduct loaded checks; this is obvious, as no other state in the U.S. allows this 4th amendment violation.

antarius
12-25-2008, 2:58 PM
Baloney. You could also "ensure your safety" by simply shooting everyone you come across, but you don't do that either, do you?

It is not necessary to conduct loaded checks; this is obvious, as no other state in the U.S. allows this 4th amendment violation.

You're telling me no other State in the union allows an officer to inspect a weapon in plain view? Okay.

And your comment on shooting everyone to "ensure your safety" (mine), come on. Really.

CSDGuy
12-25-2008, 3:00 PM
Under current law, a 12031 (e) check of an unloaded weapon is not a violation of the 4th. It's not unreasonable to determine whether or not a weapon is unloaded. If you're UOC, a LEO can check to determine whether or not your pistol is loaded in violation of that part of the law.

Now if loaded carry becomes OK, and 12031 is mooted (generally), then a check of the firearm could possibly fall under a Terry search, and all the rules associated with that. The idea being that if loaded carry isn't a "problem" any more, then Officer Safety would be come the issue and might therefore fall under Terry or something similar.

I just generally don't see a 4thA issue with allowing for this kind of check. Running serials and the like during that check, yes, I think that might fall under the 4th more specifically...

antarius
12-25-2008, 3:02 PM
Now if loaded carry becomes OK, and 12031 is mooted (generally), then a check of the firearm could possibly fall under a Terry search, and all the rules associated with that. The idea being that if loaded carry isn't a "problem" any more, then Officer Safety would be come the issue and might therefore fall under Terry or something similar.

You hit the nail on the head. I see the ability to inspect a weapon on a persons hip as a Terry issue. No different than if I'm speaking with a person on the side of the roadway and he's got a large knife in a sleeve, in plain view. It's not illegal and it's not illegal for him to carry it; But I still take it until that contact is over under Terry. They get it back when I no longer believe it's a threat, can articulate that, or the contact is completed.

sac550
12-25-2008, 3:22 PM
It is not necessary to conduct loaded checks; this is obvious, as no other state in the U.S. allows this 4th amendment violation.

If it were a 4th amend violation CA couldn't do it. A state can't make a law that violates the U.S Constitution. Your rights under the Bill of Rights (federal law) can't be violated by any state. Even if an officer violates CA law as long as it doesn't violate the U.S constitution the evidence can be used in a CA court (thanks to prop 8 passed in the 1980's. not the recent prop 8).

For example you are pulled over for speeding and the officer arrest you and takes you to jail. On your person he/she finds a gun. This violates CA law because 853.6 and 40302(A) of VC (and case law in CA) require that a person be cited and released (few exceptions allow custodial arrest, refuse to sign ticket, no ID). While the arrest is illegal under CA law the officer didn't violate federal law. So under Prop 8 the DA can introduce the gun into evidence for your 12025 trial.

12031(e) has nothing to do with Terry v. Ohio. Terry stop can only occur when an officers has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime AND is armed. Since open carry is not a crime Terry doesn't apply. Don't confuse the two.

N6ATF
12-25-2008, 7:17 PM
If it were a 4th amend violation CA couldn't do it. A state can't make a law that violates the U.S Constitution. Your rights under the Bill of Rights (federal law) can't be violated by any state.

Yes they can, and they do. Federal courts would be less busy if state lawmakers were physically unable to move writing implements or press keyboards to make unconstitutional laws. Unfortunately the Constitution is not a mythical document that automatically prevents all violations before they happen.

nobody_special
12-25-2008, 7:28 PM
You're telling me no other State in the union allows an officer to inspect a weapon in plain view? Okay.
I'll amend that to any other state that allows open carry; AFAIK, yes that is accurate, absent suspicion that a crime has been committed.
And your comment on shooting everyone to "ensure your safety" (mine), come on. Really.
Officer safety is never a sufficient reason to implement a policy to systematically violate people's rights.
It's not unreasonable to determine whether or not a weapon is unloaded.
I disagree. If we have the right to bear arms, then openly carrying is Constitutionally protected, and there is no cause to detain someone for exercising that right.

nobody_special
12-25-2008, 7:31 PM
You hit the nail on the head. I see the ability to inspect a weapon on a persons hip as a Terry issue.
It's not the same; you can't Terry stop a person without reasonable suspicion of a crime, but police regularly stop, detain, and inspect the firearms of people who openly carry in California.

sac550
12-25-2008, 7:48 PM
Yes they can, and they do. Federal courts would be less busy if state lawmakers were physically unable to move writing implements or press keyboards to make unconstitutional laws. Unfortunately the Constitution is not a mythical document that automatically prevents all violations before they happen.

Yes, you are right. They can pass such a law, but it can be fought in court. Federal court would not always be the place though. If you were filing a motion to supress (1538.5) because of a state law that violated federal law, the local state Judge could still exclude the evidence based on the federal violation.

N6ATF
12-25-2008, 8:08 PM
I question how likely state and district judges are to rule in favor of any Constitutional protection afforded to gun owners. I get the impression that fed court is the best outlet because of this likelihood.

Liberty1
12-25-2008, 8:23 PM
For example you are pulled over for speeding and the officer arrest you and takes you to jail. On your person he/she finds a gun. This violates CA law because 853.6 and 40302(A) of VC (and case law in CA) require that a person be cited and released (few exceptions allow custodial arrest, refuse to sign ticket, no ID). While the arrest is illegal under CA law the officer didn't violate federal law. So under Prop 8 the DA can introduce the gun into evidence for your 12025 trial.

A 12031e check only on it's face, with no other RS/PC to legally detain an individual in lawful possession of a firearm, is very likely a 4th A. violation. I see that as the question presented here.

The fact that is hasn't been challenged as such, to my knowledge, is testimony that it has rarely if ever been the sole reason for a detention leading to an arrest, conviction, and then case law.

People vs Knight being the only one I know of and that did not turn on "e" but rather that 12031 did not apply in the UNincorporated territory where the arrest was made (according the information available for review by the appellate court).

12031 "e" constitutionality has not been civilly adjudicated yet either, as a detention ending with release creates, IMO, very little "damage" worthy of an attorney's attention except perhaps on principle backed by $$,$$$ (and one that the ACLU or other civil rights group has not yet been keen to attempt to overturn on principle).

With UOC being done on the CA RKBA's front we are only now, 40 years after it's conception in 1967, addressing this obscure section of the PC and it's unconstitutional dictates (and with all of 12031 likely unconstitutional it is hardly reasonable to attempt to concentrate and remove "e" only when the goal is full restoration of a fundamental human right and the overturn of PC12031 & the 626.9 1000' zone).

Merry Christmas All!!!

Peace on Earth, Good will to men! (supported by peaceful RKBA!!)

c5iDz8Ul_AQ

Kid Stanislaus
12-25-2008, 11:01 PM
Baloney. You could also "ensure your safety" by simply shooting everyone you come across, but you don't do that either, do you?

Get real.

tiki
12-26-2008, 12:08 AM
The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day.

I think there are two seperate things here. If you detain a person for questioning because you believe they have done something wrong, then I agree with your argument.
However,
If you observe an individual open carrying a firearm and that individual is walking out of a store, and, you have no reason to suspect that the individual is doing, has done, or will do anything illegal, then you have no reason to believe that your safety is at risk.

Observing someone walking out of a store wearing a Karate uniform doesn't increase your risk of being assaulted.

artherd
12-26-2008, 12:16 AM
That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

In my opinion: With PC (maybe even RS) a crime has been comitted (ie illegally carried/loaded firearm) that's fine. Absent PC/RS - we have a problem, officer.

I want to not only make damn sure both you and I go home too, and furthermore I also want to make damn sure my civil rights remain intact. absent PC that there is a crime, you are equally dangerous to me as another good citizen with a loaded exposed handgun.

You are dealing with something in plainview, vs something not. Also, the courts have remained far more strict on household exceptions to the 4th amendemnt, than to a person or their vehicle.

12031(e)'s scope is not restricted to plainview - it can't be since it allows search, and that's why most LEOs ask those questions - they want an easy search for other things to lock you away on (eg drugs, legally stored guns, etc.) It's a means to an end (that end being - an otherwise prohibited search and as such a violation of 4a.)

artherd
12-26-2008, 1:06 AM
You're telling me no other State in the union allows an officer to inspect a weapon in plain view? Okay.

As far as I know - Yes.

BillCA
12-26-2008, 4:33 AM
This is an interesting question.
I was originally going to say that the statute was not a 4A violation but the more I think about it, the less likely I am to agree.

12031(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a
vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

The highlighted section gives me the most trouble. Most of us are not lawyers or constitutional scholars. When an officer asks if he can "check" the weapon, any citizen who consents or says "okay, go ahead" is potentially waiving his 4A rights. If you wish to retain any potential 4A or 5A rights you have, you advise the officer you do not consent to a search or "inspection" but will offer no resistance to such out of regards for personal safety of both parties. The last sentence indicates that a citizen, acting legally and exercising his right(s) to NOT consent is now somehow "evidence supporting probable cause".

It's long been decided that exercising a right - such as refusal to consent to a search or talk to an officer - cannot be grounds for probable cause. Here it would seem that California attempts to negate that holding.

Reasonable Cause and Probable Cause
Some have tried to use comparisons to other types of searches with less than good results. But other examples do exist in the P.C.

§653k prohibits the possession of switchblade knives.
§626.10 prohibits knives longer than 2.5" on school grounds.
§171b prohibits knife blades over 4" in public meetings
§175 prohibits blades over 4" in airports.

So you, John or Jane Q. Public, are carrying a 4" knife openly in a leather belt sheath inside the airport. Police officers see the sheath and the knife hilt because it is in plain sight. The question is, may the officers stop you and investigate whether the knife in fact has a blade of 4-inches or less?

The answer is - a qualified yes.
If there is ambiguity whether the blade might be over four inches long, then the officers can stop to ensure you are not actually breaking the law. Obviously a sheath that is shorter than 4 inches cannot contain a longer blade, however a sheath that appears as if it might allow carrying a 4.5" blade allows the officers to see whether the blade is actually too long.

Likewise, a citizen walking down a city street with an openly carried unloaded firearm in a holster constitutes a possible violation of state law. If the law restricted against carrying 2" revolvers officers could inspect to insure the barrel length was over 2" long. In this case, however, officers can inspect the firearm for it's loaded status.

In the aiport scenario, once the officers measure the blade length and find it is legal, the knife should be returned and the citizen thanked for his cooperation. Likewise, once the gun is determined to be unloaded, it can be returned to the holster along with "Thank you, have a good day." and the contact terminated.

In short, I think the officers have the power to investigate whether a crime is being committed (i.e. a loaded gun in public) as long as the contact is minimal and the contact is terminated when the gun is deemed to be empty.

Rights:
An officer who asks a citizen if a firearm is loaded and is told that is is not loaded can still, by statute, examine the firearm. But an officer may go further and after securing the obvious weapon do a Terry search for other offensive weapons. A clever officer might tell the citizen he's authorized to check the firearm and "I'm going to search you for any other weapons for my safety. Are you okay with that?" to both judge the potential threat level as well as to secure "consent" to a search.

As we know, courts often construe consent as an open door which might allow the officer to remove any hard object (keys, pager, cellphone, etc.) and open the door to further questioning. Because of this, it is imperative that if The State authorizes a contact to investigate legal conduct that citizens also retain their right to refuse consent. Standing on one's rights is legal and should never constitute part of "probable cause".

shawnyteee
12-26-2008, 5:26 AM
Unreasonable is vague, thus implied.
We live in an implied constitutionalists America.
There's your answer.

B.D.Dubloon
12-26-2008, 6:34 AM
"unreasonable searches and seizures" - from 4A

You are wrong because it has been determined that it is not unreasonable for them to do that search. I'm not happy about it, but that is why. It is no accident that the constitution is vague and subjective in many areas.

BDD

SOneThreeCoupe
12-26-2008, 8:04 AM
The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day. When I see you walking around with your gun on your hip, I'm happy for you. I'm hoping for the day when you can legally buy your own AR-15's and carry concealed under your shirt, or open and loaded. I'm willing to fight for your 2nd amendment as much as you are willing to say I want to take it away from you. That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

This is why I dislike all police officers when they are in their professional capacity.

You would do a 12031 check on a civilian open carrying a firearm because you are afraid of him. You want to "make damn sure you go home at the end of the day" and that does not involve trusting the civilians.

I understand completely, officer: we're beneath you. We're not to be trusted, and certainly not with a loaded firearm! If we're acting completely normally but have a firearm on our hip, not only are we a potential enemy but we've also created reason enough to ignore your oath. We've not provided you with any suspicion that we've broken the law, simply having that firearm and exercising a right allowed to us by the penal code is enough.

I don't care if precedent or laws in this state circumvent the Fourth, we should still fight to bring its power back. We can't just say "oh, it's futile." The state counts on the expense of a lawsuit to be a deterrent, so we have to be willing to put our money where our mouths are.

antarius
12-26-2008, 9:02 AM
This is why I dislike all police officers when they are in their professional capacity.

You would do a 12031 check on a civilian open carrying a firearm because you are afraid of him. You want to "make damn sure you go home at the end of the day" and that does not involve trusting the civilians.

I understand completely, officer: we're beneath you. We're not to be trusted, and certainly not with a loaded firearm! If we're acting completely normally but have a firearm on our hip, not only are we a potential enemy but we've also created reason enough to ignore your oath. We've not provided you with any suspicion that we've broken the law, simply having that firearm and exercising a right allowed to us by the penal code is enough.

I don't care if precedent or laws in this state circumvent the Fourth, we should still fight to bring its power back. We can't just say "oh, it's futile." The state counts on the expense of a lawsuit to be a deterrent, so we have to be willing to put our money where our mouths are.

You're being childish, and ridiculous.

As stated above, it's completely legal and acceptable for me to inspect a knife that appears as though it may be longer than the legal limit. The same goes for a firearm. If I see a firearm on your hip, it is reasonable for me to believe that it may be loaded.

I don't think any person, law enforcement or otherwise, would say that it's completely unreasonable to think that a person with a gun, might -- oh my god get ready for it -- have a round in the chamber. That "reasonable suspicion" allows me to contact you and PC 12031 allows me to determine if my suspicions are correct.

On a personal note:

You seem to think that I think you are "beneath" me, or that I am somehow better than you, or that I want to oppress you, or this and that. When in reality, that's not the case at all and I have stated both in public and on this forum that I am 100% for the conceal and open carry of a firearm for every red blooded American in this State. I think that will create a safer environment, not a more dangerous one. That said, I do not trust people. To be very frank, I don't trust people because I am jaded. I deal with people that I cannot and should not trust, or I place an undue risk on myself of being injured. Should that impact you or the average law abiding citizen? No, absolutely not, and I do my very best to gauge what I'm dealing with as best as I can -- but try to understand, for one split second, that I don't know you. It's nothing personal.

I posted in this thread with a genuine response, with complete honesty with both my personal beliefs, tactics and legal authorities. What did I get in response from you? A disingenious post that is reminds me very much of an 11th grade kid screaming "police state! police state! police state!"

You never had any intention of listening to a word I said, or genuinly thinking about it and debating it. You were merely waiting for your turn. This, sir, is not only impolite, it's not good for the forum, you, or society as a whole. You should be debating for the purpose of learning and / or understanding, not to shout your point and be close minded to every other thing possible.

To the poster (I forget) who said you want to protect your rights. I 100% agree with you. It's a valid and appreciated effort to complain about laws, search clauses, etc. etc. when they appear (or do) violate our rights. Any rights. I don't, however, appreciate the accusation that I "throw out the oath" I took when I search a weapon to determine if it's loaded. Why? If it was determined to be a violation of the 4th amendment, I wouldn't do it.

BillCA I think made the most accurate post of all. He gave good examples and codes to back them up.

M. Sage
12-26-2008, 9:21 AM
The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day. When I see you walking around with your gun on your hip, I'm happy for you. I'm hoping for the day when you can legally buy your own AR-15's and carry concealed under your shirt, or open and loaded. I'm willing to fight for your 2nd amendment as much as you are willing to say I want to take it away from you. That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

Sorry, but this isn't an officer safety law. It doesn't only apply to open carry, but to all firearms transportation. If I get pulled over and a cop sees a gun case, he has the "legal" authority to open it and check to make sure any firearms inside are unloaded because transporting loaded firearms is generally illegal, not for officer safety. If you have contact with someone that has a firearm (outside of a consensual contact, IMO; if I can simply walk away at will, then...), you have every right to seperate that person from their firearm. That is officer safety. Taking time out to check the chambers in a traffic stop is a search without PC or warrant.

Sorry, but I'll just have you violate my rights twice against my will instead of once with my meek compliance. You'll have to cuff me and put me in the back of your car before you find out that I haven't broken any law.

yellowfin
12-26-2008, 10:26 AM
Other than meaningless extra print on a page making it a technical violation of law, exactly how is it in your interest to check to see if an openly carried firearm is loaded or not if that person is acting peacefully and otherwise unobtrusively? If there is nothing else to indicate trouble, harming or threatening someone else, etc. so what is it to you that they would have a round chambered absent any other action? It seems to me you'd be looking for a problem where there is none. Why not no harm no foul? Is there some kind of scavenger hunt for firearms code enforcement? Trying to earn brownie points? Seriously, this is like measuring kids shorts to enforce a grade school dress code.

Harrison_Bergeron
12-26-2008, 12:02 PM
The answer is - a qualified yes.
If there is ambiguity whether the blade might be over four inches long, then the officers can stop to ensure you are not actually breaking the law.

How do you arrive at this conclusion? The codes you cited did not seem to have the auto search clause that the gun one does. Just because you do something does not mean that you are allowed or that it isn't unconstitutional. Also, just because penal code says the law is one way doesn't mean anything to the Constitution, if that were the case law makers would just go right out and make guns illegal.

The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day. When I see you walking around with your gun on your hip, I'm happy for you. I'm hoping for the day when you can legally buy your own AR-15's and carry concealed under your shirt, or open and loaded. I'm willing to fight for your 2nd amendment as much as you are willing to say I want to take it away from you. That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

If you are driving down the street in your nice comfy patrol car looking for speeders, and some guy practicing the neutered right of UOC is walking down the street eating a candy bar, how is your life in danger?

antarius
12-26-2008, 1:19 PM
I'm done here. I'll stick to the parts of the forum that are a little more reasonable.

Meplat
12-26-2008, 2:59 PM
But just about any excuse is accepted as "reasonable" for Terry is it not? Which just about makes the whole thing moot, and there goes the fourth.

Please tell me I'm wrong.:)


Even under Terry, as well as the above, you need at least reasonable suspicion that a crime has been committed.

Meplat
12-26-2008, 3:10 PM
Well,

For those of us who are going to open carry, if you are doing so with a semi auto, perhaps you can just leave the slide locked back, mag out.

Should be easy for cop to see you have a "unloaded gun.

If you have a revolver, open the cylinder and put a pen or pencil in it to hold cylinder open.

Just my 2 cents.

Nicki

It could still be legally loaded if he can't see the, or all of the, chambers.:D

Meplat
12-26-2008, 3:36 PM
You know, I don't mind you "requesting" to check my gun" I wouldn't even mind it if you want to hold it until our business is finished. But, I still think to demand it is a violation of the Fourth amendment. We venerate our peace officers in this culture. I know you take risks. But, if you are going to be a peace officer in a free society, it is going to require some risk. If you accept the gratitude you have to except the risk. I have family I worry about because I know they are the kind of guys that will suck it up and do the right thing, not because it's their job but because it's the right thing. Anyone who does not have the balls for a little risk should not be in police work.;)



Take a look at the exceptions to the 4th amendment.

And for those who said it's because it's a threat to "their power," you're wrong.

The reason an officer WANTS to check your open-carried weapon to see if it's loaded, is because he wants to make sure he goes home at the end of the day. When I see you walking around with your gun on your hip, I'm happy for you. I'm hoping for the day when you can legally buy your own AR-15's and carry concealed under your shirt, or open and loaded. I'm willing to fight for your 2nd amendment as much as you are willing to say I want to take it away from you. That said, I will make damn sure I go home at the end of the day and if that means I use the right to search you for weapons to ensure my safety while conducting a lawful investigation (including inspecting your weapons), then so be it.

To the person who said "you might be growing pot in your house but they cant just barge in to check." That's totally different. Apples to Oranges.

You are dealing with something in plainview, vs something not. Also, the courts have remained far more strict on household exceptions to the 4th amendemnt, than to a person or their vehicle.

Meplat
12-26-2008, 3:39 PM
I would agree with that. And for all practical purposes, it is necessary because of the dangers involved. However, it is unfortunate that the people who are doing nothing wrong, have their vehicle searched, their person searched, and can't just go around enjoying their rights because of the bad apples that are out there.

If it weren't for the people breaking the law, none of this would be necessary.

It is not "the people" who break the law it is individuals.

DDT
12-26-2008, 3:41 PM
That reminds me of an old flight school saying that certainly applies to police work.

"There are old pilots and there are bold pilots, but you don't find many old, bold pilots."

The corollary was "If you stick it out there far enough, long enough, someone will chop it off"

artherd
12-26-2008, 4:00 PM
But just about any excuse is accepted as "reasonable" for Terry is it not? Which just about makes the whole thing moot, and there goes the fourth.

Please tell me I'm wrong.:)

First off - I suggest everyone take half an hour or so and FULLY read the actual Terry decision. Not a summary, not even the summary by the court.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=392&page=1

This is educational:

"Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). 23 And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra."

Harrison_Bergeron
12-26-2008, 4:16 PM
I'm done here. I'll stick to the parts of the forum that are a little more reasonable.

What is unreasonable? The penal code in question says that you can stop someone for no reason other than that they have a gun on them, does it not? Have you not read stories on this very site about UOC people being stopped by cops for no reason other than practicing their right to UOC? Just because you use the example of dealing with someone suspected of committing an actual crime does not mean that that is the only instance that it applies to.

Liberty1
12-26-2008, 4:44 PM
Reasonable Cause and Probable Cause
Some have tried to use comparisons to other types of searches with less than good results. But other examples do exist in the P.C.

§653k prohibits the possession of switchblade knives.
§626.10 prohibits knives longer than 2.5" on school grounds.
§171b prohibits knife blades over 4" in public meetings
§175 prohibits blades over 4" in airports.

".

Where the analogy IMO to firearms falls apart is that mere possession of the above items in plain view creates PC to lawfully detain and investigate.

Mere possession of a firearm in plain view is not generally in CA a violation and the 12031e check is a "fishing" expedition without any specific facts leading one to believe the firearm is loaded or other crime is afoot.

Now if a call to the police from a named RP (reporting person) which stated that he saw the individual load the firearm in a public prohibitied place then I agree that the police could detain the individual for investigation and arrest if PC is developed.

jacques
12-26-2008, 4:54 PM
It is not "the people" who break the law it is individuals.

Those dang bad apples spoil the bunch.