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pullnshoot25
05-27-2009, 9:19 AM
Just posted it on the blog... or something.

Shane916
05-27-2009, 9:35 AM
Intriguing. Is there no CA PC allowing LE to verify serials in AFS? Only for the verification that the gun is indeed unloaded?

pullnshoot25
05-27-2009, 9:50 AM
Intriguing. Is there no CA PC allowing LE to verify serials in AFS? Only for the verification that the gun is indeed unloaded?

Correctamundo. There has to be a warrant or consensual agreement on the matter before that can occur.

However, it is not illegal for the officer to memorize the number while in the scope of performing the 12031 check then running the gun AFTER the contact has ended.

MasterYong
05-27-2009, 9:55 AM
NICE. Keep 'em coming. One of these days I'm going to get off my lazy arse and write a letter to the Humboldt County Sheriff's Dept, Eureka Police Depts, and the DA of Humboldt County to see what their thoughts are on open carry. I don't really want to take the risk without having prior knowledge as to the individual departments' policies. I do remember a guy in Arcata when I was growing up that used to walk around in his old military uniform carrying a rifle everywhere he went. I even saw him in the bank once! He was a nam vet or something and wasn't all there, but they let him carry his rifle around anyways. That was nearly 20 years ago though, so I have no idea how folks would react now.

Dr. Peter Venkman
05-27-2009, 9:57 AM
Hiibel v. Sixth Judicial District Court of Nevada (http://en.wikipedia.org/wiki/Hiibel_v._Sixth_Judicial_District_Court_of_Nevada)

It seems you are required to show ID. I am not sure if this supercedes other rulings on the subject.

pullnshoot25
05-27-2009, 10:00 AM
Hiibel v. Sixth Judicial District Court of Nevada (http://en.wikipedia.org/wiki/Hiibel_v._Sixth_Judicial_District_Court_of_Nevada)

It seems you are required to show ID. I am not sure if this supercedes other rulings on the subject.

Kolender v. Lawson. This struck down California's "stop-and-ID" statute since it was deemed constitutionally vague. Therefore, I am not legally required to present ID UNLESS, if and ONLY IF, I have been accused of committing a crime. Carrying a gun isn't a crime. Therefore, Hiibel doesn't work.

TatankaGap
05-27-2009, 10:13 AM
Kolender v. Lawson. This struck down California's "stop-and-ID" statute since it was deemed constitutionally vague. Therefore, I am not legally required to present ID UNLESS, if and ONLY IF, I have been accused of committing a crime. Carrying a gun isn't a crime. Therefore, Hiibel doesn't work.

What about the fact that they are allowed to run the serial number while they have the weapon; and they are allowed to check if the gun is stolen? They can't do that without asking for your ID - so the cases that support not giving your ID, don't support refusing the ID when the cop is checking to see if the weapon is stolen -

I don't see anyone convincing a judge (esp with the Roberts/Alioto led restriction on things like the coverage of the exclusionary rule in the field of criminal procedure) that the police don't have a right to ask someone carrying a gun openly to do the (e) check, run the serial number while they have possession of the firearm and run it against the ID to make sure it's not stolen -

If you don't consent to this kind of interaction or you are going to fight it, you are setting yourself up for a losing case and will very possibly lose even bigger in the court of public opinion -

Whereas, if there is an acceptable protocol to do the (e) check, run the weapon to make sure it's not stolen and then note the record, any subsequent (e) check should not then require ID or to check the same gun to see if it was stolen -

Food for thought....

TheBundo
05-27-2009, 10:19 AM
So what are you doing about it? Filing complaint's with IA? Lawsuit? If nothing, how is this helping anyone?

pullnshoot25
05-27-2009, 10:21 AM
So what are you doing about it? Filing complaint's with IA? Lawsuit? If nothing, how is this helping anyone?

... posted that in the blog. Yes, there is an IA complaint for this one.

No lawsuit for this one though. I initially thought it would be a good one but I have since reconsidered. If I file a lawsuit I want to make sure all my ducks are in a row.

Fjold
05-27-2009, 10:22 AM
What about the fact that they are allowed to run the serial number while they have the weapon; and they are allowed to check if the gun is stolen? They can't do that without asking for your ID - so the cases that support not giving your ID, don't support refusing the ID when the cop is checking to see if the weapon is stolen -

...


You just supposed that the police are allowed to run the serial number while they have the weapon. They don't.

Like the OP said they can memorize the number and run it after they give it back but they are not allowed to hold it just to ascertain ownership/legal status.

pullnshoot25
05-27-2009, 10:27 AM
What about the fact that they are allowed to run the serial number while they have the weapon; and they are allowed to check if the gun is stolen? They can't do that without asking for your ID - so the cases that support not giving your ID, don't support refusing the ID when the cop is checking to see if the weapon is stolen -

I don't see anyone convincing a judge (esp with the Roberts/Alioto led restriction on things like the coverage of the exclusionary rule in the field of criminal procedure) that the police don't have a right to ask someone carrying a gun openly to do the (e) check, run the serial number while they have possession of the firearm and run it against the ID to make sure it's not stolen -

If you don't consent to this kind of interaction or you are going to fight it, you are setting yourself up for a losing case and will very possibly lose even bigger in the court of public opinion -

Whereas, if there is an acceptable protocol to do the (e) check, run the weapon to make sure it's not stolen and then note the record, any subsequent (e) check should not then require ID or to check the same gun to see if it was stolen -

Food for thought....

They can only run the serial if it comes into plain view, it is memorized and then run AFTER the gun is given back to me. They cannot take it back to the car. See Arizona vs. Hicks. Even better, read the letters that I wrote in my 4-7-09 Detainment story. (http://docs.google.com/Doc?id=dfd4dr97_0c3cf2vfj) (All the letters in this story, BTW, were attached to the 4-23-09 story as well when I submitted it but were cut from this post for the sake of brevity.)

But what is the reasonable articulable suspicion that the gun was stolen? It is just a ploy to try and enforce a non-existent law, namely to see if the gun is registered to me... again, not a crime to have an unregistered handgun in the state of California, even if I am technically too young to have an unregistered handgun.

Police have the authority to DEMAND the check, not ASK for the check. That is crucial as if they ask and I consent, then they can do whatever they want. With a demand, I am standing on my 4th amendment rights to not be part of any warrantless searches past the warrantless 12031 check.

pullnshoot25
05-27-2009, 10:29 AM
You just supposed that the police are allowed to run the serial number while they have the weapon. They don't.

Like the OP said they can memorize the number and run it after they give it back but they are not allowed to hold it just to ascertain ownership/legal status.

Exactly. It is like walking down the street with a baby. Do the police have the legal right to stop and detain you to see your baby's birth certificate to see if you aren't a kidnapper? Absolutely not! It isn't a crime for people to reproduce (it arguably should be for some people though ;) ) and I should not be subjected to it.

1BigPea
05-27-2009, 11:17 AM
Man you're good, way to stand your ground. :thumbsup:

Let us know what comes of the IA investigation.

xxdabroxx
05-27-2009, 11:19 AM
you are a long winded fellow, will check back once done...

Good job on standing up for your rights, glad you got your knife back. Keep us posted, and watch your six.

Res
05-27-2009, 11:56 AM
Do the police have the legal right to stop and detain you to see your baby's birth certificate to see if you aren't a kidnapper?

Nor the right to see if the diaper is loaded. :p

pullnshoot25
05-27-2009, 2:08 PM
Nor the right to see if the diaper is loaded. :p

HA!

pullnshoot25
05-27-2009, 2:12 PM
OK, here is all I want to know...

Do any of you guys work for any courts, police stations, etc? Just curious, I have gotten some interesting hits on my blog...

Res
05-27-2009, 2:27 PM
hehe, i'm posting on a non profit cpof server (http://www.cpof.org/homepage/)

a doodie joke at that :thumbsup:

bondmid003
05-27-2009, 2:32 PM
What about the fact that they are allowed to run the serial number while they have the weapon; and they are allowed to check if the gun is stolen? They can't do that without asking for your ID - so the cases that support not giving your ID, don't support refusing the ID when the cop is checking to see if the weapon is stolen -

I don't see anyone convincing a judge (esp with the Roberts/Alioto led restriction on things like the coverage of the exclusionary rule in the field of criminal procedure) that the police don't have a right to ask someone carrying a gun openly to do the (e) check, run the serial number while they have possession of the firearm and run it against the ID to make sure it's not stolen -

If you don't consent to this kind of interaction or you are going to fight it, you are setting yourself up for a losing case and will very possibly lose even bigger in the court of public opinion -

Whereas, if there is an acceptable protocol to do the (e) check, run the weapon to make sure it's not stolen and then note the record, any subsequent (e) check should not then require ID or to check the same gun to see if it was stolen -

Food for thought....

You should really read Arizona v Hicks brother

MasterYong
05-27-2009, 2:34 PM
OK, here is all I want to know...

Do any of you guys work for any courts, police stations, etc? Just curious, I have gotten some interesting hits on my blog...

Yes. I am with the CIA-FBI-NSA-DHS-CNN-MCI interdepartmental cooperation task force. We are watching you. Do not run- it is already too late...

pullnshoot25
05-27-2009, 3:18 PM
you are a long winded fellow, will check back once done...

Good job on standing up for your rights, glad you got your knife back. Keep us posted, and watch your six.

I have been told that I am, yes. :)

Kid Stanislaus
05-27-2009, 3:47 PM
Well, if what you posted is on the up & up I'd say the whole thing amounted to a big crock of brown stinky bovine gravy. Its the same old crap of cops getting away with abusing people's rights. I can't see why you don't file a suit in this case but that's your business. Abuse of police authority is MUCH more dangerous than the activities of all the criminals in the land.

DDT
05-27-2009, 4:58 PM
A couple more incidents and he'll have a case against more than the individual cops involved in the detentions.

MasterYong
05-27-2009, 5:02 PM
Well, if what you posted is on the up & up I'd say the whole thing amounted to a big crock of brown stinky bovine gravy. Its the same old crap of cops getting away with abusing people's rights. I can't see why you don't file a suit in this case but that's your business. Abuse of police authority is MUCH more dangerous than the activities of all the criminals in the land.

Have you ever tried to file a lawsuit? $2500 is the minimum I've been quoted in the past. The company I work for recently inquired about filing a lawsuit for IP violations, and the quote was $50,000 just to DRAFT it. DAMN.

I guess it may be more affordable to take an LEO to court but I doubt it, otherwise tons more people would do it, and they (the LEOs) have insurance to protect them form that kind of thing, or at least they do where I live. I friend recently started police academy and he was told that the local departments require this insurance policy (don't know what it's called, I can't recall) that protects them from negligent shootings, lawsuits, etc.

TheBundo
05-27-2009, 8:19 PM
I dare say guns are stolen a lot less than cell phones, which have serial numbers, and power tools, which have serial numbers, but I've yet to hear of someone being detained while those serial numbers are run, absent other suspicious circumstances

N6ATF
05-27-2009, 8:24 PM
I wonder what the longest serial number of any gun is. 20 digits? Try to remember that!

California-Quigley
05-27-2009, 8:35 PM
just cause you are UOC'ing doesnt mean that the detention isn't lawfull. While you are detained it is reasonable for the officer to determine weather you have warrants, gun is stolen, as long as it is done in a reasonable amount of time....

the reasonableness is all there.... and i would hope you wouldn't want convicted felons UOC'ing....

if the officer does it professionally, and doesn't go beyond reasonableness... id let them do their job.

N6ATF
05-27-2009, 8:42 PM
just cause you are UOC'ing doesnt mean that the detention isn't lawfull. While you are detained it is reasonable for the officer to determine weather you have warrants, gun is stolen, as long as it is done in a reasonable amount of time....

the reasonableness is all there.... and i would hope you wouldn't want convicted felons UOC'ing....

if the officer does it professionally, and doesn't go beyond reasonableness... id let them do their job.

It is not professional, reasonable or lawful to do ANYTHING other than CHECK IF THE GUN IS UNLOADED... see case law cited ad nauseam.

California-Quigley
05-27-2009, 8:44 PM
so a cop is supposed to look at your gun, assume it is unloaded with no mag and be okay with that? funny.

it is against the law to carry a weapon not reg'd to you...

not trying to start a fight or anything, just trying to see the big picture.... i know that some of the databases are controlled via NCIC and those require certain protocols to be met, but for a database that is discoverable by anyone.... it should seem that they dont need case law to support the check, because of the greater good.

now to illegally detain you to run you for warrants, then arrest you on said warrants....

or the officer has knowledge of a crime involving say.. male white, medium build, KAR pistol involved.... the officer is not required to tell you why you were stopped, generally they do... but they are not. i've been stopped a few times... never been afraid to voice my rights, but tried to look at the greater good involved

N6ATF
05-27-2009, 8:49 PM
Red herring belongs in the ocean, snip.

it is against the law to carry a weapon not reg'd to you...

It is against the law to conduct search and seizure, in ABSOLUTE DEFIANCE OF CASE LAW AND THE CONSTITUTION. Two wrongs (one of those is another red herring) make a right?

FAIL.

Mssr. Eleganté
05-27-2009, 8:55 PM
so a cop is supposed to look at your gun, assume it is unloaded with no mag and be okay with that? funny.

Nobody in this thread is suggesting that. Where ever did you get the idea anybody was suggesting that? Police are allowed to check to see if the weapon is loaded. That is all they are allowed to check under normal circumstances.

it is against the law to carry a weapon not reg'd to you...

This is simply not true. I think you are getting confused with the law that bumps illegal concealed carry from a misdemenor to a felony if the handgun is not registered to you. Nobody is talking about illegal concealed carry in this thread.

California-Quigley
05-27-2009, 8:57 PM
hold on a sec, dont get nasty...

DDT
05-27-2009, 9:00 PM
I wonder what the longest serial number of any gun is. 20 digits? Try to remember that!

I have a friend who memorizes 100 digit numbers as a parlor trick. He also has his company's 128 bit PKI private key memorized, just for fun. I guess I run in geeky circles though.

DDT
05-27-2009, 9:02 PM
hold on a sec, dont get nasty...

I think that if you refrain from making posts telling people that they should sit still while their civil rights are violated and quoting non-existent law you will find folks will refrain from "getting nasty."

California-Quigley
05-27-2009, 9:03 PM
i knew concealed carry wasn't the issue.... just getting the particulars.... not trying to rock the boat. the 12020- up laws are wordy and convoluted. trying to get real info from someone who can describe the differences in lay terms for guys like me....

California-Quigley
05-27-2009, 9:03 PM
i wish it was a simple right to carry state.... but hey... too much to ask for in KA.

DDT
05-27-2009, 9:06 PM
i knew concealed carry wasn't the issue.... just getting the particulars.... not trying to rock the boat. the 12020- up laws are wordy and convoluted. trying to get real info from someone who can describe the differences in lay terms for guys like me....

The problem is that you stated that it is illegal to carry a handgun not registered to the possessor. What law do you expect folks to quote to you? There is no law saying it is legal to possess a handgun not registered to you just as there is no law saying it is legal to eat peanut butter on Thursday.

California-Quigley
05-27-2009, 9:14 PM
my bad... got confused.

DDT
05-27-2009, 9:16 PM
my bad... got confused.

No problem. I see you've been around for a while but not posted much.

Post some more, as long as you're interested in learning and open about what you do and don't know you'll not get jumped too bad :D

There is so much FUD out there from the media, politicians and even police that these boards get pretty aggressive with any bad information.

California-Quigley
05-27-2009, 9:18 PM
i've been a victim of violent crime... i won... and i'll leave it at that. i'm for the armed citizen, but i am also for the police who aggressively hunt the bad guys... it should be easy for them to do their job. it's not.

dustoff31
05-27-2009, 9:19 PM
Hiibel v. Sixth Judicial District Court of Nevada (http://en.wikipedia.org/wiki/Hiibel_v._Sixth_Judicial_District_Court_of_Nevada)

It seems you are required to show ID. I am not sure if this supercedes other rulings on the subject.

Not necessarily. Most states with "stop and identify" laws merely require that one state their true name and address when asked by a peace officer. AZ and NV are both examples of this.

BTW, the ruling you cite was upheld because NV had a state "stop and identify" law. CA does not. It was struck down as pullnshoot noted.

pullnshoot25
05-27-2009, 10:04 PM
i've been a victim of violent crime... i won... and i'll leave it at that. i'm for the armed citizen, but i am also for the police who aggressively hunt the bad guys... it should be easy for them to do their job. it's not.

Well, I was going to make you a $5,000 bet about the non-reg carry law statement as I honestly thought you were a police officer at first, but I can see that on my trip home from lurning fun stuf that many folks have already chimed in.

Making it EASY for cops to do their job is making it EASY for them to harm you. Ever heard of a police state? The Gestapo? The KGB? The SS? Yeah, they had a REAL easy time with stomping faces and killing people since the laws made people SUBJECTS and not CITIZENS.

While there are some good cops out there (I have met some and there are some on this board), they are generally not out there to HELP anyone, they are there to enforce the law in the interest of the STATE, right after PROTECTING THEMSELVES. Their primary function in life is to arrest and that is what they are always looking to do, even when casually talking with you. Thus, making it "easy" for them to do their job... fark no, I don't think so!

N6ATF
05-27-2009, 10:14 PM
i've been a victim of violent crime... i won... and i'll leave it at that. i'm for the armed citizen, but i am also for the police who aggressively hunt the bad guys... it should be easy for them to do their job. it's not.

It's so not easy for them to do their job that they can practically do anything to gun owners (bad guys) and rarely, if ever, suffer consequences for it.

pullnshoot25
05-27-2009, 10:19 PM
It's so not easy for them to do their job that they can practically do anything to gun owners (bad guys) and rarely, if ever, suffer consequences for it.

As macadelic4 calls people like us, LHF (Low Hanging Fruit)...

N6ATF
05-27-2009, 10:23 PM
Aha, the irony is that if they are really insistent on malicious prosecution, the case law on our side can invoke fruit of the poisonous tree (http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree).

Mulay El Raisuli
05-28-2009, 6:33 AM
Well, I was going to make you a $5,000 bet about the non-reg carry law statement as I honestly thought you were a police officer at first, but I can see that on my trip home from lurning fun stuf that many folks have already chimed in.



I'm still thinking that he's a cop.


Making it EASY for cops to do their job is making it EASY for them to harm you. Ever heard of a police state? The Gestapo? The KGB? The SS? Yeah, they had a REAL easy time with stomping faces and killing people since the laws made people SUBJECTS and not CITIZENS.




So very true. Which is why I applaud your efforts.


While there are some good cops out there (I have met some and there are some on this board), they are generally not out there to HELP anyone, they are there to enforce the law in the interest of the STATE, right after PROTECTING THEMSELVES. Their primary function in life is to arrest and that is what they are always looking to do, even when casually talking with you. Thus, making it "easy" for them to do their job... fark no, I don't think so!




That should be 'frak no.' So say we all.

The Raisuli

JohnnyG
05-28-2009, 8:15 AM
Pullnshoot - good for you. You are braver than I, but I think you're right on. I agree entirely with your assessment of the laws and hope for a good outcome. Hopefully IA will hand out some handslaps for this one, as they clearly violated your rights based on the CA P.C., Constitution and case law.

Cops are not used to coming across someone so versed in CA gun laws. Trust me, most of them don't know much of any details regarding CCW, AW or UOC law. Their jedi mind tricks didn't work this time. They are accustomed to being able to spread some FUD, scare ppl a bit and then get whatever they want from the scared people in terms of detainment, search and siezure.

I know being a cop is a tough job, but that is no excuse for not understanding the laws and then violating rights.

Bugei
05-28-2009, 8:39 AM
As macadelic4 calls people like us, LHF (Low Hanging Fruit)...

I may be low hanging.

pullnshoot25
05-28-2009, 8:46 AM
I may be low hanging.

Gross! HAH!

pullnshoot25
05-28-2009, 8:47 AM
Pullnshoot - good for you. You are braver than I, but I think you're right on. I agree entirely with your assessment of the laws and hope for a good outcome. Hopefully IA will hand out some handslaps for this one, as they clearly violated your rights based on the CA P.C., Constitution and case law.

Cops are not used to coming across someone so versed in CA gun laws. Trust me, most of them don't know much of any details regarding CCW, AW or UOC law. Their jedi mind tricks didn't work this time. They are accustomed to being able to spread some FUD, scare ppl a bit and then get whatever they want from the scared people in terms of detainment, search and siezure.

I know being a cop is a tough job, but that is no excuse for not understanding the laws and then violating rights.

I completely agree and I am making sure they all know that.

That said, I would like to thank you for your encouragement. :)

Untamed1972
05-28-2009, 1:57 PM
Can we get a link to the write-up please?

pullnshoot25
05-28-2009, 2:00 PM
Can we get a link to the write-up please?

Click on the link in my signature.

It is the 1-3 blog post.

Untamed1972
05-28-2009, 2:03 PM
Click on the link in my signature.

It is the 1-3 blog post.

roger that! :thumbsup:

xxdabroxx
05-28-2009, 2:13 PM
Just as ignorance of the law doesn't excuse us, it should not the police either.

Untamed1972
05-28-2009, 2:15 PM
I hope you throw the book at them.....Just another reason (on top the extra city sales EC adds on) to stay the heck out of EC! ECPD has had a long history of "We're the COPs, we can do whatever we want",, but then when you REALLY do need them for something they're nowhere to be found. That needs to change.

GaryV
08-25-2009, 3:26 PM
Sorry, I know this is an old thread. But, although I have no plans to UOC, I'm always interested in the various legal aspects of anything gun related, and anything related to the BoR. Being so interested, I read Arizona v. Hicks, and I believe that the assertion that it prohibits the police from running the serial number of a gun during a check is incorrect, unless there is later case law that applies it this way.

The Hicks ruling specifically says:

"The mere recording of the serial numbers did not constitute a "seizure" since it did not meaningfully interfere with respondent's possessory interest in either the numbers or the stereo equipment."


The reason the officer's action was ruled unconstitutional is because he suspected the stereo was stolen, but didn't have probable cause to believe so, and then he moved it to get to the serial number. The court ruled that recording and running the serial number was perfectly legal, and would have been acceptable if the number had been in plain view (as most gun SNs would be during a check). They only ruled that moving the stereo was unconstitutional, as, they specifically point out, a completely separate act from recording and running the serial number.

"However, the moving of the equipment was a "search" separate and apart from the search that was the lawful objective of entering the apartment." (emphasis added)


While you might have a case if the officer carried the gun back to his car to run the number (as that could be considered a seizure) or removed something covering the number in order to see it (a search), if the number is in plain view during the check, and he either runs it immediately on his portable or writes the number down to run in his car, Hicks would not prohibit his actions.

It would also not apply if the officer had any reason to make the check a Terry stop, even if the stop had nothing to do with your possession of a gun, because he could justify carrying it back to his car in order to secure it. Since such a seizure is legal in those circumstances, running it once he got it back to his car would be legal.

So it seems Hicks only applies if the officer takes the gun back to his car during a check, or if he has to take additional action to uncover the SN. If the number is uncovered and he stands right there in front of you and either runs the number on his portable, or records it, it appears Hicks would be irrelevant.

Liberty1
08-25-2009, 3:42 PM
just cause you are UOC'ing doesnt mean that the detention isn't lawfull. While you are detained it is reasonable for the officer to determine weather you have warrants, gun is stolen, as long as it is done in a reasonable amount of time....





Check out People v DeLong. It found that 12031 "e" loaded inspections were only for the single limited purpose of checking to see if there was ammo attached to the firearm in a position from where it could be fired (I combined that sentence with People v Clark loaded definition;) for clarity). According to that case law "e" is NOT a detention so no further fishing expeditions ,wants/warrants check etc..., are allowed ABSENT normal RAS to detain for investigation (People v Terry).

the reasonableness is all there.... and i would hope you wouldn't want convicted felons UOC'ing....

:rolleyes:

if the officer does it professionally, and doesn't go beyond reasonableness... id let them do their job

Feel free to consent, IF you want, to any searches they ask for. Your at liberty to make that decision.


Ha! an old thread....and I thought this was one of PnS25's new adventures....

Glock22Fan
08-25-2009, 4:03 PM
I believe that it has been recommended many times in these hallowed halls that if you don't want them to run serial numbers, you should obscure them with something like tape. Obviously you cannot remove them or make them permanently unreadable, but the LEO's aren't allowed to remove the tape during a simple loaded/unloaded check.

If I wanted to do this, I would also have to change my barrel, as the serial number is visible through the ejection port, and I don't think that tape would be too good an idea there.

GaryV
08-25-2009, 4:42 PM
Check out People v LeLong. It found that 12031 "e" loaded inspections were only for the single limited purpose of checking to see if there was ammo attached to the firearm in a position from where it could be fired (I combined that sentence with People v Clark loaded definition;) for clarity). According to that case law "e" is NOT a detention so no further fishing expeditions ,wants/warrants check etc..., are allowed ABSENT normal RAS to detain for investigation (People v Terry).

Okay I finally found People v. DeLong (if there's a separate case dealing with this issue called "LeLong", I couldn't find it - I assume it was just a typo).

However, I don't see anything you stated about it in the text of the decision. While it does point out that the check itself only has a very limited purpose, it does so only to justify the legality of the check, not to limit the actions of the officers. In fact, the discovery of contraband in plain sight as a result of opening a car trunk to perform the check was ruled acceptable. It's pretty hard to see how this could then be read to prohibit the running or recording of a serial number in plain sight during such a check. There's no mention of a check not being a detention, or precluding any other checks. It was only ruled that it was not a "search" (which would further preclude the application of Hicks), and therefore, by definition, cannot be a violation of the 4th Amendment. The subject was clearly detained, and his car trunk was opened without his consent, and these actions were ruled acceptable.

Either way, Hicks is still not applicable. In fact, when you combine DeLong's assertion that the check is not legally a search, with Hicks's conclusion that recording and running serial numbers in plain sight absent a search is legal, it seems that the law clearly supports officers who check serial numbers during (e) checks.

Kid Stanislaus
08-25-2009, 6:52 PM
I friend recently started police academy and he was told that the local departments require this insurance policy (don't know what it's called, I can't recall) that protects them from negligent shootings, lawsuits, etc.

They are not "protected from lawsuits"! The insurance company agrees to pay if they loose the case and I'm guess'n they provide the attorney to make sure they don't have to pay. You CAN file a suit against an LEO but a lawyer is going to take the case only if it looks strong because of what he'll be up against. If the case IS strong you just might be able to get lawyer to take it on contingency, inwhich case you'll probably get a settlment from the city. Nobody really wants to go to court. BTW, $2500 is chump change these days.

Kid Stanislaus
08-25-2009, 6:59 PM
i'm for the armed citizen, but i am also for the police who aggressively hunt the bad guys... it should be easy for them to do their job. it's not.

Did somebody promise them EASY?!! I hope not, however, I'm a firm believer that when police are PROPERLY TRAINED their jobs are easier.

Liberty1
08-25-2009, 10:03 PM
Okay I finally found People v. DeLong (if there's a separate case dealing with this issue called "LeLong", I couldn't find it - I assume it was just a typo).

Sorry for the typo. Hope it didn't take too long to find the right case.

So when the "e" check is completed (about 30-60 seconds), what is the justification (ie: RAS) for detaining the individual further against their will? or for demanding identification, or even holding on to private property to run serial checks? You don't see 4th A. issues with detentions not related to normal RAS and just for "fishing" expeditions?

Sure, IF "e" is not unconstitutional under the 2nd and 4th As and in the course or removing a gun from the holster a baggie of meth falls out the barrel :p I would say it was found fair and square just like in DeLong.

pullnshoot25
08-25-2009, 10:08 PM
I wondered why there were so many hits on my blog today. Crikey, this is an oldie!

Wait until my newest adventure is posted. Still gathering the info for it.

GaryV
08-26-2009, 12:01 PM
Sorry for the typo. Hope it didn't take too long to find the right case.

So when the "e" check is completed (about 30-60 seconds), what is the justification (ie: RAS) for detaining the individual further against their will? or for demanding identification, or even holding on to private property to run serial checks? You don't see 4th A. issues with detentions not related to normal RAS and just for "fishing" expeditions?

Sure, IF "e" is not unconstitutional under the 2nd and 4th As and in the course or removing a gun from the holster a baggie of meth falls out the barrel :p I would say it was found fair and square just like in DeLong.

I don't disagree with you that there should be 4th Amendment issues, but I don't see state courts agreeing with you on this. Maybe if DeLong had gone federal, or if some other (e) check case did, you might get the feds to look at it differently. I think DeLong was decided wrongly - (e) checks are clearly a search. But then, so are safety checks done on boats by the coast guard, and yet they pass federal muster, even on inland waterways. As long as these kinds of checks are not considered warrantless searches, Hicks is not relevant, because it specifically allows the recording and running of a serial number once it is in plain view.

What's to stop the officer from running the SN before he checks the chamber? Since he's still in the middle of a process that the courts have already ruled is legal, and since the SN is in plain view at the time, you're simply not going to get a court to rule this unacceptable. This isn't any different than the officer taking extra time away from his justified search in Hicks, invading the subject's home, to run a serial number not relevant to the justified search, a scenario that SCOTUS ruled would have been acceptable. Given that, I doubt you'd get them to agree that running it immediately after he checks the chamber is significantly different.

Like I said, I agree that there should be a constitutional issue here. But the issue is that the (e) check itself should be illegal. But I'm not talking about "should", I'm talking about "is". Till you get a court to rule it is, Hicks doesn't apply.

Untamed1972
08-26-2009, 12:07 PM
I don't disagree with you that there should be 4th Amendment issues, but I don't see state courts agreeing with you on this. Maybe if DeLong had gone federal, or if some other (e) check case did, you might get the feds to look at it differently. I think DeLong was decided wrongly - (e) checks are clearly a search. But then, so are safety checks done on boats by the coast guard, and yet they pass federal muster, even on inland waterways. As long as these kinds of checks are not considered warrantless searches, Hicks is not relevant, because it specifically allows the recording and running of a serial number once it is in plain view.

What's to stop the officer from running the SN before he checks the chamber? Since he's still in the middle of a process that the courts have already ruled is legal, and since the SN is in plain view at the time, you're simply not going to get a court to rule this unacceptable. This isn't any different than the officer taking time away from his justified search in Hicks to run a serial number not relevant to the justified search, a scenario that SCOTUS ruled would have been acceptable. Given that, I doubt you'd get them to agree that running it immediately after he checks the chamber is significantly different.

Like I said, I agree that there should be a constitutional issue here. But the issue is that the (e) check itself should be illegal. Till you get a court to rule it is, Hicks doesn't apply.

The point is though.....can they detain WHILE they run the check? Can an officer just walk up to you in a parking lot while your car is parked and detain you while he runs your plates to make sure the car you just got into is registered to you?

So the issue is not so much about running a S/N that is in plain view, it is about detaining you with no RAS WHILE the numbers are run.

GaryV
08-26-2009, 12:36 PM
The point is though.....can they detain WHILE they run the check? Can an officer just walk up to you in a parking lot while your car is parked and detain you while he runs your plates to make sure the car you just got into is registered to you?

So the issue is not so much about running a S/N that is in plain view, it is about detaining you with no RAS WHILE the numbers are run.

Like I said, I doubt you'll find a court that rules this is any different than the officer in Hicks invading the subject's home longer than necessary for his legitimate search in order to run the serial number of the stereo - which, absent an additional unjustified search, was considered acceptable. Once the officer has a legitimate reason to detain you (which makes all this different than your license plate example, where no such original reason exists), I think almost any court will rule that the extra time taken to run or record the SN will be acceptable.

The reason I don't think you'll ever get a court to rule in your favor on this is politics. Liberal judges will follow the example of DeLong, and find that the "special dangerous" nature of guns gives officers higher leeway to invade your privacy. Conservative judges tend to be very pro "law and order", and give officers exceptional leeway on 4th Amendment issues to begin with. So finding a judge (or worse, a panel of judges) that is neither anti-gun nor pro LE enough to see a check of the SN as reasonable is highly unlikely. As I said, I agree with you that this shouldn't be acceptable, but I think making this argument in court would be like trying to thread a needle with 20mm 3-strand rope - just not enough clearance on either side.

Untamed1972
08-26-2009, 1:00 PM
Like I said, I doubt you'll find a court that rules this is any different than the officer in Hicks invading the subject's home longer than necessary for his legitimate search in order to run the serial number of the stereo - which, absent an additional unjustified search, was considered acceptable. Once the officer has a legitimate reason to detain you (which makes all this different than your license plate example, where no such original reason exists), I think almost any court will rule that the extra time taken to run or record the SN will be acceptable.

The reason I don't think you'll ever get a court to rule in your favor on this is politics. Liberal judges will follow the example of DeLong, and find that the "special dangerous" nature of guns gives officers higher leeway to invade your privacy. Conservative judges tend to be very pro "law and order", and give officers exceptional leeway on 4th Amendment issues to begin with. So finding a judge (or worse, a panel of judges) that is neither anti-gun nor pro LE enough to see a check of the SN as reasonable is highly unlikely. As I said, I agree with you that this shouldn't be acceptable, but I think making this argument in court would be like trying to thread a needle with 20mm 3-strand rope - just not enough clearance on either side.


Ok....but the point is once the "e"check has been completed and the gun found to be unloaded, ie the person is found to be engaging in a legal activity, the justification for detainment is gone. So to detain you any longer then that WOULD be unreasonable because you can't detain someone for doing something is legal. Detainment must be based on RAS that a crime has/is/about to occur.

Fine.....memorize the S/N and run it after you've sent the person on their way. It's not illegal to be in posession of a handgun that isn't registered to you. The crux of this is people being subjected to police intrusion for doing something that is perfectly legal according to existing CA law.

snobord99
08-26-2009, 1:04 PM
It's a close call, but I'd agree with Gary. Based on my somewhat fuzzy memory of my Crim Pro class and 4th Amendment jurisprudence, the court's probably going to find that running the serial number is not such a long detention as to warrant it unreasonable.

Terry v. Ohio basically says that a temporary detention is constitutional if the officers have reasonable suspicion that a crime is being or has been committed. As such, they are allowed to stop you and investigate. Here, 12031(e) basically says that open carrying is enough to give them reasonable suspicion for a temporary detention (checking the gun). I would like to think that once they've checked the gun, the reasonable suspicion is over and they should let you go; however, I think the court may hold that an extra 30 seconds or minute to run the serial number on the gun is not so long as to make the Terry stop unreasonable.

Compare that with a situation where you're pulled over for running a stop sign. The officer could easily write you your ticket and send you on your way without ever returning to his car; however, it's well established that they are allowed to go and run your name and see if you have a warrant. In both of these cases, the detention is extended by a relatively short period of time and I think the court will ultimately say the same thing with regards to running the serial number as they did with running your name.

But, again, it's a really close call. I'd probably have a clearer picture if I have more on point cases to compare to but I don't. You both have good points and the only way to know who's right really is to have this go to court; even if we have cases to compare to, unless it is directly on point (read: basically the exact same situation), there won't be an exact answer to this question.

Untamed1972
08-26-2009, 1:13 PM
Compare that with a situation where you're pulled over for running a stop sign. The officer could easily write you your ticket and send you on your way without ever returning to his car; however, it's well established that they are allowed to go and run your name and see if you have a warrant. In both of these cases, the detention is extended by a relatively short period of time and I think the court will ultimately say the same thing with regards to running the serial number as they did with running your name.


The only problem with that comparison is you're comparing someone who was stopped for actually committing an infraction/crime to someone who was stopped who committed no crime.

Once the stop has shown the gun to be unloaded and the person is in compliance with the law there is no legal basis to detain them any further. The fact that it is a gun in question should not change the analysis.

Let's say your are walking down the sidewalk, minding your own business and doing nothing illegal and you were stopped because you matched the description of a wanted person. You show the officer ID and prove that you are not the person they are looking for. Should the office at that point be able to say "But since I've got you here and I have your ID, I'm going to run you name thru system anyway."

Would that be a reasonable detention at that point? No! The reasonableness of the detention ended when he found you were not the wanted person and you were doing nothing ELSE illegal to warrant being detained for further investigation or records checks.

So it should be the same with the "e"check. That law allows them to check the status of your firearm. Once found to be in compliance there is not further justification for the detainment unless there is something ELSE going on for which they want to investigate. But if the ONLY reason for the stop was the e-check.....the RAS ends when the gun is found to be unloaded.

snobord99
08-26-2009, 1:54 PM
The only problem with that comparison is you're comparing someone who was stopped for actually committing an infraction/crime to someone who was stopped who committed no crime.

Once the stop has shown the gun to be unloaded and the person is in compliance with the law there is no legal basis to detain them any further. The fact that it is a gun in question should not change the analysis.

Let's say your are walking down the sidewalk, minding your own business and doing nothing illegal and you were stopped because you matched the description of a wanted person. You show the officer ID and prove that you are not the person they are looking for. Should the office at that point be able to say "But since I've got you here and I have your ID, I'm going to run you name thru system anyway."

Would that be a reasonable detention at that point? No! The reasonableness of the detention ended when he found you were not the wanted person and you were doing nothing ELSE illegal to warrant being detained for further investigation or records checks.

So it should be the same with the "e"check. That law allows them to check the status of your firearm. Once found to be in compliance there is not further justification for the detainment unless there is something ELSE going on for which they want to investigate. But if the ONLY reason for the stop was the e-check.....the RAS ends when the gun is found to be unloaded.

Again, you have good points. I'm just saying it's a close call.

I understand the problem with my pulled over for running a stop sign hypothetical. Change that to a person, let's say you, pulled over because your vehicle and you (the part of you that can be seen from outside the car) match the description of a suspect of a recent robbery. The officers look at your license and determine that you're too tall or short to be the suspect, but they may still run your license to see if there's a warrant out for you. I'm pretty sure that would be upheld even though they had already determined that you were too tall to be who they were looking for because it took a minute of your time.

Keep in mind that one of the factors the court looks at is the length of the detention and I'm not convinced that the court will find a detention that lasts one minute longer is automatically unreasonable. Also remember, the court will probably only have the opportunity to consider this if that check revealed that the gun was stolen or that there's a warrant out for your arrest (in the case of being pulled over). The courts are not likely to exclude evidence or say an arrest was unlawful based on a one minute longer detention. Unfortunately for us, that means we'll just have to wait that extra minute even if we know and they find that we did nothing wrong.

We can debate this left, right, up and down all we want. If what we're trying to figure out is if it's constitutional, we won't know until the question is presented to the court. If it's just a "should this be reasonable?" debate, then I'll bow out since that's just a matter of opinion and a court decision wouldn't change that.

dantodd
08-26-2009, 2:00 PM
So, the cop runs the numbers before he racks the slide; the e check isn't done until after the serial numbers come back so no illegal search or detention.

If you don't want the numbers run, put tape over them.

Untamed1972
08-26-2009, 2:18 PM
let's say you, pulled over because your vehicle and you (the part of you that can be seen from outside the car) match the description of a suspect of a recent robbery. The officers look at your license and determine that you're too tall or short to be the suspect, but they may still run your license to see if there's a warrant out for you. I'm pretty sure that would be upheld even though they had already determined that you were too tall to be who they were looking for because it took a minute of your time.


But in this state there is no "stop and ID" statute. So once I was determined to NOT be the person they are looking for what would be the "reasonably articulatable suspicion" for detaining me any further? A LEO is cannot legally run a records check on you simply because they want to out of simply curiosity....it must be in conjuction with a legal investigation, this I know for a fact because LEOs are specfically trained that you can't go looking up random people just for the fun of it. To do so is a violation of the law.

Once they have determined I am not the suspect they are looking for there is ZERO legal justification for them to detain me one second longer, let alone run a records check on me as I am not the subect of a legal investigation at that point.

snobord99
08-26-2009, 2:38 PM
But in this state there is no "stop and ID" statute. So once I was determined to NOT be the person they are looking for what would be the "reasonably articulatable suspicion" for detaining me any further? A LEO is cannot legally run a records check on you simply because they want to out of simply curiosity....it must be in conjuction with a legal investigation, this I know for a fact because LEOs are specfically trained that you can't go looking up random people just for the fun of it. To do so is a violation of the law.

Once they have determined I am not the suspect they are looking for there is ZERO legal justification for them to detain me one second longer, let alone run a records check on me as I am not the subect of a legal investigation at that point.

Under the federal constitution, there is no statute required. I doubt there's a state constitutional requirement for it but if the state wants to say the search was unreasonable because there's no statute, they could. I'm going by federal law since that's what the state HAS to follow.

You more or less made my point. It has to be in conjunction with a legal investigation, which you said and I agree with. The question is if a one minute longer check is considered to be "in conjunction with" the investigation (whether it's the investigation into if you're the robber or if you have a stolen weapon). This is where I say it's a close call and where I say I think the court would say it can still be "in conjunction with" the investigation.

LEOs are trained not to look up random people, I'm pretty sure that's 100% accurate (some training may be worse than others :p); however, once they pulled you over b/c you matched the description or approached you because you're open carrying, you're no longer a random person.

dantodd
08-26-2009, 2:46 PM
Under the federal constitution, there is no statute required. I doubt there's a state constitutional requirement for it but if the state wants to say the search was unreasonable because there's no statute, they could. I'm going by federal law since that's what the state HAS to follow.

Could you please identify the federal "stop and identify" law to which you refer?

snobord99
08-26-2009, 2:51 PM
Could you please identify the federal "stop and identify" law to which you refer?

Huh? I was saying there's no such constitutional requirement. If a statute exists, I've never heard of it.

Or were you asking me to identify the 4th Amendment?

dantodd
08-26-2009, 2:58 PM
Untamed said: "But in this state there is no 'stop and ID' statute. "

You responded: "Under the federal constitution, there is no statute required."

that is why I asked what statute you feel allowed for the detention.

However you also said: "The question is if a one minute longer check is considered to be "in conjunction with" the investigation (whether it's the investigation into if you're the robber or if you have a stolen weapon)."

The problem is that an (e) check is not an investigation or to see if you're a robber or have a stolen weapon. It is simply a check to see if the firearm is loaded. That is why the DeLong decision is important. Unless the loaded check turns up something that creates RAS there is no legal way for the officer to run additional checks such as ID or run a serial number after the loaded check is complete.

snobord99
08-26-2009, 3:38 PM
Untamed said: "But in this state there is no 'stop and ID' statute. "

You responded: "Under the federal constitution, there is no statute required."

that is why I asked what statute you feel allowed for the detention.

However you also said: "The question is if a one minute longer check is considered to be "in conjunction with" the investigation (whether it's the investigation into if you're the robber or if you have a stolen weapon)."

The problem is that an (e) check is not an investigation or to see if you're a robber or have a stolen weapon. It is simply a check to see if the firearm is loaded. That is why the DeLong decision is important. Unless the loaded check turns up something that creates RAS there is no legal way for the officer to run additional checks such as ID or run a serial number after the loaded check is complete.

Yes, but what the (e) check is is an investigation to see if you're carrying a loaded weapon and a cop making that check is checking to see if you're violating the law by carrying a loaded weapon in the open. Like a cop pulling you over to see if you're the suspected robber is "checking" to see if you just robbed someone.

All the 12031(e) does is codify that the officer has a right to check if the weapon is loaded. They're still checking for violations of the law. An (e) check isn't specifically for whether you have a stolen weapon just as being pulled over b/c you matched the description isn't for checking you for warrants; however, the court may say that the additional minute used to run the gun was not unreasonable just like they would likely say that putting your name in to check for a warrant wasn't unreasonable.

Again, it's a close call IMO.

On a related note, anyone have a link to the DeLong opinion? Not a summary or a cite of the opinion, but the actual opinion? I don't have access to legal research sites anymore since I graduated. You guys have made me very curious ;).

Oh, and as to what statute allows for the detention, I assume you refer to the initial detention? If that's the case, then I mean whatever statute that says it's illegal to open carry a loaded gun or whatever statute that says it's illegal to rob someone (I know this is PC211 in CA).

dantodd
08-26-2009, 4:04 PM
Oh, and as to what statute allows for the detention, I assume you refer to the initial detention? If that's the case, then I mean whatever statute that says it's illegal to open carry a loaded gun or whatever statute that says it's illegal to rob someone (I know this is PC211 in CA).

Actually, this is precisely where you are having problems thinking this through.

Carrying a gun on your hip is NOT RAS to check if it is loaded. That would be like saying that driving down the street is RAS to stop you and see if you have a driver's license.

The reason an officer can check your weapon to see if it is loaded is because of 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.

So, the stop is not an investigatory stop in which RAS has been determined. Now, if the officer discovers something articulable during the (e) check he can detain you further but since there is no reasonable suspicion involved with the initiation of the stop there is no reasonable suspicion to request Id or run the serial number. Now that you understand that the interaction is not based on any sort of suspicion does the logic make more sense to you?

snobord99
08-26-2009, 4:20 PM
Actually, this is precisely where you are having problems thinking this through.

Carrying a gun on your hip is NOT RAS to check if it is loaded. That would be like saying that driving down the street is RAS to stop you and see if you have a driver's license.

The reason an officer can check your weapon to see if it is loaded is because of 12031(e)

So, the stop is not an investigatory stop in which RAS has been determined. Now, if the officer discovers something articulable during the (e) check he can detain you further but since there is no reasonable suspicion involved with the initiation of the stop there is no reasonable suspicion to request Id or run the serial number. Now that you understand that the interaction is not based on any sort of suspicion does the logic make more sense to you?

I get what you're saying, but that also makes me wonder what's your legal authority for saying that open carrying is not sufficient reasonable suspicion that you're carrying a loaded firearm? Admittedly, I have no specific authority I can point to to say that it's sufficient reasonable suspicion but I wonder if there's specific authority saying that it's not sufficient reasonable suspicion.

The way (e) is worded on its face (the part about refusal to comply with (e)) leads me to believe that the standard for reasonable suspicion here is rather low. I can think of no other area where a mere refusal to allow an inspection is sufficient to establish probable cause. That's why I'm thinking mere open carrying is enough for reasonable suspicion. If mere open carrying wasn't enough for reasonable suspicion, then (e) itself would be unconstitutional under the 4th as it allows a detention absent reasonable suspicion.

dantodd
08-26-2009, 4:23 PM
I get what you're saying, but that also makes me wonder what's your legal authority for saying that open carrying is not sufficient reasonable suspicion that you're carrying a loaded firearm? Admittedly, I have no specific authority I can point to to say that it's sufficient reasonable suspicion but I wonder if there's specific authority saying that it's not sufficient reasonable suspicion.

The way (e) is worded on its face (the part about refusal to comply with (e)) leads me to believe that the standard for reasonable suspicion here is rather low. I can think of no other area where a mere refusal to allow an inspection is sufficient to establish probable cause. That's why I'm thinking mere open carrying is enough for reasonable suspicion. If mere open carrying wasn't enough for reasonable suspicion, then (e) itself would be unconstitutional under the 4th as it allows a detention absent reasonable suspicion.

First of all I think MANY people believe that 12031(e) will be found to be unconstitutional. Also, if the mere presence of the firearm is reasonable suspicion then 12031(e) would be superfluous. By writing 12031(e) the legislature is articulating its opinion that without the law such a search would not be legal.

Meplat
08-26-2009, 5:03 PM
This concept has potential. I have always thought of serialing my homebuilds with things like FBOXER, but that would be way too easy to remember. Now I'm thinking it better to make it 20 places or more and a mixture of numbers, letters, chinese characters, wingdings, glyphs, and morse code.:43:



I wonder what the longest serial number of any gun is. 20 digits? Try to remember that!

snobord99
08-26-2009, 5:31 PM
First of all I think MANY people believe that 12031(e) will be found to be unconstitutional. Also, if the mere presence of the firearm is reasonable suspicion then 12031(e) would be superfluous. By writing 12031(e) the legislature is articulating its opinion that without the law such a search would not be legal.

I knew you were going to say that. After I wrote that I started thinking and thought it's probably not constitutional (but on 4A grounds, not 2A). I just don't know if anyone's ever had standing to challenge it.

Also, there are many public policy and political reasons for writing a law that's superfluous. Could have been a compromise between pro-2A and anti-2As, could be put in to decrease incidents of those OCing resisting an officer who wants to check. Those are just 2 reasons. If I wanted to sit here for a while to think about it, I'm sure I could come up with several more.

Untamed1972
08-26-2009, 5:49 PM
I get what you're saying, but that also makes me wonder what's your legal authority for saying that open carrying is not sufficient reasonable suspicion that you're carrying a loaded firearm? Admittedly, I have no specific authority I can point to to say that it's sufficient reasonable suspicion but I wonder if there's specific authority saying that it's not sufficient reasonable suspicion.

The way (e) is worded on its face (the part about refusal to comply with (e)) leads me to believe that the standard for reasonable suspicion here is rather low. I can think of no other area where a mere refusal to allow an inspection is sufficient to establish probable cause. That's why I'm thinking mere open carrying is enough for reasonable suspicion. If mere open carrying wasn't enough for reasonable suspicion, then (e) itself would be unconstitutional under the 4th as it allows a detention absent reasonable suspicion.


Let's just say that seeing the gun is sufficient RAS to stop you to see if it's loaded or not. Because if it was then you'd be committing a crime, but if it's not then you are obeying the law. So you are detained just long enough to determine the gun is unloaded and you are not breaking the law. At that point the investigation is complete and RAS has vanished. There is no legal justification for detaining you one second longer for any additional checks, because as a law abiding citizen you have the right to freedom of movement without undo interference from the state or its agents.

By you thinking, if you were stopped in your car because you matched a description of a wanted person, after they realize you're not the wanted person why don't they just go ahead and search the car, check the serial numbers on anything they can find, strip search you and anyone else in the car and so on?

Anything that occurs after the RAS is gone (which means the investigation is over) cannot be considered reasonable. Once they determine I am not the wanted person there is nothing left to investigate. At that point I AM considered a random person when it comes to running checks on anything because I am no longer the subject of an investigation.

I mean it's pretty simple.....if stopped for RAS of a possible crime, which essentially the e-check is allowing, once it is found that no crime is being committed, ei loaded gun, then the investigation is over, any further detention w/o RAS of something ELSE to investigate would be unreasonable. As someone stated it is akin to pulling someone over simply to see if they have a driver's license.

Shotgun Man
08-26-2009, 5:53 PM
Let's just say that seeing the gun is sufficient RAS to stop you to see if it's loaded or not. Because if it was then you'd be committing a crime, but if it's not then you are obeying the law. So you are detained just long enough to determine the gun is unloaded and you are not breaking the law. At that point the investigation is complete and RAS has vanished. There is no legal justification for detaining you one second longer for any additional checks, because as a law abiding citizen you have the right to freedom of movement without undo interference from the state or its agents.

By you thinking, if you were stopped in your car because you matched a description of a wanted person, after they realize you're not the wanted person why don't they just go ahead and search the car, check the serial numbers on anything they can find, strip search you and anyone else in the car and so on?

Anything that occurs after the RAS is gone (which means the investigation is over) cannot be considered reasonable. Once they determine I am not the wanted person there is nothing left to investigate. At that point I AM considered a random person when it comes to running checks on anything because I am no longer the subject of an investigation.

I mean it's pretty simple.....if stopped for RAS of a possible crime, which essentially the e-check is allowing, once it is found that no crime is being committed, ei loaded gun, then the investigation is over, any further detention w/o RAS of something ELSE to investigate would be unreasonable. As someone stated it is akin to pulling someone over simply to see if they have a driver's license.

Carrying a gun should be no more PC than carrying a cat.

dantodd
08-26-2009, 6:08 PM
I knew you were going to say that. After I wrote that I started thinking and thought it's probably not constitutional (but on 4A grounds, not 2A). I just don't know if anyone's ever had standing to challenge it.

Can you articulate a reasonable cause to suspect that someone who is openly carrying a firearm is violating the law?

snobord99
08-26-2009, 6:40 PM
Let's just say that seeing the gun is sufficient RAS to stop you to see if it's loaded or not. Because if it was then you'd be committing a crime, but if it's not then you are obeying the law. So you are detained just long enough to determine the gun is unloaded and you are not breaking the law. At that point the investigation is complete and RAS has vanished. There is no legal justification for detaining you one second longer for any additional checks, because as a law abiding citizen you have the right to freedom of movement without undo interference from the state or its agents.

By you thinking, if you were stopped in your car because you matched a description of a wanted person, after they realize you're not the wanted person why don't they just go ahead and search the car, check the serial numbers on anything they can find, strip search you and anyone else in the car and so on?

Anything that occurs after the RAS is gone (which means the investigation is over) cannot be considered reasonable. Once they determine I am not the wanted person there is nothing left to investigate. At that point I AM considered a random person when it comes to running checks on anything because I am no longer the subject of an investigation.

I mean it's pretty simple.....if stopped for RAS of a possible crime, which essentially the e-check is allowing, once it is found that no crime is being committed, ei loaded gun, then the investigation is over, any further detention w/o RAS of something ELSE to investigate would be unreasonable. As someone stated it is akin to pulling someone over simply to see if they have a driver's license.

I think you need to read more cases on 4th Amendment jurisprudence. There's a line (a fuzzy one) as to when a lawful detention becomes unconstitutional. I'm not talking about cases where that line has clearly been crossed. I'm talking about cases where the court has to determine where in that fuzz the case fits. If you think the law is black and white, you clearly don't understand our legal system.

snobord99
08-26-2009, 6:44 PM
Can you articulate a reasonable cause to suspect that someone who is openly carrying a firearm is violating the law?

Oh, I can't. But I wouldn't be surprised if someone has managed to convince a cop, judge or legislator that it's there.

And I should just point out there's no "reasonable cause" concept in criminal law. There's "reasonable suspicion" and "probable cause" but no combination of the two.

Meplat
08-26-2009, 6:45 PM
If carrying a gun is PC to search it for ammunition then driving a car is PC to search it for a bomb in the trunk.:rolleyes:


Carrying a gun should be no more PC than carrying a cat.

Meplat
08-26-2009, 6:55 PM
Let's see, I (officer) am wofully ignorant of the laws regarding firearms, ergo the public must be even more ignorant, after all I'm a cop, so, we must assume that J. Q. Public is probably carrying loaded because he doesn't know any better. Besides he's scaring the horses.

How's that for articulation?:p



Can you articulate a reasonable cause to suspect that someone who is openly carrying a firearm is violating the law?

Liberty1
08-26-2009, 7:09 PM
People v DeLong (http://opencarry.mywowbb.com/view_topic.php?id=27689&forum_id=12&highlight=People+v+DeLong)

slowjonn
08-26-2009, 7:53 PM
There have been a couple of suggestions of covering the serial number with a piece of tape. While it sounds good in theory, I would think any cop worth his salt could articulate removal of said tape. Pretty easy to justify that the tape could be concealing a crime (removal/ obliteration of the serial number). While it may not be enough to justify a lengthy detetion, it would certainly be enough to remove the tape, which kinda defeats the purpose of the tape in the first place.

snobord99
08-26-2009, 7:54 PM
People v DeLong (http://opencarry.mywowbb.com/view_topic.php?id=27689&forum_id=12&highlight=People+v+DeLong)

Cool, thanks!

You wouldn't happen to know where I can get the full opinion would you?

Liberty1
08-26-2009, 8:05 PM
People v DeLong

People v. DeLong (1970) 11 Cal.App.3d 786 , 90 Cal.Rptr. 193
[Crim. No. 8274. Court of Appeals of California, First Appellate District, Division Four. September 30, 1970.]
THE PEOPLE, Plaintiff and Respondent, v. JAMES A. DeLONG, Defendant and Appellant

(Opinion by Devine, P.J., with Rattigan and Christian, JJ., concurring.)

COUNSEL

William R. Higham, Public Defender, and Stuart A. Safine, Deputy Public Defender, for Defendant and Appellant.

Paul N. Halvonik and Charles C. Marson as Amici Curiae on behalf of Defendant and Appellant.

Thomas C. Lynch, Attorney General, Robert R. Granucci and George R. Nock, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION
DEVINE, P. J.

The constitutionality of two gun control statutes, Penal Code section 171e and Penal Code section 12031, subdivision (c), comes before us in an oblique way. The prosecution in this case was for violation of section 11530 of the Health and Safety Code by possession of marijuana. Appellant was convicted and was granted probation for three years upon conditions of his paying a fine and registering pursuant to relevant statutes. The marijuana was in plain sight when officers opened the trunk of appellant's automobile; wherefore, the legality of the opening is important, and that legality in turn depends on the constitutionality of the statutes mentioned above.

Facts

The case was submitted on the municipal court transcript. A campus policeman at Diablo Valley College, using binoculars, saw a group of people gathered about a red automobile. A rifle was taken from the vehicle by appellant and was placed in a brown automobile. The brown vehicle departed. The officer saw two other firearms, which he thought were rifles, in the trunk of the red car. Appellant departed on foot, but returned a half hour later; meanwhile, an officer staked out the stationary red car. A deputy sheriff was sent to the scene. The deputy informed appellant, who was sitting at the wheel of the car, that he had been notified of the presence of rifles in the trunk of the car. Appellant denied the presence of any guns, whereupon the deputy requested appellant to open the trunk. Appellant replied that he did not have a key thereto. The deputy then ordered appellant to exit the vehicle. After appellant had alighted, he dropped a key. The officers opened the trunk with the key for the purpose of determining whether the guns therein were loaded. Discovered in the trunk were a rifle and a shotgun, both of which, upon examination, proved to be unloaded. [11 Cal.App.3d 789] A quantity of marijuana was in plain view. Appellant was then placed under arrest for possession of marijuana. He had not violated any gun law.

The Statutes

In 1967 the Legislature enacted section 171c of the Penal Code, which in substance makes it a crime (a possible felony) to bring a loaded firearm into or to possess a loaded firearm within the state Capitol, any legislative office, office of the Governor, or other constitutional officer or legislative committee room (none of these is involved in this case), or within or upon the grounds of any public school, the University of California, or state colleges. (Diablo Valley College is a public school.) Exceptions are made for certain officers and licensed persons. (Another section of the Penal Code, 171d, has to do with loaded firearms at legislators', the Governor's, and the officers' residences.)

In the same year, the Legislature enacted section 12031 of the Penal Code, which makes it a misdemeanor for any person to carry a loaded firearm "on his person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." ("Prohibited area" is defined in subdivision (d) of the section as a place where it is unlawful to discharge a weapon.) Exceptions are provided for various kinds of officers, guards, etc. and for certain uses such as upon target ranges, at shooting clubs, and making a lawful arrest; and it is stated that it is not forbidden to have a loaded weapon at one's place of residence or at one's place of business, or under circumstances which cause a person reasonably to believe that the person or the property of himself or another is in immediate danger and that the carrying of the weapon is necessary for the preservation of person or property.

The definitions of a loaded firearm are different in the statutes affecting the carrying or possession of firearms in the two kinds of places. Penal Code section 171e, which implements section 171c and section 171d, provides that: "A firearm shall be deemed loaded for the purposes of Sections 171c and 171d whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person. Penal Code section 12031, subdivision (e) reads: "A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case which holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when [11 Cal.App.3d 790] it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder."

The statutes provide that whether or not a firearm is loaded for purpose of enforcing the respective statutes, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle and that refusal to allow a peace officer to inspect a firearm pursuant to statute constitutes probable cause for arrest for violation of the statute. (Pen. Code, §§ 171e, 12031, subd. (c).)

Although appellant actually was not carrying or in possession of a loaded firearm, he was seen to possess a firearm in a vehicle on the campus of a junior college. Section 171c seems to apply to this case rather than section 12031, because of the precise location of the firearm, namely, on the grounds of a school rather than in a vehicle, in any public place, or on any public street. Since the statutes relating to inspection of the firearms are essentially the same, it is not necessary to discuss the applicability of the one or the other of the statutes. Appellant was not charged with violation of any firearm statute, but with the possession of marijuana.

Liberty1
08-26-2009, 8:06 PM
continued...

Opening of the Trunk

[1] Respondent suggests that the opening of the trunk by the officers was permissible regardless of the provisions of section 171e, wherefore the constitutionality of that section need not be decided. The argument is that probable cause to believe that the guns were loaded appears from the fact that appellant made two false statements to the officer and the officer knew them to be false. The first was appellant's denial that there were guns in the car, and the second, his saying that he had no key to the car. This gave rise to a reasonable belief, says respondent, that the guns were loaded or were stolen or were the instrumentalities of some crime.

We do not agree with this reasoning. The officers knew of no particular crime in which the guns might have been used, and they did not have probable cause for believing them to have been stolen merely from the fact that some exchange of articles, perhaps for money, had been made. Besides, the deputy sheriff testified that the purpose of opening the trunk was to see if the guns which were there were loaded weapons. Nor does the false statement that there were no guns in the car, as made by appellant, supply sufficient probable cause, apart from the statutes which are to be discussed under the next heading, to believe that the guns were loaded. Appellant's denial of the presence of the guns and also his dropping of the key, although they were evasive actions, would not, we believe, justify opening of the trunk in the absence of these statutes. There is no testimony by the officer that the false statements caused them to believe [11 Cal.App.3d 791] that the guns were loaded. It may fairly be inferred from all of the testimony that if the appellant had responded truthfully that he had the guns and if the officers had the key, they would have opened the trunk.

[2] On the other hand, if the officers had the right to make the inspection permitted by sections 171e and 12031, subdivision (c), of any firearm which had been brought on the college grounds or in a vehicle in a public place, appellant would not be entitled to prevent such inspection when it was known to the officers that the guns were in the vehicle, simply by closing the trunk. This does not mean that officers are entitled to open trunks of vehicles on the grounds of state institutions simply because there may be guns therein. It means that if the statutes which are to be discussed are valid, their objectives may not be frustrated simply by depositing firearms which have been exposed to view or which are otherwise known to the officers to be present in such part of the vehicle or in such container as obscures them from view.

Constitutionality of the Inspection Statutes

[3] Appellant contends that search requires probable cause and that there is no probable cause to believe that a firearm is loaded merely because it is in one of the places where it is illegal to carry or possess it. Appellant suggests that in order to justify a search for the weapon, it would be necessary that there be present such circumstances as: "If the weapon had been recently fired; if someone had been threatened; if the bolt had been drawn back; if the weapon were observed to have been loaded; if a riot were in progress; if this were a high crime rate area, if it were nighttime; if appellant were the suspect of some criminal activity; if there had been a warrant for appellant's arrest; if the rifle was in the passenger compartment; if smoke was seen coming from the barrel; or some other fact existed which would reasonably lead an officer to suspect the weapon was loaded." To require some of these conditions as a prerequisite of inspection would postpone examination until the penultimate act before firing, or indeed, until observation that firing had already occurred. To require others would delay it until there were riotous conditions, perhaps with the exhibition of many firearms. To require such a condition as the existence of an arrest warrant would be meaningless, because the weapon could not only be examined but seized in such case. All in all, if conditions such as those suggested were necessary, the statutes would be rendered nugatory.

We hold that the examination permitted by Penal Code section 171e and section 12031, subdivision (c) is constitutional and does not violate the Fourth Amendment. In the first place, the examination of the weapon [11 Cal.App.3d 792] may hardly be deemed to be a search at all. The chamber of a gun is not the proper or usual receptacle for anything but a bullet or a shell. The loading of a gun simply affects the condition of the weapon by making it immediately useful for firing. The ammunition becomes, as it were, part of the gun. There is nothing private or special or secret about a bullet. The use of the word "examine" in the statutes instead of the word "search" is not at all a devious one. In examining the weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself.

But if the examination may be called a search, it is not an unreasonable one; and only unreasonable searches are forbidden by the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) It is, as we have said, limited to a single purpose. It does not have about it any except the slightest element of embarrassment or annoyance, elements overbalanced by far by the purpose of preventing violence or threats of violence. The minimal intrusion does not begin to approach the indignity of the frisk, as graphically described in Terry v. Ohio, supra, at p. 17, fn. 13 [20 L.Ed.2d at p. 903]. It is true that the frisk, as sustained in the Terry case, requires as justification something different than mere possession of a firearm in a proscribed place, but it requires a good deal less than cause for arrest.

What is "probable" in the case of a weapon must be tested by different standards from those which apply to other objects. When a gun is pointed at a bank teller, he might indeed reason to himself that it is just as probable that the gun is unloaded as that it is loaded, and that unless there were some particular indication to the contrary, he might act with assurance in refusing the demands of the person exhibiting the gun. But the nature of weapons is such that one does not measure probabilities by the standards that apply to other objects. It is true, of course, that in this case there was no such threat as exists in the case of the bank teller, but on the other hand, the carrying of weapons, particularly if it were done in large numbers on a college campus or in the other places mentioned by the statutes, would produce a show of force even though the weapons, or some of them, were unloaded.

Bearing in mind that a state is free, as Chief Justice Warren put it, "to develop its own law of search and seizure to meet the needs of local law enforcement," provided, of course, that the Fourth Amendment standard of reasonableness be not offended (Sibron v. New York, 392 U.S. 40, 60-61 [20 L.Ed.2d 917, 933-934, 88 S.Ct. 1889]), we hold that the mere examination of a weapon which is brought into a place where it is [11 Cal.App.3d 793] forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional.

[4] In the brief filed by amicus curiae. American Civil Liberties Union, it is stated that the Legislature can, if it wishes, prohibit the carrying of firearms on campus, but cannot permit unloaded firearms to be so carried, modifying the permission with a power to inspect the weapons. It is argued that the legislative purpose is discriminatory because the wish of the Legislature is to give the police power to inspect firearms of persons whom they regard as suspicious and those whom they disfavor. Of course, legislation which is passed "with an evil eye and an unequal hand" (Yick Wo v. Hopkins, 118 U.S. 356, 373 [30 L.Ed. 220, 227, 6 S.Ct. 1064]), the legislative purpose being discriminatory enforcement, must be struck down. But there is not a shred of evidence in the record before us that the statutes in question have been enforced unequally. fn. 1

The exceedingly limited inspection permitted by the statutes in question, applied only to persons who do choose to carry firearms where loaded firearms are forbidden, comes well within the orbit of reasonable inspection or search.

The judgment is affirmed.

Rattigan, J., and Christian, J., concurred.

*FN 1. We do not know why the Legislature did not, as amicus curiae suggests in its brief it could have done, forbid firearms altogether on college campuses. Possibly it is because the Legislature at the same time was forbidding loaded weapons to be carried in many other places by Penal Code section 12031, and the Legislature did not care to go so far as to forbid all firearms, whether loaded or not. In any event, we discern no purpose of discrimination in the absence of evidence thereof.

Meplat
08-26-2009, 8:44 PM
These folks obviously do not understand the Colt SAA and the concept of "burying money".:43:





People v DeLong (http://opencarry.mywowbb.com/view_topic.php?id=27689&forum_id=12&highlight=People+v+DeLong)

Meplat
08-26-2009, 9:09 PM
How about an oversized grip that just happened to cover the SN on a S&W revolver? Hay, I got big hands.:43:



There have been a couple of suggestions of covering the serial number with a piece of tape. While it sounds good in theory, I would think any cop worth his salt could articulate removal of said tape. Pretty easy to justify that the tape could be concealing a crime (removal/ obliteration of the serial number). While it may not be enough to justify a lengthy detetion, it would certainly be enough to remove the tape, which kinda defeats the purpose of the tape in the first place.

Theseus
08-26-2009, 10:23 PM
The issue at hand is that DeLong states that 12031(e) is not a detainment or a search, because it is short and sweet.

Demanding ID or running a serial number is a detainment which does require RAS.

The plain view doctrine also does have some criteria that needs to be meet.



Thus, the significant elements in any plain view doctrine seizure are:

(1) the officer must already have lawful presence in an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent.

(2) The officer must observe an item in plain view.

(3) The officer must immediately recognize the item as evidence or contraband without making a further intrusion. It should be recognized that officers routinely make plain view observations, but that does not necessarily mean that the item may be seized unless the officer has met the elements above.

cite= http://www.policelink.com/training/articles/2043-plain-view-doctrine-
If we look at the situation of a 12031(e) check you have to take these 3 requirements into account.

Firearms not being illegal in and of themselves means that it does not fall within rule 3, and thus the "plain view" doctrine fails. The idea is that a 12031(e) check is or could be considered a "further intrusion" that would also cancel the "plain view" exemption to warrant.

There used to be a 4th requirement that "discovery of the evidence must be inadvertent", but it was struck down so we won't go there. . . I would be nice if that was still around though because then using 12031(e) to get the serial into plain view would have been a no no.