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Scarecrow Repair
07-25-2009, 11:40 PM
If you are driving with a locked handgun case and a police officer pulls you over, even though it is locked, they have the right to open it, right?

What if you don't have the key? What if you either forgot the key (I have done that) or are taking it back to a friend who brought it over for a visit but left it behind by mistake?

And what is the rationale for requiring you to open a locked case? Please spare me the rants about gun laws being stupid; take your soap box elsewhere; crap on someone else's thread if you have nothing better to do.

Turo
07-25-2009, 11:46 PM
If you are driving with a locked handgun case and a police officer pulls you over, even though it is locked, they have the right to open it, right?

They don't have the right to open crap. You have the right to remain silent about what's in the locked box. If you tell the officer that there's an illegal gun in the box, you're an idiot. If you tell him that there's a gun in the box, you are just inviting him to snoop.

Your best bet is to not tell him what's in the box. He can't search it without probable cause, and you not telling him what's in the box is not probable cause.

please cite the code that says you don't have to consent to a search of a locked container. it would be worth discussing.

You don't have to consent to any searches without a warrant. I believe that's the 4th amendment.

leelaw
07-26-2009, 12:19 AM
If they can articulate that there is a firearm in the case, they can get in there with or without your consent.

leelaw
07-26-2009, 12:25 AM
You don't have to consent to any searches without a warrant. I believe that's the 4th amendment.

SCOTUS case decisions have determined that due to the mobile nature of vehicles, probable cause is all that is necessary to perform a search.

MrClamperSir
07-26-2009, 12:42 AM
the mere presence of a firearm is probable cause ?

They have the authority to inspect the firearm and determine if it is being transported legally. That is IF you tell them what's in the case.

leelaw
07-26-2009, 12:57 AM
the mere presence of a firearm is probable cause ?

The presence of a firearm is probable cause for what? That such a firearm exists? Yes. That, since PC exists that a firearm is in [insert specific place here], a peace officer may check the firearm to determine if it is loaded or not? Yes. To search the vehicle for [anything other than the firearm to determine if it is loaded or unloaded]? No.

The statement I made was in response to a comment that no search may be made upon a vehicle without a warrant, which is false. My statement was a general statement regarding searches of a vehicle.

tombinghamthegreat
07-26-2009, 2:37 AM
You don't have to consent to any searches without a warrant. I believe that's the 4th amendment.

and that is only valid if the person uses his/her 5th amendment right and remain silent. If you ADMIT to having a gun then PC12031 applies and the cop then can inspect to see if the gun is unloaded, so do not admit to it. If you do not admit then the cop has NO probable cause for a search or detainment. For example if the officer asks if you have a gun in the car respond you have nothing illegal, then the cop can only at that point issue empty threats. They cannot force you to incriminate yourself(5th amendment) and you do not have to give consent for them to search the car(4th amendment).

Now if you were open carrying and/or it was in plain sight then the officer can inspect to make sure the gun is unloaded and that's it.

HondaMasterTech
07-26-2009, 8:29 AM
A locked container in your vehicle is not probable cause. An officers suspicion due to him seeing a locked container in your vehicle is not probable cause.

bodger
07-26-2009, 8:38 AM
I have a combination lock on my case. And it has a molded interior for my Glock so that there is no printing of the outline of the gun or magazine transmitted through the case.

I never have anything illegal in my car, and that's all I would ever say to a LEO.

Too many people fall right into the traps that cops know how to set.

Nodda Duma
07-26-2009, 9:14 AM
"I have nothing illegal in my vehicle and I do not give consent to search".

Repeat as necessary.

-Jason

hawk81
07-26-2009, 10:03 AM
Cops are nosey by nature and are always looking for something to get you for. Never devulge any info to a cop, unless you like to be ****** with.

Scarecrow Repair
07-26-2009, 10:41 AM
I had thought that if I have, say, a Glock case on the passenger seat and the cop sees it, that I was under some legal requirement to let the cop search it, whether I wanted him to or not. Thus my question about what if I don't have the key with me.

I gather what you are all telling me is that even if it is a Glock gun case, unless it is transparent or he has X-ray vision, as long as I say "I have nothing illegal in the car and do not consent to a search" that there is nothing he can do, legally. No matter how much he gets red in the face or makes threats about arresting me, I am in reality not required to open the cas eor say what is in it.

But if I were to say it has a gun in it, he could require me to open it? Then let me ask the original question ... what if I make the mistake of admitting there is a gun inside the locked case, but don't have the key?

sorensen440
07-26-2009, 10:45 AM
unless its an obvious gun case keeping your mouth shut should suffice

bboyin4food
07-26-2009, 10:56 AM
so cop pulls me over, can see an obvious handgun case. lets say the plastic case that all glocks come in. has GLOCK written on it in big letters. its properly locked. does the LEO have PC? at least to check the firearm?

of course who's to say that there is or is not a firearm in it but there is a good probability there is (from the LEO's point of view). would the same "i do not consent to any searches" line work?

themethod
07-26-2009, 11:01 AM
Just to add my 2 cents, If you've been pulled over / detained it's because the officer has (or believes he has) an infraction to cite you for. Remember, the officer is doing his job and what he's been trained to do is ask questions to get you to incriminate yourself and provide him with additional evidence against you. He's also trying to determine if you are dangerous or a threat to him or others on the road.
It's in your best interest to not answer any leading questions, while still being as cooperative and civil as possible... Keep dialogue between you and the officer on the reason for the stop, "Why did you stop me officer?", "Why am i being detained?"

Again, just my 2c.

Harrison_Bergeron
07-26-2009, 11:13 AM
If you were to refuse to let a LEO search an obvious gun case and he were to find a gun in it you would be charged with violating 12031(e), if there wasn't a gun in the case you would then be able to file a complaint for an illegal search. The law is very obviously unconstitutional, but for the time being it is still the law.

(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.

leelaw
07-26-2009, 11:31 AM
If you were to refuse to let a LEO search an obvious gun case and he were to find a gun in it you would be charged with violating 12031(e), if there wasn't a gun in the case you would then be able to file a complaint for an illegal search. The law is very obviously unconstitutional, but for the time being it is still the law.

I think the point that is being hashed out now is, if a gun case, clearly marked with the insignia of a popular gun manufacturer, which is weighted as if it has a gun inside it, is PC to perform a search of the container.

If that constitutes PC, then it is not an illegal search.

If it constitutes PC and you try to prevent the search, it's a crime on your part.

CalNRA
07-26-2009, 11:37 AM
so if I have a black, unmarked plastic case, with a padlock on it in my passenger seat, no car stickers and no ammo boxes or gun related gear nearby in plain sight, I can answer "I have nothing illegal in this vehicle" and don't have to directly answer any questions pertaining to guns, yes?

Anthonysmanifesto
07-26-2009, 11:58 AM
If you were to refuse to let a LEO search an obvious gun case and he were to find a gun in it you would be charged with violating 12031(e), if there wasn't a gun in the case you would then be able to file a complaint for an illegal search. The law is very obviously unconstitutional, but for the time being it is still the law.

thanks for the citation.

Decoligny
07-26-2009, 12:45 PM
If you were to refuse to let a LEO search an obvious gun case and he were to find a gun in it you would be charged with violating 12031(e), if there wasn't a gun in the case you would then be able to file a complaint for an illegal search. The law is very obviously unconstitutional, but for the time being it is still the law.

Violating 12031(e) is not an offense in and of itself. If you refuse to let an LEO check your firearm pursuant to 12031(e) it is PROBABLE CAUSE for him to arrest you for a 12031 violation. After you are arrested, then the officer can further investigate to see if the gun is really loaded. If the gun is not loaded, he has no choice but to cut you loose, as there was then NO VIOLATION and without an actual violation you technically cannot have charges.

Harrison_Bergeron
07-26-2009, 12:56 PM
Is this something that has been hashed out in court(or otherwise) already? The way I read it would be that the violation would be refusing to submit to the search, meaning that you could be charged even if your gun is unloaded.

Violating 12031(e) is not an offense in and of itself. If you refuse to let an LEO check your firearm pursuant to 12031(e) it is PROBABLE CAUSE for him to arrest you for a 12031 violation. After you are arrested, then the officer can further investigate to see if the gun is really loaded. If the gun is not loaded, he has no choice but to cut you loose, as there was then NO VIOLATION and without an actual violation you technically cannot have charges.

TurboS600
07-26-2009, 12:58 PM
Hey Scarecrow Repair,

:threadjacked:

I hope that someone gets around to eventually answering your question. Everyone wants to steer this thread into all sorts of weird directions, but I don't see where anyone wants to address you question directly. I have been in the same position, having a locked case with Springfield on it in the cab of my pickup and no key on me. So again, I'll ask the question for Scarecrow Repair.

What can the LEO do if you don't have the key to a gun case in your possession?

Someone please answer the OPs question!!

leelaw
07-26-2009, 1:11 PM
Hey Scarecrow Repair,

:threadjacked:

I hope that someone gets around to eventually answering your question. Everyone wants to steer this thread into all sorts of weird directions, but I don't see where anyone wants to address you question directly. I have been in the same position, having a locked case with Springfield on it in the cab of my pickup and no key on me. So again, I'll ask the question for Scarecrow Repair.

What can the LEO do if you don't have the key to a gun case in your possession?

Someone please answer the OPs question!!

Answered in post #4

http://www.calguns.net/calgunforum/showpost.php?p=2827003&postcount=4

TurboS600
07-26-2009, 1:49 PM
Answered in post #4

http://www.calguns.net/calgunforum/showpost.php?p=2827003&postcount=4

And they couldn't articulate that there was a gun in the case unless someone told them, right? So they couldn't force you to open a case that you don't have the key for? And that .....

STILL DOESN'T ANSWER THE OPs QUESTION!!!

WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?
WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?
WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?
WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?
WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?
WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?
WHAT CAN THEY DO IF YOU DON'T HAVE THE KEY TO THE CASE!?!?!?

Someone please answer the OPs question.

I'm begging here.......

PLEASE!!

M. Sage
07-26-2009, 3:00 PM
And they couldn't articulate that there was a gun in the case unless someone told them, right? So they couldn't force you to open a case that you don't have the key for? And that .....


Yes, if they can articulate a reasonable suspicion that there is a firearm in the case they will force their way in if you don't have a key, and they'll arrest you to do so.

TurboS600
07-26-2009, 3:06 PM
Yes, if they can articulate a reasonable suspicion that there is a firearm in the case they will force their way in if you don't have a key, and they'll arrest you to do so.

So I guess if they can pick up the case and or somehow descern that it is heavy by having you move it, they can articulate that there is probably a gun in the case. That would be enough to perform a 12031 check and allow them to force open the case.

Finally! Thank you M. Sage. Scarecrow and I appreciate that.

leelaw
07-26-2009, 3:10 PM
So I guess if they can pick up the case and or somehow descern that it is heavy by having you move it, they can articulate that there is probably a gun in the case. That would be enough to perform a 12031 check and allow them to force open the case.

Finally! Thank you M. Sage. Scarecrow and I appreciate that.

They must be able to articulate probable cause, not reasonable suspicion, to search the container. Like I said in post #4, if PC can be articulated, they can get into the container.

Jarhead4
07-26-2009, 3:17 PM
And they couldn't articulate that there was a gun in the case unless someone told them, right? So they couldn't force you to open a case that you don't have the key for? And that .....

STILL DOESN'T ANSWER THE OPs QUESTION!!!


Someone please answer the OPs question.

I'm begging here.......

PLEASE!!

In my opinion it depends on the gun case that is being searched. If it is a combination lock he could turn the thing long enough until he got the combo. If it is a common locking case like a Doskocil case, the officer may own one himself and have a key for that case, and could use their own key. Usually they don't like to break things unless they have reason to believe that you are a risk. I would like to think that an officer would be realistic about the situation.

M. Sage
07-26-2009, 3:18 PM
So I guess if they can pick up the case and or somehow descern that it is heavy by having you move it, they can articulate that there is probably a gun in the case. That would be enough to perform a 12031 check and allow them to force open the case.

Finally! Thank you M. Sage. Scarecrow and I appreciate that.

I just paraphrased what Leelaw said... :p

Scarecrow Repair
07-26-2009, 3:46 PM
So, if I have a clearly marked Glock case, heavy as if it did contain a gun, and with a cable lock wrapped around it tightly enough that it can't be opened even for a peek without the key, and i don't have the key and will only say "I have nothing illegal in this car", then the officer can arrest me, break into it, find an unloaded gun, un-arrest me, and continue with the speeding ticket or whatever else he stopped me for. But unless I look like trouble or he's just having a really bad day, he's not likely to do so.

Is that about it?

M. Sage
07-26-2009, 3:50 PM
I'm not sure if they'd un-arrest you or not is the problem. They're going to be awful pissed that you didn't cooperate with them.

tyrist
07-26-2009, 4:08 PM
They must be able to articulate probable cause, not reasonable suspicion, to search the container. Like I said in post #4, if PC can be articulated, they can get into the container.

Probable cause is not necessary to search a firearms container. Also they will search your entire car and your pockets to find the key.

Mikeb
07-26-2009, 4:14 PM
I've often wondered about haveing a case bolted to the floor,under the front seat, drivers side, that might slide out have a lock and have a handgun in it.
It would not be "the glove box" so presumably it would meet that requirement. So if I refused to open it, they would need a warrant?
If I wasn't on my way to commit a felony I could have a loaded mag in the box, or even in the pistol as long as no round is chambered?
does that work?
Mike

M. Sage
07-26-2009, 4:17 PM
Probable cause is not necessary to search a firearms container. Also they will search your entire car and your pockets to find the key.

No, but they have to have probable cause to believe that the container is either a firearms container or contains a firearm.

Or are you saying that you can search any and every backpack you come across in a traffic stop? :rolleyes:

I've often wondered about haveing a case bolted to the floor,under the front seat, drivers side, that might slide out have a lock and have a handgun in it.
It would not be "the glove box" so presumably it would meet that requirement.

No, it wouldn't be a glove box. That might not stop a zealous cop or DA from claiming it's a "utility compartment", though.

So if I refused to open it, they would need a warrant?

Ideally and technically? Yes. In practice? No; they'll arrest you and force their way in if they have PC that the box contains a firearm.

If I wasn't on my way to commit a felony I could have a loaded mag in the box, or even in the pistol as long as no round is chambered?
does that work?
Mike

Yes, you can have a loaded mag in the same container (though again, ignorant or zealous cops may call the firearm loaded!) but no you cannot put a loaded mag in the pistol as that is loaded.

Mikeb
07-26-2009, 4:28 PM
Thank you... It is good to have a Sage to ask...
take care
Mike

Mark in Eureka
07-26-2009, 4:31 PM
If a officer asks you if you have a firearm, you must answer him truthfully. At that point he can demand to see the weapon(s). If you lie and are caught, you are going to jail.

Lock the handgun(s) in a lockable cloth bank bag. (You can get them at Staples) or rifle(s) in a locked case. Have one set of keys in your locker at the range and the other set in your safe at home. DO NOT CARRY A KEY WITH YOU.

When the officer askes to the see the weapon(s), unlock the trunk and hand him the locked containers. When he asks for the key(s), tell him you do not have it on you and will have to take him back to the range to open the locked containers for him. Do Not take him home for the other key. (you do not allow him to enter your house without a warrent) In a group taking several cars. One person could have the keys and eveyone else could have locked containers.

You are complying with his demands. However, you cannot open what you do not have a key for. Your justification for this form of Key Control in to comply with the law. That you want to insure that there is no way you could have unauthorised access to your firearms. This is for your protection and his.

Doheny
07-26-2009, 4:37 PM
Here's an article on vehicle searches from the Alameda County DA: http://le.alcoda.org/publications/files/PROTECTIVECARSEARCHES.pdf

M. Sage
07-26-2009, 4:38 PM
That's a Terry search for "officer safety". Quite different from 12031's search, unless there's something in there about 12031 and I missed it: I gave it a quick skim.

If a officer asks you if you have a firearm, you must answer him truthfully. At that point he can demand to see the weapon(s). If you lie and are caught, you are going to jail.

You don't have to answer at all. You do have 5A rights and it's always a good idea to exercise them.

There is no question that a police officer can force you to answer beyond identification.

Lock the handgun(s) in a lockable cloth bank bag. (You can get them at Staples) or rifle(s) in a locked case. Have one set of keys in your locker at the range and the other set in your safe at home. DO NOT CARRY A KEY WITH YOU.

When the officer askes to the see the weapon(s), unlock the trunk and hand him the locked containers. When he asks for the key(s), tell him you do not have it on you and will have to take him back to the range to open the locked containers for him. Do Not take him home for the other key. (you do not allow him to enter your house without a warrent) In a group taking several cars. One person could have the keys and eveyone else could have locked containers.

Fail. Per 12031(e) they can arrest you for this. After they arrest you they'll just cut the bag(s) open.

tyrist
07-26-2009, 4:48 PM
That's a Terry search for "officer safety". Quite different from 12031's search, unless there's something in there about 12031 and I missed it: I gave it a quick skim.



You don't have to answer at all. You do have 5A rights and it's always a good idea to exercise them.

There is no question that a police officer can force you to answer beyond identification.



Fail. Per 12031(e) they can arrest you for this. After they arrest you they'll just cut the bag(s) open.

In the original post a search for firearms would fall under terry since he was pulled over in a traffic stop. Its not a 12031 check.

M. Sage
07-26-2009, 4:56 PM
In the original post a search for firearms would fall under terry since he was pulled over in a traffic stop. Its not a 12031 check.

The OP seems to be dealing with the 12031(e) search.

How else is a 12031 "check" (yeah, right - it's a search) going to happen? The most common way is going to be a traffic stop. How many cars and SUVs don't have a separate trunk these days?

MrClamperSir
07-26-2009, 5:21 PM
Hey Scarecrow Repair,

:threadjacked:

I hope that someone gets around to eventually answering your question. Everyone wants to steer this thread into all sorts of weird directions, but I don't see where anyone wants to address you question directly. I have been in the same position, having a locked case with Springfield on it in the cab of my pickup and no key on me. So again, I'll ask the question for Scarecrow Repair.

What can the LEO do if you don't have the key to a gun case in your possession?

Someone please answer the OPs question!!

Slow down a bit and you will find your answers on the first page. In fact the ops question was answerd several times by several people. Some other members have very interesting things to say in relationship with this issue.

Scarecrow Repair
07-26-2009, 6:05 PM
In fact the ops question was answerd several times by several people. Some other members have very interesting things to say in relationship with this issue.

Well .... :-)

There have been so many differing answers that I still do not know which if any are the real answer. I thought I was fairly clear in the OP, realized I had made an assumption, and rephrased it, but there seems to be no consensus on the basic question: if he wants to get in the box to see if there is a gun in it and if it is loaded, and if I don't have the key, what happens?

I am reconciled to not getting a clear consensus, but it has been interesting, so have at it, folks, don't let me stop you :-)

MindBuilder
07-26-2009, 7:48 PM
The "I don't have anything illegal in my vehicle" line won't do you much good here because the cop can just say "If you have any guns in your vehicle, tell me where they are so I can check to see if they're loaded." At that point it seems you either have to tell them, or lie and/or violate 12031(e). If the cop still suspects you have guns, the Supreme Court has apparently decided to ignore the constitution and has given cops permission to search the passenger compartment of your vehicle and any containers therein which might have a weapon in them.

Though it still won't get you out of a gun search, I think a better line is "Lets just stick to the issue you stopped me for." It sounds slightly less evasive and a little more like you just don't want to entertain a time wasting and annoying fishing expedition. It also deflects a much wider range of questions, like: "Where are you coming from?" and "Where are you going?" Another advantage is that if you do happen to unintentionally have something illegal in your vehicle, you won't have made a false statement that can be used to impeach you.

And if asked permission to search, the best answer I've come up with is: "No. I don't like searches. I think they're intrusive and insulting." I think this minimizes the suspicion that you're hiding something by giving a reasonable and believable alternative explanation for why you're refusing the search. It also takes the moral high ground by implying that the mere suggestion you have something to hide, is an insult. Of course there are plenty of legitimate reasons to hide things. For example you may have political strategy or whistle blower information that you don't want some Richard Nixon type to get his hands on. You may have something that would be misunderstood or embarrassing if it were made public. Or you may have a prototype or drawings for an invention you plan to patent.

M. Sage
07-26-2009, 8:17 PM
The "I don't have anything illegal in my vehicle" line won't do you much good here because the cop can just say "If you have any guns in your vehicle, tell me where they are so I can check to see if they're loaded."

No. You don't. Again, there is no legal obligation to answer any question beyond your identification as far as I know.

At that point it seems you either have to tell them, or lie and/or violate 12031(e). If the cop still suspects you have guns, the Supreme Court has apparently decided to ignore the constitution and has given cops permission to search the passenger compartment of your vehicle and any containers therein which might have a weapon in them.

Have you read 12031(e)?!

(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.

MrClamperSir
07-26-2009, 8:26 PM
Well .... :-)

There have been so many differing answers that I still do not know which if any are the real answer. I thought I was fairly clear in the OP, realized I had made an assumption, and rephrased it, but there seems to be no consensus on the basic question: if he wants to get in the box to see if there is a gun in it and if it is loaded, and if I don't have the key, what happens?

I am reconciled to not getting a clear consensus, but it has been interesting, so have at it, folks, don't let me stop you :-)

The real answer is it depends on the cop. You could this a number of times, in real life, with a number of different cops and result will be different every time. He may or may not be able to "make" you open it. If he does, you may or may not get a DA to stand on your side. If you you get screwed by both, the cop and the DA, you may or may not get a jury to side with you.

The real answer is, you have to determine if it's a risk your willing to take.

themethod
07-26-2009, 9:00 PM
The "I don't have anything illegal in my vehicle" line won't do you much good here because the cop can just say "If you have any guns in your vehicle, tell me where they are so I can check to see if they're loaded." At that point it seems you either have to tell them, or lie and/or violate 12031(e). If the cop still suspects you have guns, the Supreme Court has apparently decided to ignore the constitution and has given cops permission to search the passenger compartment of your vehicle and any containers therein which might have a weapon in them.

Though it still won't get you out of a gun search, I think a better line is "Lets just stick to the issue you stopped me for." It sounds slightly less evasive and a little more like you just don't want to entertain a time wasting and annoying fishing expedition. It also deflects a much wider range of questions, like: "Where are you coming from?" and "Where are you going?" Another advantage is that if you do happen to unintentionally have something illegal in your vehicle, you won't have made a false statement that can be used to impeach you.

And if asked permission to search, the best answer I've come up with is: "No. I don't like searches. I think they're intrusive and insulting." I think this minimizes the suspicion that you're hiding something by giving a reasonable and believable alternative explanation for why you're refusing the search. It also takes the moral high ground by implying that the mere suggestion you have something to hide, is an insult. Of course there are plenty of legitimate reasons to hide things. For example you may have political strategy or whistle blower information that you don't want some Richard Nixon type to get his hands on. You may have something that would be misunderstood or embarrassing if it were made public. Or you may have a prototype or drawings for an invention you plan to patent.

I think the post above is spot on, lots of people throw the "nothing illegal" line around and I really don't see that going over too well. Thankfully I haven't been in that situation so who knows. YMMV.

I can tell you that I was stopped for speeding a long time ago and the officer asked if I had any weapons in the vehicle to which I promptly answered "no sir" and he proceeded to give me my ticket... As I continued on my way it occurred to me that I did have a folding knife clipped to my pocket (it went everywhere with me) so if the officer had decided to search I could have been in trouble but I've always considered a pocket knife a tool more so than a weapon for what thats worth. Anyway just goes to show that answering a question like that could be bad news for you even if you believe you are being completely honest.

If I were to be in a situation the OP describes I would try and preempt any fishing and get down to the reason you were stopped. If you have what is obviously a locked gun case in plain view (or you tell him you have a firearm in the vehicle) and he decides to pc 12031 "check" the weapon - then you tell him the case is locked and you have no key story - it's really up to the officer if he believes you or believes he has reasonable cause to arrest you under 12031(a)(5). That's how I read it.

...OR, 12031(e)

markw
07-26-2009, 9:22 PM
If you are driving with a locked handgun case and a police officer pulls you over, even though it is locked, they have the right to open it, right?

What if you don't have the key? What if you either forgot the key (I have done that) or are taking it back to a friend who brought it over for a visit but left it behind by mistake?

And what is the rationale for requiring you to open a locked case? Please spare me the rants about gun laws being stupid; take your soap box elsewhere; crap on someone else's thread if you have nothing better to do.

Man, I can't resist. First, don't get pulled over, that's would be your first mistake. Other than equipment failure (burnt out light), getting pulled over generally takes an act of stupidity. So say your light is burnt out, fine. Where's the gun and ammo? In the trunk? Is the car "sanitized" ie, nothing to trigger probable cause? You're golden, be polite, take your fix it ticket and smile, thank the officer and promise to get it fixed. Then get it fixed.
If your car is sanitized and the gun is in a locked case out of sight it should never come down to the question of you having the key or not. To get to that point, you'd have to do something stupid and piss the cop off, so unless you're going to be stupid, why worry about it?

Invisible_Dave
07-26-2009, 9:44 PM
I've been pulled over many times, ticketed several in my younger days. I have never been asked about weapons, ammo, knives ever. Are you seeing a ration of officers stopping you and saying "The reason I stopped you is for speeding. Do you have an uzi?" I guess I struggle with the logical jump from driving 10 mph over the speed limit to show me your guns.

MindBuilder
07-26-2009, 11:51 PM
the Supreme Court has apparently decided to ignore the constitution and has given cops permission to search the passenger compartment of your vehicle and any containers therein which might have a weapon in them.
Have you read 12031(e)?!

I wasn't referring to 12031(e). I was referring to the pdf file linked to above by Doheny: Protective Car Searches (http://le.alcoda.org/publications/files/PROTECTIVECARSEARCHES.pdf) Where The Alameda County District Attorney's Office tells cops that for officer safety when officers feel threatened by a suspect, the Court decided that officers may look inside the vehicle for weapons if they reasonably believed that one was located somewhere in the passenger compartment. The Court also ruled that officers may conduct a protective search even though the suspect had been handcuffed or was otherwise restrained.

So it appears the cops can search the passenger compartment of your vehicle now without probable cause. And all they have to do to get away with it is say they were worried you might have a weapon. This shouldn't surprise anyone, after all, they can detain you for a sobriety checkpoint without any suspicion at all.

Actually, I suspect Alameda's interpretations of these cases is not correct. I may check it out more tomorrow.

M. Sage
07-27-2009, 9:15 AM
I think the post above is spot on, lots of people throw the "nothing illegal" line around and I really don't see that going over too well. Thankfully I haven't been in that situation so who knows. YMMV.

I can tell you that I was stopped for speeding a long time ago and the officer asked if I had any weapons in the vehicle to which I promptly answered "no sir" and he proceeded to give me my ticket... As I continued on my way it occurred to me that I did have a folding knife clipped to my pocket (it went everywhere with me) so if the officer had decided to search I could have been in trouble but I've always considered a pocket knife a tool more so than a weapon for what thats worth. Anyway just goes to show that answering a question like that could be bad news for you even if you believe you are being completely honest.

If I were to be in a situation the OP describes I would try and preempt any fishing and get down to the reason you were stopped. If you have what is obviously a locked gun case in plain view (or you tell him you have a firearm in the vehicle) and he decides to pc 12031 "check" the weapon - then you tell him the case is locked and you have no key story - it's really up to the officer if he believes you or believes he has reasonable cause to arrest you under 12031(a)(5). That's how I read it.

...OR, 12031(e)

One: It's not exactly "spot on" as he claims that you have to choose between answering truthfully or lying. This is not further from the truth. The only question I know of that you must answer is "who are you", and that's only in a non-consensual encounter.

Two: Failure to cooperate with a 12301(e) search "check" is grounds for arrest, period. If you don't have the key, you can count on that being called "non-cooperative" and you can count on wearing shiny bracelets (one size fits most!) while you watch a police officer break your case open.

Man, I can't resist. First, don't get pulled over, that's would be your first mistake. Other than equipment failure (burnt out light), getting pulled over generally takes an act of stupidity. So say your light is burnt out, fine. Where's the gun and ammo? In the trunk? Is the car "sanitized" ie, nothing to trigger probable cause? You're golden, be polite, take your fix it ticket and smile, thank the officer and promise to get it fixed. Then get it fixed.
If your car is sanitized and the gun is in a locked case out of sight it should never come down to the question of you having the key or not. To get to that point, you'd have to do something stupid and piss the cop off, so unless you're going to be stupid, why worry about it?

I've been pulled over twice for nothing. The first time the cop actually told me that he pulled me over for driving perfectly. :mad:

Doing nothing to get pulled over means you most likely won't get pulled over, it doesn't mean you'll never get pulled over.

I wasn't referring to 12031(e). I was referring to the pdf file linked to above by Doheny: Protective Car Searches (http://le.alcoda.org/publications/files/PROTECTIVECARSEARCHES.pdf) Where The Alameda County District Attorney's Office tells cops that for officer safety when officers feel threatened by a suspect,

So it appears the cops can search the passenger compartment of your vehicle now without probable cause. And all they have to do to get away with it is say they were worried you might have a weapon. This shouldn't surprise anyone, after all, they can detain you for a sobriety checkpoint without any suspicion at all.

Actually, I suspect Alameda's interpretations of these cases is not correct. I may check it out more tomorrow.

That's a Terry search, yes. But what I was referring to was your assertion that you must answer the question of "are there any weapons in the car". You are not compelled to answer any question beyond providing your identification. If you don't want to answer, don't. You have rights under the Fifth Amendment. Now, an officer may lie and say you have to answer, or the officer may actually believe that you must answer (scary, but some do). He's wrong; you don't.

Glock22Fan
07-27-2009, 9:46 AM
I think the post above is spot on, lots of people throw the "nothing illegal" line around and I really don't see that going over too well. Thankfully I haven't been in that situation so who knows. YMMV

I have been there, and - if you keep repeating it - it works -- they will back off. I know it's all fiction, but the basic concept of shows like The Closer is that people answer what they see as the innocent questions, trying to be helpful, and end up in the sh1t. That really is how it works. So, don't let them get the camel's nose under the edge of the tent.

Courts have determined over and over again that if the officer, from the outside of the car, can see a firearm, or a container that appears to be a firearm container, then the officer can demand to inspect the firearm to make sure that it is unloaded, or that the container does not contain a loaded firearm. They can't go rummaging through your car to find a firearm container that can't be seen through the window (unless there's some other reason, like the smell of pot).

If the container is locked and you won't, or can't, open it, then (whether you are arrested or not) the container will, IMHO, be opened forcibly.

So, the real answer is, either keep your firearms (and other gun paraphanalia) in something innocuous (like a guitar case or even an ordinary duffel bag) that doesn't scream firearm and/or keep that case under a blanket out of sight. Don't smoke pot, be drunk or otherwise attract attention and be polite to the officer without giving anything away. Then there's absolutely no reason for them to search the car.

I've been on ridealongs where the suspect was stopped for a faulty muffler. He was asked "Mind if we look through the car?" He said "No problem" but had a different look on his face when they found the carefully hidded bag of M.J. I said "Why did he agree to the search?" and was told "They almost always do. They think they'll get in worse trouble if they don't let us."

Decoligny
07-27-2009, 9:56 AM
Is this something that has been hashed out in court(or otherwise) already? The way I read it would be that the violation would be refusing to submit to the search, meaning that you could be charged even if your gun is unloaded.

(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.

While it does give them probable cause for arrest, it doesn't say anywhere in the Penal Code that refusal to allow a peace officer to inspect a firearm is an actual violation of this section. The arrest would have only one purpose, to place you into custody while collecting the actual evidence that you committed a crime. The crime in question would be illegally carrying a loaded firearm. Refusal gives them probable cause to believe that the crime has been committed. They arrest you and collect the evidence, your unloaded gun. Upon discovering that a crime HAS NOT been committed, the officer, if he is an honest officer with integrity, has no choice but to cut you loose.

Decoligny
07-27-2009, 9:59 AM
I've often wondered about haveing a case bolted to the floor,under the front seat, drivers side, that might slide out have a lock and have a handgun in it.
It would not be "the glove box" so presumably it would meet that requirement. So if I refused to open it, they would need a warrant?
If I wasn't on my way to commit a felony I could have a loaded mag in the box, or even in the pistol as long as no round is chambered?
does that work?
Mike

That one is a definite NO. If the magazine has rounds in it, and the magazine is in the firearm, it is considered loaded via 12031 and People v. Clark.

Decoligny
07-27-2009, 10:04 AM
If a officer asks you if you have a firearm, you must answer him truthfully. At that point he can demand to see the weapon(s). If you lie and are caught, you are going to jail.

Lock the handgun(s) in a lockable cloth bank bag. (You can get them at Staples) or rifle(s) in a locked case. Have one set of keys in your locker at the range and the other set in your safe at home. DO NOT CARRY A KEY WITH YOU.

When the officer askes to the see the weapon(s), unlock the trunk and hand him the locked containers. When he asks for the key(s), tell him you do not have it on you and will have to take him back to the range to open the locked containers for him. Do Not take him home for the other key. (you do not allow him to enter your house without a warrent) In a group taking several cars. One person could have the keys and eveyone else could have locked containers.

You are complying with his demands. However, you cannot open what you do not have a key for. Your justification for this form of Key Control in to comply with the law. That you want to insure that there is no way you could have unauthorised access to your firearms. This is for your protection and his.

Please provide a citation for this. There is nothing in the law stating that you have to answer truthfully. The police are allowed to lie to you, and you are allowed to lie to them. If they are asking specific questions about an actual crime, then you may not lie to them as you would be obstructing an investigation. If they have only pulled you over and see a case on your seat, then you can tell them it is filled with moon rocks brought back by Apollo 11 and it would not be a crime.

mej16489
07-27-2009, 10:14 AM
I've been pulled over twice for nothing. The first time the cop actually told me that he pulled me over for driving perfectly. :mad:

Doing nothing to get pulled over means you most likely won't get pulled over, it doesn't mean you'll never get pulled over.



Ditto for me (sorta). On one occasion I had a CHP stop me on Angeles Crest Highway at 3am. He stopped me because in following me for about 5 miles he never once saw my brakelights come on...until he lit me up. Well yes officer, in order for them to come on actually need to hit the brakes.

Adonlude
07-27-2009, 10:43 AM
To address the OP's question: I do not know what the cops can do when they encounter a locked gun case without a key but I do know what they did do when it happened to me.

I have posted this story a few times. I was stopped in Santa Barbara for not having my registration sticker. Lady cop saw hearing protection in my back seat and asked if I had a gun. I was honest (and had not yet found Calguns) and told her it was locked in my trunk in one of those small pistol lock boxes. We waited and another cruiser and a motorcycle cop showed up and they sat me down on the curb while she started searching the interior of my vehicle. I mentioned that I didn't give consent to search but she said that it didn't matter because the backpack in my back seat that was next to the hearing protection could have a gun in it. They popped my trunk and found the little lock box where I said it would be and eventually they asked for the key to open it. I asked permission to put my hands in my pockets to get it and they said ok. I put my hand in my pocket and, oh crap, no key. So I start looking stupid checking all my pockets and still no key. I say it must have fallen out of my pocket while driving and is probably under the drivers seat. The lady cop starts looking and couldn't find it. After a bunch of questioning and radio calls and assurances that the gun is not loaded they eventually just let me go without ever checking the gun. I was cooperative the whole time so I guess they just trusted me which they were right to do because neither the gun or the magazines in the lock box were actually loaded. The lady and the older higher ranking cop were cool and professional. The older guy was talking guns and said that I should have gotten the Sig 226 and not the 229 since the 226 was a full size. The young motorcycle cop was a ***** though constantly throwing in little statements about how I probably wont see my gun again and how in trouble I was. He was the stereotypical cop we all hate. When they finally let me go 20 minutes later I looked under my seat and sure enough there was the key. They didn't site me for the registration either.

Ive been pulled over twice in Santa Barbara since then and last time the lady cop randomly asked me if I had any of my guns in the car. Maybe it was the same lady from years ago, I don't remember.

Stealth
07-27-2009, 11:06 AM
OP -- The previous post is good. Up to the LEO in the end. Some might take you to jail if you cannot unlock the case. Some might break it open. In the end if you being cool and polite they will probably let you go. Since you have no key to get in your locked container with a firearm in it and no other firearm is found. Odds are they will feel you are safe/legal and not a threat to society.

Now what I am curious about is when you buy a firearm and register it with the DoJ does that show up on the search LEOs do when they run your plates/license in their computers. Are you flagged being a firearm owner and that is easily known by any LEO in California?

M. Sage
07-27-2009, 11:16 AM
Please provide a citation for this. There is nothing in the law stating that you have to answer truthfully. The police are allowed to lie to you, and you are allowed to lie to them. If they are asking specific questions about an actual crime, then you may not lie to them as you would be obstructing an investigation. If they have only pulled you over and see a case on your seat, then you can tell them it is filled with moon rocks brought back by Apollo 11 and it would not be a crime.

There is no cite that you have to answer the question, but lying to an officer could be illegal (can't remember if it's just during the course of their duties or during an investigation), but I'd rather not do it since being caught in a lie is PC for a search if they see something that contradicts what you tell them. Better to simply not answer the question, or answer it truthfully (there is nothing illegal in my car) without being specific or lying.

Now what I am curious about is when you buy a firearm and register it with the DoJ does that show up on the search LEOs do when they run your plates/license in their computers. Are you flagged being a firearm owner and that is easily known by any LEO in California?

No, it does not come up when they run your plates, though I think they can access said information. It's just not what typically comes up during their regular check.

Mark in Eureka
07-27-2009, 5:43 PM
M. Sage
Anyone can be arrested for anything. If the officer wants to arrest you, he will. You fight that in court. If you think there is going to be a problem, call your lawyer. Having your lawyer present during the stop is always a helpful.

What you do not want is to be arrested for a prosecutable offense.

You have presented the firearms for the officer’s inspection. You have not refused him access and have complied with 120031(e) to the best of your ability. You are taking access to the extreme of never being able to have an unlocked firearm container in your car.

The Officer has the same level of access that you have. He can take the weapons into custody and have you come in with the key, he can go back to the range and get the key, he can cut the containers open and inspect them, or he can see that everything is properly locked up and end the stop.

In the end, if this went to court, it would give your lawyer the ability to take the officer to task on the stand because you did nothing wrong and only meant to comply with the law.



Decoligny
The citation is 120031(e) You rolled the dice when you lie. If caught in possession of a firearm, The lie would be an act of refusal to comply with 120031(e).

You could refuse to answer, but that may cause the officer to search you and your car for officer safety or possible violation of 120031(e).

Best to have everything locked up and just tell the truth.

packnrat
07-27-2009, 7:24 PM
The way people here talk about gun searches.
I am very glad the county mounty that pulled me over did not ask about guns.......

I was returning from area 53 shoot. :-0



.

M. Sage
07-27-2009, 7:32 PM
You have presented the firearms for the officer’s inspection. You have not refused him access and have complied with 120031(e) to the best of your ability. You are taking access to the extreme of never being able to have an unlocked firearm container in your car.

The Officer has the same level of access that you have. He can take the weapons into custody and have you come in with the key, he can go back to the range and get the key, he can cut the containers open and inspect them, or he can see that everything is properly locked up and end the stop.


Things aren't typically this reasonable at the side of the road, and you're making a mistake if you think that this is how most LE in CA would treat you.

12031(e) isn't a prosecutable offense as far as I remember reading the law. It says refusal is PC for an arrest, but that's all it says.

KylaGWolf
07-27-2009, 9:47 PM
I wasn't referring to 12031(e). I was referring to the pdf file linked to above by Doheny: Protective Car Searches (http://le.alcoda.org/publications/files/PROTECTIVECARSEARCHES.pdf) Where The Alameda County District Attorney's Office tells cops that for officer safety when officers feel threatened by a suspect,

So it appears the cops can search the passenger compartment of your vehicle now without probable cause. And all they have to do to get away with it is say they were worried you might have a weapon. This shouldn't surprise anyone, after all, they can detain you for a sobriety checkpoint without any suspicion at all.

Actually, I suspect Alameda's interpretations of these cases is not correct. I may check it out more tomorrow.

OK here is how it was explained in Criminal Law class. Vehicle searches can be done without a warrant due to the reason the evidence can be easily moved. Secondly the officer only needs reasonable suspicion to search said vehicle. As to the OPs post. Best advise I can give is put the gun in the trunk. That way it is out of view if you are ever stopped.

tombinghamthegreat
07-28-2009, 1:10 AM
Anyone can be arrested for anything.

Best to have everything locked up and just tell the truth.

That is why it is advisable for an individual to refuse to answer LEOs questions and why the 5th amendment exists. Telling the truth is probably the worst advise i have read on this thread, don't misunderstand i did not say lie just do not incriminate yourself.

http://video.google.com/videoplay?docid=-4097602514885833865

This is a great clip to watch. It deals with this issue

M. Sage
07-28-2009, 3:48 AM
OK here is how it was explained in Criminal Law class. Vehicle searches can be done without a warrant due to the reason the evidence can be easily moved. Secondly the officer only needs probable cause to search said vehicle. As to the OPs post. Best advise I can give is put the gun in the trunk. That way it is out of view if you are ever stopped.

Fixed that for you.

Not all vehicles have separate trunks, and not all trunks will hold all firearms. If you drive a Mazda Miata, most rifles and shotguns won't fit in the trunk.

Mark in Eureka
07-28-2009, 2:03 PM
You misunderstand me. If I am an officer and I ask you if there are any firearms in the car, the only responses I want to hear from you are "yes" or "no". Anything else and I am going to consider searching the car for officer safety.

The only other response that might work is to take the 5th and shut up.

Scarecrow Repair
07-28-2009, 3:09 PM
You misunderstand me. If I am an officer and I ask you if there are any firearms in the car, the only responses I want to hear from you are "yes" or "no". Anything else and I am going to consider searching the car for officer safety.

The only other response that might work is to take the 5th and shut up.

I tell you what, if I were pulled over and asked if I had a gun in the car, I would probably gape in surprise. You sure wouldn't get Yes or No. You'd probably get "You pulled me over to ask me that?" or "Do I look like a gangbanger in this car?" or something equally off the wall.

And if that response would bring out the handcuffs, then you don't belong in uniform.

I am not in boot camp and you aren't a DI. Don't give me that yessir nosir threebagsfullsir jive.

HondaMasterTech
07-28-2009, 3:16 PM
Not answering or answering with a question is not probable cause. The officer MUST articulate the probable cause to a judge. If his probable cause is a guess, it is not probable cause.

M. Sage
07-28-2009, 9:23 PM
You misunderstand me. If I am an officer and I ask you if there are any firearms in the car, the only responses I want to hear from you are "yes" or "no". Anything else and I am going to consider searching the car for officer safety.

The only other response that might work is to take the 5th and shut up.

Refusing to answer is not reason for a Terry search. IIRC they still have to have some reason to search under Terry, and even then it could be a bad strategic move; last I knew, any contraband found under a Terry search is not admissible in court, as it was found under a lower standard (no real probable cause). Terry's existence is only justifiable as an officer safety precaution.

Sounds like you don't wear a badge. I'm glad for that.

Ground Loop
07-28-2009, 9:58 PM
You misunderstand me. If I am an officer and I ask you if there are any firearms in the car, the only responses I want to hear from you are "yes" or "no". Anything else and I am going to consider searching the car for officer safety.

The only other response that might work is to take the 5th and shut up.

Someone remind me why a 100% lie of "No" is not the correct answer for these kinds of cops?

Seriously.. seems like the shortest path out of there. If they're going to search anyway, they're going to search. Doesn't seem it matters either way. They'll find a correctly-stowed gun. Now what? "You lied to me, I'm hauling you in"?

I met a cop this weekend who said (off duty) "Look, it's all a screen test. We're going to chat a bit, and I'll decide how much of a ***** you are. If I don't like you, I'll find something to arrest you for. Your day will be worse than mine." And that pretty much sums up most cops I've had occasion to meet.