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GuyW
01-01-2011, 4:45 PM
CASE LAW:

Public Place; A Residential Front Yard:

People v. Strider (Sep. 29, 2009) 177 Cal.App.4th 1393

Rule: The front yard of a residence, surrounded by a 4˝ to 5 foot fence, is not a public place for purposes of P.C. § 12031 (possession of a loaded firearm in a public place).

Facts: Los Angeles Deputy Sheriff Jason Bates and his partner were patrolling an area of Compton at around 6:20 p.m. when they observed defendant standing in the front yard of a single family residence. The yard was enclosed by 4˝ to 5 foot fences consisting of
wrought iron on two sides and wood and brick on the other. Although the yard was easily visible through the fence, the only access was through a gate in the wrought iron portion at the front. The deputy knew the house to be a hangout for the Southside Crips, and that rap music was produced in a detached garage in the back. As the deputies drove by, a person entered the yard and left the gate open. Defendant, still standing in the front yard, looked at the deputies, turned to his right, and quickly walked towards the front door. As he did so, Deputy Bates observed the butt of a handgun protruding from his left rear pants pocket. Bates immediately exited his patrol vehicle and ran after defendant.
Defendant entered the house and slammed the front door. Bates opened the door and followed after defendant into the residence, calling for him to stop. As defendant was walking into the kitchen, he dropped a baggie of rock cocaine. He then stopped as ordered. Deputy Bates retrieved a loaded .40-caliber semiautomatic handgun from defendant’s pocket. He was handcuffed and the baggie was recovered from the floor. It was determined that defendant didn’t live there but had full access to the house, coming and going as he liked. Charged with gun and drug offenses, defendant’s motion to
suppress was denied. He was tried by a jury and convicted of possession of a controlled substance while armed with a firearm. Sentenced to prison, defendant appealed.

Held: The Second District Court of Appeal (Div. 3) reversed. Defendant was suspected of possessing a loaded firearm “in a public place,” in violation of Penal Code §12031(a)(1). The lawfulness of the deputy’s detention and arrest of defendant in the kitchen depends upon whether the deputy had the right to chase him into the house. The legality of the deputy’s entry into the house, in turn, depends upon whether the deputy had probable cause to believe defendant was in fact in violation of P.C. § 12031(a)(1) when he was observed standing in the fenced off front yard with a gun sticking out of his
pocket. Lastly, whether or not defendant was violating P.C. § 12031(a)(1) depends on whether he was in a “public place” at that time. Although P.C. § 12031 does not define the term “public place,” appellate court cases in California have routinely held that privately owned property can constitute a public place. Based upon these cases, we know that a public place is any location that is “readily accessible to all those who wish to go there.” A key consideration “is whether a member of the public can access the place ‘without challenge.’” For instance, places of business, private parking lots, and even apartment hallways, at least when open to the general public, are public places. In relation to the front yard of a private residence, it has been held that a “public place3 includes the area outside a home in which a stranger is able to walk without challenge.”
This, depending upon the circumstances, might include one’s driveway, lawn, or porch.
But in this case, with the yard being surrounded primarily by a high wrought iron fence, “its appearance suggests its purpose is to block entry into the yard and act as a barrier to common or general use.” And even though being able to see through the fence is a factor
to be considered, it is not dispositive and does not overcome the formidable nature of the fence itself. The Court further rejected the People’s argument that the fact that the gate was unlocked, and even open at the time, makes the front yard a public place. Lastly, the Court was unpersuaded by the People’s arguments that because others rented some of the rooms in the house, that the detached garage doubled as a private recording studio, or because the house was a known Crips hangout, made the front yard a public place.
Absent evidence that a large number of people frequented the area, none of these facts are sufficient to overcome the Court’s conclusion that the front yard was not a public place.
Therefore, because defendant was not in a public place when seen with the firearm, he was not in violation of P.C. § 12031. Having no reasonable cause to detain defendant, Deputy Bates’ entry into the yard and then the residence was illegal. The cocaine and the
gun, both being products of this illegal entry, should have been suppressed.
Note: What is, and what is not, a “public place” is often a difficult question to answer. No one can fault Deputy Bates here for assuming that the front yard in question was a public place, given the pile of cases that have generally found front yards to be areas open to the public. However, this case lists just about every case known to man that discusses the issue, so no one can accuse the Court of not doing its research. Although a close case, it’s consistent with recent cases that seem to be getting tougher and tougher on this issue. (See People v. Krohn (2007) 149 Cal.App.4th 1294; fenced off court yard of an apartment complex not a public place.) Also note the Court’s refusal (at fn. 4) to decide whether the warrantless entry into the residence would have been legal even if defendant had been in violation of P.C. § 12031. I have to think that the entry was legal
under a “fleeing felon” theory, but the cases have been getting more and more protective of privacy rights in one’s home as well. That issue will just have to await another day.

http://www.sdsheriff.net/legalupdates/docs/1209.pdf

Window_Seat
01-01-2011, 4:57 PM
Good find!

What I'd like to know is what about the inside of one's garage, and I am LOCing with the garage door wide open, while standing withing 2 feet from the front yard, and how hard they would pounce all over me?

Erik.

Librarian
01-01-2011, 5:04 PM
Yes, that's been on the Wiki for a while. (Thanks for the full cite - it wasn't available right after the opinion was published; Wiki updated.)

http://wiki.calgunsfoundation.org/index.php/Unlicensed_Concealed_Carry#Semi_Public_Places_Rest rictions

BTW, in the context of 12031, the legislature actually knows how to define 'public place' : PC 12556 (http://codes.lp.findlaw.com/cacode/PEN/3/4/2/6/1/s12556)
(e) For purposes of this section, the term "public place" means an
area open to the public and includes streets, sidewalks, bridges,
alleys, plazas, parks, driveways, front yards, parking lots,
automobiles, whether moving or not, and buildings open to the general
public, including those that serve food or drink, or provide
entertainment, and the doorways and entrances to buildings or
dwellings, and shall include public schools and a public or private
college or university.
I wonder why 12031 is not that clear.

scarville
01-01-2011, 5:21 PM
Automobles are "open to the public"? What's up with that?

Librarian
01-01-2011, 6:05 PM
Automobles are "open to the public"? What's up with that?

Only for display of imitation firearms - it's important to follow links in posts...

GuyW
01-01-2011, 6:28 PM
Good find!

What I'd like to know is what about the inside of one's garage, and I am LOCing with the garage door wide open, while standing withing 2 feet from the front yard, and how hard they would pounce all over me?

Erik.

"Based upon these cases, we know that a public place is any location that is “readily accessible to all those who wish to go there.” A key consideration “is whether a member of the public can access the place ‘without challenge.’”

locosway
01-01-2011, 9:57 PM
Good find!

What I'd like to know is what about the inside of one's garage, and I am LOCing with the garage door wide open, while standing withing 2 feet from the front yard, and how hard they would pounce all over me?

Erik.

While a yard is generally accessible to people approaching your home, the inside of the garage is more akin to the inside of your home. I'd argue that LOC with the garage door open would be the same to LOC with your front door open. One is more visible than the other, but you have the same expectation of privacy and rights in both places.

Mastermason11
01-01-2011, 10:12 PM
i do the same thing.. I LOC in my garage while the garage door is wide open.. I asked a LEO friend about this and he told me that legally, this is fine.. But expect some visit from LEOs cause the neighbors will call them for sure since there is a man in the garage with a gun.

HK-DEMON-
01-01-2011, 10:25 PM
CASE LAW:

Public Place; A Residential Front Yard:

People v. Strider (Sep. 29, 2009) 177 Cal.App.4th 1393

Rule: The front yard of a residence, surrounded by a 4˝ to 5 foot fence, is not a public place for purposes of P.C. § 12031 (possession of a loaded firearm in a public place).

Facts: Los Angeles Deputy Sheriff Jason Bates and his partner were patrolling an area of Compton at around 6:20 p.m. when they observed defendant standing in the front yard of a single family residence. The yard was enclosed by 4˝ to 5 foot fences consisting of
wrought iron on two sides and wood and brick on the other. Although the yard was easily visible through the fence, the only access was through a gate in the wrought iron portion at the front. The deputy knew the house to be a hangout for the Southside Crips, and that rap music was produced in a detached garage in the back. As the deputies drove by, a person entered the yard and left the gate open. Defendant, still standing in the front yard, looked at the deputies, turned to his right, and quickly walked towards the front door. As he did so, Deputy Bates observed the butt of a handgun protruding from his left rear pants pocket. Bates immediately exited his patrol vehicle and ran after defendant.
Defendant entered the house and slammed the front door. Bates opened the door and followed after defendant into the residence, calling for him to stop. As defendant was walking into the kitchen, he dropped a baggie of rock cocaine. He then stopped as ordered. Deputy Bates retrieved a loaded .40-caliber semiautomatic handgun from defendant’s pocket. He was handcuffed and the baggie was recovered from the floor. It was determined that defendant didn’t live there but had full access to the house, coming and going as he liked. Charged with gun and drug offenses, defendant’s motion to
suppress was denied. He was tried by a jury and convicted of possession of a controlled substance while armed with a firearm. Sentenced to prison, defendant appealed.

Held: The Second District Court of Appeal (Div. 3) reversed. Defendant was suspected of possessing a loaded firearm “in a public place,” in violation of Penal Code §12031(a)(1). The lawfulness of the deputy’s detention and arrest of defendant in the kitchen depends upon whether the deputy had the right to chase him into the house. The legality of the deputy’s entry into the house, in turn, depends upon whether the deputy had probable cause to believe defendant was in fact in violation of P.C. § 12031(a)(1) when he was observed standing in the fenced off front yard with a gun sticking out of his
pocket. Lastly, whether or not defendant was violating P.C. § 12031(a)(1) depends on whether he was in a “public place” at that time. Although P.C. § 12031 does not define the term “public place,” appellate court cases in California have routinely held that privately owned property can constitute a public place. Based upon these cases, we know that a public place is any location that is “readily accessible to all those who wish to go there.” A key consideration “is whether a member of the public can access the place ‘without challenge.’” For instance, places of business, private parking lots, and even apartment hallways, at least when open to the general public, are public places. In relation to the front yard of a private residence, it has been held that a “public place3 includes the area outside a home in which a stranger is able to walk without challenge.”
This, depending upon the circumstances, might include one’s driveway, lawn, or porch.
But in this case, with the yard being surrounded primarily by a high wrought iron fence, “its appearance suggests its purpose is to block entry into the yard and act as a barrier to common or general use.” And even though being able to see through the fence is a factor
to be considered, it is not dispositive and does not overcome the formidable nature of the fence itself. The Court further rejected the People’s argument that the fact that the gate was unlocked, and even open at the time, makes the front yard a public place. Lastly, the Court was unpersuaded by the People’s arguments that because others rented some of the rooms in the house, that the detached garage doubled as a private recording studio, or because the house was a known Crips hangout, made the front yard a public place.
Absent evidence that a large number of people frequented the area, none of these facts are sufficient to overcome the Court’s conclusion that the front yard was not a public place.
Therefore, because defendant was not in a public place when seen with the firearm, he was not in violation of P.C. § 12031. Having no reasonable cause to detain defendant, Deputy Bates’ entry into the yard and then the residence was illegal. The cocaine and the
gun, both being products of this illegal entry, should have been suppressed.
Note: What is, and what is not, a “public place” is often a difficult question to answer. No one can fault Deputy Bates here for assuming that the front yard in question was a public place, given the pile of cases that have generally found front yards to be areas open to the public. However, this case lists just about every case known to man that discusses the issue, so no one can accuse the Court of not doing its research. Although a close case, it’s consistent with recent cases that seem to be getting tougher and tougher on this issue. (See People v. Krohn (2007) 149 Cal.App.4th 1294; fenced off court yard of an apartment complex not a public place.) Also note the Court’s refusal (at fn. 4) to decide whether the warrantless entry into the residence would have been legal even if defendant had been in violation of P.C. § 12031. I have to think that the entry was legal
under a “fleeing felon” theory, but the cases have been getting more and more protective of privacy rights in one’s home as well. That issue will just have to await another day.

http://www.sdsheriff.net/legalupdates/docs/1209.pdf

I'm going to have to build an 8ft high fence with razor wire to keep the "predators" out.

hoffmang
01-01-2011, 10:36 PM
I'm going to have to build an 8ft high fence with razor wire to keep the "government" out.

Fixed that for you.

-Gene

paul0660
01-01-2011, 10:41 PM
I'm going to have to build an 8ft high fence with razor wire to keep the "predators" out.

Just carry concealed: 12026:

(a) Section 12025 shall not apply to or affect any citizen
of the United States or legal resident over the age of 18 years who
resides or is temporarily within this state, and who is not within
the excepted classes prescribed by Section 12021 or 12021.1 of this
code or Section 8100 or 8103 of the Welfare and Institutions Code,
who carries, either openly or concealed, anywhere within the citizen'
s or legal resident's place of residence, place of business, or on
private property owned or lawfully possessed by the citizen or legal
resident any pistol, revolver, or other firearm capable of being
concealed upon the person.

HK-DEMON-
01-01-2011, 10:54 PM
Just carry concealed: 12026:

Their calling the front yard of one owns home a "public place" by doing that i will be carrying cocealed in my OWN home, i will then be prosecuted to a maximum. How does the free state of one owns property be free if the boundary line is inside your "bedroom"?

GuyW
01-01-2011, 11:23 PM
I'm going to have to build an 8ft high fence with razor wire to keep the "predators" out.

Illegal in most CA jurisdictions: typically front yard is only allowed a 3-ft fence...

.

Decoligny
01-01-2011, 11:28 PM
Just carry concealed: 12026:

12026 exempts you from 12025 on private property. It does not exempt you from 12031.

Sgt Raven
01-02-2011, 1:43 PM
Illegal in most CA jurisdictions: typically front yard is only allowed a 3-ft fence...

.

They tried to tell me to trim the >6' Italian Cypresses around my front yard to 3', calling them bush/hedges, but I pointed out to them by the local cities' code they were trees not bushes. :p

paul0660
01-02-2011, 2:02 PM
12026 exempts you from 12025 on private property. It does not exempt you from 12031.

Right, 12031 has its own similarly worded exception:

(h) Nothing in this section shall prevent any person engaged in
any lawful business, including a nonprofit organization, or any
officer, employee, or agent authorized by that person for lawful
purposes connected with that business, from having a loaded firearm
within the person's place of business, or any person in lawful
possession of private property from having a loaded firearm on that
property.


Clearly, this whole "publicly accessible" thing is a can of worms that isn't clarified by worrying about fence height and type.

Some might say that, as a practical matter, carrying concealed on one's property solves the biggest problem of all.

Pat_H
01-02-2011, 2:54 PM
That's an excellent outcome, the fenced in yard was clearly the Curtilage (http://en.wikipedia.org/wiki/Curtilage) of the house, the cops knew that, but hoped for a sympathetic court room.

Librarian
01-02-2011, 3:47 PM
That's an excellent outcome, the fenced in yard was clearly the Curtilage (http://en.wikipedia.org/wiki/Curtilage) of the house, the cops knew that, but hoped for a sympathetic court room.

California does not use that term anywhere in its statutes.

Pat_H
01-02-2011, 3:58 PM
That's an excellent outcome, the fenced in yard was clearly the Curtilage (http://en.wikipedia.org/wiki/Curtilage) of the house, the cops knew that, but hoped for a sympathetic court room.California does not use that term anywhere in its statutes.That makes no difference whatsoever, it's a well understood definition in law. That's all that's required for a "ignorance of the law is no excuse" citation, which the court that overturned well and truly understood.

Bhobbs
01-02-2011, 4:26 PM
My father told me is illegal in our city to build a fence that completely encloses the yard. I don't know if it is true because I have seen a few houses will fences around the front yard and across the driveway and our house has fences around the yard but not across the drive way due to the horse trails.

Pat_H
01-02-2011, 4:28 PM
My father told me is illegal in our city to build a fence that completely encloses the yard. I don't know if it is true because I have seen a few houses will fences around the front yard and across the driveway and our house has fences around the yard but not across the drive way due to the horse trails.I've never heard of that, but others may have the CA law on that, I doubt that city ordinances would do that.

Librarian
01-02-2011, 5:11 PM
That makes no difference whatsoever, it's a well understood definition in law. That's all that's required for a "ignorance of the law is no excuse" citation, which the court that overturned well and truly understood.

OK - but what are we - or the police - supposed to do with that information? If it isn't used in CA law, then there are no 'special' attributes associated with that term or that which the term refers to.

ETA I looked up a bit more.

There are things like this (http://www.californiacriminallawyerblog.com/2010/01/a_curtilage_just_isnt_what_it.html): A curtilage just isn't what it used to be. Ah, we long for the good old days. Here, the defendant was being investigated on drug charges. Agents placed a mobile tracking device on his Jeep while in his driveway. The driveway had no special features that raised an expectation of privacy necessary for curtilage protection under the 4th Amendment. There were no barriers or fences, or enclosures, or a lack of visibility. There were no "No Trespassing" signs or warnings. (hint, hint) The driveway was open to the public, and was used to approach the house. and this (http://www.the-crankshaft.info/2010/07/curtilage.html) Simply put, the curtilage is the area immediately outside one's home. Traditionally, the Fourth Amendment was interpreted to protect not only the interior of a home, the area inside the four walls, but to also protect the area immediately outside the home: the curtilage. The term has included garages, driveways, cottages, and backyards for Fourth Amendment protections from unreasonable searches and seizures. The Supreme Court instructed in California v. Ciraolo, 476 U.S. 207 (1986), that "[t]he protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened." and this (http://takingthefifth-acriminallawblog.com/2010/12/16/california-court-upholds-warrantless-search-of-property/) A California appellate court denied an appeal based upon a claim that sheriff’s deputies illegally entered the curtilage of a residence to search the property. The curtilage of a property is a somewhat vague property law term referring to “the land immediately surrounding and associated with the home.” That area beyond the curtilage is considered “open fields.”
People v. Lieng (2010) , Cal.App.4th

That collection of information (Ciraolo gets most frequent mention) suggests that current enforcement of 'privacy' does not really extend much, if at all, outside one's home. That would seem to be an item of interest, but does not look very promising for getting front yards out of the concept of public places.

Thanks for the push to look it up, though. Interesting stuff.

Librarian
01-02-2011, 10:28 PM
Illegal in most CA jurisdictions: typically front yard is only allowed a 3-ft fence...

.
City of Concord Sec. 114-37. Public nuisances says
The following shall be so defined as to constitute a public nuisance:
...
(4) Any shrub or hedge exceeding the following height limit:

(Code 1965, § 4306; Ord. No. 809; Ord. No. 87-34; Ord. No. 89-15; Ord. No. 06-4)

(a) Front yards. Any shrub or hedge may be a maximum of three (3) feet high within ten (10) feet of the front property line and a maximum of six (6) feet high within the remaining portion of the front yard.

(Ord. No. 06-4)and similar 3-foot/6-foot limits for back and side yards.

Similarly for fences: Sec. 122-872. Height limitations.

(a) Front yards. Fences and walls may be a maximum of three feet high within ten feet of the front property line and a maximum of six feet high within the remaining portion of the front yard.

(Code 1965, § 10902; Ord. No. 911; Ord. No. 87-29; Ord. No. 87-34)

(b) Rear yards. Fences and walls may be a maximum of six feet high on rear property lines and within rear setback areas, except as restricted in subsections (e) and (f) of this section.

Bhobbs
01-02-2011, 10:36 PM
City of Concord Sec. 114-37. Public nuisances says and similar 3-foot/6-foot limits for back and side yards.

Similarly for fences:

Would a fence 3 ft or less be sufficient to make your yard a private place?

GuyW
01-03-2011, 2:20 AM
Would a fence 3 ft or less be sufficient to make your yard a private place?

In a free country in which the government respected Constitutional property rights, yes.

In CA - no, I wouldn't count on that, at all....

.

.

Dutch3
01-03-2011, 5:18 AM
In a free country in which the government respected Constitutional property rights, yes.

In CA - no, I wouldn't count on that, at all....



I think if there were signs at each point of entry (i.e., closed gate) stating "Private Property" or "No Trespassing" they would suffice.

Unfortunately, in CA they would probably have to be posted in 17 different languages to be acceptable. :(

otteray
01-03-2011, 5:43 AM
I think that in most towns with this restriction, you are okay if you build it at your setback line, rather than at the sidewalk.
Call your local government's encroachment office to verify.

Sgt Raven
01-03-2011, 12:20 PM
City of Concord Sec. 114-37. Public nuisances says and similar 3-foot/6-foot limits for back and side yards.

Similarly for fences:

Well San Jose has that too and they tried to tell me to trim my shrubs/hedge to 3'. We looked up the muni code and replied that we didn't have any bushes, shrubs, or hedges but had trees over 6'. They reread their codes and found we were right and have left us alone since. ;)

GuyW
01-03-2011, 8:41 PM
I think that in most towns with this restriction, you are okay if you build it at your setback line, rather than at the sidewalk.
Call your local government's encroachment office to verify.

On typical urban / suburban lots, the house and garage is built right up to the front setback line...

.

otteray
01-03-2011, 9:43 PM
Sorry, yes you are correct and my post is misleading.