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View Full Version : Illegal search or not?


sirdutch
01-28-2012, 5:29 PM
Hello folks,

I was wondering what the law in California is on a police officer asking you to open what is obviously a locked California legal pistol or revolver case that he happens to observe on the floor behind the drivers seat when one is pulled over for a minor traffic offense with no warrants, drunk driving issues or any other activity that calls for a search of the vehicle. Is the police officer within his rights to check to see if the weapon you may or may not have in the case is loaded or not? Do you have to comply with the order? I would respectfully deny permission if the LE asked me to open it as I know a person can inadvertently give up their rights voluntarily.

Someone recently told me that they would need a warrant to search a locked briefcase. I do realize that advice or opinions on this or any other forum do not constitute legal advice. I just want to know what others on this forum believe to be the law.

Thanks to all for your comments

hornswaggled
01-28-2012, 5:43 PM
You have the right to refuse, and the officer can't open it without your consent or probable cause. That's what those Calguns stickers for your gun case are all about.

Shiboleth
01-28-2012, 5:51 PM
If you admit that there is a gun in the case, the officer can perform a 12031(e) check to confirm it's unloaded, without probable cause or reasonable suspicion of anything else.

paul0660
01-28-2012, 5:56 PM
It is a toughie.

Kukuforguns
01-28-2012, 5:57 PM
Extensively discussed previously here:

http://calguns.net/calgunforum/showthread.php?t=350776

scarville
01-28-2012, 6:01 PM
I think that if he has a reasonable suspicion there is a firearm in the case a cop can demand you open it so he can check if it is being transported legally.

Librarian
01-28-2012, 6:06 PM
I think that if he has a reasonable suspicion there is a firearm in the case a cop can demand you open it so he can check if it is being transported legally.

So, what demonstrates 'reasonable suspicion'?

In the previous discussions, this is the point that has not been clarified, and further discussion without legal guidance is not going to take us anywhere.

AFAIK there is no case law on the point, so the answer is simply not known.

ETA --

A member PMs a reminder of the 2005 case US v Gust: http://openjurist.org/405/f3d/797/united-states-v-gust

Probably most notable there is Gust contends that the district court erred in applying the "single-purpose container" exception to uphold the warrantless search of his gun case because his case was "of such a nature that [it] could have contained any number of things," not just a gun. We agree.

That is, there is case law that suggests a box marked, say, "Bushmaster", need not necessarily contain a gun and concluding from its markings that it does is not warranted.

So, as with many questions, the best advice is 'get a lawyer'.