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Old 11-09-2010, 10:56 PM
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cbn620 cbn620 is offline
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Originally Posted by RickD427 View Post
Check out Arkansas V. Sanders. It's a 1979 U.S. Supreme Court that created th "Single Purpose Container" rule. As applied to guns, the logic goes like this - A gun case is meant to hold guns, therefore if a LEO sees a gun case, he's entitled to conclude that there's a gun in the gun case." You can argue with the logic - but the court created the rule. One earlier poster in this thread cited the Gust case where the 9th Circuit declined to apply the rule. I know that doesn't help your dilemma, you don't know until its over if you are going to wind up like Gust, or like Sanders. You really can't predict which way the court is going to go.

If you do apply the rule then 12031(e) takes over. A refusal gives the officer PC to arrest you for 12031. Once you're arrested, the officer now has the right to search the gun case (assuming its in your immediate possession) incident to the arrest. If its not in your immediate possession, he's now got the same PC to get a warrant. Once its discovered that there is no weapon in the case, it becomes clear that prosecution for that charge is impossible, and assuming that no other charges are pending, you should expect to be released under the provisions of P.C section 849.
I'm saying even if you say you do not consent, they can and will check your stuff. All I'm saying is don't give consent. Maybe you could say "I cannot stop you and I am not resisting, but for the record I do not consent to any search." In that case it is their gamble.

If they give you an ultimatum, yes, considering 12031 I can see where it can get hairy. But I still feel like as far as the first step in this scenario goes, the protocol "I do not consent to a search" language should be in effect. The only reason you'd ever have to say this is if they're asking, and if they're asking they probably don't think they have probable cause. I don't see how it does any harm to say "I do not consent" in this particular circumstance. Saying "I do not consent" does not mean "You cannot search me, I will not allow it, and if you attempt to I will physically resist." It says "For legal purposes I am telling you that I do not want to be searched, I do not believe this is a legal search, I am not giving you full permission to search me."
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