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  #1  
Old 08-01-2019, 2:30 PM
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Default Question on laws regarding opening of your gun safe

Saw this pop up on Youtube and was giving it a watch. (4:19-6:20)

Guy (wife beater) refused to give safe combination. Officers were able to find the combo, or else-wise opened it. Said something about having Fire come in and open it or remove it if he didn't comply.

Don't really have full story from the clip.

This was in CT.

https://youtu.be/WujCbmY6fqo?t=255

I am aware that CA has similar DV laws, but was wondering under what circumstances can officers open your safe without permission.

My home is a very happy place, the clip just made me curious.

Hopefully this is in the right place as 2A discussion.
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Old 08-01-2019, 3:11 PM
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Quote:
Originally Posted by Barbarossa View Post
Saw this pop up on Youtube and was giving it a watch. (4:19-6:20)

Guy (wife beater) refused to give safe combination. Officers were able to find the combo, or else-wise opened it. Said something about having Fire come in and open it or remove it if he didn't comply.

Don't really have full story from the clip.

This was in CT.

https://youtu.be/WujCbmY6fqo?t=255

I am aware that CA has similar DV laws, but was wondering under what circumstances can officers open your safe without permission.

My home is a very happy place, the clip just made me curious.

Hopefully this is in the right place as 2A discussion.

They would need a warrant.
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Old 08-01-2019, 3:13 PM
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Quote:
Originally Posted by Barbarossa View Post
Saw this pop up on Youtube and was giving it a watch. (4:19-6:20)

Guy (wife beater) refused to give safe combination. Officers were able to find the combo, or else-wise opened it. Said something about having Fire come in and open it or remove it if he didn't comply.

Don't really have full story from the clip.

This was in CT.

https://youtu.be/WujCbmY6fqo?t=255

I am aware that CA has similar DV laws, but was wondering under what circumstances can officers open your safe without permission.

My home is a very happy place, the clip just made me curious.

Hopefully this is in the right place as 2A discussion.
I can't speak to the laws of Connecticut. I just don't have any experience with them.

California law requires LEO's to seize firearms that are in plain view, or that are discovered during a lawful search, at the scene of a domestic violence call (refer to Penal Code section 18250(a)).

At the same time, the search of a safe requires that the LEO have a source of legal standing to conduct the search. Many folks (including the gent in the video and the previous poster) erroneously believe that a search warrant is required. That's not true, only a source of lawful standing is required. A search warrant is probably the best source of legal standing, but it's not the only one. However, PC 18250(a) does not provide any source of legal standing. The LEO still needs to obtain one before they can search the safe.

Common sources of legal standing, other than a warrant, include:
1) Consent from a party qualified to give it.
2) Exigency
3) Public Safety or Community Caretaker Exemption
4) Regulatory Search
5) Border Crossing
In the Domestic Violence scenario shown in the video, I really cannot see any these applying except for consent. Having responded to a large number of DV calls during my working days, and having sought entry into gun safes to recover firearms, there were only two sources of legal standing that I was able to use. The first being consent, and the other being a search warrant where I could show probable cause to believe the subject was a prohibited person and that firearms were present in the safe or other secure place.

There is nothing in California law that grants LEOs access to a secured safe simply because they are at the scene of a Domestic Violence call.
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Old 08-01-2019, 3:24 PM
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Originally Posted by RickD427 View Post
Common sources of legal standing, other than a warrant, include:
1) Consent from a party qualified to give it.
2) Exigency
3) Public Safety or Community Caretaker Exemption
4) Regulatory Search
5) Border Crossing
Number 1 is a very good reason not to share the combination of your secured safe, even with a spouse or cohabitant.

Number 2 might be the only other circumstance that 'might' apply, but the police calling in the FD to crank open someone's secured safe is unarguably an open door to litigation.
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Old 08-01-2019, 3:41 PM
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Originally Posted by CitaDeL View Post
Number 1 is a very good reason not to share the combination of your secured safe, even with a spouse or cohabitant.
Please keep in mind that "Consent" does not require the person to provide the combination or key. A qualified person can also give consent for forced entry into the safe. California is a community property state. LEOs can rely on the wife's consent to force entry into "their" safe for the purpose of recovering "their" firearms from it.

At the same time, it's important to be familiar with the U.S. Supreme Court's decision in Georgia v Randolph. That was a case where there was conflicting issues of consent. The husband specifically refused consent, while the wife gave consent for a search. The Supreme Court held that specific refusal of consent from a person at the scene controlled. Georgia v Randolph does not require that folks be offered the opportunity to deny consent if qualified consent is given by someone else, but if the refusal occurs, it must be honored.
Quote:
Originally Posted by CitaDeL View Post
Number 2 might be the only other circumstance that 'might' apply, but the police calling in the FD to crank open someone's secured safe is unarguably an open door to litigation.
It's kinda hard to argue "Exigency" in a closed safe scenario. Having a baby locked inside would be a great, but unlikely, example. In considering an "Exigent" scenario, it's always good to ask "What is the harm in waiting two hours to get into the safe (about the time needed for a telephonic warrant)? If there's no really good answer, then there's no exigency.
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Old 08-01-2019, 4:04 PM
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If you invited them into your home... via domestic violence, then they will take guns... right or wrong... the court can figure that out...


In CA, it's registered so they know you have them... or some of them based upon when you purchased them...


In CA we now have ammo buyer background checks, so they will know if you are buying ammo...

If your domestic partner says you have guns- that works too
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Old 08-01-2019, 4:06 PM
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in general when the police show up, consider saying, I want an attorney present before being asked any questions

is that recording- yes- good- I want my attorney

if questions continue- I have asked for an attorney- please stop with the questions
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Old 08-01-2019, 5:01 PM
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in general when the police show up, consider saying, I want an attorney present before being asked any questions

is that recording- yes- good- I want my attorney

if questions continue- I have asked for an attorney- please stop with the questions
Be careful with this one. You certainly have the right to counsel in connection with a criminal matter, and LEOs have no ability to compel you to speak with them.

But the flip side of the argument is that LEOs have a duty to conduct a diligent field investigation before taking enforcement action. If you decline to participate in that process, then plan on having the other party(s) to the dispute control the outcome of that investigation.
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Old 08-01-2019, 8:10 PM
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Guys, this is kalifornia, FFS. You’ll open the safe. Or they’ll just take the safe.


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Old 08-02-2019, 1:56 PM
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Thanks for the thoughtful responses guys
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Old 08-02-2019, 2:25 PM
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Thanks for the insightful post.

Quote:
Originally Posted by RickD427 View Post
Please keep in mind that "Consent" does not require the person to provide the combination or key. A qualified person can also give consent for forced entry into the safe. California is a community property state. LEOs can rely on the wife's consent to force entry into "their" safe for the purpose of recovering "their" firearms from it.

At the same time, it's important to be familiar with the U.S. Supreme Court's decision in Georgia v Randolph. That was a case where there was conflicting issues of consent. The husband specifically refused consent, while the wife gave consent for a search. The Supreme Court held that specific refusal of consent from a person at the scene controlled. Georgia v Randolph does not require that folks be offered the opportunity to deny consent if qualified consent is given by someone else, but if the refusal occurs, it must be honored.
Follow-up question: CRPA offers (still?) safe stickers with a statement to the police that consent is not granted. Do those stickers carry the weight of some sort of standing refusal overriding another's consent?
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Old 08-02-2019, 5:59 PM
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A friend is going through a divorce. He has 100% custody of the children and is living in their house. His wife was forced by the court to move out. His house has been searched several times, once when he was out of the country.

His wife calls either the Police or CPS saying that he has guns in the house and that the daughter told her she is afraid. The Police show up and look through every drawer, cupbord, closet. They toss all the beds, couch and chair cushions. They search the appliances, toilet tanks, every box,bag and piece of luggage, every nook and cranny. They don't make him open the safe, they are just looking for unsecured guns.

He says that the Police say, it's a welfare check and they don't need a warrant.
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Old 08-02-2019, 6:03 PM
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Quote:
Originally Posted by auffie.hk View Post
Thanks for the insightful post.



Follow-up question: CRPA offers (still?) safe stickers with a statement to the police that consent is not granted. Do those stickers carry the weight of some sort of standing refusal overriding another's consent?
I don't know of any case law specific to the stickers, but there is case law holding that the right to counsel and the right to silence is charge-specific and cannot be invoked in advance, or by a third party. Applying that same rationale would make those stickers meaningless.
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Old 08-02-2019, 6:19 PM
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Originally Posted by Pardini View Post
A friend is going through a divorce. He has 100% custody of the children and is living in their house. His wife was forced by the court to move out. His house has been searched several times, once when he was out of the country.

His wife calls either the Police or CPS saying that he has guns in the house and that the daughter told her she is afraid. The Police show up and look through every drawer, cupbord, closet. They toss all the beds, couch and chair cushions. They search the appliances, toilet tanks, every box,bag and piece of luggage, every nook and cranny. They don't make him open the safe, they are just looking for unsecured guns.

He says that the Police say, it's a welfare check and they don't need a warrant.
How very sad.
I hope there is some way to get this bad behavior stopped. He is going to be going through rough times for quite a while.
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Old 08-02-2019, 7:13 PM
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Originally Posted by RickD427 View Post
I can't speak to the laws of Connecticut. I just don't have any experience with them.

California law requires LEO's to seize firearms that are in plain view, or that are discovered during a lawful search, at the scene of a domestic violence call (refer to Penal Code section 18250(a)).

At the same time, the search of a safe requires that the LEO have a source of legal standing to conduct the search. Many folks (including the gent in the video and the previous poster) erroneously believe that a search warrant is required. That's not true, only a source of lawful standing is required. A search warrant is probably the best source of legal standing, but it's not the only one. However, PC 18250(a) does not provide any source of legal standing. The LEO still needs to obtain one before they can search the safe.

Common sources of legal standing, other than a warrant, include:
1) Consent from a party qualified to give it.
2) Exigency
3) Public Safety or Community Caretaker Exemption
4) Regulatory Search
5) Border Crossing
In the Domestic Violence scenario shown in the video, I really cannot see any these applying except for consent. Having responded to a large number of DV calls during my working days, and having sought entry into gun safes to recover firearms, there were only two sources of legal standing that I was able to use. The first being consent, and the other being a search warrant where I could show probable cause to believe the subject was a prohibited person and that firearms were present in the safe or other secure place.

There is nothing in California law that grants LEOs access to a secured safe simply because they are at the scene of a Domestic Violence call.
Interesting. So if during the call they see guns in plain view they can(or are required to)take them.

You said also they will take them if they find them during a lawful search.

So perhaps they’re not getting into the safe, but during the call are you required to let them in the house to search other than the safe?

Can you say- no I’m not going to let you in?

What if I don’t open the door and just talk to them through the door and say- no I’m good go away?

What happens?

And if there is a restraining order all this stuff goes out the window and they could Break down your door,turn your house upside down and torch open your safe right? Until they have found all the firearms?

And you have no recourse correct?
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Old 08-02-2019, 8:22 PM
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Originally Posted by LEAD LAUNCHER View Post
Interesting. So if during the call they see guns in plain view they can(or are required to)take them.

You said also they will take them if they find them during a lawful search.

So perhaps they’re not getting into the safe, but during the call are you required to let them in the house to search other than the safe?

Can you say- no I’m not going to let you in?

What if I don’t open the door and just talk to them through the door and say- no I’m good go away?

What happens?

And if there is a restraining order all this stuff goes out the window and they could Break down your door,turn your house upside down and torch open your safe right? Until they have found all the firearms?

And you have no recourse correct?
Not quite correct, but still a good question. Let's parse this one out.

First of all, we have to go back to the basics of Search and Seizure law. In order to conduct an invasive search, a LEO needs a source of lawful standing. There are no magical properties of a call classification ("Domestic Violence") or of a Restraining Order that would automatically provide that standing. You gotta look at the information available to the officers and the reasonable inferences drawn from that information.

The second thing that you gotta remember is that searches are also limited in scope based on that information.

Let's consider the case of a "Domestic Violence" call that contains the information "wife is fearful that husband will attack her." LEO's arrive at the location and the wife meets them outside. She reports being afraid, but also reports that no assault, battery or any other crime has occurred. The husband then comes outside, is interviewed, and there is no evidence of a crime. The officers ask if there are guns in the house and both say "yes", but both deny consent to enter. In this case, there is no source of legal standing. The wife's safety has been determined and there is no information available to the LEOs indication any remaining exigency or persons in danger.

But lets change the facts just a little. Assume that the husband comes outside and reports that all is well inside, or that he refuses to answer the door. Now the condition of the wife is unknown and the circumstances of the call indicated some jeopardy to her safety. Now we have both the "Exigency" and "Public Safety" sources of legal standing to make a non-consensual search of the residence. But the subject of that search is for the wife, and is limited in scope to places where the wife could be. If the LEOs see a firearm in plain sight while looking for the wife, then it gets seized. But they can't look in places where the wife could not be in order to seize a firearm.

If a search is unreasonable, you have at least two forms of recourse:

1) If the search produced evidence a crime, you can move for the court to exclude that evidence from trial (refer to PC 1538.5)

2) You can file a civil suit for damages.
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Old 08-03-2019, 1:10 AM
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I don't know of any case law specific to the stickers, but there is case law holding that the right to counsel and the right to silence is charge-specific and cannot be invoked in advance, or by a third party. Applying that same rationale would make those stickers meaningless.
Clarity please. The underlined makes it sound as if your opinion is that a citizen can only invoke if charged with a crime.

Quote:
Originally Posted by RickD427 View Post
Not quite correct, but still a good question. Let's parse this one out.

First of all, we have to go back to the basics of Search and Seizure law. In order to conduct an invasive search, a LEO needs a source of lawful standing. There are no magical properties of a call classification ("Domestic Violence") or of a Restraining Order that would automatically provide that standing. You gotta look at the information available to the officers and the reasonable inferences drawn from that information.

The second thing that you gotta remember is that searches are also limited in scope based on that information.

Let's consider the case of a "Domestic Violence" call that contains the information "wife is fearful that husband will attack her." LEO's arrive at the location and the wife meets them outside. She reports being afraid, but also reports that no assault, battery or any other crime has occurred. The husband then comes outside, is interviewed, and there is no evidence of a crime. The officers ask if there are guns in the house and both say "yes", but both deny consent to enter. In this case, there is no source of legal standing. The wife's safety has been determined and there is no information available to the LEOs indication any remaining exigency or persons in danger.

But lets change the facts just a little. Assume that the husband comes outside and reports that all is well inside, or that he refuses to answer the door. Now the condition of the wife is unknown and the circumstances of the call indicated some jeopardy to her safety. Now we have both the "Exigency" and "Public Safety" sources of legal standing to make a non-consensual search of the residence. But the subject of that search is for the wife, and is limited in scope to places where the wife could be. If the LEOs see a firearm in plain sight while looking for the wife, then it gets seized.
But they can't look in places where the wife could not be in order to seize a firearm.

If a search is unreasonable, you have at least two forms of recourse:

1) If the search produced evidence a crime, you can move for the court to exclude that evidence from trial (refer to PC 1538.5)

2) You can file a civil suit for damages.
Quote:
"wife is fearful that husband will attack her."
Clarity again, on the underlined? Because that seems like a broad and vague statement in the absence of any PC or even RS, that a crime has been committed.

example: Wife makes call as you said, but leaves before officers arrive. Wife in call, did not articulate that husband "had or threatened" to attack her.
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Old 08-03-2019, 8:52 PM
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Clarity please. The underlined makes it sound as if your opinion is that a citizen can only invoke if charged with a crime.

Clarity again, on the underlined? Because that seems like a broad and vague statement in the absence of any PC or even RS, that a crime has been committed.

example: Wife makes call as you said, but leaves before officers arrive. Wife in call, did not articulate that husband "had or threatened" to attack her.
Pacrat,

The Fifth Amendment's "Right to Silence" applies only in criminal matters. It's not necessary that a crime actually have been charged, but there must be a criminal matter pending before the right is applicable. We need look no further than the text of the Fifth Amendment. Here it is with the pertinent part in bold font:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Although the right is commonly termed the "Right to Remain Silent", that not really true. The right is only not to be compelled to be a witness against oneself. In most cases, there is no ability of an LEO to compel a person to speak, but please check out the California Court of Appeals decision in People v Quiroga where the court upheld Quiroga's conviction for delaying a peace officer when he refused to provide his true name when being booked on an unrelated charge.

I don't think that you fully understand the concept of "Probable Cause." It's not necessary for officers to have certain knowledge that an exigency exists in order to have standing for a search. The root of "Probable" is that something is more likely than not. That leaves a lot of room for other outcomes. Please review the following court decisions regarding "Probable Cause" to conduct a residential entry and search to gain a better understanding of "Probable Cause":

Martin v City of Oceanside (9th Circuit) - The court found Probable Cause to exist where a concerned parent has not had contact with his daughter for several days.

People v Weise (CCA) - The court found Probable Cause where loud music had been playing for several days, and where mail and newspapers had accumulated at the location.

U.S. v Deemer (9the Circuit) - The court found Probable Cause where an unknown party had called the "911" service and then hung up the phone.

U.S. v Martinez (9th Circuit) - The court found Probable Cause where an unknown party called "911" and reported that a man was "out of control."

U.S. v Bradley (9th Circuit) - The court found Probable Cause where a mother had been arrested on drug charges and information suggested that a 9 year old child was at the location.

Please note that in none of the example cases did the available information clearly state that a crime was occurring at the location searched. But in each case, the court did find that the LEOs possessed the needed legal standing to conduct non-consensual searches of the involved residences.
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Old 08-03-2019, 9:09 PM
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Rick,

How does "community property" apply to RAWs and BBRAWs when not jointly registered?

AFAIK, per CA law, a spouse cannot legally possess a RAW/BBRAW. They are prohibited from shooting it at the range which meand they are prohibited from holding it in their hands.

Therefore, if you had a safe dedicated to storing only RAWs/BBRAWs, an unregistered spouse has no legal right to touch what's inside. How could they possibly have authority to grant someone else permission for objects which are felonies for them to even touch?
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Old 08-03-2019, 9:45 PM
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Rick,

How does "community property" apply to RAWs and BBRAWs when not jointly registered?

AFAIK, per CA law, a spouse cannot legally possess a RAW/BBRAW. They are prohibited from shooting it at the range which meand they are prohibited from holding it in their hands.

Therefore, if you had a safe dedicated to storing only RAWs/BBRAWs, an unregistered spouse has no legal right to touch what's inside. How could they possibly have authority to grant someone else permission for objects which are felonies for them to even touch?
You're confusing the separate concepts of "ownership" and "possession."

You are correct that a spouse has no right to "possess" a RAW which is registered only in the name of the other spouse. However, California case law does not apply the "touching" of an object to equate to "possession." A person must have dominion and control over an object in order to possess it.

Contrary to the assertion in your posting, a spouse can easily shoot their spouse's RAW at a range, just so long as they do not "possess" it (meaning that the registered spouse must be present to control the weapon). Also please refer to Penal Code section 30660 for further clarification on the ability to lawfully loan a RAW to another.

When a spouse allows a peace officer to take possession of an RAW that is community property, it's not the spouse that takes possession, it's the peace officer that takes possession, therefore there is no violation of the AW statute.
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Old 08-04-2019, 3:23 PM
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Originally Posted by hermosabeach View Post
in general when the police show up, consider saying, I want an attorney present before being asked any questions

is that recording- yes- good- I want my attorney

if questions continue- I have asked for an attorney- please stop with the questions
In the situation you mention the Officers are under no obligation to stop asking you questions.

It's up to you to decide if you want to answer them.

Telling them "stop asking me questions" isn't a valid legal request.
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What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.
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Old 08-04-2019, 3:32 PM
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Follow-up question: CRPA offers (still?) safe stickers with a statement to the police that consent is not granted. Do those stickers carry the weight of some sort of standing refusal overriding another's consent?
Those stickers are just an advertising tool.


They carry no legal weight. Anyone with actual legal standing can give a LEO permission to search.
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What you believe and what is true in real life in the real world aren't necessarily the same thing. And what you believe doesn't change what is true in real life in the real world.
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Old 08-13-2019, 10:26 PM
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Pacrat,

The Fifth Amendment's "Right to Silence" applies only in criminal matters. It's not necessary that a crime actually have been charged, but there must be a criminal matter pending before the right is applicable. We need look no further than the text of the Fifth Amendment. Here it is with the pertinent part in bold font:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Although the right is commonly termed the "Right to Remain Silent", that not really true. The right is only not to be compelled to be a witness against oneself. In most cases, there is no ability of an LEO to compel a person to speak, but please check out the California Court of Appeals decision in People v Quiroga where the court upheld Quiroga's conviction for delaying a peace officer when he refused to provide his true name when being booked on an unrelated charge.

I don't think that you fully understand the concept of "Probable Cause." It's not necessary for officers to have certain knowledge that an exigency exists in order to have standing for a search. The root of "Probable" is that something is more likely than not. That leaves a lot of room for other outcomes. Please review the following court decisions regarding "Probable Cause" to conduct a residential entry and search to gain a better understanding of "Probable Cause":

Martin v City of Oceanside (9th Circuit) - The court found Probable Cause to exist where a concerned parent has not had contact with his daughter for several days.

People v Weise (CCA) - The court found Probable Cause where loud music had been playing for several days, and where mail and newspapers had accumulated at the location.

U.S. v Deemer (9the Circuit) - The court found Probable Cause where an unknown party had called the "911" service and then hung up the phone.

U.S. v Martinez (9th Circuit) - The court found Probable Cause where an unknown party called "911" and reported that a man was "out of control."

U.S. v Bradley (9th Circuit) - The court found Probable Cause where a mother had been arrested on drug charges and information suggested that a 9 year old child was at the location.

Please note that in none of the example cases did the available information clearly state that a crime was occurring at the location searched. But in each case, the court did find that the LEOs possessed the needed legal standing to conduct non-consensual searches of the involved residences.
All,

One characteristic of case law is that it frequently changes, and that has just happened.

Earlier today, the California State Supreme Court issued a decision that severely "reigns in" California's view of the "Community Caretaker" doctrine that permitted many warrantless searches to occur. Please refer to their decision in People v Ovieda.

As a result, please disregard my reference to the People v Weise case above. It just became toast in light of today's decision.

The Ninth Circuit cases cited above remain good references. They are unaffected by today's ruling.
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Old 08-14-2019, 12:21 PM
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RickD427,

I appreciate your posts here on calguns. Logical, factual and without bias.

'Just the facts, Ma'am' LOL.

Absolutely appreciated. Some here want to tell us non-LEO to 'just shut up and listen'. You just provide valid info in a calm manner.

Again, you do a great job in communicating.

Best wishes.
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Old 08-14-2019, 12:38 PM
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How very sad.
I hope there is some way to get this bad behavior stopped. He is going to be going through rough times for quite a while.
Yeah, what stop it is when the kids reach 18. I dealt with a non-custodial "mom" from before my son was 4 until he turned 18. I don't know who was happier on his birthday, him or me.
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Old 08-14-2019, 1:13 PM
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Cops know thier job. They can push it if they want. If you dont understand your rights call a lawyer and always ask for a warrant.
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Old 08-15-2019, 12:29 PM
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It's possible the guy was on parole in which case they wouldn't need a warrant as far as I know.
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