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[battlehatch]

I don't think learning the consititution is high on the priority list at most police academys. They're more interested in a good 1 mile run time.

Pretty bad generalization. We get drilled on Constitutional Rights all day long. It's in the LE Code of Ethics in the first paragraph. The problem lies within whether or not each individual officer is abiding by it...

[jamesob]

I was looking through my learning domains to cite the particular section that has to do with issuing a reciept for any items taken. There is a section that states that a receipt must be given "without delay". The only exclusions are contraband and evidence. Since you didn't commit any crime, that should have been catalogued and handled more closely. I suspect that's why the judge gave you the win. Sorry about your experience. Things I would be concerned with would be any liability with a pistol floating around with your name on it, but that is cleared by the suit you won. On the bright side, whoever has that pistol can't legally register it. Most people think that cops will just get away with things like this, and for the most part, I think they do. But every once and a while they do get caught with their hand in the cookie jar. Look at the two cops in Sonoma County that were caught with full auto weapons and destroying evidence... Just remember, not ALL cops are bad.

you are right about the receipt but in the 90's that didn't exist. it would have been tagged as safe keeping or evidence. now days they do give you a receipt for a weapon.

[battlehatch]

you are right about the receipt but in the 90's that didn't exist.

From what I hear from the more "seasoned" instructors... A LOT was different in the 90's, 80's, 70's and so on... How about Tennessee V. Garner?

EDIT: How about CA V. Hodari D.?

[leelaw]

I ask to speak to a supervisor who does come to me and I explain that gun was being carried legally and to please look up the code that references how a gun should be carried in a car in the state of Calif.

[Riodog]

I hope you filed a stolen weapon report. That gets the serial number in the system and sooner or later it would show up somewhere. If it was found at the scene of another crime that just happened to involve that officer wouldn't that be interesting.
Rio

[WolfMansDad]

Keeping an unloaded handgun in the glove compartment is, in fact, prohibited now, but does anybody know when that law was passed? Was it legal to do so at the time of the incident?

Parked on a main blvd in fullerton on christmas eve night (circa 1990's)

[leelaw]

Keeping an unloaded handgun in the glove compartment is, in fact, prohibited now, but does anybody know when that law was passed? Was it legal to do so at the time of the incident?

[mymonkeyman]

Except that 12026.2 contains a separate and wholly independent set of exceptions from 12026.1 E.g.

12026.2. (a) Section 12025 does not apply to, or affect, any of the following: ...
(5) The transportation of a firearm by a person when going directly to, or coming directly from, a fixed place of business or private residential property for the purpose of the lawful repair or the lawful transfer, sale, or loan of that firearm.

The real problem is how "direct" was he in coming from? There are other exceptions in 12026.2 that might also be applicable.

Also, the officer violated the US Constitution in doing the search, the evidence would have been suppressed in trial under the exclusionary rule, and therefore he would not be found guilty.

[bwiese]

Correct.

I am indeed puzzled why the orig poster calls it "stolen", and how he was supposedly able to sue & recover $450. This latter point is particulary interesting.

Since the handgun was used in a 'crime' (the illegal concealment/ possession thereof), it customarily (and I think by statute, not sure) is either destroyed or kept for LE use.

[leelaw]

Except that 12026.2 contains a separate and wholly independent set of exceptions from 12026.1 E.g.


The real problem is how "direct" was he in coming from? There are other exceptions in 12026.2 that might also be applicable.

Also, the officer violated the US Constitution in doing the search, the evidence would have been suppressed in trial under the exclusionary rule, and therefore he would not be found guilty.

[mymonkeyman]

12025. (a) A person is guilty of carrying a concealed firearm when he or she does any of the following:
(1) Carries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.
(2) Carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person.
(3) Causes to be carried concealed within any vehicle in which he or she is an occupant any pistol, revolver, or other firearm capable of being concealed upon the person.

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.

(b) No permit or license to purchase, own, possess, keep, or carry, either openly or concealed, shall be required of 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, to purchase, own, possess, keep, or carry, either openly or concealed, a pistol, revolver, or other firearm capable of being concealed upon the person 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.

(c) Nothing in this section shall be construed as affecting the application of Section 12031.

12025 is the concealed weapon section, 12026 is just an exceptions section, just like 12026.1 and 12026.2.

Also, I'm sorry, but PC is an objective standard. Wearing gloves and sitting in a car does not constitute a "fair probability of a crime."

Also, just because they had PC to believe he committed a crime (specifically a felony, as misdemeanor or less must be in officer's presence) does not mean he can search the car. He needs PC that there is contraband there, or he needs to actually arrest him for the crime, and then search the car as an inventory search or a search incident to arrest. Wearing gloves does not mean there is a fair probability of an illegally stored gun (or drugs, etc.). Neither does being out in a car at night.

What he actually had doesn't even meet a reasonable suspicion. Even with reasonable suspicion, a Terry search of the car is limited to things within the reach of the person (Terry search is an officer safety search). Because the officer made him sit outside the car, the officer can't do a safety search of the car, because the officer's safety isn't jeapordized by weapons in a car that cannot be accessed by a person outside the car. Also, Terry searches of cars are very limited anyways.

It was a plain jane illegal, unconstitutional search.

[leelaw]

Also, I'm sorry, but PC is an objective standard. Wearing gloves and sitting in a car does not constitute a "fair probability of a crime."

Also, just because they had PC to believe he committed a crime (specifically a felony, as misdemeanor or less must be in officer's presence) does not mean he can search the car. He needs PC that there is contraband there, or he needs to actually arrest him for the crime, and then search the car as an inventory search or a search incident to arrest. Wearing gloves does not mean there is a fair probability of an illegally stored gun (or drugs, etc.). Neither does being out in a car at night.

What he actually had doesn't even meet a reasonable suspicion. Even with reasonable suspicion, a Terry search of the car is limited to things within the reach of the person (Terry search is an officer safety search). Because the officer made him sit outside the car, the officer can't do a safety search of the car, because the officer's safety isn't jeapordized by weapons in a car that cannot be accessed by a person outside the car. Also, Terry searches of cars are very limited anyways.

It was a plain jane illegal, unconstitutional search.

I'm just repeating what the OP stated: the cop had PC. Since he was not clearer about it, my assumption is that it considered the totality of the circumstances: person, parked in vehicle for a prolonged period of time, in a residential neighborhood, after midnight, wearing gloves, and with a flashlight.

The search likely was for evidence of burglary tools, but, as I said, since the OP didn't go into detail about it, this is an assumption.

If an officer is going to execute a Terry search of the vehicle, he most certainly may have the occupants leave the car. Your statement that, since he had the occupant exit the vehicle that it invalidates a Terry search is incorrect.

[FallingDown]

I think a few people will be surprised to learn what the police are allowed to do

Why did you let him search the car? What was his cause?

I'm oversimplyfying a little bit but the Supreme Court has made search of your car a low threshold, almost at will judgement call of the police. It's best to assert that you're not consenting anyway but it's going to happen whether you want it to or not.

[FallingDown]

Katrina, Blkops and 2A girl, who's next?

I was looking through my learning domains to cite the particular section that has to do with issuing a reciept for any items taken. There is a section that states that a receipt must be given "without delay". The only exclusions are contraband and evidence. Since you didn't commit any crime, that should have been catalogued and handled more closely. I suspect that's why the judge gave you the win. Sorry about your experience. Things I would be concerned with would be any liability with a pistol floating around with your name on it, but that is cleared by the suit you won. On the bright side, whoever has that pistol can't legally register it. Most people think that cops will just get away with things like this, and for the most part, I think they do. But every once and a while they do get caught with their hand in the cookie jar. Look at the two cops in Sonoma County that were caught with full auto weapons and destroying evidence... Just remember, not ALL cops are bad.

From my understanding, it was illegal to have it in the glovebox but that being said, no handgun should just "dissappear". Hopefully this isn't a pattern. 2A girl mentioned 6,000 rds ammo taken from her house without a receipt and no charges, only a business card was left with her landlord. Waiting to hear follow up on that one.

[mymonkeyman]

I'm just repeating what the OP stated: the cop had PC. Since he was not clearer about it, my assumption is that it considered the totality of the circumstances: person, parked in vehicle for a prolonged period of time, in a residential neighborhood, after midnight, wearing gloves, and with a flashlight.

The search likely was for evidence of burglary tools, but, as I said, since the OP didn't go into detail about it, this is an assumption.

If an officer is going to execute a Terry search of the vehicle, he most certainly may have the occupants leave the car. Your statement that, since he had the occupant exit the vehicle that it invalidates a Terry search is incorrect.

Sorry, you are right about the Terry car thing. I forgot how broad Michigan v. Long is. However, have you ever found a valid Terry car search case where the cop made the suspect step out of the car, DID NOT SEARCH his person for weapons, but then searched the car for weapons? It clearly indicates that it wasn't a search to secure weapons due to a resasonable suspicion that the OP was dangerous (because if the cop suspected the OP was dangerous and had a weapon, then he would have not had his back to the OP while he searched the car). It was a simple fishing expedition. Neither the cop or the OP is qualified to say whether there was objective PC / reasonable suspicion. It is pretty clear that sitting in a car at night isn't sufficient reasonable suspicion. United States v. Washington, 490 F.3d 765 (9th Cir. 2007).