Routine traffic stop, asked about my registered firearms

[Decoligny]

While CA law says loaded mags in the same locked case as the gun is OK, Federal law does not:

California law does not say loaded mags in the same locked case as the gun is OK. California law does not say that loaded mags in the same locked case as the gun is ILLEGAL.

Laws do one of two things here. They either tell you that certain actions are illegal, or they tell you that you are exempt from other laws if you follow a certain set of rules.

CA law doesn't have anything making gun and loaded mags together illegal.

FOPA simply says if you follow FOPA rules you have a defense against prosecution for violating State laws.

While CA law says loaded mags in the same locked case as the gun is OK, Federal law does not:

"Under FOPA, notwithstanding any state or local law, a person is entitled to transport a firearm from any place where he or she may lawfully possess and carry such firearm to any other place where he or she may lawfully possess and carry it, if the firearm is unloaded and locked out of reach. In vehicles without a trunk, the unloaded firearm must be in a locked container other than the glove compartment or console. Ammunition that is either locked out of reach in the trunk or in a locked container other than the glove compartment or console is also covered."

http://www.nraila.org/gun-laws/articles/2010/guide-to-the-interstate-transportation.aspx

CA law is contrary to Fed law.
Of course, Fed law is in effect everywhere, even in CA.
So, if you get checked by a Fed agent in CA, and are transporting your guns and ammo CA-legal-style, you are in violation of Fed law.
If you transport out of state, you need to follow Fed law.

It would be nice if all the posters here do not jump on the newbs when they ask how to legally transport.
Many laws are passed on by word of mouth.
Since Fed law was the only law for years, it's not surprising that many people think that is what is required (gun locked separate from ammo locked).
Many older cops seem to only know the Fed laws, this can make for awkward moments for CA gun owners who choose to put guns and ammo in the same container.

FOPA is a limited "protection" from State Laws by Federal Law.

FOPA says "it is legal if", it does not say "it is illegal, unless".

There is a big difference.

FOPA is not a federal law that you can be charged by the Feds for violating. It is a protection law to be used to assert Federal precedence over State law when dealing with the interstate transportation of firearms.

However, FOPA is only good as an affirmative defense. That means you can't even bring up FOPA until you have actually been arrested, charged with a firearms offense and are in court defending yourself against prosecution.

[Decoligny]

Teddy: from the link...the second paragraph...

"Many states and localities have laws governing the transportation of firearms. Travelers must be aware of these laws and comply with legal requirements in each jurisdiction. There is no uniform state transportation procedure for firearms. If in doubt, a traveler should carry firearms unloaded, locked in a case, and stored in an area (such as a trunk or attached toolbox) where they are inaccessible from a vehicle’s passenger compartment and not visible from outside the vehicle. Any ammunition should be stored in a separate locked container."

Underlined for you.

Italics say that you can't have it within reach, too.

Now this is just the NRA / NRA-ILA interpretation of the laws.
However, I do believe these guys are on the side of us gun owners.
You can read it yourself and, of course, make your own interpretation and transport decisions:
Title 18- Part 1- Chapter 44- s926A
http://www.gpo.gov/fdsys/granule/USCODE-2011-title18/USCODE-2011-title18-partI-chap44-sec926A/content-detail.html

Recommendation, not a legal requirement.

[RickD427]

I only skimmed it, but I believe the court called it an "examination," or in any event, a search which would be very limited in scope. I'm now curious if that has ever been extended to a full search of the entire vehicle. Also, DeLong denied having firearms in his car (as some have been advising people to do in this thread), but the officer had seen him place two firearms in his trunk. DeLong then said he didn't have the key to his trunk, but then dropped a key on the ground.

Wouldn't answering the question truthfully, and then directing the officer to the gun's exact location, limit the search and eliminate any justification for a full search of the entire vehicle? It wouldn't have helped DeLong, who had chosen to store illegal drugs in plain view next to his guns, but it might help others who are not so foolish.

Mayor,

The Delong decision didn't speak to the scope of the search, it only addressed the officer's legal standing to conduct the search.

The general rule, established in a string of other cases, it that lawful scope of a search is defined by the PC, or other source of lawful standing, that permitted the search. The common summary is that you can't search a desk drawer if you're searching for an elephant.

Given the fact setting of Delong, the officer would not have standing to search the ashtray for weapons he saw being placed in the trunk.

Delong is kinda unique in that officer knew the location of the weapons he was looking for. That's not normally the case.

I would agree that if you directed the officer to the location of all weapons that the officer had PC to search for, then there would not be PC to search further.

Many Calgunners have suggested responding with "I have nothing illegal in my car" when asked if they have firearms in the car. IMHO, this is extremely unwise. Here's why. The answer is evasive. There's a whole body of case law concerning "adoptive admissions." If the LEO asks a direct question, and receives an unexpected reply, they're entitled to attach significance to the reply and to draw conclusions as a result. If you say "I have nothing illegal in my car" when asked if you have firearms in the car, you've just given me probable cause to believe that you have legal firearms in your car. And that provides a legal search authority under Delong. Since the location of your legal firearms within the vehicle are unknown to me, that search authority would extend to any place in the vehicle that a firearm could be located.

[shda5582]

If the LEO asks a direct question, and receives an unexpected reply, they're entitled to attach significance to the reply and to draw conclusions as a result. If you say "I have nothing illegal in my car" when asked if you have firearms in the car, you've just given me probable cause to believe that you have legal firearms in your car. And that provides a legal search authority under Delong. Since the location of your legal firearms within the vehicle are unknown to me, that search authority would extend to any place in the vehicle that a firearm could be located.

This is probably splitting hairs, but.....

If I'm answering that specific question with "I have nothing illegal in my car" that in of itself isn't an implication or even an automatic assumption that I have firearms. It does answer the question directly, is truthful, and isn't an attempt to trick the officer. So with that being said, you are not refusing a search, but nor are you authorizing one either. I could give that answer even when I'm not hauling firearms to/from the range and it's STILL a truthful statement and still does not give the PO 'probable cause' for a search.

[IVC]

The answer is evasive. There's a whole body of case law concerning "adoptive admissions." If the LEO asks a direct question, and receives an unexpected reply, they're entitled to attach significance to the reply and to draw conclusions as a result. If you say "I have nothing illegal in my car" when asked if you have firearms in the car, you've just given me probable cause to believe that you have legal firearms in your car.

Saying "I do not wish to answer that question" is also "an unexpected reply" given that people tend to have a general fear of authority.

Is such a reply also considered an "adoptive admission?"

[shda5582]

Saying "I do not wish to answer that question" is also "an unexpected reply" given that people tend to have a general fear of authority.

Is such a reply also considered an "adoptive admission?"

For that matter, what about refusing to answer the question, as is your civil right to do so? Would refusing to answer that question be considered an "unexpected reply" and thus enable the PO to search without my consent?

[bonusweb]

Mayor,

The Delong decision didn't speak to the scope of the search, it only addressed the officer's legal standing to conduct the search.

The general rule, established in a string of other cases, it that lawful scope of a search is defined by the PC, or other source of lawful standing, that permitted the search. The common summary is that you can't search a desk drawer if you're searching for an elephant.

Given the fact setting of Delong, the officer would not have standing to search the ashtray for weapons he saw being placed in the trunk.

Delong is kinda unique in that officer knew the location of the weapons he was looking for. That's not normally the case.

I would agree that if you directed the officer to the location of all weapons that the officer had PC to search for, then there would not be PC to search further.

Many Calgunners have suggested responding with "I have nothing illegal in my car" when asked if they have firearms in the car. IMHO, this is extremely unwise. Here's why. The answer is evasive. There's a whole body of case law concerning "adoptive admissions." If the LEO asks a direct question, and receives an unexpected reply, they're entitled to attach significance to the reply and to draw conclusions as a result. If you say "I have nothing illegal in my car" when asked if you have firearms in the car, you've just given me probable cause to believe that you have legal firearms in your car. And that provides a legal search authority under Delong. Since the location of your legal firearms within the vehicle are unknown to me, that search authority would extend to any place in the vehicle that a firearm could be located.

That and an unlawful search may protect you in court, if you can prove it.
(That's a big if.) If you can prove it, the judge may block the evidence from coming in. That is the only action taken against the officer for his illegal search.

Do you think the officer is highly concerned about this when he makes the decision to search or not? Do you think your rights will prevent a search, or that an officer has ever lost his job for a conducting a search?
(Unless of course he did it to some rich well connected campaign contributor.)

How much would it cost you to defend your rights, just to be released and the officer give you a tip of the hat as you left the courtroom.

[RickD427]

Saying "I do not wish to answer that question" is also "an unexpected reply" given that people tend to have a general fear of authority.

Is such a reply also considered an "adoptive admission?"

I would not think so. The reasonable conclusion from the "I don't have anything illegal" reply is that you have legal firearms.

The reasonable conclusion from "I do not wish to answer that question" is that you don't want to answer the question.

It's also important to note there is no authority for the LEO to require an response. The First Amendment is a mighty thing, and it applies to the officer as well. We can "ask" pretty much anything. Unless there is some legal obligation for you respond, we pretty much have to accept "I do not wish to answer."

It's also important to remember that the determination of PC is highly subjective. LEO's, Prosecuting Attorney's and Courts, often reach differing conclusions based on the same set of circumstances.

[RickD427]

For that matter, what about refusing to answer the question, as is your civil right to do so? Would refusing to answer that question be considered an "unexpected reply" and thus enable the PO to search without my consent?

Good question. I would think not, based on these facts. But its a close call. Please refer to the recent U.S. Supreme Court decision in Salinas v. Texas where they held that silence was an "adoptive admission."

Also, please see my reply to IVC above.

[Safety1st]

I also do not care if they ask if have guns with me, I can choose not to answer.

Nobody is forcing you to confess to a crime.

True. However, judging by the comments on this thread, refusing to answer can be seen as intentionally casuing trouble or being difficult. So yes, merely being asked about firearm ownership in an unrelated traffic stop can affect you negatively.

[amcl]

Been following this thread since OP and I'm wondering if there is a consensus as how to best handle this situation.

If you have no firearms in the vehicle, I'm guessing the best response is, "No".

If you DO have firearms in the vehicle, the top responses seem to be:

1. Yes (can lead to a limited search involving firearms without needing your consent)
2. No (not sure to the legality of lying)
3. I have nothing illegal... (can lead to a limited search involving firearms without needing your consent)
4. I do not wish to answer... (In a perfect world, this may be the best answer, however, in real life, can escalate the LEOs response and even though the law is on your side, it takes going to court to deal with the aftermath)
5. Silence (according to Salinas v Texas, can be evidence of guilt and can lead to a limited search involving firearms without needing your consent)

[five.five-six]

Why not? If gun owners want to protect and expand their gun rights, then at some point they're going to have to stop acting as though owning guns is somehow wrong or illegal.

Vandals.

[ojisan]

You're quoting something that introduces travel with recommendations specifically prefaced by "If in doubt..." and what a traveler "should" do. Those look more like recommendations as how you can travel without risking violation of FOPA or various state/local laws. It doesn't directly state that ammunition and firearm in separate containers is a requirement of FOPA.

Can you find an area in the law's text itself which says the two must be in separate containers?

http://www.law.cornell.edu/uscode/text/18/926A

Recommendation, not a legal requirement.

Slow day on CalGuns, ready to pounce, are we?

I said this was the NRA's interpretation, which I think is best to follow.

Laws can be interpreted many ways...what they say is legal, what they don't say is legal.
I'll go with the NRA lawyers' safest-for-me interpretation of the law and suggestions.

Clark only counts in CA by a CA LEO.

---------------

From the Fed law itself, there is a problem:
"Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console."

So reading this, it's OK to have the gun unlocked and uncased, as long as the ammo is locked and cased?
We all know that's not what they meant, but that’s what the law says.
Shouldn't "or" be "and" to be consistent with the first part of the law requiring guns and ammo to be in a locked container (car trunk)?
(Yes I understand that a car trunk is one container, but not many cars have two locking trunks so only one is specified).

The inconvenience of two locked cases, one for ammo, one for guns is a lot less than the inconvenience of going up on any Fed charge.

My personal thoughts are to minimize time spent detained by LE by doing everything I can to honor both the letter and spirit of the law.
Since I can't control who will pull me over, I’ll stick with my interpretation, as I will be the one that has to bear the consequences.

You guys are, of course, welcome to your own interpretation.

(Who was beleaguered before?)

[five.five-six]

No, the sovereign citizen says "The Penal Code does not apply to me because the Government that wrote those laws is illegitimate."

I sound like a knowledgable citizen who says "Where in the Penal Code does it say the X activity is illegal?"

Remember back when the law said it was illegal for a slave to run away?

[five.five-six]

If you have no firearms in the vehicle, I'm guessing the best response is, "No".

Never lie to the police.