"PC 12031 (e)" Does it violate the 4A?

[Window_Seat]

PC 12031 (e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

I have often wondered whether this blatantly violates the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A person is not violating any laws if he/she is "lawfully" carrying openly according to PC12031 (g), and not concealing it, or it is not loaded.

Since the person carrying openly (with shirt tucked in, no jacket), it is NOT concealed, and it is NOT loaded, and a PO approaches (without there being a call to 911, other citizen calls of MWG) and uses 12031(e), has my 4A been blatantly violated? After all, I have not violated any regulations.

In order to determine whether or not a firearm is loaded for the purpose of enforcing this section

Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.

IMO, a blatant violation of the 4A.

Why am I wrong?

Erik.

[sorensen440]

absolutely

[Shane916]

"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

[Dark&Good]

Do you have to let officers check your gun "in an incorporated city or prohibited area of an unincorporated territory" only?

[sorensen440]

"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

just because state law says its ok does not make it constitutional

[artherd]

"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Even under Terry, as well as the above, you need at least reasonable suspicion that a crime has been committed.

[nobody_special]

I have often wondered whether this blatantly violates the 4th Amendment:

I agree that it is a 4th amendment violation; however, California courts have repeatedly ruled otherwise. Then again, I think PC 12031 is unconstitutional as well.

Then again, SCOTUS has ruled that "internal" border patrol checkpoints and DUI checkpoints are legal, too, even though those are also 4th amendment violations.

The 4th amendment isn't good for much these days...

[Rogue187]

I think an officer can approach you and request to see your firearm to ensure that it is "unloaded" it is not a violation of the 4A.

The officers do not have x-ray eyes so they cannot see into the firearms to tell that it is unloaded. There maybe no mag in the magwell but what is there to having a round in the chamber. The officer may legally open the action to see if it is unloaded. What if you are carrying a revolver in a holster..the officer cannot see into the cylinder face to determine if it is unloaded so the cylinder must be opened.

I don't think any police officer will allow you to hand them the firearm to ensure that it is unloaded. They will remove it themselves.

[artherd]

I think an officer can approach you and request to see your firearm to ensure that it is "unloaded"

Under current law - yes.

it is not a violation of the 4A.

Actually, it quite is. There is no reason to belive a crime is being comitted.

This is akin to allowing any officer who can approach you, and request to see your genitals in order to swab them to make sure you haven't raped anyone today.

After all, they don't have x-ray eyes.

[sac550]

I think there is something that many forget. The 4th Amend. only protects us from unreasonable searches. The courts have said it is not unreasonable for LEO to check an make sure a firearm is not loaded. They weigh how intrusive a search is with public and officer safety. That is how the courts have allowed DUI checkpoints. They are not unreasonable or overly intrusive. just my 2 cents.

[nick]

I think an officer can approach you and request to see your firearm to ensure that it is "unloaded" it is not a violation of the 4A.

The officers do not have x-ray eyes so they cannot see into the firearms to tell that it is unloaded. There maybe no mag in the magwell but what is there to having a round in the chamber. The officer may legally open the action to see if it is unloaded. What if you are carrying a revolver in a holster..the officer cannot see into the cylinder face to determine if it is unloaded so the cylinder must be opened.

I don't think any police officer will allow you to hand them the firearm to ensure that it is unloaded. They will remove it themselves.

Well, they can't be sure you're not growing pot in your apartment, either. It doesn't eman they can just barge in and take a look to make sure. Well, maybe, in this state they can, but it still doesn't make it kosher with the 4th Amendment. Then again, I always wondered if judges are still human beings. They seem to be reading interesting things in the quite plain language of the Constitution.

[Pvt. Cowboy]

"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Thankfully, not where I live. 'Castle Doctrine' extends to your motor vehicle, your horse, your canoe, or your Piper Cub aircraft. Your vehicle is legally regarded as an extension of your home.

For some reason, everyone wants to think that 'Castle Doctrine' is all about shooting burglars, or something.

[adamsreeftank]

Let's not forget the 5th amendment. The supreme court has held that "testimony" goes beyond just speech. Answering whether or not your gun is loaded, or even the act of relinquishing it to a peace officer absent probable cause of a crime are both acts that could could reasonably be protected by the 5th.

This bares some similarity to Haynes v. U.S. (1968) where it was ruled that a felon could not be charged with failure to register a SBS since filing the registration would be admitting to being a felon in possession of a firearm.

Since the exercise of the 5th can not be used as probable cause of wrongdoing, denying an officer the right to inspect your weapon should not be probable cause to arrest you.

...

That said, and as a disclaimer, I am not a lawyer so don't take my word for it. I'm sure there are many people in prison for violating unconstitutional laws.

[sorensen440]

I think there is something that many forget. The 4th Amend. only protects us from unreasonable searches. The courts have said it is not unreasonable for LEO to check an make sure a firearm is not loaded. They weigh how intrusive a search is with public and officer safety. That is how the courts have allowed DUI checkpoints. They are not unreasonable or overly intrusive. just my 2 cents.

I think you need to re-read the 4th amendment

The right of the people to be secure in there persons,houses,papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized

I have a few spare copies of the constitution if you would like one its just a pm away

[M. Sage]

"Plain view" and the "motor vehicle exception" support CA state law in regards to it not violating the 4th amendment.

Evidence that a gun may be in the vehicle (in a gun case) may mean that there is a gun present, but it's not probable that there is a crime in progress (illegal loaded transport/carry).

Let's not forget the 5th amendment. The supreme court has held that "testimony" goes beyond just speech. Answering whether or not your gun is loaded, or even the act of relinquishing it to a peace officer absent probable cause of a crime are both acts that could could reasonably be protected by the 5th.

Taking that into consideration, if I have the bad luck to be stopped with a firearm in the next couple of weeks before I move out of state and the officer wants to "inspect" my firearms, I'll just let him arrest me then do his little investigation to find out my guns are unloaded.