12031(e) hijinks and question.

[Kukuforguns]

Interesting hypothetical. I agree with Gene that your question implicates several considerations.

The police officer asked you a question, that you had no legal obligation to answer. You could simply have asked, "Am I being detained?" However, you stated that you did have firearms in the car (actually, your hypothetical is a little unclear here since the officer asked about "firearms" in the plural and you only have one firearm in the car and you gave a truthful response; for purposes of my discussion I will assume that you said "there is one firearm"). Up until your statement, the police officer did not have probable cause to believe that a firearm was in the car. United States v. Gust, 405 F.3d 797 (9th Cir. 2005). After your statement, the police officer has probable cause to believe that you have a firearm. Under state law, the police officer is entitled (but not obligated) to determine if the firearm is unloaded if you are in an area in which it is unlawful for you to carry a loaded firearm. Section 12031 subsection (e) states:

(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.

The police officer is now presented with a dilemna. Under California law, he is entitled to examine your firearm. However, under the 4th amendment, he cannot conduct an unreasonable search. If the police officer had probable cause to believe that you were unlawfully carrying a loaded firearm, the police officer would be entitled to conduct a search of the entire car. However, under the facts that you have presented, the officer does not have probable cause to conduct a search because you have provided no statements that the firearm was loaded. I do not believe that section 12031 can be read broadly enough that it constitutes a waiver of your constitutional right to be free of unreasonable searches as to your entire vehicle. The discussion of the California Court of Appeal in People v. De Long, 11 Cal. App. 3d 786 (1970), did not read section 12031 this broadly. Accordingly, under Constitutional law, the police officer may not conduct a search of the entire car in order to examine the firearm.

The police officer's next step (assuming a mindset of maximizing discovery of criminal conduct within constitutional boundaries) should be to ask you to consent to a search of the vehicle. You have no obligation to consent to the search of your entire vehicle. However, you certainly could provide consent. Given that you already answered the first question regarding the presence of firearms, you might be feeling like a doormat and say yes. The officer can then properly look anywhere in the car that a derringer could be found (i.e., anywhere the officer pleases).

Should you deny consent to the officer's request to search the vehicle, the officer may ask you to identify where the gun is. I doubt that the officer will ask you to hand the gun to him because police officers involved in a traffic stop in California do not want the violator (with reference to the traffic violation) touching any firearm. Again, you are placed in a situation in which you can give additional information or not. If you identify the gun rag containing the firearm, the officer is now in clearer territory. The gun rag is still opaque, but the officer now has probable cause to believe that the gun rag contains a firearm, but the officer still has no probable cause to believe that a crime has been committed. If the officer opens the gun rag, he is conducting a search. This is where People v. De Long, 11 Cal. App. 3d 786 (1970), comes into play. In De Long, the police had a witness who had seen two long arms in the suspect's trunk. The police therefore had probable cause to believe that there were firearms in the trunk of the vehicle but had no probable cause to believe they were loaded. This part of the opinion is particularly opaque, but the court essentially held that when the police know the location of a firearm in a vehicle (in a geographic location where loaded firearms are prohibited), then the police may properly conduct a limited search to obtain the firearm so that the firearm can be examined. Accordingly, if you tell the police officer which gun rag is the one with the firearm in it the officer likely has authority to search that gun rag. Moreover, the State would likely argue that by identifying the specific gun rag, you were giving the officer tacit consent to search that gun rag. The officer will search the gun rag, examine the firearm and determine that the firearm is not loaded. The officer will write up your traffic ticket and you will go on your merry way.

If, instead of identifying the specific gun rag, you ask the officer, "Am I being detained?," the officer is back in a situation in which he has no probable cause for knowing where the firearm is other than somewhere in the vehicle. As discussed above, the De Long does not authorize the police to search the entire vehicle and the police should therefore not search the vehicle unless you can be arrested for something (at which point your vehicle can be searched as part of the impound process). The question then becomes, did you violate section 12031 by refusing to give the officer the location of the firearm. Here is where De Long helps you out. In De Long, the suspect lied to the police when he was asked if there were in firearms in the trunk. Moreover, the police had probable cause to believe the suspect was lying because a witness (a campus police officer) saw the long arms in the trunk. The Court of Appeal found that this false statement gave the police no additional right to inspect the vehicle beyond that inherent in the statute. Accordingly, the De Long opinion can be cited for the proposition that refusing to state where the firearms are does not in and of itself constitute refusal to allow the police to examine the firearm.

Bottom line, if you let slip that there is a firearm somewhere in the car and then exercise your right to silence, the police can only conduct an "in plain view search" by looking through your windows for a firearm in plain view. The police officer cannot legally search your entire vehicle or open any containers. The police officer cannot arrest you for refusing to allow the officer to examine the weapon.

Please be advised, THIS IS NOT LEGAL ADVICE. I am simply offering my opinion of how the situation should play out based upon published materials. Other people, including judges, might come to a different conclusion based upon the same materials or based upon additional materials. DO NOT RELY ON THIS ADVICE. My personal opinion is that if the police ask you if there are firearms in the car is to find a polite way of refusing to answer. The ACLU represented the suspect in the De Long case. Please don't engineer a situation to see if it would do so for you.

[wash]

I wonder if this means I should carry all of my guns in Bushmaster hard cases or if I should buy guitar cases instead?

Also, when is a discrete case discrete enough to avoid a search?

I've got an Eagle MP5 discrete case that I was going to carry my AR pistol in. Should I buy a tennis racquet case instead?

The easy decision is for my 1919A4 kit. When I finish it, it will be going in a golf club bag.

[snobord99]

Bottom line, if you let slip that there is a firearm somewhere in the car and then exercise your right to silence, the police can only conduct an "in plain view search" by looking through your windows for a firearm in plain view. The police officer cannot legally search your entire vehicle or open any containers. The police officer cannot arrest you for refusing to allow the officer to examine the weapon.

If we're talking CA state court, I'd disagree with your analysis. It's not a bad analysis, I just read the case differently (especially when I read it in conjunction with other (e) cases). May I also recommend looking at:

People v. Greer, 110 Cal. App. 3d 235
People v. Zonver, 132 Cal. App. 3d Supp. 1

Here's a case that would say bad search, but I think most CA courts seem to disagree with the case:

People v. Kern, 93 Cal. App. 3d 779

[hoffmang]

The fundamental and underlying issue is that 12031(e) purports to make reasonable that which often has no probable cause...

-Gene

[snobord99]

The fundamental and underlying issue is that 12031(e) purports to make reasonable that which often has no probable cause...

-Gene

Oh, no argument there. That's why I keep emphasizing that I'm talking about "state" courts.

[Kukuforguns]

In People v. Zonver, 132 Cal. App. 3d Supp. 1 (Cal. App. Dep't Super. Ct. 1982), the appellate department of the superior court refused to suppress evidence where a police officer saw a handgun in plain view in an illegally parked car. The officer asked a parking lot attendant to open the car, and the police officer then confirmed that the handgun was loaded. This changes my prior analysis not at all. Moreover, given that the opinion was written by the appelate department of the superior court, it has virtually no precedential value.

In People v. Kern, 93 Cal. App. 3d 779, 783 (Cal. App. 1st Dist. 1979), a police officer saw a person placing a carbine into the trunk of a car. The officer had previously been told that someone had been trying to start that car with a screwdriver. The police thereafter stopped the vehicle, pat searched the occupants, and then without asking to conduct an examination of the carbine, opened the trunk and determined that the carbine was loaded with a live cartridge in the chamber but that a magazine (well, actually the court used the term "clip") was not attached to the carbine. The officer then searched for the magazine and found other contraband. The trial court excluded all evidence from the trunk. On appeal, the court affirmed the exclusion. The court held that since the police had not asked the vehicle's occupants to search the carbine, the occupants had not refused and therefore could not be arrested for violating 12031(e). Absent some other proper reason for opening the trunk, the court of appeal concluded that the police could not lawfully open the trunk to examine the carbine. However, the court suggested (but did not hold) that if the police had asked the occupants to examine the carbine and if the occupants had failed to produce the carbine, that the occupants could have been arrested for refusing to permit the inspection and then the police could have examined the trunk.

In People v. Greer, 110 Cal. App. 3d 235 (Cal. App. 2d Dist. 1980), police observed a car weaving slowly down the road. The police stopped the car and based on their observations concluded that the driver was under the influence of marijuana. The police asked the passenger what his occupation was, and he replied that he was a security officer. The police then asked if there was a firearm in the vehicle, and the passenger stated that there was a firearm in the vehicle and that he thought it was unloaded. The police then found two handguns (one loaded and one unloaded) that had been in a duffle bag on the front seat. The opinion here is unclear as to whether the occupants had stated where the firearms were located. The police were on the verge of releasing the occupants when the police were informed that the car was stolen. The true owner of the vehicle identified the occupants as the people who had stolen his car at gun point and who had then asported him three blocks before releasing him. This opinion is a mess. The Court of Appeal observed that even if the original search had been improper, that it was harmless error because the discovery was inevitable given the information the police received identifying the car as stolen. The court then stated the search was proper because the police could have arrested the occupants if they had refused to allow the police to examine the guns which gave the police the right to search and seize the guns without consent. The The court noted that its holding was inconsistent with Kern, but failed to provide any analysis as to the constitutionality of the search for the firearms. In a separate concurrence, one of the justices wrote to state that he would not have reached the issue of whether the search was constitutional since the issue could have been resolved by the inevitable discovery doctrine. Accordingly, read broadly, Greer could be cited for the proposition that if police have probable cause to believe that there is a firearm in a vehicle, that the police may search the entire vehicle for the firearms to examine the firearms to see if they are loaded. One of the puzzling things about the Greer opinion is that it quotes a portion of the De Long opinion discussing why police may seize a firearm from a vehicle when the police know the location of the firearm. Given this particular quotation, Greer's silence regarding the police's knowledge regarding the location of the firearm is somewhat troubling.

The De Long and Kern opinions provide the most significant 4th amendment analysis, whereas the Greer opinion relies solely on the De Long opinion, which it extended without any explanation for the propriety of the extension.

There are, accordingly, three different interpretations of section 12031(e). Kern arguably gives the most respect to the 4th amendment. However, Kern suggests that a refusal to identify where a firearm is kept might justify an arrest. De Long provides the middle ground, that police may perform a limited search for a firearm (without probable cause that the firearm is loaded) if the police know where a firearm is located in a vehicle. Greer gives the least respect to the 4th amendment, and could be cited for the proposition that the police can search anywhere in a vehicle without permission and without probable cause that a firearm is loaded if the police have probable cause to believe a firearm is present.

With regard to the original poster's hypothetical, my analysis does not change at all except with respect to Greer. Under Greer, an argument could be made that once the OP said there was a firearm in the car, that the police could have searched the entire vehicle. Under Kern, the police could not search for any firearm not in plain view without probable cause that the firearms were loaded. Under De Long, the police could not search for the firearms until they had a better understanding of where the firearms were located.

My conclusions are that the state of the law is uncertain with respect to: (1) the scope of the search police are permitted to conduct to locate firearms in connection with conducting a section 12031(e) search; and (2) what refusal means. I can see the refusal issue having real implications. Say that the police see you put a firearm (unloaded) in a locked box, that also happens to contain additional contraband. The police don't know there is contraband in the box. The police ask you to examine the firearm in the box. If you refuse to open the box, the police will open the box and find the contraband. However, the police will (likely) not allow you to open the box and hand them the firearm. If the police refuse to allow you to produce the firearm yourself, you can certainly argue that you are not refusing and that you do not consent to a search of the box.

Simply put, there is no certainty. Help inject certainty into the world, do not tell police that you have a firearm in the vehicle.

[dantodd]

My conclusions are that the state of the law is uncertain with respect to: (1) the scope of the search police are permitted to conduct to locate firearms in connection with conducting a section 12031(e) search; and (2) what refusal means. I can see the refusal issue having real implications. Say that the police see you put a firearm (unloaded) in a locked box, that also happens to contain additional contraband. The police don't know there is contraband in the box. The police ask you to examine the firearm in the box. If you refuse to open the box, the police will open the box and find the contraband. However, the police will (likely) not allow you to open the box and hand them the firearm. If the police refuse to allow you to produce the firearm yourself, you can certainly argue that you are not refusing and that you do not consent to a search of the box.

Simply put, there is no certainty. Help inject certainty into the world, do not tell police that you have a firearm in the vehicle.

Thanks for the research and great write ups. This uncertainty is what prompted the post to begin with. It seems that statutorily the police can search the gun but not necessarily search FOR the gun. And compelling the detainee to aid in the search would be a 5th amendment violation even if they are statutorily prohibited from refusing the search. For obvious reasons it would be advantageous for the suspect if s/he were to produce the firearm from its container while for valid (as well as fishing) reasons the officer would rather NOT have the suspect produce the weapon.

[Liberty1]

... the officer would rather NOT have the suspect produce the weapon.

Terminology complaint: absent any other violation of law our 'e' inspection 'stopped' individual is not a 'suspect' but more properly a 'subject' or 'individual'.

Rant off

And great job Kiki!

[hoffmang]

Simply put, there is no certainty. Help inject certainty into the world, do not tell police that you have a firearm in the vehicle.

I'm looking forward to injecting some certainty into the world via declaratory relief in a federal court

Thanks for the in depth summary!

-Gene

[snobord99]

In People v. Zonver, 132 Cal. App. 3d Supp. 1 (Cal. App. Dep't Super. Ct. 1982), the appellate department of the superior court refused to suppress evidence where a police officer saw a handgun in plain view in an illegally parked car. The officer asked a parking lot attendant to open the car, and the police officer then confirmed that the handgun was loaded. This changes my prior analysis not at all. Moreover, given that the opinion was written by the appelate department of the superior court, it has virtually no precedential value.

While that's true, the fact that the case was cited by the 9th Circuit in another case makes one think that it has more persuasive authority than a typical superior court opinion.

In case you're wondering, I'm referring to United States v. Brady, 819 F.2d 884. I didn't bother posting it earlier since the (e) discussion is very short and pretty much completely void of analysis, but implicit in the holding in that case is that LEO are a go for searching the rags.

I think De Long does extend to allowing the search of the car if the officers know that there's a firearm in the car but not the location. As the De Long court noted, only unreasonable searches are prohibited by the 4th and while the facts clearly differ, I don't think they would find this search to be unreasonable. As they said, and I think is the case here, "it is...limited to a single purpose." In the next paragraph, they go right into how firearms are to be treated differently (whether rightly or wrongly). I don't see that court finding that a person's refusal to reveal which of the 40 rags the firearm is in is grounds for the officers losing their ability to do an (e) check (similar to the De Long court's finding that putting it in your trunk shouldn't stop LEO either). "[The statute's] objectives may not be frustrated simply by depositing firearms which have been exposed to view or which are otherwise known to the officers to be present in such part of the vehicle or in such container as obscures them from view." I other words, I think the court would basically say "you can't prevent an (e) check merely by placing 39 other empty bags in your car."

[BoxesOfLiberty]

...I doubt that the officer will ask you to hand the gun to him because police officers involved in a traffic stop in California do not want the violator (with reference to the traffic violation) touching any firearm...

I take it from the fact that you clarified your meaning that you realize you've applied the term "violator" to the wrong party in this scenario.

I enjoyed your post. Interesting and well considered analysis

[dantodd]

Terminology complaint: absent any other violation of law our 'e' inspection 'stopped' individual is not a 'suspect' but more properly a 'subject' or 'individual'.

Rant off

Sorry about that, I was going to use detainee but that has negative connotations right now

[creekside]

The police ask you to examine the firearm in the box. If you refuse to open the box, the police will open the box and find the contraband. However, the police will (likely) not allow you to open the box and hand them the firearm.

You'd think so. However, the deputy sheriff who did not know how to open the cylinder of a revolver (!) asked me not just to open the box for him, but to open the firearm for him and show him that it was not loaded (!!!).

[GuyW]

The section is 12031 (loaded firearms). If the gun is unloaded (or legally loaded) then you didn't violate that section and thus committed no crime.

I think you are seriously wrong here...
.

[Kukuforguns]

You'd think so. However, the deputy sheriff who did not know how to open the cylinder of a revolver (!) asked me not just to open the box for him, but to open the firearm for him and show him that it was not loaded (!!!).

Wishing there was a smiley of someone spewing tea.

And, yes, all usage of the term "violators" and similar terminology was in reference to the original violation that caught the police's attention. Of the cases I discussed, we've got kidnappers and drug dealers. This is why it's so important to have good plaintiffs. When the person seeking the protection of the Constitution is scum, Courts will be looking for excuses to limit the scope of the Constitution. This makes bad law. When the person invoking the Constitution is a McDonald, the Court will be much more likely to read the Constitution broadly. This is why the "drug war" has been so damaging to our civil rights -- lots and lots of scum trying to exclude evidence gave the courts lots of opportunities to find exceptions and limitations to the Constitution.

I don't see that court finding that a person's refusal to reveal which of the 40 rags the firearm is in is grounds for the officers losing their ability to do an (e) check (similar to the De Long court's finding that putting it in your trunk shouldn't stop LEO either).

The problem here is that the police have no probable cause to believe that the firearm is in any one of the gun rags. United States v. Gust, 405 F.3d 797 (9th Cir. 2005) (mind you, since the Ninth Circuit is an intermediate Federal appellate court, California state courts are not bound by its holding since they are equally competent to interpret the Constitution. Tichinin v. City of Morgan Hill, 177 Cal. App. 4th 1049, 1064 n.7 (2009)). The gun rags are opaque and equally capable of holding pictures of your s.o. in compromising positions. Accordingly, in order to have the right to find the firearm, the police would have to have the right to search the entire vehicle. In De Long, the Court of Appeal suggests that the search of the trunk was reasonable because the police knew the firearms were in the trunk. This is distrinctly different than the Greer situation, in which there is no discussion of how the police knew the firearms were in the duffel bag (did the kidnappers tell the police? did the police start searching the entire car?). Again, this part of De Long is (intentionally) obscure. The court knew that in addition to the de minimis search of determining whether the firearm was loaded (this is the court's reasoning, not mine), there was an additional search of the trunk to get to the firearms. However, the court did not want to address the propriety of the more invasive search, so instead discussed only the search of the firearm and then waived its arms to make the broader issue disapear. It is this lack of discussion that directly led to the different results in Kern and Greer. Kern held that the De Long court never upheld the constitutionality of the search of the trunk. Greer held that the De Long court necessarily considered and upheld the constitutionality of the trunk search.