12031(e) hijinks and question.

[snobord99]

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.

I think reliance on Gust is misplaced here. The Gust opinion turned on the fact that an average person (non-LEO) wouldn't know that the case was a gun case whereas here, anyone would think "there's a firearm" in the car if the driver of the car answers "yes" to the question of "do you have any firearms in the vehicle?" I'm not saying that the police would have PC to perform the search; what I'm saying is that I believe the De Long court, if faced with this scenario, would say that it's a good (e) check. The court distinguished between an inspection and a search and the way I read the case, I think they would say that it's a search but not an unreasonable one.

This is the scenario I imagine: guy puts a firearm in his trunk. When he's pulled over later, officers have no reason to suspect he has a firearm in the vehicle but they ask the driver if he has a firearm anyways. Driver says "yes." Officers ask the driver for an (e) check to which the driver agrees, but when asked where the firearm is, driver won't say. Now, the officers know there's a firearm is in the vehicle but not where it is. Under your analysis, if the officers go into the trunk to do the (e) check, that's an illegal search but this is the exact scenario the De Long court warns against.

I'm pretty much throwing Greer out the window for this discussion. As you pointed out, the opinion doesn't really discuss how they knew to look in the duffel bag so it's not really helpful for our purposes. I don't think Kern is very helpful either because that case came out the way it did because the officer didn't ask to inspect the firearm; most CA courts have disagreed with the analysis that they have to ask first to have the right to inspect. In other words, the Kern court came out the way it did because they essentially found it to not be a simple (e) check but an actual search for a loaded firearm.

[GrizzlyGuy]

Other than the free ride and maybe a free meal at the jail, it doesn't look like you're in much legal jeopardy if you were otherwise complying with 12031. 12031(e) says:

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...
.

Why do you think that? 12031 says what it says. You can be arrested for refusing the (e) check, and thereafter legally searched to determine if it is loaded or not. However, you can't be punished unless the gun was actually loaded. It specifically says this up in (a):

(2) Carrying a loaded firearm in violation of this section is
punishable, as follows:
{...}