LA Metrolink installed metal detectors at Norwalk station.

[BAJ475]

Look to the U.S. Supreme Court's ruling in Terry v Ohio for your answer.

If the scanning device indicates the presence of metal, consistent with a firearm, that would provide "Reasonable Suspicion" that the person is carrying a weapon, and would, in turn, provide "Reasonable Suspicion" that the weapon carrying is illegal.

I agree that it would provide reasonable suspicion that the person is carrying a weapon, but, without something more, I cannot agree that it would provide reasonable suspicion that the weapon carrying is illegal.

Please note that "Reasonable Suspicion is a very low level of certainty. In the Terry case, it was met when Terry made two passes past a storefront window while looking inside. It may be very possible that the object activating the alarm was something other than a weapon, and it is quite possible that the weapon was legally carried, but neither possibility defeats the existence of "Reasonable Suspicion."

I agree that the alarm would create reasonable suspicion, but reasonable suspicion of just what? Where are there any articulable facts of criminal activity afoot?

Where "Reasonable Suspicion" exists, the nice LEO has standing to briefly detain the individual, and also has standing to make an immediate, non-intrusive, "Pat-Down" search for weapons. If the "Pat-Down" reveals something consistent with a weapon, then the nice LEO may make an intrusive search to recover it. If the "Pat-Down" fails to identify anything consistent with being a weapon, then the LEO's standing to detain ends.

In the Norwalk Transit Station example, plan on the alarm activation resulting in the discovery of your firearm. The next step in the field investigation process is to determine if your possessing the firearm violated any criminal statute.

No disagreement. The question is how will the nice LEO proceed with that investigation? A casual encounter, where the nice LEO asks if the person is armed and then, following an affirmative response, the nice LEO ask if the person has a license?

[RickD427]

This is an interesting take on changes in Law Enforcement since Terry v Ohio.

The author makes an interesting point, but I don't see much foundation to it. Terry v Ohio has stood the test of time, and has no real connection to the events at Uvalde.

Terry stands for the position that the amount of law enforcement intrusion into a person's privacy must be proportional to the amount of knowledge the officer has as to their likelihood of being involved in criminal conduct. RAS allows a minor intrusion limited to a very brief detention and non-intrusive pat-down. PC allows for an arrest, the proverbial "good faith belief that a conviction can be obtained" allows for the filing of charges, and "proof beyond a reasonable doubt" allows for a criminal conviction.

When you look at the events at Uvalde, the overwhelming information was that there was an absence of meaningful command, and a related amount of indecision. It's fair to suggest that cowardice played a part, but given the number of officers present, I can't accept that all were cowards. A lot of good officers were loyal to an ineffective command structure (the best example being that the guy in charge claimed not to know who was in charge).

The events at Parkland and Columbine were typical of non-current doctrine. Up to the time of the Columbine shooting, officers were trained to secure a scene and call for SWAT. That doctrine wasn't suited to the rapid events that occurred at Columbine, but doctrines are slow to change. We saw the same on 9/11. The airlines doctrine for hijack events was to meet hijackers demands with the expectation that passengers and crews would be safely released.

[RickD427]

I agree that it would provide reasonable suspicion that the person is carrying a weapon, but, without something more, I cannot agree that it would provide reasonable suspicion that the weapon carrying is illegal.
I agree that the alarm would create reasonable suspicion, but reasonable suspicion of just what? Where are there any articulable facts of criminal activity afoot?
No disagreement. The question is how will the nice LEO proceed with that investigation? A casual encounter, where the nice LEO asks if the person is armed and then, following an affirmative response, the nice LEO ask if the person has a license?

I have to think that RAS would be present to believe that such a weapon was unlawfully possessed. "Reasonable Articulable Suspicion" (RAS) is a lower standard of certainty than is "Probable Cause" (PC). Although I like to think of PC according to the root word of "probable" meaning more likely than not, the courts have interpreted it mean a "fair probability" and have found PC to exist where there was less than a 50-50 probability. RAS is even less. Taking that numbers approach, I've encountered more than 100 gun carrying folks during my 30+ years as an LEO. Exactly two of them were lawfully carrying (one was actor Gary Coleman and the other a reserve LEO with a CCW permit). The other 98+ were carrying illegally. 98-2 (experiential data) beats 50-50 ( a conservative view of PC) and 50-50 well beats the required RAS.

The articulable components of RAS would be the existence of electronic imagery (or signal) consistent with the presence of a firearm, coupled with the above experience that firearms so carried have been illegally carried.

But all of the above really doesn't matter. California case law includes a very weird, but also very relevant case concerning a LEOs standing to inspect firearms in public places. The case is People v DeLong (California Court of Appeal, 1970). In that case a LEO had reasonable cause to believe that there was firearm contained in a vehicle's trunk. They contacted the driver, and conducted a warrantless search of the trunk. They found two firearms and the driver's dope. The firearms were found to be unloaded, there was no violation of firearms laws. The driver was arrested for the dope, and convicted. He appealed challenging the basis for the search.

In sum, the court held that the officers had standing to inspect the firearms under then-existing PC section 12031(E). That standing gave then standing to search the trunk for the firearms, and the discovery of the dope was incidental to a lawful search. Former PC section 12031(e) has been re-codified, but it's examination authority remains in statute.

What makes this case weird is that the court applied principles of criminal search and seizure to a purely administrative search.

The DeLong case is unclear as to whether the PC or RAS standard of certainty applies. But, viewing things conservatively, so long as the electronic device communicates a "Fair Probability" that a person is armed, then the DeLong case would support a search for the weapon.

[BAJ475]

I have to think that RAS would be present to believe that such a weapon was unlawfully possessed. "Reasonable Articulable Suspicion" (RAS) is a lower standard of certainty than is "Probable Cause" (PC). Although I like to think of PC according to the root word of "probable" meaning more likely than not, the courts have interpreted it mean a "fair probability" and have found PC to exist where there was less than a 50-50 probability. RAS is even less. Taking that numbers approach, I've encountered more than 100 gun carrying folks during my 30+ years as an LEO. Exactly two of them were lawfully carrying (one was actor Gary Coleman and the other a reserve LEO with a CCW permit). The other 98+ were carrying illegally. 98-2 (experiential data) beats 50-50 ( a conservative view of PC) and 50-50 well beats the required RAS.

The articulable components of RAS would be the existence of electronic imagery (or signal) consistent with the presence of a firearm, coupled with the above experience that firearms so carried have been illegally carried.

But all of the above really doesn't matter. California case law includes a very weird, but also very relevant case concerning a LEOs standing to inspect firearms in public places. The case is People v DeLong (California Court of Appeal, 1970). In that case a LEO had reasonable cause to believe that there was firearm contained in a vehicle's trunk. They contacted the driver, and conducted a warrantless search of the trunk. They found two firearms and the driver's dope. The firearms were found to be unloaded, there was no violation of firearms laws. The driver was arrested for the dope, and convicted. He appealed challenging the basis for the search.

In sum, the court held that the officers had standing to inspect the firearms under then-existing PC section 12031(E). That standing gave then standing to search the trunk for the firearms, and the discovery of the dope was incidental to a lawful search. Former PC section 12031(e) has been re-codified, but it's examination authority remains in statute.

What makes this case weird is that the court applied principles of criminal search and seizure to a purely administrative search.

The DeLong case is unclear as to whether the PC or RAS standard of certainty applies. But, viewing things conservatively, so long as the electronic device communicates a "Fair Probability" that a person is armed, then the DeLong case would support a search for the weapon.

Good to hear from you. I agree with your assessment of DeLong, at least in part. I am aware of California law that gives LEOs the purported authority to inspect firearms. I have my doubts that this authority could or would pass a 4th Amendment challenge now that Heller, McDonald and Bruen recognize a federal constitutional right to carry in public. As the court in DeLong noted, "The statutes provide that whether or not a firearm is loaded for purpose of enforcing the respective statutes, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle and that refusal to allow a peace officer to inspect a firearm pursuant to statute constitutes probable cause for arrest for violation of the statute. (Pen. Code, §§ 171e, 12031, subd. (c).) (People v. DeLong (1970) 11 Cal.App.3d 786, 790.) At the time DeLong was decided, there was no doubt that California could place such restrictions on the carrying of firearms in public. That is no longer true, so the administrative search justification for the search is now in doubt.

I do not doubt or question your experience. But I fail to see how your 98+% experience, translates into RAS. How is it any different than a hunch or good guess?

[RickD427]

Good to hear from you. I agree with your assessment of DeLong, at least in part. I am aware of California law that gives LEOs the purported authority to inspect firearms. I have my doubts that this authority could or would pass a 4th Amendment challenge now that Heller, McDonald and Bruen recognize a federal constitutional right to carry in public. As the court in DeLong noted, "The statutes provide that whether or not a firearm is loaded for purpose of enforcing the respective statutes, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle and that refusal to allow a peace officer to inspect a firearm pursuant to statute constitutes probable cause for arrest for violation of the statute. (Pen. Code, §§ 171e, 12031, subd. (c).) (People v. DeLong (1970) 11 Cal.App.3d 786, 790.) At the time DeLong was decided, there was no doubt that California could place such restrictions on the carrying of firearms in public. That is no longer true, so the administrative search justification for the search is now in doubt.

I do not doubt or question your experience. But I fail to see how your 98+% experience, translates into RAS. How is it any different than a hunch or good guess?

It's really hard to reply to postings these days. I made many failed attempts earlier today.

I agree that the DeLong case would likely be decided differently today, but it was still good law as of the date I retired (I lost my Shepard's access when I retired).

As to your RAS question, the courts have pretty consistently held that the RAS standard is a very low one. It's more than a "hunch", but is also one that allows for a lot of error. If experience shows that more than 98% of privately carried weapons are carried without a permit, the error rate in concluding that a privately carried concealed weapon is less than 2%. That's not a lot of error. Since the RAS standard allows for a lot of error, the RAS standard is met.

[BAJ475]

It's really hard to reply to postings these days. I made many failed attempts earlier today.

I agree that the DeLong case would likely be decided differently today, but it was still good law as of the date I retired (I lost my Shepard's access when I retired).

As to your RAS question, the courts have pretty consistently held that the RAS standard is a very low one. It's more than a "hunch", but is also one that allows for a lot of error. If experience shows that more than 98% of privately carried weapons are carried without a permit, the error rate in concluding that a privately carried concealed weapon is less than 2%. That's not a lot of error. Since the RAS standard allows for a lot of error, the RAS standard is met.

Thanks for your reply. So others are not mislead, I am not debating you. We are having a discussion that will hopefully enhance the understanding of all and your views are an important part of that discussion. As to whether or not the RAS standard is met, we will have to wait for a real case, not a hypothetical.

I still owe you a beer if you come to Kootenai County.

[RickD427]

Thanks for your reply. So others are not mislead, I am not debating you. We are having a discussion that will hopefully enhance the understanding of all and your views are an important part of that discussion. As to whether or not the RAS standard is met, we will have to wait for a real case, not a hypothetical.

I still owe you a beer if you come to Kootenai County.

You're right. I still follow case law, and haven't seen anything that better addresses your question.

Another case that I've been following to see if there is any subsequent case law was the 1956 California State Supreme Court's ruling in People v Rios. It was a case that discussed both the qualities of evidence needed for a lawful arrest, and also the lawfulness of a search incident to arrest. The case facts are kinda bizarre by today's standards and I'm quite confident that a contemporary court would rule quite differently on the search incident to arrest part of the case. At our academy, I taught newly promoted sergeants and lieutenants how to perform arrest reviews, with the primary focus on ensuring that arrests were lawfully made, and were procedurally correct, and without "trying the case at their desk". I used the Rios case to illustrate various rungs of the "ladder of certainty." In Rios, it would have been a legal impossibility for him to have been convicted on his arrest charge (Rung 4 on the ladder), but court found that the arrest was still lawful (Rung 2 on the ladder)(Rung 1 being lawful standing to contact the suspect, and Rung 3 being the "Good Faith Belief a Conviction Could be Obtained" to file charges). After teaching Rios for several years, at a family event, my mother told me "you know, you had a great uncle that was on the Sheriff's Department." I had not known that, all of my family had respectable, professional, careers. She said that he wasn't mentioned much since he was a "Black Sheep" of the family, but since I was the other "Black Sheep", she wanted me to know of him. I did some research into his service and found that he was the arresting deputy in the Rios case. He ultimately retired as Chief of the Redondo Beach Police Dept.

In those same classes, I really felt obligated to point out that deputies should really be cautioned not to follow Rios' guidance as to search and seizure. But I have to admire my uncle's tenacity and resourcefulness in arresting Mr. Rios.

The beer offer is too good to pass up, I'll send you a message the next time I head out that way.