Reasonable Suspicion vs. Probable Cause

[TheKlawMan]

Here is a twist I would like you to focus on. The code provides that one must have specific permission of the owner to hafe a Registered Assault Weapon on their property. This is BLM land. A 20 year old memo shows that it is the policy to allow RAWs on National Forest land.

Question: Assuming there has been no change in that policy as stated in the following memo, can the owner of the land, in this case the BLM, require some proof that the AW is registered and the person in possession is its registered owner?

"Penal Code section 12285
. . . . . . . . . . . . . . . . .
(c) A person who has registered an assault weapon or registered a
.50 BMG rifle under this section may possess it only under any of
the following conditions unless a permit allowing additional uses is
first obtained under Section 12286:
. . . . . . . . . .
(6) While on publicly owned land if the possession and use of a
firearm described in Section 12276, 12276.1, 12276.5, or 12278, is
specifically permitted by the managing agency of the land."

[/QUOTE]

In other words, can the BLM condition permitting possession and use on being proviced with some reasonable proof that the weapon is registered and the user or possessor is the owner or the owner is present?

[BigDogatPlay]

You'd be a lot better served asking a lawyer and / or BLM what their land use policy is. BLM land is not National Forest land and vice versa. Two completely different animals you are mixing together. There are all kinds of different variables that play into your question, not the least of which is the type of federal jurisdiction the land is. Much of that is unknown to the exercise here.

I can't imagine you're going to get too many responses on point in this thread. Too big a minefield.

[Notorious]

On the face of it, I have no idea why the ranger showed up in the first place and I will not second guess her actions because I don't have the full picture.

However, if something like a weapon is in plain sight, there is no search. Covering a weapon up with a blanket is insufficient as it is still pretty clear that it is a weapon as long as any parts of it show. If the officer has a right to be there, and sees something in open view, the officer can take enforcement action as necessary to enforce the law.

That is a generic statement.

That doesn't mean I can go through your stuff randomly to dig for contraband if I don't see anything or have any reason to believe there is contraband there. Like I said, not enough informationt to judge either way from the clip.

[nick]

On the face of it, I have no idea why the ranger showed up in the first place and I will not second guess her actions because I don't have the full picture.

However, if something like a weapon is in plain sight, there is no search. Covering a weapon up with a blanket is insufficient as it is still pretty clear that it is a weapon as long as any parts of it show. If the officer has a right to be there, and sees something in open view, the officer can take enforcement action as necessary to enforce the law.

That is a generic statement.

That doesn't mean I can go through your stuff randomly to dig for contraband if I don't see anything or have any reason to believe there is contraband there. Like I said, not enough informationt to judge either way from the clip.

The question I have (and it's a genuine question) is, what crime does seeing a gun can create the reasonable suspicion of? And while we're on the subject of reasonable suspicion, is it required to have one that a LEO can articulate in order to go through things that are in plain sight?

Say, I have a rifle in plain sight at the range, or its barrel shows from under a tarp. Possessing loaded guns at the range is legal. So, can a LEO simply walk up to me, pick up the rifle, and inspect it without articulable reasonable suspicion? I mean if a LEO can do this legally, of course, not whether he's likely to do so or not.

If a LEO can legally do that, does this only apply to guns, or does this apply to any other property, as well? Can a LEO take it without my permission without a reasonable suspicion that a crime has occurred if it's in plain sight?

[Notorious]

That is the question indeed. Without reasonable suspicion or probable cause to justify our actions, we have every right to do something to someone any other person has, namely consent of the affected party.

That's why I say I have no idea what prompted the ranger to go there and start looking through stuff. I don't know if there was a call or she had info on possible illegal activity taking place.

Now, having loaded guns at the range is not illegal, but if I was investigating something else, and I see guns, which then I can articulate might be connected to the crime, or even if not connected to the crime, but to the criminal, then I might take some actions to check those guns.

Again, we don't know for sure without getting the ranger's side of the story.

[Bobby Ricigliano]

I'm glad all those guys were generally cooperative. I might be a bit more cautious before poking around a heavily armed camp by myself and giving my back to everyone there.

[prc104]

If anything, you could go in the other direction with this and see if you can send the video along with an explanation to that officer's boss for the area.

It might help educate them about the laws, but more importantly the video IMHO shows poor officer safety around a bunch of guys with guns in a remote area with no backup.

That officer's boss might appreciate that and actually use it to make sure his people are educated and to also use proper tactics.

AND, it might actually get a message across to the boss that people are being vigilant about their rights.

[TheKlawMan]

Interesting responses. Why much information is missing, it seems the consensus is thie was plaing view and the officer had a legal right to be there on National Forest property. Hence no warrant, probable cause, or even reasonable suspincion was needed to look at the guns laying in the open. She had consent to see what was inside closed gun cases. This was not a target range or a gun club as defined in the controlling penal code section, so it would be a violation to have an unregistered AW. Ii believe a point the owner of the registered AW argues it tha officer had no reason to think his was not registered or he was not its registered owner, if not the registered owner was present.

Let me ask you this, IF the officer had no other into than she saw what looked like an assault weapon or she was tipped that AWs were being fired in the canyon, did she have the right to ask to see their guns and/or inspect ones in plain view in order to ascertain if any were unregistered Assault Weapons?

[RedMongooSe]

Let me ask you this, IF the officer had no other into than she saw what looked like an assault weapon or she was tipped that AWs were being fired in the canyon, did she have the right to ask to see their guns and/or inspect ones in plain view in order to ascertain if any were unregistered Assault Weapons?

I think she could justify the search by adding to her report something along the lines of "Based on my training and experience, the rifle possessed by Subject 1 appeared to be an assault weapon under PC XXXX. After a check of the rifle and its components, the rifle was deemed legal in its current configuration because of the fixed magazine and its overall length." however, if it was an AW, and an arrest occurred, would the charges stick? Thats a different story...

being on the topic of plain view, I know in OC, the plain view search is not quite as lenient toward LEO as it states in earlier posts. Here is an example a DA gave to us. Officers go into a house for a 415 call. While in there, they notice a stack of unopened microwaves in boxes, but the serial numbers were not visible (on the bottom of the boxes) The local hardware store was 459d two nights ago, and several microwaves were taken. The officers cant manipulate the boxes to look for the serial numbers with out a warrant because that would violate the 4th amendment, even though the boxes are visible and in "Plain sight" While you might be able to get an arrest, the da would have a hard time because of the 4th amendment violation.

[ColtShooter]

Klawman seems to be on the right track. Not enough information to pass judgement. If the stuff is in plain view (as it appeared to be) and she is on her "beat" (has a right to be there) then she's in the clear. No crime necessary for LEO to approach - i.e. DFG checking fishing or hunting licenses all the time. An AW in plain view gives the LEO the opportunity to check registration as they are required to be registered. In doing so, identification from the owner/registrant would be required. Not sure what all the huff is about.

[cindynles]

An AW in plain view gives the LEO the opportunity to check registration as they are required to be registered. In doing so, identification from the owner/registrant would be required.

This is my main question. Does the fact that, what appears to be, an AW is present give PC/RAC to seize (even for a moment) the weapon in question and conduct an inspection? Remember that AWs are not illegal (only un-registered AWs are illegal) so the mere presence of a firearm in this configuration is not evidence that a crime has been or is about to be committed.

[Tripper]

so, if I'm sitting at the coffee shop, and LEO see's my backpack on the ground beside me, he says I'm going to look through this, just cause its in plain site.

sorry, /me not good at watching videos, mostly on phone, so cant,

sounded as if permission was not necessarily given, but the leo insisted in the fashion of you let me or else format, or was it, everyone step back, while I do this.
I still dont find that as consent, if an LEO tells me to step back, I'm probably going to do it, but then, what am I really going to do if s/he starts going through (searching/rummaging) through my back pack, that was just sitting there.

really, rummaging (moving things around to glance) through someones bags, then claiming its in plain site cant be right.
I think more along the lines that if something is in my immediate control (range bag), even if its sitting beside me, its in my immediate control still
until
LEO says step back, while i look at things, thats where I think the line was crossed, I was lawfully directed to relinquish my control at that time. at which point, to search should have required a search warrant.
I agree to performing a cursory search of anything in plain view, not moving things around to create a better plain view.
for instance, I believe You can do a cursory search on a person, without their consent, but you cant then have them remove an article of clothing for you to have a better view, unless you have some PC. I dont see this as much diff.

kind of hard to after the fact, claim its for officer safety, AFTER, driving up and multiple people having loaded firearms, doing exaclty what you say. never calling for backup, turning your back to those that are there. those things do not imply you were concerned much for your safety.

sounds like bull to me

Tripper
remember, I just like to argue

[Tripper]

oh, I'm with you on the part where you have based a reasonable suspicion, and performed a search of the range bag, that was in my possession, as a result of a burglary occurring 2 nights ago where a similar range bag was used,
In that case you have Reasonable Suspicion, but it better be true that you had that briefing that your basing that on, or that there really was a BOL, don't just be making that stuff up to make it sound more lawful, the last thing you want to do is stretch the truth on why your doing it.
BOL on a guy that looks like you is always a good one, but its not so good when the lawyers start trying to find that BOL that you were claiming.

Tripper

[ColtShooter]

going through a bag at a coffee shop would be a violation, observing firearms sitting in plain view on the ground is not. I watched the video and there was no "rummaging". Lots of picking up and putting down.

[TheKlawMan]

so, if I'm sitting at the coffee shop, and LEO see's my backpack on the ground beside me, he says I'm going to look through this, just cause its in plain site.

sorry, /me not good at watching videos, mostly on phone, so cant,

sounded as if permission was not necessarily given, but the leo insisted in the fashion of you let me or else format, or was it, everyone step back, while I do this.
I still dont find that as consent, if an LEO tells me to step back, I'm probably going to do it, but then, what am I really going to do if s/he starts going through (searching/rummaging) through my back pack, that was just sitting there.

really, rummaging (moving things around to glance) through someones bags, then claiming its in plain site cant be right.
I think more along the lines that if something is in my immediate control (range bag), even if its sitting beside me, its in my immediate control still
until
LEO says step back, while i look at things, thats where I think the line was crossed, I was lawfully directed to relinquish my control at that time. at which point, to search should have required a search warrant.
I agree to performing a cursory search of anything in plain view, not moving things around to create a better plain view.
for instance, I believe You can do a cursory search on a person, without their consent, but you cant then have them remove an article of clothing for you to have a better view, unless you have some PC. I dont see this as much diff.

kind of hard to after the fact, claim its for officer safety, AFTER, driving up and multiple people having loaded firearms, doing exaclty what you say. never calling for backup, turning your back to those that are there. those things do not imply you were concerned much for your safety.

sounds like bull to me

Tripper
remember, I just like to argue

Please consider the rationale for the plain view doctrine, which is that the 4th protects searches where you have an expectation of privacy. If you bag is zipped, you reasonably have an expectation of privacy. If it is open and its contents are exposed to plain view, depending on circumstances you had no expectation of privacy.

Now the issue here does not seem to be the contents of any bag or pouch, but a weapon in plain view the possession and use of which would have been a crime if it was not registered as a RAW. Someone please correct me if I am wrong, but is the RAW not the one handed to the officer at about 1:45 into the 4 video, inspected by the officer for 3 or so seconds and then laid back down where it had been on laying on the ground?

If you walk up and hand your gun, that had been in plalin view, to the officer to show her that it is the one listed on the registration letter, and she has it for a few seconds, where was the search and where was the seizure?