Locked Gun Containers/4th Amendment Rights

[Al Norris]

Thanks Harry. I did mean open carry and have edited my post to reflect this.

[Southwest Chuck]

Wow this is confusing, even for us in cal,
I knew there were waivers for such things as moving, going to a gun range, etc., but now I see I need to research this some more, sheesh
sunaj

Knowledge is power my friend. By the time you're done, you'll be more familiar with CA Firearms Law than most Officers and it just might keep you from going to the clink.

[Webleymkv]

Originally posted Spats McGee

If I refuse to allow examination, even though the officer has no warrant and no probable cause that I have committed any crime, that refusal is grounds to have me arrested

So, would simply telling the officer "I do not consent to this search" while offering no other resistance and following all commands be grounds for arrest?

[Spats McGee]

Well, I guess that's the $64K question, now isn't it? The statute is phrased in terms of "refusal to allow," so my hunch is that "I do not consent" = "refusing to allow." Honest-to-goodness CA lawyers may know better than I, though.

[David13]

For reference to California codes, simply use search online for CA Codes. The states online codes come up.
There should also be a history of which section was renumbered to which.
dc
http://www.leginfo.ca.gov/calaw.html

My concern is the e or b search, the 'check for unloaded' search.
Let me look that over and see if I have a question.

[Frank Ettin]

Sorry I'm late, and I really don't have much to add.

[1] I seem to recall that the "e check" referred to by Al in post 10 had been upheld by a California court, but I can't find the case.

[2] And 25850(b) hasn't been tested. It appears to be vulnerable to successful challenge.

So the situation is "unsettled" in California. It's clear that one may lawfully transport a gun unloaded and in a locked container. But the ultimate outcome of a refusal of consent to a search when an LEO knows or has reason to believe there's a gun in that locked container is in doubt. There is good reason to hope that 25850(b) would not ultimately be upheld, but getting there is likely to cost someone a lot of money and anxiety.

[David13]

Uh, Frank, that may be my answer.
dc

[Webleymkv]

Originally posted by Frank Ettin

It's clear that one may lawfully transport a gun unloaded and in a locked container. But the ultimate outcome of a refusal of consent to a search when an LEO knows or has reason to believe there's a gun in that locked container is in doubt.

So, if I'm understanding this correctly, simply telling the officer "While I will obey your commands and will not resist you in any way, I do not consent to this search of my vehicle" could potentially get you arrested in CA? If so, that's astounding to me and most certainly not in a good way. If this is the case, it seems to me that the state of CA is basically telling its residents "not only do police have the right to conduct warrantless searches of your property, but you have to like it too."

[Tom Servo]

Webley, I'm reading that way as well. It's...troubling to say the least.

[Al Norris]

As I understand it, the newly ordered 2850(b) is the same as the old 12031(e). Just renumbered. So if, as Frank says, the E Check has been upheld in a CA court, the "B" Check will be upheld on the same grounds. No difference in wording, other than the renumbering of the CA codes.

25850. (a) A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

(b) 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 the 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.

As I said before, this is nothing more than a legislative general warrant and is repugnant to the 4A. How this state of affairs has existed this long, is anyone guess.

This is currently being litigated in the combined Haynie v. Harris (#46 on The List), SAC, Second Claim for Relief (Pp 26 & 27)

[Frank Ettin]

Originally Posted by Al Norris

...if, as Frank says, the E Check has been upheld in a CA court, the "B" Check will be upheld on the same grounds. No difference in wording, other than the renumbering of the CA codes...

Except, if my recollection is correct (I wish I could find the case), the "E" check was upheld in state court. A "B" check might not survive a properly framed, full on Fourth Amendment challenge in federal court (one could hope).

Addendum:

My recollection was correct. The case was People v. Delong, 11 Cal.App.3d 786, 90 Cal.Rptr. 193 (Cal.App. 1 Dist., 1970).

I need to go out, but will look further at the case when I have a chance.

[Frank Ettin]

I've had a look at People v. Delong, 90 Cal.Rptr. 193 (Cal.App. 1 Dist., 1970). Basically the court took the position that (at 196):

...if the examination may be called a search, it is not an unreasonable one; and only unreasonable searches are forbidden by the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) It is, as we have said, limited to a single purpose. It does not have about it any except the slightest element of embarrassment or annoyance, elements overbalanced by far by the purpose of preventing violence or threats of violence. The minimal instrusion does not begin to approach the indignity of the frisk,..

The court also stated (at 197):

...Bearing in mind that a state is free, as Chief Justice Warren put it, 'to develop its own law of search and seizure to meet the needs of local law enforcement,' provided, of course, that the Fourth Amendment standard of reasonableness be not offended (Sibron v. New York, 392 U.S. 40, 60--61, 88 S.Ct. 1889, 20 L.Ed.2d 917), we hold that the mere examination of a weapon which is brought into a place where it is [11 Cal.App.3d 793] forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional...

Whether the United States Supreme Court would agree is an open question.

[hermannr]

Well, the 10th (Thompson 2002? i think) and the 4th (in US v Black) have both stated that openly carrying of a firearm where legal is not enough suspician to conduct a search. Both cases were FIP, and were reversed.

Oh yes, then there is Delaware V Prouse. A random stop to check for a license for a legal licensed activity is also not legal.

[Al Norris]

More to the point hermannr, this is a pre-heller/McDonald case. CA has no right to arms protection in its constitution. Add to that the other cases that have further developed 4A interpretation since 1970... Frank? This one is ripe for challenge.

[Frank Ettin]

It may well be ripe for challenge, but it means a big roll of the dice. The statute has been upheld in state court. So one violates the law, gets arrested and begins to challenge the search. He likely won't get anywhere in the state court system, would be convicted and then have to attack the search in federal court. And the Ninth Circuit is unlikely to be helpful.

And this isn't like the open carry cases arising in States in which open carry is legal. In California, having the gun in your car, even in a locked container, is illegal unless it's unloaded. And there's no way to determine if the gun is unloaded, and therefore legal, without inspecting the gun.

Challenging 25850(b) is a hairball. We're better off focusing on the various California rules prohibiting carrying a gun and/or making getting a permit discretionary. The real issue these days, in California and elsewhere, is the bearing of arms outside the home.

[Willie Sutton]

Mooting this to the legal-eagles:

PURELY HYPOTHETICAL (save for the safe, which is a real world thing, however I am *never* in CA)

So, here goes:


Bolted down electronic-lock safe between the seats of my van (true statement).

Handgun is in the safe. Loaded, unloaded, whatever... magically I *really cannot remember* if I unloaded it or not, so... I am a bit nervous. In any event I remember that there's a handgun there tha's been laying there since I left Wisconsin on my vacation.

California trooper pulls me over, looks "magically" thru the pile of jackets and crap that is usually tossed over the safe, and asks what is in there. He is thinking Terry Stop Territory.

He asks me

1: "do you have any weapons",

2: "what's in the safe",

and,

(3) "may I see what is in the safe".



I smile and like a wise-ass pull out my pocket sized US Constitution and read him the 4th and 5th amendments as my answer.

Which boil down to this:

(1): "Officer I really would like to cooperate with you, however I believe that we only have the rights that we defend, and in defense of the 4th amendment of the USA I regretfully decline your kind offer to view the contents of my private safe, in which I keep my personal papers and effects. While I understand your concern for your own safety, and the guidelines of Terry and your authority to ensure that you are not harmed by anything within my direct control, the contents of a locked safe are, for the moment, inaccessable to me, and I would be very pleased indeed to vacate the vehicle in order to further remove myself from any possibility that you might yourself be in danger due to my proximity to the contents. In any event, I do not consent to a search of the safe, and formally inform you now of this fact".

and:

(2): "Officer, I understand your interest in continuing to ask more questions about my safe, but I believe that we only have the rights that we defend, and I hereby assert my rights under the 5th Amendment of the Constitution and refuse to answer further questions.

and:

(3): Am I being detained, if so, for what reason, and may I leave now?



I tape and video record all of this so there's no question as to what went on.


Other than the fact that they are likely to handcuff me for being a jerkoff, rip out the safe to tear it open, and then find the handgun (which is now revealed to be unloaded and which was always legal)...

What next?


Do I:

(A): Go directly to jail for refusing to allow inspection of a firearm to determine that it's not loaded?

or

(B) Hit the civil rights violation lawsuit jackpot?

or

(most likely in my uneducated opinion) (A) and (B) one after the other?



Willie

.

[Frank Ettin]

Originally Posted by Willie Sutton

...What next?...

Beats me. I don't play these sorts of "hypothetical" games.

We've have the statutes and a citation to a court decision on point.

[Willie Sutton]

^^ It's just a variation of the OP's question. The question revolves around California claiming to be able to inspect any firearm to see if it's loaded, and the 5th amendment right to not tell a police officer what is in a locked box if you feel that by stating the truth you would incriminate yourself.

It's a Catch-22, and I'm interested in an informal opinion.


Willie

.

[Frank Ettin]

Originally Posted by Willie Sutton

It's a Catch-22, and I'm interested in an informal opinion.

We'll see if anyone else will venture an opinion. I'm not going to.

[Tom Servo]

The implications are murky, and we don't have an official opinion yet.

As such, we're chasing our own tails here.