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Old March 3, 2013, 11:50 AM   #1
sunaj
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Locked Gun Containers/4th Amendment Rights

In my state if you are pulled over by police and inform the police you have a gun in the car, the officer has the right to search you and your vehicle (supposedly for officer safety),
this is my understanding;
I got into a discussion with another gunner the other day that told me he carries his gun in a locked container, and by doing so according to law a policeman cannot search the locked container without a warrant.
This is the first time I have heard this, frankly having a gun in a recognized container just gives a policeman more incentive to search your car imo,
any ideas on this?
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Last edited by sunaj; March 3, 2013 at 12:12 PM.
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Old March 3, 2013, 11:56 AM   #2
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Old March 3, 2013, 12:06 PM   #3
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What state? And let's see what Frank and Spats have to say.
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Old March 3, 2013, 12:18 PM   #4
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Does the officer have PC?
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Old March 3, 2013, 12:32 PM   #5
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Even in California, simply having a firearm in a vehicle would seem like a stretch to establish probable cause to initiate a search. I agree with Glenn in that I'm very interested to see Frank and Spats' take on the matter.
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Old March 3, 2013, 12:54 PM   #6
Aguila Blanca
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Quote:
Originally Posted by sunaj
In my state if you are pulled over by police and inform the police you have a gun in the car, the officer has the right to search you and your vehicle (supposedly for officer safety),
this is my understanding;
Your understanding is flawed.

If an officer stops your vehicle and knows or has good reason to suspect that you may be armed, he/she is allowed to conduct a "Terry frisk" of your person for the limited purpose of detecting concealed weapons -- nothing more, and to conduct a limited sweep of the portion of the vehicle within the immediate reach and control of the operator, again for the limited purpose of detecting weapons that might endanger the officer. The officer is not allowed to search the entire vehicle unless he has probable cause and obtains a warrant (or unless you give your consent).

If you tell him there's a pistol in a locked case under the passenger seat, then he doesn't even have to search. He may tell you to leave it there, or he may ask to remove it for the duration of the stop. He has no right to open it or ask you to open it -- even if it isn't locked.**

There's always discussion about this on the PAFAO (Pennsylvania Firearms Owners) forum, because PA State Police maintain a sales database (NOT a complete registry) and both local and state cops are notorious for taking handguns during traffic stops and running the serial number against this database. Terry does not give them a right to do this. It's a violation of 4th Amendment rights, and it's all the worse because I may own a handgun completely legally that does not show up -- perhaps in my name or perhaps not at all -- in their database, and they'll proceed as if I stole it even though I obtained it completely legally by purchase or gift.


**{Edit to Add} Correction - the officer certainly has a right to "ask" you to open a gun case so he can look inside. But you have a right to decline to do so. If you decline to do so, the officer then can open the case only if he obtains a warrant.
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Old March 3, 2013, 01:29 PM   #7
basilisk4
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Also, back to the original question, the 4th Amendment generally requires a search warrant (absent consent of the owner) to search a locked container.
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Old March 3, 2013, 01:40 PM   #8
sunaj
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Well it is a matter of policy and law,
there are all kinds of department polices that are unconstitutional and are done all the time,
I did forget to mention that Kalifornia just passed a law the makes it illegal to carry a firearm in your car at all, except under certain waivers (going to the gun range e.g.), so I guess this qustion is a little more complicated
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Old March 3, 2013, 01:48 PM   #9
Southwest Chuck
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Aguila Blanca, You forgot one Important point. Any refusal to let the officer "Inspect" the weapon (to confirm it's unloaded) is grounds for arrest.

Quote:
"Refusal to allow a peace officer to inspect a firearm pursuant to
this section constitutes probable cause for arrest for violation of
this section."
CPC 25850(b).

As of yet, this has not been challenged in court and yes, it's a blatant violation of our 4th Amendment Rights. So if you admit you have a firearm i your car, you're rights WILL be violated and the 4th means diddly squat, at lest in California.

... SC
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Old March 3, 2013, 01:58 PM   #10
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I hate to break it to you folks, but in CA (where the OP, asking the question, is from), an officer can inspect the firearm to ensure it is unloaded. The old CA penal code, 12031(e) has been long used to check that an openly carried, but unloaded handgun was in fact, unloaded.

This has also been used when an CA officer has discovered (or it has been disclosed to them) that a firearm is in a vehicle. We have at least one civil suit in The List wherein an individual was arrested for having an "assault weapon" that was "discovered" during an "E" check (the firearm was not a CA assault weapon, but that's not relevant to this thread).

CA has since passed laws banning the open carry of any unloaded firearm in a municipal area. CA has also renumbered their penal code, so I don't know where the statute exists, but the old 12031(e) still exists and is in full force.

So if the CA officer sees the firearm case (locked or unlocked) within your vehicle, or you tell him about it, he can check to see that it is unloaded.

Until the courts strike down this statute as being a general warrant, in violation of the 4A, it's a part of the law that officers can use.

Thanks Chuck, for giving us the (now) proper citation... So now it's a "B" check, huh?
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Last edited by Al Norris; March 3, 2013 at 08:40 PM. Reason: edited for clarification
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Old March 3, 2013, 02:26 PM   #11
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Yup it's a "B" Check now. One other thing AL. I don't have a cite handy, but the courts have ruled that the mere presents of a gun case(in and of itself)* is not probable cause/reasonable suspicion to assume a gun is present. It's my understanding that the Calguns Foundation is just waiting for a "clean case" to challenge this law in where an Officer has broken into a gun case to inspect. You may not refuse, but then again, you are not required to assist in any search (give up the keys/combo). In one instance, I actually forgot my key ring when transporting! That would have been interesting if I had been pulled over and been subjected to a search.

*Added for clarity

Last edited by Southwest Chuck; March 3, 2013 at 03:50 PM.
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Old March 3, 2013, 02:32 PM   #12
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Also Al, It seems that the rational in US v. Black as stated in the Thread you started HERE could be of some use in challenging this law, No?.
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Old March 3, 2013, 02:40 PM   #13
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I confess to being ignorant as to California law. I live about as far as possible from GA while staying in the continental U.S. and also not living in the northeast, so I hope to stay ignorant of the full extent of the craziness going on out there.

That said, it seems to me that any state law purporting to authorize the warrantless search of a locked glove compartment would violate the 4th Amendment to the U.S. Constitution.

In South Dakota v. Opperman, 428 U.S. 364 (1976), the U.S. Supreme Court held that the Fourth Amendment allowed police to conduct a warrantless search of the unlocked glove compartment of a vehicle that is "impounded or otherwise in lawful police custody" for the purpose of conducting a "routine inventory search."

U.S. Supreme Court jurisprudence has "evolved" somewhat since that time, but it still seems to me that at the very least, unless a car is already lawfully in police custody, a police officer would have to have probable cause to believe that the glove compartment contained contraband of some sort. So, you're probably best off not telling a police officer that there's contraband in the glove compartment.
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Old March 3, 2013, 03:01 PM   #14
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Actually Chuck, I think the entire rationale of the State codifying a general warrant, has been ripe for challenge, for quite some time.

Certainly, since McDonald was decided and gun owners were UOC'ing (a unique CA term - Unloaded Open Carry) and being stopped/harassed by the local gendarmes.

All it should have taken was a single lawful citizen being stopped and checked (warrantless search), or stopped checked and firearm held by police while confirming the ID of the individual and/or legality of the handgun (warrantless search and seizure - of both the person and the firearm), Such a person would have had standing in federal court to have the statute ruled unconstitutional... Other than time and money.

As we both know, this has happened to hundreds of CA citizens.

As it stands, the statute is abhorrent to the 4A.
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Old March 3, 2013, 03:53 PM   #15
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Very true Al. It would seem this Statute would be low hanging fruit, legally so to speak, and am not sure why it hasn't been challenged yet. Bigger fish to fry as far as CA laws are concerned, I guess.
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Old March 3, 2013, 06:04 PM   #16
62coltnavy
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The reason that this has not been challenged is that for some reason citizens seem to freely grant consent to a search of their vehicles. I've always wondered if the police use "persuasion" to get that consent, ("Well, I guess we'll just have to sit here until the warrant comes.") but it happens frequently, even in drug busts. then, when the officer sees your gun case in the trunk, he will ask, "Is there a firearm in this case?" If you say yes, then he has the right to perform a "b" check.
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Old March 3, 2013, 06:17 PM   #17
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As I am not a CA lawyer, I'd expect Frank to know much more about this than I do. With that caveat, I'll take a small stab at this one. Let me also point out that I have done ZERO research on the case law. Accordingly, take my comments for being worth exactly what you paid for them. Let me also point out that the automobile is the worst thing that's ever happened to the Fourth Amendment, IMHO.

To put it mildly, I have some very serious reservations about the constitutionality of 25850(b) in that it legislatively authorizes warrantless searches, even where there is no evidence of any criminal activity. Overlooking Section 25850 for the moment, I would suggest that the mere presence of a firearm in a locked case in the trunk, in and of itself, does not constitute probable cause for a search. However, that fact is unlikely to ever come alone. For example, if running the driver's information through the SCMODS (State, County, Municipal Offender Data Systems ) turns up that the driver is a felon, we've got a different ballgame. If the driver matches a description of an armed robber that just went out on a BOLO, different ballgame.

Turning to the question with 25850 in mind, my first question is whether a driver is required to notify LE of the presence of a weapon that is in a locked case in the trunk. For example, if I tell the officer, "I have an unloaded gun in a locked case in the trunk of my car," 25850(b) purports to allow the officer to examine my firearm, even though they have no evidence that it is loaded. 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. . . IOW, if I assert my Fourth Amendment right, I get a shiny new pair of bracelets for a while. If I am required to notify LE of the existence of same pistol, the problem is compounded. In that situation, in order to remain totally law-abiding, I must: (1) notify LE of the gun; and (2) submit to a warrantless (& possibly unconstitutional) search.

Naturally, if I refuse to allow the search, I will be arrested and my car impounded. At that point, as basilisk4 notes, the police will conduct an inventory search.

As a final note, criminal law is generally a matter of State law, as is most of the law surrounding searches and seizures by LE. One would be very, very ill advised to consult an Arkansas attorney for questions related to CA search and seizure law. It's a different state, in a different federal circuit. There's a whole slew of 9th Circuit and CA (state) Supreme Court case that I haven't even looked at in formulating the answer above. I am a lawyer, but I'm not a CA lawyer. . .
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Old March 3, 2013, 07:16 PM   #18
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Quote:
Turning to the question with 25850 in mind, my first question is whether a driver is required to notify LE of the presence of a weapon
Just to be clear, there is no duty to inform in California..... at least not yet

Best to keep your mouth shut and insist on the Officer only deal with the subject at hand, i.e. why he pulled you over in the first place and not answer any fishing questions about weapons. That why I keep my firearms covered in my vehicle (SUV) so the cases are not in plain sight to an Officer doing a visual inspection while approaching my vehicle.
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Old March 3, 2013, 07:21 PM   #19
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Very interesting discussion.

Now, if it is illegal in CA for me to transport a firearm in my car, and I am headed to AZ (where I have a carry permit), how do the savants who wrote this law figure I am to do it, if I drive my private vehicle?

I was unaware CA had passed this new law.

Seems that some people graduated from marijuana into more exotic chemicals.

Edit
Quote:
CA has since passed a law banning the carry of any unloaded firearm.
Al, are you speaking of open carry? Open carry of an unloaded handgun was banned last year (?) and, of unloaded long guns, this year. At least as of May in 2012, proper carriage of a handgun in a vehicle was unloaded in a locked case, preferably with ammo in a different location, but that was not necessary.

However, a loaded magazine could be a basis for a LEO to claim you had a loaded firearm in your possession, regardless of where the weapon was or its condition. Now, if you had a full speed-loader, that's okay.

The difference is that a magazine is an integral part of the firearm. A speedloader is an ACCESSORY.

I knew you would understand.

I would appreciate any corrections to the above.
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Old March 3, 2013, 07:35 PM   #20
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Is it illegal to transport a firearm in a vehicle in CA?

If so, how do you transport a firearm?
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Old March 3, 2013, 07:38 PM   #21
Southwest Chuck
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Transporting in CA is not illegal. For specifics, see the CGF wiki
http://wiki.calgunsfoundation.org/Transporting
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Old March 3, 2013, 07:40 PM   #22
HarrySchell
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Thanks, Chuck!

My next stop from here, now I know exactly where to go.
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Old March 3, 2013, 07:54 PM   #23
Southwest Chuck
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I'll give it a shot.
Quote:
Now, if it is illegal in CA for me to transport a firearm in my car, and I am headed to AZ (where I have a carry permit), how do the savants who wrote this law figure I am to do it, if I drive my private vehicle?

Not illeagl. See CGF Wiki link in the above post for transport rules.


CA has since passed a law banning the carry of any unloaded firearm.
Al, are you speaking of open carry? Open carry of an unloaded handgun was banned last year (?) and, of unloaded long guns, this year.
Yes and Yes, The only exceptions (generally), are carrying in an area where it's legal to discharge

At least as of May in 2012, proper carriage of a handgun in a vehicle was unloaded in a locked case, preferably with ammo in a different location, but that was not necessary.

True. See People v Clarke People v Clark

However, a loaded magazine could be a basis for a LEO to claim you had a loaded firearm in your possession, regardless of where the weapon was or its condition.
Not true. As long as the Magazine is not inserted into the firearm. Again see People v Clark above.


I would appreciate any corrections to the above.
See the Calguns Foundation Wiki for a complete rundown on CA firearms law.
http://wiki.calgunsfoundation.org/index.php/Main_Page

Hope that helps!

SC
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Old March 3, 2013, 08:11 PM   #24
Southwest Chuck
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Harry, since you're in CA you (and anyone else that is interested) might want to Check out these useful Links too:

http://www.calguns.net/calgunforum/index.php This is Calguns general website link. Check out their 2A forum as well.

Firearms in Forests and Parks Very useful if you take your firearms outdoors for recreation.
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Old March 3, 2013, 08:19 PM   #25
sunaj
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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
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