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Thread: U.S. and Calif Constitutions-Search and Seizure as applied to PC12031(e)

  1. #1
    State Pioneer ConditionThree's Avatar
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    CALIFORNIA CONSTITUTION
    ARTICLE 1 DECLARATION OF RIGHTS


    SEC. 13. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.
    Pretty much mirrors what the U.S. Constitutions says... as appears below...
    The United States Constitution

    Amendment 4 - Search and Seizure.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    So I should be secure in my person, papers and effects if I'm lawfully carrying my sidearm in a belt holster, right?

    Uhm- Right?


    12031.(e) 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 his or her 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.
    So both the California and U.S. Constitutions say unreasonable searches and seizure are not okay, but yet a law on the books is in direct contradiction to both sections by redefining probable cause and endorsing a super-Constitutional search of a person's effects.

    Even a "Terry" stop wouldn't permit an officer to search me solely on the basis that I was conspicuously armed. They would have to have some reasonable suspicion that I was involved in criminal activity... beyond the mere fact my side arm is exposed., because in most cases, it is lawful.

    Anyone else see the contradiction?
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    NA MALE SUBJ ON FOOT, LS NB 3 AGO HAD A HOLSTERED HANDGUN ON HIS RIGHT HIP. WAS NOT BRANDISHING THE WEAPON, BUT RP FOUND SUSPICIOUS.
    CL SUBJ IN COMPLIANCE WITH LAW


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  2. #2
    State Researcher
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    This is the problem: the state legislature is imposing that this is a "reasonable" search. Technically, this is something that is supposed to be determined by a jury, if you were to drag the LEO into court for searching you.

    So, to answer your question: Yes, there is a contradiction.

    The big question is, can we get a good test case in court and will the judges do the right thing?
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  3. #3
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    I agree with you too, but then again I think there are more than a few laws on the books that are really null and void because the Constitution doesn't give "them" the authority to make and actually specifically says that "they" can not make. But they did anyways.

    I wouldn't want to put that to the test where I live but maybe down in King or Kern county....

    I think it is unreasonable, but I also think a lot of that chapter is unreasonable.

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