"Plain view doctrine"

CA_Libertarian · Mar 18, 2009

imported post

SlackwareRobert wrote:

Has anyone in CA thought to sue under the property rights laws when they
drop your pistol from the approved list without paying you for the loss?

I'll take a stab at this, though I admit I'm confused by the wording.

I sounds like you're implying that we somehow lose our pistol if it is taken off the approved list. This is not the case. In fact, you can still buy off-roster pistols from private parties. The roster only applies to new sales by FFLs in this state.

If anything, having a pistol that's off the list increases its value in CA.

bigtoe416 · Mar 18, 2009

imported post

CA_Libertarian wrote:

Now, let's say in the above situation, the officer has the report in hand and knows the stolen handgun was the same make/model as yours. He can now articulate facts that would lead a reasonable person to believe you may be carrying evidence. The officer now can search/seize you/your gun as part of the investigation. He could then peel back your tape and view your serial number to see if it matches the one in the report.

By this logic a police officer can always check any firearm's serial number because surely every make/model of firearm has been involved in some criminal activity (whether being stolen or being used by a criminal).

The fact that the handgun was stolen last night should have very little to do with the ability of a police officer to check the handgun as being stolen. In addition, the distance from the scene of the crime to the place of the detention would also have very little to do with the ability to do the serial number check. If the time and place are in any way involved here, then what is the required distance and time relationship? Surely there is no maximum distance or time where a piece of property cannot possibly be stolen (outside of the speed of light i suppose, but then how would the officer even know the gun was stolen?!).

Applying this logic further would allow an officer to inspect everything on one's person which could be identified as being stolen. Your watch, your cell phone, your credit cards, your dollar bills, your gun, and whatever else might have a unique identifying number on it. I would argue that this borders on the absurd, since while police undoubtedly have a list of known stolen cash, watches, cell phones, credit cards, and guns, they surely would violate the fourth amendment by searching any detained person for all of their serial numbers they carry. It is unreasonable for a person who is not at least reasonably suspected of being tied to a given crime to be searched for evidence related to said crime.

Theseus · Mar 18, 2009

imported post

I think, to me, that the question really lies in the fact that the serial number would not be in plain view until the police, under threat of arrest, demand the gun to conduct the 12031(e) check.

This, to me, sounds like a form or entrapment. If I don't allow them to inspect the firearm they have PC to then arrest me and then run the serial anyway.

CA_Libertarian · Mar 18, 2009

imported post

bigtoe416 wrote:

CA_Libertarian wrote:

Now, let's say in the above situation, the officer has the report in hand and knows the stolen handgun was the same make/model as yours. He can now articulate facts that would lead a reasonable person to believe you may be carrying evidence. The officer now can search/seize you/your gun as part of the investigation. He could then peel back your tape and view your serial number to see if it matches the one in the report.

Click to expand...

By this logic a police officer can always check any firearm's serial number because surely every make/model of firearm has been involved in some criminal activity (whether being stolen or being used by a criminal).

Your argument relies on a straw man premise, as my analogy requires the officer to have articulable facts, not general facts. However, you did provoke enough thought to make me consider why I am indeed wrong.

Let's say the gun stolen in my analogy was a Glock 19. Should the cops be allowed to stop every person with a Glock 19? Could they tell the difference between the 19 and many of the other Glock models made with the same size frame without stopping even more people? This would be something like pulling over every gray Honda Accord in town because that make/model was involved in a drive-by shooting.

So, in addition to specific knowledge of a make/model stolen, the officer would also have to have some additional facts that lead him to believe the firearm you are carrying is the one actually stolen.

bigtoe416 · Mar 18, 2009

imported post

CA_Libertarian wrote:

So, in addition to specific knowledge of a make/model stolen, the officer would also have to have some additional facts that lead him to believe the firearm you are carrying is the one actually stolen.

I would agree with this. Knowledge that you have received stolen property would at least somehow tie the carrier of the firearm to the crime itself. A detention to determine if the carrier had knowingly received stolen property would be reasonable in my opinion.

Having said that, I would love it if the next person to have a 12031(e) performed on them would ask the officer if he'd want to run the serial numbers on all the cash he was currently carrying. I'd be curious if they would recognize the fallacy of the serial number check.

Oh, and I thought your reference to a Straw Man premise was related to a straw man gun purchase. I didn't realize it was a logic term, very nice. http://en.wikipedia.org/wiki/Straw_man

Theseus · Mar 18, 2009

imported post

I don't think a detention would be reasonable at this point either. They still have no PC to believe that MY gun is the one stolen.

I think the important part would be the reasonableness of the search and how intrusive it is. The license plate on a car is plainly visible and no detention is required to obtain or note the plate number, the same can not be said for the serial number check. They have to demand it before they can see it.

The laptop on the front seat would need to be moved to get the serial number, which would require a warrant. The serial number on my gun would require the gun to be moved from my holster. I see them as linked and the same.

bigtoe416 · Mar 18, 2009

imported post

I don't think a detention would be reasonable at this point either. They still have no PC to believe that MY gun is the one stolen.

Are we still talking about CA_Libertarian's example where the police officer has reason to believe that a person carrying a gun was stolen? While the officer wouldn't have probable cause at this point, they seemingly would have reasonable suspicion based on CA_Libertarian's description of the situation. I don't know if that would be enough to run the serial, but I think it would be.

I think the important part would be the reasonableness of the search and how intrusive it is. The license plate on a car is plainly visible and no detention is required to obtain or note the plate number, the same can not be said for the serial number check. They have to demand it before they can see it.

Running a license plate is quite different from running a serial number of a personally owned object. Driving requires a license, and you are therefore under stricter scrutiny than you would be if you were merely walking down the street. If I had a serial number of my gun in big neon numbers/letters, and I was walking down the street I would think that a police officer would be violating the fourth amendment by checking the number against known stolen guns without having some kind of reasonable suspicion or probable cause against me.

Theseus · Mar 18, 2009

imported post

bigtoe416 wrote:

I don't think a detention would be reasonable at this point either. They still have no PC to believe that MY gun is the one stolen.

Click to expand...

Are we still talking about CA_Libertarian's example where the police officer has reason to believe that a person carrying a gun was stolen? While the officer wouldn't have probable cause at this point, they seemingly would have reasonable suspicion based on CA_Libertarian's description of the situation. I don't know if that would be enough to run the serial, but I think it would be.

I think the important part would be the reasonableness of the search and how intrusive it is. The license plate on a car is plainly visible and no detention is required to obtain or note the plate number, the same can not be said for the serial number check. They have to demand it before they can see it.

Click to expand...

Running a license plate is quite different from running a serial number of a personally owned object. Driving requires a license, and you are therefore under stricter scrutiny than you would be if you were merely walking down the street. If I had a serial number of my gun in big neon numbers/letters, and I was walking down the street I would think that a police officer would be violating the fourth amendment by checking the number against known stolen guns without having some kind of reasonable suspicion or probable cause against me.

I believe police need PC to conduct a search, not reasonable suspicion. And the situation about the car and laptop has nothing to do with right or priviledge. I was using the example about the intrusiveness of the search. A license plate is viewable and can be checked without detaining or stopping a person. That being the situation it can be argued easily I think that it is fair game.

And I think there is also an important distinction. The officer is not running the serial because he believes the gun is stolen he is doing it to try and find evidence of a crime so that he can detain us longer or even arrest us. He has no evidence or reason and is looking for one.

A cop isn't allowed to search your car for evidence against you unless he has PC that you actually are breaking the law. This situation is comparable to the trunk. He can not force you to open the trunk so that he can inspect the contents without a warrant or PC. He also should not be able to force you to put your serial number in plain view and then use it against you.

CA_Libertarian · Mar 18, 2009

imported post

Probable Cause is for arrests.

Reasonable Suspicion is from Terry v Ohio. (The court doesn't use this term exactly, but something along the lines of "articulable facts that would lead a reasonable person to believe criminal activity was afoot.")

Mike · Mar 18, 2009

imported post

CA_Libertarian wrote:

Probable Cause is for arrests.

Reasonable Suspicion is from Terry v Ohio. (The court doesn't use this term exactly, but something along the lines of "articulable facts that would lead a reasonable person to believe criminal activity was afoot.")

Generally, under the Fourth amendment (state constitution may provide for more protection):

Probable cause is needed for arrests outside the home and searches of people. Arrests of folks inside homes need arrest warrants.

Reasonable articulable suspicion of crime afoot allows for brief detention of person; if officer reasonably believes suspect is both armed and dangerous, he may conduct light pat down (no going in wallets and pockets absent probable cause).

But the load checks under 12031 (allowed only in areas of CA where loaded carry is not allowed) are mere administrative inspections authorized by state statute. No suspicion is needed; absent reasonable suspicion or probable cause, no seizure or search of citizen and gun is allowed.

Let's not make this complicated - 12031 checks are for the load status of gun only, nothing more, and nothing about the person carrying the gun or its serial number.

CA_Libertarian · Mar 18, 2009

imported post

Mike wrote:

CA_Libertarian wrote:

Probable Cause is for arrests.

Reasonable Suspicion is from Terry v Ohio. (The court doesn't use this term exactly, but something along the lines of "articulable facts that would lead a reasonable person to believe criminal activity was afoot.")

Click to expand...

Generally, under the Fourth amendment (state constitution may provide for more protection):

Probable cause is needed for arrests outside the home and searches of people. Arrests of folks inside homes need arrest warrants.

Reasonable articulable suspicion of crime afoot allows for brief detention of person; if officer reasonably believes suspect is both armed and dangerous, he may conduct light pat down (no going in wallets and pockets absent probable cause).

But the load checks under 12031 (allowed only in areas of CA where loaded carry is not allowed) are mere administrative inspections authorized by state statute. No suspicion is needed; absent reasonable suspicion or probable cause, no seizure or search of citizen and gun is allowed.

Let's not make this complicated - 12031 checks are for the load status of gun only, nothing more, and nothing about the person carrying the gun or its serial number.

Under Terry, as soon as I am not free to go about my business, I am seized in the 4th Amendment sense. So, a 12031(e) check falls into the realm the court decided in Terry.

Further, almost every LEO encounter in CA has resulted in increased length of detention and broadened scope of search.

This is why I brought up Terry.

sjalterego · Mar 19, 2009

imported post

I think the whole structure of 12031 is bad, it provides that refusal to comply with an officer's request (would an officer ever request?) to inspect your gun to see if it is loaded provides probable cause to arrest for violation of carrying a loaded weapon. I think that this statute attempts to bootstrap itself so that officer's can conduct "searches" that would otherwise be unlawful.

Just b/c an offier can see that I am wearing a pistol in a holster does not, in my opinion, create reasonable suspicion that the gun might be loaded and thus justify a Terry stop to inspect the weapon. In order to avoid this constitutional difficulty, Calif. passed 12031 which provides that refusal to grant a request provides probable cause to arrest.

So you could refuse to allow the inspection. You would be arrested. At that time they could legally inspect your firearm as incident to an arrest. You wouldn'tbe convicted b/c the inspection would prove the firearm was not loaded. However, you would now have an arrest record and your fingerprints (and soon your DNA) will be in the system. etc.

So far this facial challenge to 12031 has NOT yet been argued (to my knowledge) and certainly has not prevailed in court.

Putting aside this facial challenge to a 12031 "request" to inspect, let us assume this aspect of 12031 is constitutional. Once the officer lawfully has your gun in his hands to inspect it to see if it is loaded or not, there is nothing in the constitution that requires him to become blind to everything except the thing he is looking for.

This is not an entrapment but a simple and common everyday application of criminal evidence/search and seizure law. So long as the officer legally has access to a place, location or object for one purpose, he may observe it for all purposes. I think this makes sense. Any other rule would be unworkable and require the courts to review everything with a fine toothed comb.

However, back to the original point, you are right that 12031 essentially allows police officers to conduct what should otherwise be unconstitutional searches. My personal belief is that 12031 IS unconstitutional b/cd it authorizes police to conduct searches based on a complete absence of reasonable suspicion that a crime was being committed. If there were a law allowing police to search picketers to make sure that they were using recycled paper (or any other ridiculuous fact pattern) it would get ruled unconstitutional in a matter of seconds.

Mike · Mar 19, 2009

imported post

sjalterego wrote:

I think the whole structure of 12031 is bad, it provides that refusal to comply with an officer's request (would an officer ever request?) to inspect your gun to see if it is loaded provides probable cause to arrest for violation of carrying a loaded weapon. I think that this statute attempts to bootstrap itself so that officer's can conduct "searches" that would otherwise be unlawful.

Just b/c an offier can see that I am wearing a pistol in a holster does not, in my opinion, create reasonable suspicion that the gun might be loaded and thus justify a Terry stop to inspect the weapon. In order to avoid this constitutional difficulty, Calif. passed 12031 which provides that refusal to grant a request provides probable cause to arrest.

So you could refuse to allow the inspection. You would be arrested. At that time they could legally inspect your firearm as incident to an arrest. You wouldn'tbe convicted b/c the inspection would prove the firearm was not loaded. However, you would now have an arrest record and your fingerprints (and soon your DNA) will be in the system. etc.

So far this facial challenge to 12031 has NOT yet been argued (to my knowledge) and certainly has not prevailed in court.

Putting aside this facial challenge to a 12031 "request" to inspect, let us assume this aspect of 12031 is constitutional. Once the officer lawfully has your gun in his hands to inspect it to see if it is loaded or not, there is nothing in the constitution that requires him to become blind to everything except the thing he is looking for.

This is not an entrapment but a simple and common everyday application of criminal evidence/search and seizure law. So long as the officer legally has access to a place, location or object for one purpose, he may observe it for all purposes. I think this makes sense. Any other rule would be unworkable and require the courts to review everything with a fine toothed comb.

However, back to the original point, you are right that 12031 essentially allows police officers to conduct what should otherwise be unconstitutional searches. My personal belief is that 12031 IS unconstitutional b/cd it authorizes police to conduct searches based on a complete absence of reasonable suspicion that a crime was being committed. If there were a law allowing police to search picketers to make sure that they were using recycled paper (or any other ridiculuous fact pattern) it would get ruled unconstitutional in a matter of seconds.

Actually the Ca. Appeals Court did uphold the load check as not violating the constitution. The cote is over on CalGuns somewhere.

Mike · Mar 19, 2009

imported post

People v. DeLong, 11 Cal.App.3d 786(1970) (holding no fourth amendment violation when officers demand entry into trunk to conduct load checks of guns seen placed in vehicle trunk on college campus; subsequent discovery of drugs not suppressed).

See discussion of case at http://www.calguns.net/calgunforum/showthread.php?t=163319.

I find the holding to be questionable but it is the law now in Cal., maybe somebody can martial more recent cases disfavoring the opinion?

Theseus · Mar 19, 2009

imported post

If the check was on college campus that might have more to do with it. Don't they suffer from "extra" search allowance in many places?

Having case law support certainly changes things slightly. I think we might need to check it into a Federal court then.

CA_Libertarian · Mar 19, 2009

imported post

Mike wrote:

People v. DeLong, 11 Cal.App.3d 786 (1970) (holding no fourth amendment violation when officers demand entry into trunk to conduct load checks of guns seen placed in vehicle trunk on college campus; subsequent discovery of drugs not suppressed).

See discussion of case at http://www.calguns.net/calgunforum/showthread.php?t=163319.

I find the holding to be questionable but it is the law now in Cal., maybe somebody can martial more recent cases disfavoring the opinion?

Wow, yeah bad case law.

The court essentially says, "this isn't really even a search... Terry doesn't apply." The court fails to notice the fact that Terry says that any seizure of the person must be justified by RS. Keep in mind this ruling was only three years after the law went into effect, so the "oh my god Negros with guns" panic hadn't worn off yet.

Even with a bad ruling from Cal App Ct, I think the 9th Circuit would overturn the decision. Heller would make it a slam dunk.

sjalterego · Mar 19, 2009

imported post

Thanks for clearing that up.

"Plain view doctrine"

CA_Libertarian

State Researcher

bigtoe416

Anti-Saldana Freedom Fighter

Theseus

Founder's Club Member

CA_Libertarian

State Researcher

bigtoe416

Anti-Saldana Freedom Fighter

Theseus

Founder's Club Member

bigtoe416

Anti-Saldana Freedom Fighter

Theseus

Founder's Club Member

CA_Libertarian

State Researcher

Mike

Site Co-Founder

CA_Libertarian

State Researcher

sjalterego

Regular Member

Mike

Site Co-Founder

Mike

Site Co-Founder

Theseus

Founder's Club Member

CA_Libertarian

State Researcher

sjalterego

Regular Member