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Thread: People v. Kern

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    http://ca.findacase.com/research/wfr...0698.CA.htm/qx

    This is the good bit:

    Penal Code section 12031 provides, in pertinent part: "(a) . . . [Every] person who carries a loaded firearm on his person or in a vehicl while in any public place or on any public street in an incorporated city . . . is guilty of a misdemeanor. [ para. ] . . . (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 person or in a vehicle while in any public place or on any public street in an incorporated city . . . . Refusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section."

    The question is whether the provision in section 12031, subdivision (e), that "refusal to allow a police officer to inspect a firearm pursuant to . . . this section constitutes probable cause for arrest for violation of this section," implies that a request to inspect must be made before there can be a lawful search. The trial court ruled that a request to inspect the firearm was a prerequisite to a search under this section. Because no such request was made in this case, the information was dismissed.
    The ruling from this case seems to indicate that an officer cannot perform a 12031(e) check without one of the following being true:

    1. The LEO has requested to perform the 12031(e) check
    2. The LEO has probable cause to believe that the firearm is loaded
    3. There is an exigent circumstance where determining the loaded status is needed to prevent immediate danger

    It seems to me that any case where a officer does a felony hot-stop and determines the condition of the firearm without asking to have performed the check would produce inadmissible evidence and would be a violation of the fourth amendment.

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    Excellent find; can't wait to delve into this new reading material.
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    CA_Libertarian wrote:
    Excellent find; can't wait to delve into this new reading material.
    +1 :celebrate

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    Regular Member Decoligny's Avatar
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    bigtoe416 wrote:
    http://ca.findacase.com/research/wfr...0698.CA.htm/qx

    This is the good bit:

    Penal Code section 12031 provides, in pertinent part: "(a) . . . [Every] person who carries a loaded firearm on his person or in a vehicl while in any public place or on any public street in an incorporated city . . . is guilty of a misdemeanor. [ para.] . . . (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 person or in a vehicle while in any public place or on any public street in an incorporated city . . . . Refusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section."

    The question is whether the provision in section 12031, subdivision (e), that "refusal to allow a police officer to inspect a firearm pursuant to . . . this section constitutes probable cause for arrest for violation of this section," implies that a request to inspect must be made before there can be a lawful search. The trial court ruled that a request to inspect the firearm was a prerequisite to a search under this section. Because no such request was made in this case, the information was dismissed.
    The ruling from this case seems to indicate that an officer cannot perform a 12031(e) check without one of the following being true:

    1. The LEO has requested to perform the 12031(e) check
    2. The LEO has probable cause to believe that the firearm is loaded
    3. There is an exigent circumstance where determining the loaded status is needed to prevent immediate danger

    It seems to me that any case where a officer does a felony hot-stop and determines the condition of the firearm without asking to have performed the check would produce inadmissible evidence and would be a violation of the fourth amendment.
    I just got through reading the case. It appears that the salient point is the officer did a "search" of the trunk without first "requesting" to do a 12031(e) check. Not having made the request, and not having recieved either permission, or refusal, he did not have permission, and did not have probable cause under 12031(e) to perform the 12031(e) check and therefore had no legal justification for opening the trunk.

    Basically, if the officer had requested a 12031(e) check on the firearm that he knew was in the trunk, he would have either received permission, or refusal.

    With permission he could legally check the weapon in the trunk and would have been limited to a visual examination of whatever else was plainly visible in the trunk.

    With a refusal, he would have had probable cause under 12031(e) to arrest the individual for a 12031(e) violation and could have searched the vehicle legally persuant to arrest.

    By bypassing the "request", the officer had no legal justification for opening the trunk.

    I don't see how this will help us in any way, unless the officer doesn't request/demand a 12031(e) check, and just takes our firearm without our first having the opportunity to comply with the required request/demand.

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    a. Possession of a firearm is not illegal.
    b. There is no firearms exemption to the 4th amendment. (Florida v. JL)
    c. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [392 U.S. 1, 3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. (Terry v. Ohio).


    I don't think 12031(e) stands constitutional muster. Can it be challenged?

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    Decoligny wrote:
    With a refusal, he would have had probable cause under 12031(e) to arrest the individual for a 12031(e) violation and could have searched the vehicle legally persuant to arrest.
    Just a quick correction here: Arizona v Gant (2009 SCOTUS decision) says officer cannot simply search incident to arrest. The officer would have to obtain a warrent, unless he could prove that he reasonably believed the suspect could access a weapon or tamper with evidence.

    We need to talk about this case often, and make it clearly known to our public servants. It's only a matter of time before some public defender takes advantage of some cop's failure to get a warrent, and bad people are gonna get away with bad things due to supressed evidence.
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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Decoligny: Definitely agree with your assessment. I thought there might be times where an officer who is unfamiliar with 12031(e) performs the loaded check without asking. According to this case law that check wouldn't be lawful. Any lawsuit brought against the officer could include such reasoning.

    smn: I think most of us feel that 12031(e) is unconstitutional. I don't know of any lawsuits that are currently underway to challenge it. Hopefully we'll get a challenge to it sometime soon, although personally I'd rather go after the 1000' school zone restriction first.

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    smn wrote:
    a. Possession of a firearm is not illegal.
    b. There is no firearms exemption to the 4th amendment. (Florida v. JL)
    c. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [392 U.S. 1, 3] regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. (Terry v. Ohio).


    I don't think 12031(e) stands constitutional muster. Can it be challenged?
    It is blatantly unconstitutional, and needs to be challenged. Unfortunately, we already have case law in CA saying it is constitutional, so it's gonna be a tougher challenge than it should be. I believe Terry v Ohio is the key, though.
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    Does California have an FOIA-type of system by which citizens may request information from the government? You might find a few cases in which someone's been prosecuted by this law and then appeal, or else not, yet you learn something both ways.

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    State Pioneer ConditionThree's Avatar
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    Yes. PRA (Public Recoreds Act) is California's FOIA.
    New to OPEN CARRY in California? Click and read this first...

    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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    We already have a case that uses the 12031(e) situation.

    In my case the officers did not ask permission to inspect and also removed the wallet from my pocket.

    The problem here is that the only thing that could have been suppressed was the ID which was later used to charge me. The court would not throw that out.

    For my criminal situation it doesn't help, but for a civil it is perfect.

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    If anyone is stopped for a 12031(e) check then it is incumbent of the lawful carrier of the gun to get the ball rolling with a civil suit.

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    There are plenty of dummies in kommifornia can't you just use the
    citizens initiative to get the law invalidated? Just think of a nice way of
    putting it.
    "amendment to stop the warrentless search of law abiding citizens' or some such.
    "the minority protections act, to repeal unequal enforcement of 12031 on only some citizens"
    After all when did you last hear them use this law on an unarmed citizen,
    or an OC'ing leo even.

    On a good note, it looks like there will be no funding to prosecute violators in
    the very near future.
    On the bad side with the new influx of criminals you will not have time to load the gun.


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    When asked to have firearm inspected, simply say you are invoking your 5th amendment right. Just repeat this and also do not consent to any search.....you should win this hands down. Allowing the search does both, wave your 4th and it also self incriminates yourself, which if any other state then Calif, would be thrown out, but no so sure, and your in the 9th circuit....but, that's the way I would go about it.

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    Regular Member Decoligny's Avatar
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    Most people simply ask "Are you requesting to inspect my firearm, or are you demanding?" If it is a demand, then it is a siezure. Be sure to get it on audio.



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    Regular Member sudden valley gunner's Avatar
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    Decoligny wrote:
    Most people simply ask "Are you requesting to inspect my firearm, or are you demanding?" If it is a demand, then it is a siezure. Be sure to get it on audio.

    Can you say no if it is a request?
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    sudden valley gunner wrote:
    Can you say no if it is a request?
    Of course you can. A police officer can ask you anything you want. You only have to comply with lawful orders.

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    Regular Member sudden valley gunner's Avatar
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    So either way than that would make the e-check illegal? If they request you can deny, if they demand than it violates the 4th? The only legal e-check is if you volunteer to it. Or am I missing something, again comes down to just not being 'cooperative' with the LEO. Not letting yourself be tricked or intimidated into surrending your rights.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    sudden valley gunner wrote:
    So either way than that would make the e-check illegal? If they request you can deny, if they demand than it violates the 4th? The only legal e-check is if you volunteer to it. Or am I missing something, again comes down to just not being 'cooperative' with the LEO. Not letting yourself be tricked or intimidated into surrending your rights.
    Exactly right. The reason this seems so confusing (especially to LE) is that state law says they can arrest you for refusing their request, and then examine your firearm against your will. And I'm willing to bet that's what most LE would do.
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    Alright folks, repeat after me. . .

    I do not consent to the search or seizure of my person or property, but will comply with any orders.

    They can only arrest you if you

    12031(e) . . . Refus(e) to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.
    I almost am willing to suggest under all circumstances we refuse to allow a search and make them arrest you. At that point they will have to defend themselves against an unconstitutional law and you should have record that you were arrested.

    Remember. . . They may arrest you, but unless you are loaded they can not charge you with the crime unless they are reckless or stupid.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    So either way than that would make the e-check illegal? If they request you can deny, if they demand than it violates the 4th? The only legal e-check is if you volunteer to it. Or am I missing something, again comes down to just not being 'cooperative' with the LEO. Not letting yourself be tricked or intimidated into surrending your rights
    An excellent point. If you 100% sure it violates the fourth, then yeah you can technically not comply and then appeal on up to the supreme court who will side with you. Of course that might cost a few bucks and you'll be arrested and it'll be no fun.

    I find it's best to usually let other people test these things out though. What we need to invalidate 12031(e) is a court to say the law is unconstitutional. At that point we can tell cops their order is unlawful and to leave us alone. But until that point, their order is lawful because the judiciary hasn't said otherwise.

    I'll hesitantly point to the federal Gun Free School Zone Act of 1990 which was ruled unconstitutional in 1995. Congress repassed the law with the addition of:

    " has moved in or otherwise affects interstate commerce."

    I therefore violate this law routinely because the judiciary says the law is unconstitutional.

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    Regular Member stuckinchico's Avatar
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    CA_Libertarian wrote:
    Exactly right. The reason this seems so confusing (especially to LE) is that state law says they can arrest you for refusing their request, and then examine your firearm against your will. And I'm willing to bet that's what most LE would do.
    Thats exactly what they did to me.... They did not give me resonable time to comply with there orders... after being taken down one of the officers made the remark of " do you know what this is? This is a search incindentaly to arrest"

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    Regular Member stuckinchico's Avatar
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    Personally the way i see it is that Terry v Ohio is our enemy... It give the officer the right to search for weapons..... hello that piece on your hip is a weapon

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    stuckinchico wrote:
    Personally¬* the way i see it is that Terry v Ohio is our enemy... It give the officer the right to search for weapons..... hello¬* that piece on your hip is a weapon
    The mere presence of a weapon does not constitute suspicion of a crime, which is required for a Terry stop. Plus, they have no reason to search if the stated object of their search is visible and present for all to see.

    "Judge, I needed to search him to see if he had a gun, because I saw a gun on his hip!"

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    In Terry the standard for a stop is armed AND dangerous. Anything short of that is unconstitutional.

    In Florida v. JL the Supreme Court said:
    Terry 's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern.
    There is no way in which the state can authorize probable cause in 12031(e) when it's expressly denied by the Supreme Court. Hunches don't count. Anonymous tips don't count. The officer MUST have reasonable articulable suspicion of a crime.

    If you've been affected by this, write the FBI, AG, DA, your best friend and let them know your civil rights were violated by a bad California law.

    Convince a lawyer to do some pro bono work and you might get the ball rolling faster.

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