imported post
bigtoe416 wrote:
http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CCA%5CCA3%5C1979%5C19790601_0040698.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.
