People v. Kern

bigtoe416 · Jun 25, 2009

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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.

stuckinchico · Jun 26, 2009

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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"

stuckinchico · Jun 26, 2009

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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

marshaul · Jun 26, 2009

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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!"

smn · Jun 26, 2009

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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.

KS_to_CA · Jun 26, 2009

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IANAL. And I am confused. Soin the event of a stop, they ask to search you, you consent, it is legal. They ask to search, you decline, you would be arrested, and they will still do the search. Only and only if they don't ask would this case apply, but they can always "search incidental to an arrest". Is that correct?

bigtoe416 · Jun 26, 2009

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KS_to_CA wrote:

IANAL. And I am confused. Soin the event of a stop, they ask to search you, you consent, it is legal. They ask to search, you decline, you would be arrested, and they will still do the search. Only and only if they don't ask would this case apply, but they can always "search incidental to an arrest". Is that correct?

They wouldn't be asking to search you, they'd be demanding to inspect your weapon. If they ask to inspect your weapon you can ask them, "Is it a request or a demand? I don't comply with any requests but I will comply with your demand under duress."

This case only applies if they check the loaded status of your weapon without asking first (not counting a search incidental to an arrest).

smn · Jun 26, 2009

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bigtoe416 wrote:

KS_to_CA wrote:

IANAL. And I am confused. Soin the event of a stop, they ask to search you, you consent, it is legal. They ask to search, you decline, you would be arrested, and they will still do the search. Only and only if they don't ask would this case apply, but they can always "search incidental to an arrest". Is that correct?

Click to expand...

They wouldn't be asking to search you, they'd be demanding to inspect your weapon. If they ask to inspect your weapon you can ask them, "Is it a request or a demand? I don't comply with any requests but I will comply with your demand under duress."

This case only applies if they check the loaded status of your weapon without asking first (not counting a search incidental to an arrest).

You first ask if you are free to go. This forces the officer to articulate his reasonable suspicion. No RAS, no stop, no (e) check. Tell the officer have a nice day and you wish to end this tier one encounter. If he persists contact your lawyer.

stuckinchico · Jun 26, 2009

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Easier said than done princess.... I asked if i was free to go yesterday they said you can go when i let you go.. And i said than i want my lawyer. I was pretty much told to go f**k myself pricks turned off my recorder.

Its called Karma Bit** you gonna learn

smn · Jun 26, 2009

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Retain a lawyer if you haven't already.

SlackwareRobert · Jun 26, 2009

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stuckinchico wrote:

Easier said than done princess.... I asked if i was free to go yesterday they said you can go when i let you go.. And i said than i want my lawyer. I was pretty much told to go f**k myself pricks turned off my recorder.

Its called Karma Bit** you gonna learn

Under what authority did they take your recorder? Did they fear for officer safety?
But that is what the backup recorder is for. To catch them steeling and destroying
your private property.

Wonder what they would do if you engrave the precinct number on the bullets.:lol:
I will have to see how much it will show, might try it on the chambered round, just
for laughs when they unload the chambered round. Maybe gold foil rub to get it to
stand out, or sharpie to fill in the jacketed ones.
You would think they would appreciate that I have to go out and buy an engraving
bit just to show my displeasure in being treated like a criminal.

stuckinchico · Jun 26, 2009

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They didnt say why they kept saying they dont know what i was talking about

stuckinchico · Jun 26, 2009

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I think Im gonna get a second recorder/ wear compression short and stick that SOB right next to my boys with a mic running to my lapel
Tape that recorder in so that have to take my pants off to get to it

smn · Jun 26, 2009

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A recorder fed with a wired microphone works very well. Check your cell phone for voice recorder capabilities.

CA_Libertarian · Jun 27, 2009

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KS_to_CA wrote:

IANAL. And I am confused. Soin the event of a stop, they ask to search you, you consent, it is legal. They ask to search, you decline, you would be arrested, and they will still do the search. Only and only if they don't ask would this case apply, but they can always "search incidental to an arrest". Is that correct?

SCOTUS very recently ruled in Arizona v Gant that a "search incident to arrest" is a violation of the 4th Amendment unless they get a warrant or some very rare circumstances exist.

cato · Jun 27, 2009

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CA_Libertarian wrote:

KS_to_CA wrote:

IANAL. And I am confused. Soin the event of a stop, they ask to search you, you consent, it is legal. They ask to search, you decline, you would be arrested, and they will still do the search. Only and only if they don't ask would this case apply, but they can always "search incidental to an arrest". Is that correct?

Click to expand...

SCOTUS very recently ruled in Arizona v Gant that a "search incident to arrest" is a violation of the 4th Amendment unless they get a warrant or some very rare circumstances exist.

Search of a vehicle or it's trunk. I still get to search you before booking.

smn · Jun 27, 2009

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CA_Libertarian wrote:

KS_to_CA wrote:

IANAL. And I am confused. Soin the event of a stop, they ask to search you, you consent, it is legal. They ask to search, you decline, you would be arrested, and they will still do the search. Only and only if they don't ask would this case apply, but they can always "search incidental to an arrest". Is that correct?

Click to expand...

SCOTUS very recently ruled in Arizona v Gant that a "search incident to arrest" is a violation of the 4th Amendment unless they get a warrant or some very rare circumstances exist.

Here's the take home message in Az. v. Gant:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

SIA of your person is guaranteed. Gant involved a vehicle search in which there was little or no evidence in the vehicle of a suspended license.

ConditionThree · Jun 27, 2009

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SlackwareRobert wrote:

stuckinchico wrote:

Easier said than done princess.... I asked if i was free to go yesterday they said you can go when i let you go.. And i said than i want my lawyer. I was pretty much told to go f**k myself pricks turned off my recorder.

Its called Karma Bit** you gonna learn

Click to expand...

Under what authority did they take your recorder? Did they fear for officer safety?
But that is what the backup recorder is for. To catch them steeling and destroying
your private property.

Wonder what they would do if you engrave the precinct number on the bullets.:lol:
I will have to see how much it will show, might try it on the chambered round, just
for laughs when they unload the chambered round. Maybe gold foil rub to get it to
stand out, or sharpie to fill in the jacketed ones.
You would think they would appreciate that I have to go out and buy an engraving
bit just to show my displeasure in being treated like a criminal.

I dont think we need any more encouragement to escalate contact with our law enforcement friends. They seem to think it is sufficient to contact someone on the basis that thesubjectpossesses a firearm alone.

People v. Kern

bigtoe416

Anti-Saldana Freedom Fighter

stuckinchico

Regular Member

stuckinchico

Regular Member

marshaul

Campaign Veteran

smn

Regular Member

KS_to_CA

Regular Member

bigtoe416

Anti-Saldana Freedom Fighter

smn

Regular Member

stuckinchico

Regular Member

smn

Regular Member

SlackwareRobert

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stuckinchico

Regular Member

stuckinchico

Regular Member

smn

Regular Member

CA_Libertarian

State Researcher

cato

Newbie

smn

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ConditionThree

State Pioneer