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Thread: Custody Clarity

  1. #1
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    Edit: Wow, my post formatting has gone all to hell. O.O

    My question, is what constitutes custody? Certainly, a
    firearm sent off to the DOJ crime labs is in the custody of law
    enforcement. However, I am curious, how this pertains to the 12031 (e)
    checks?

    Ideally the officer would check the magwell, rack the slide- or in the case of revolvers, open and close the cylinder- and return the firearm,
    but we all know this is more the rarity than the rule.

    12031(e) checks often times remove the firearm from our persons and our immediate vicinity
    (ie, back to the patrol car) so that they might determine whether the firearm is stolen
    and perhaps to whom it is registered.

    Does this seizure constitute custody of the firearm?
    Are we entitled to a reciept?
    Of course, more often then not our firearms are taken from us with great haste over
    any objection to it being removed from our vicinity.

    Preventing the officer from running his entitled (e) check constitutes probably cause,
    would it be preventing the officer from running his (e) check if there were a retention cord affixed to
    the firearm preventing it from being removed from your vicinity?

    Thanks guys.

    Code:
    12028.7 reads as:
    (a) When a firearm is taken into custody by a law
    enforcement officer, the officer shall issue the person who possessed
    the firearm a receipt describing the firearm, and listing any serial
    number or other identification on the firearm.
    (b) The receipt shall indicate where the firearm may be recovered,
    any applicable time limit for recovery, and the date after which the
    owner or possessor may recover the firearm pursuant to Section
    12021.3.
    (c) Nothing in this section is intended to displace any existing
    law regarding the seizure or return of firearms.
    
    (source law.onecle)
    Code:
    (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.
    
    (source law.onecle)

  2. #2
    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    This seems kinda self-defeating. An officer takes your sidearm to unlawfully check the serial number, you ask for a receipt which involves recording the serial number, the officer happily obliges, and now has a legal reason to record your serial number. You just help him circumvent Hicks.

    Having said that, I don't think a court would rule that the simple temporary taking of a person's belongings equates to taking custody of said belongings. Imagine having to write receipts for every item you take out of a subject's pockets and place out of his reach. Or if you get pulled over and give the officer your license. It would seem to me that the courts would rule that a police officer's job entails sometimes temporarily removing objects from a person for safety or investigatory reasons.

    As far as the retention cord goes, there is some thread on the topic somewhere. I think the conclusion of that thread was the retention cord would be a useful idea and would prevent an officer from taking your handgun away from your person.

  3. #3
    Regular Member Decoligny's Avatar
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    bigtoe416 wrote:
    This seems kinda self-defeating. An officer takes your sidearm to unlawfully check the serial number, you ask for a receipt which involves recording the serial number, the officer happily obliges, and now has a legal reason to record your serial number. You just help him circumvent Hicks.

    Having said that, I don't think a court would rule that the simple temporary taking of a person's belongings equates to taking custody of said belongings. Imagine having to write receipts for every item you take out of a subject's pockets and place out of his reach. Or if you get pulled over and give the officer your license. It would seem to me that the courts would rule that a police officer's job entails sometimes temporarily removing objects from a person for safety or investigatory reasons.

    As far as the retention cord goes, there is some thread on the topic somewhere. I think the conclusion of that thread was the retention cord would be a useful idea and would prevent an officer from taking your handgun away from your person.
    But, it still would not prevent the officer from looking at the serial number and recording it to run through the system when he gets back to the car.

  4. #4
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    Which...is indeed lawful....

  5. #5
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    They have to give you a receipt for ANY piece of property they take from you... firearms just require a special receipt.

    IMO, taking custody means they are seizing it under some sort of statutory authority, and don't intend to return it to you within a "reasonable" time.

    I imagine the courts would view this much like the difference between being 'arrested' and being 'detained'. One requires a lot of paperwork; the other requires none.
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  6. #6
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    heliopolissolutions wrote:
    Which...is indeed lawful....
    Maybe... depends on if he is legally entitled to handle the gun in the first place. And even if he is, not all guns' serial numbers are in plain view. If the officer had to remove a part - a pistol grip, for example - then he is conducting a search which is prohibited by the 4th Amendment.

    Further, the 'authority' granted by 12031(e) is unconstitutional. So far, state case law flies in the face of the Terry Doctrine... but if a case ever makes it to the 9th Circuit or SCOTUS, 12031(e) is done.
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