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Thread: Had my bag searched outside of a sterile area of an airport without consent..

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    Had my bag searched outside of a sterile area of an airport without consent..

    I came out of an airport last week, and while waiting in a food court for my ride to get there I decided to discreetly put on my holster(thinking that my ride would arrive soon). Im pretty sure I could have carried in that area if I wanted to, but I did not want to for obvious reasons. A TSA guy walks by and his eyes go He runs over to another TSA guy and they start talking and pointing. At this point I'm thinking to myself "oh great". I just look over and smile. A few minutes pass and then a LEO makes contact with me. I recorded the event but the quality isnt that great so I will just transcribe the jist of what happened.

    Officer1: Hi there.

    Me: Hi

    Officer 1: What are you doing?

    Me: Waiting for my ride

    Officer1: Ok, do you have a firearm?

    Me: (answering this was my mistake, I know I shouldnt have answered. I have been training myself to limit verbal diarrhea when talking to LEOs but I slipped up this time) Yes, In my bag.

    Officer1: Ok well your going to need to show me ID and I am going to make sure the firearm is legally registered to you.

    Me: Sorry Sir, I do not think you have that obligation or authority. I would like to exercise my 4th amendment right against unreasonable searches. I am not doing anything illegal correct?

    Officer1: Correct, I just want to make sure that weapon belongs to you. So please show me some ID

    Me: Sorry Sir, I am not required to identify myself.

    Officer1: Ok well I am going to look in your bag and make sure they weapon is inside the bag.

    Me: Sorry Sir, I do not consent to any searches.

    Officer1: Well his is federal property so things are a little different. (The airport has been owned by the city for almost 100 years, I dont get how it is federal property)

    Me: I have no problem with you searching my bag as long as you can produce some sort of law, PC, etc that says I must give up my 4A rights at this time I will not allow a search of my bag.

    Officer1: Ok, well I have no problem with that as long as my Sgt. is ok with it.
    (he steps away to talk to his Sgt. , many other LEOs show up)

    Me(talking to other LEOs) Am I being detained?

    Sheriff: Nope.

    (I ask Officer1 the same, he says no)

    My ride should have been there 5 min ago...so I wait.

    His Sgt arrives and they begin to "team up" on me.

    Officer2: We are going to look inside your bag.

    Me: Sorry sir, I do not consent to any searches.

    Officer2: Where is the weapon?

    Me: In the bag.

    Officer1: Ok well you have an empty holster, which means you have a weapon, and we want to make sure its not in your waistband or in your pocket.

    Me: I do not consent, but I will not obstruct you.

    They begin searching

    Me: May I ask, what allows this search?

    Officer2: You have an empty holster...(I stopped him right there)

    Me: Which is not illegal right?

    Officer2: Correct, and it means you probably have a firearm

    Me: Again, that is not illegal correct?

    Officer2: Correct, your not doing anything wrong.

    Me: Ok, for the record(they knew I was recording), could you state if there is any reasonable suspicion or probable cause that a crime is being committed, or may be committed?

    Officer2: You have an empty holster sir, on airport property.

    meanwhile officer1 CUTS the TSA placed ziptie that is sealing my luggage and proceeds to check the bag, he shakes the locked gun case which has also been sealed, and says "oh, its pretty light" At this point, I am thinking to myself, really.....really....is he really going to cut another TSA seal and make me open it. I just tell him "its a polymer frame, its light". After this they "cut me loose".

    I don't know for sure, but I sure felt that my rights were violated. They harassed me for a holster(which I had on openly), in an area in which I believe I could have even been OCing if I wanted too. I denied consent MULTIPLE times, but they still searched. The officers kept saying it was federal property. Can someone explain to me how a city owned airport is federal property? Furthermore, the physically cut a TSA placed ziptie. It was obvious I never even opened the bag since SFO.

    They stated that the only probable cause they had, was that I had an empty holster(which is not illegal), and that I might have a firearm(which I told them was in the sealed bag), again which is not illegal. So, while conducting myself, lawfully, they had probable cause, that I was doing legal things, having a weapon in my sealed bag, and carrying a holster.


    What do you guys think? If my feeling is right, and what they did was wrong, then I don't want to let their actions go unpunished. Or maybe everything they did was legal....thats what Im trying to find out.
    Last edited by Thejoyofdriving; 09-14-2011 at 04:29 PM.

  2. #2
    Regular Member Baked on Grease's Avatar
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    The answer to that question in these situations is nearly always: Consult a lawyer!

    Usually before placing any information on the internet. I am not saying you did anything wrong by doing so, but it is one extra precaution.

    Personally, I think you may very well have a good case against those that seem to have wronged you. Go consult a lawyer to make sure.

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    Campaign Veteran skidmark's Avatar
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    I'm presuming this took place in California. While not a CA resident nor versed in Ca firearms laws, I have heard so many tmes I'm about ready to believe that CA cops do have the right to inspect your firearm to ensure it's not loaded and, while doing that, to call in the serial number to verify you complied with te CA registration laws. Maybe that does not apply when you are not actually UOCing - need a CA-knowlegable person to comment on that.

    But if you believe your rights were violated you probably ought to contact an attorney (many offer no-cost consultations), and say no nore until you have done that.

    You might want to delete your post above - although "whatever goes up on the web stays on the web".

    stay safe.
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    Regular Member demnogis's Avatar
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    Exclamation Call a Lawyer!!!!

    +10,000 Call an attorney. Your rights were violated. Even if one will tell you it's not worth the $ to pursue or won't take up the case, you can offer to pay for their advice/direction in filing by yourself.

    Start here -> Deprivation of Rights Under Color of Authority.

    They even admitted they had not RAS, PC and you were not doing anything illegal. 4A violation plain and simple.

    Again, Call a lawyer!
    Gun control isn't about guns -- it is about control.

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    Hey guys, thanks for the responses.

    I have already attempted to contact an attorney but he wanted a $100 consultation fee. I don't want to spend any money on this until I know I have a case, you know? I will try and find another attorney, I would love if I could get one to take this case on contingency.

    If anyone has an attorney they can recommend send me a pm!
    Last edited by Thejoyofdriving; 09-14-2011 at 06:15 PM.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    You informed the officer that there was a firearm. At that point under CA PC 12031 he had the ability to inspect the weapon to determine the loaded state of it (it's unconstitutional, but it's state law). You need more practice preserving your rights.

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    Quote Originally Posted by bigtoe416 View Post
    You informed the officer that there was a firearm. At that point under CA PC 12031 he had the ability to inspect the weapon to determine the loaded state of it (it's unconstitutional, but it's state law). You need more practice preserving your rights.
    I am familiar with that law. However, i think this case has special merit. The weapon was inspected by a federal employee, and sealed. Furthermore, the bag it's self was sealed. A reasonable person could conclud that the gun did not load it's self, and therefore it was unloaded.

    I've practiced preserving my rights to the best of my ability. How should I have acted differently?

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    Regular Member Lawful Aim's Avatar
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    Yes, your rights were violated. You expressed non-consent and they moved forward anyway and while they were armed for that matter. They are criminally liable and civilly liable in their full commercial capacity. Damages may be sought from them individually, from the agency they serve and against their bond which is held by the agency's Risk Management department.
    Restraining orders may be filed against each officer involved and you can bet on what will happen to their employment once the restraining order is signed. Complaints may also be made to internal affairs. Even if no satisfactory results came from the investigation it will still create a black mark on their record towards advancement or other employment prospects.
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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Quote Originally Posted by Thejoyofdriving View Post
    I am familiar with that law. However, i think this case has special merit. The weapon was inspected by a federal employee, and sealed. Furthermore, the bag it's self was sealed. A reasonable person could conclud that the gun did not load it's self, and therefore it was unloaded.

    I've practiced preserving my rights to the best of my ability. How should I have acted differently?
    Your scenario is very similar to People v. DeLong. In that case the officers unlocked a trunk to inspect a rifle and the courts ruled that it was allowed under 12031. Now maybe those officers that hassled you didn't know about DeLong, but you can be reasonably sure their lawyer will, and I'm guessing the court will likely see little difference between the two cases.

    How should you have acted differently? Don't talk to police officers. You knew right off that you were going to be hassled by a hostile officer. He wasn't having a friendly chat about what kind of holster you were wearing. You knew about 12031(e). So don't talk to them. Or if you decide to talk to them, feel free, but do not ever inform anybody that you have a firearm in a bag. But after you had talked to them and they informed you that you were not detained you should have gotten the hell out of Dodge. Don't sit around and wait for them to figure something out or to get brazen. Leave.

    The only thing you have going for you in this case is that the officers didn't perform the 12031(e) check. They nearly did, but they didn't. Maybe that's a big enough difference to make a court feel that the officers were violating your rights, but I suspect that since they were allowed to be searching through your bag under 12031(e) that they can decide to stop and do something else instead of finishing their search.

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    Quote Originally Posted by bigtoe416 View Post
    Your scenario is very similar to People v. DeLong. In that case the officers unlocked a trunk to inspect a rifle and the courts ruled that it was allowed under 12031. Now maybe those officers that hassled you didn't know about DeLong, but you can be reasonably sure their lawyer will, and I'm guessing the court will likely see little difference between the two cases.

    How should you have acted differently? Don't talk to police officers. You knew right off that you were going to be hassled by a hostile officer. He wasn't having a friendly chat about what kind of holster you were wearing. You knew about 12031(e). So don't talk to them. Or if you decide to talk to them, feel free, but do not ever inform anybody that you have a firearm in a bag. But after you had talked to them and they informed you that you were not detained you should have gotten the hell out of Dodge. Don't sit around and wait for them to figure something out or to get brazen. Leave.

    The only thing you have going for you in this case is that the officers didn't perform the 12031(e) check. They nearly did, but they didn't. Maybe that's a big enough difference to make a court feel that the officers were violating your rights, but I suspect that since they were allowed to be searching through your bag under 12031(e) that they can decide to stop and do something else instead of finishing their search.
    I admitted my mistake, I should have not informed them of the firearm. I thought about leaving, but I asked myself "where would I go?" i have never been to the area, I didn't even know how to leave the airport. Furthermore, they would have likely just followed me around. it's easy to judge what I could have and should have done from the arm chair but you have to try and put yourself in my shoes

    Like I said before think my case is different since I already had a federal employee preforme a E check, and he sealed the gun and bag afterwards. The officers were aware of that. Preforming another E check, after one was already preformed, and cutting a zipetie to get into the bag without consent is where the case is IMO. Additionally, they never went into the bag with the intention of doing an E check. They went in to make sure it was there, as they stated, which is beyond their authority considering the circumstances isn't it?
    Last edited by Thejoyofdriving; 09-14-2011 at 07:19 PM.

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    Regular Member mjones's Avatar
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    As already mentioned...yes, your rights were violated.

    Do you have a civil rights case - maybe, but I doubt it due to DeLong. Had you never 'admitted' to having a firearm, you would have a much stronger case.
    Last edited by mjones; 09-14-2011 at 07:48 PM.

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    Quote Originally Posted by mjones View Post
    As already mentioned...yes, your rights were violated.

    Do you have a civil rights case - maybe, but I doubt it due to DeLong. Had you never 'admitted' to having a firearm, you would have a much stronger case.
    Yeah, I know. I really wish I didn't let that slip out.

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    Regular Member Gundude's Avatar
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    Two magic sentences.....
    "I decline to answer any questions without legal advice."
    "I do not consent to a search of my possesions or my person."
    Close pie hole.
    Last edited by Gundude; 09-14-2011 at 08:36 PM.
    A citizen may not be required to offer a ―good and substantial reason-- why he should be permitted to exercise his rights. The rightĎs existence is all the reason he needs.

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    Regular Member 1245A Defender's Avatar
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    well,,

    admitting that their is a gun, was mistake #1.
    telling them "you would not obstruct a search, that you dont consent too", was mistake #2.
    not leaving when you were told you were not detained, was mistake #3.

    You did very well under some very trying circumstances!
    I dont think you will repeat them again. Their will be other mistakes you/we could make in the future!

    I think the defense in any 4th A suit will argue, successfully, that you phrase, "I will not obstruct",
    Is equal to giving implied consent to the search, IE, that you waived your 4th A right..
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

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    Quote Originally Posted by 1245A Defender View Post
    admitting that their is a gun, was mistake #1.
    telling them "you would not obstruct a search, that you dont consent too", was mistake #2.
    not leaving when you were told you were not detained, was mistake #3.

    You did very well under some very trying circumstances!
    I dont think you will repeat them again. Their will be other mistakes you/we could make in the future!

    I think the defense in any 4th A suit will argue, successfully, that you phrase, "I will not obstruct",
    Is equal to giving implied consent to the search, IE, that you waived your 4th A right..
    Yes, I very much regret telling them I had a firearm. Like I said before, I had no where to go, I was in a place I have never been to and I was waiting for a ride to meet me there, so I don't really think it was a mistake. If it was in a familiar area or if I had a car I would have been out of there in the blink of an eye. I said at least 4 times that I do not consent to searches. The I will not obstruct means I will not punch you or take physical action that could be take as assult or something. It is very clear I did not consent in the recording. I don't think anyone could argue other wise IMO !

    I'm still new to "using my rights" and standing up to LEOs. So I will make more mistakes I'm sure, but every encounter I become more confident and make less mistakes.
    Last edited by Thejoyofdriving; 09-15-2011 at 02:05 AM.

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    Regular Member 1245A Defender's Avatar
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    well,,,

    Upon further review,,,
    Ive got to give you a break, for not leaving when you were not detained.

    Same happened to my friend, confronted my many cops in a crowded starbucks, was told he was being not detained,
    but he was in a safe place, with witnesses and probable video taping!
    In that case, as in yours, maybe safest to just stay where you were planning to be anyways.
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    ďIf ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.Ē

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

  17. #17
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Thejoyofdriving View Post
    ....


    I'm still new to "using my rights" and standing up to LEOs. So I will make more mistakes I'm sure, but every encounter I become more confident and make less mistakes.
    Don't apologize. Even those who have experience standing up for our/their rights do not do so perfectly. The point is to stand up for those rights, and as you gain experience you stop making some of the more blatant mistakes and maybe get better at avoiding some the nuanced traps and pitfalls that are always involved in dealing with authority figures.

    The matter of the one attorney you contacted wanting $100 for a consultation does not mean that all attorneys will charge that much, or will charge a fee at all. You are probably not going to get a full 50-minute "hour" with an attorney for no fee, but all you need is about 15 minutes for him to tell you that you do have a case in law (a phrase meaning. Yes, your rights were violated) and how much he will charge to do the paperwork to file petitions asking for money to compensate for said violations. Work the Yellow Pages or call the State Bar referral number (a toll free number usually listed at the beginning of the LAWYERS section of the Yellow Pages). Most times a Bar Assn. referral gets you 15 free minutes.

    A hint: next time you are old you are free to go but cannot put miles between where you were and where you are now that you have left, walk away anyhow. If the cop(s) start following you, loudly say "That man is not my daddy. He's following me." No snarky, sarcastic tone of voice. If folks who observe want to think you are intellectually challenged, so much the better they think the cops are trying to molest a handicapped person. If folks think you are somewhat short of a full load of bricks, as long as they see you are not trying to hurt anyone or a danger toyourself they will have no sympathy for the cop(s).

    If you do not want to play games with them, then just move on down the way a few hundred feet and then rest. If they follow you, move back the other way. You get exercise, they get exercise. You also stay in te general area where your ride can find you.

    stay safe.
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    Quote Originally Posted by skidmark View Post
    Don't apologize. Even those who have experience standing up for our/their rights do not do so perfectly. The point is to stand up for those rights, and as you gain experience you stop making some of the more blatant mistakes and maybe get better at avoiding some the nuanced traps and pitfalls that are always involved in dealing with authority figures.

    The matter of the one attorney you contacted wanting $100 for a consultation does not mean that all attorneys will charge that much, or will charge a fee at all. You are probably not going to get a full 50-minute "hour" with an attorney for no fee, but all you need is about 15 minutes for him to tell you that you do have a case in law (a phrase meaning. Yes, your rights were violated) and how much he will charge to do the paperwork to file petitions asking for money to compensate for said violations. Work the Yellow Pages or call the State Bar referral number (a toll free number usually listed at the beginning of the LAWYERS section of the Yellow Pages). Most times a Bar Assn. referral gets you 15 free minutes.

    A hint: next time you are old you are free to go but cannot put miles between where you were and where you are now that you have left, walk away anyhow. If the cop(s) start following you, loudly say "That man is not my daddy. He's following me." No snarky, sarcastic tone of voice. If folks who observe want to think you are intellectually challenged, so much the better they think the cops are trying to molest a handicapped person. If folks think you are somewhat short of a full load of bricks, as long as they see you are not trying to hurt anyone or a danger toyourself they will have no sympathy for the cop(s).

    If you do not want to play games with them, then just move on down the way a few hundred feet and then rest. If they follow you, move back the other way. You get exercise, they get exercise. You also stay in te general area where your ride can find you.

    stay safe.
    Thanks for the valuable advice! I actually found some attorneys who specialize in taking cases on contingency. That way, no money out of my pocket and he will likely work more diligently! I also thought about walking around as well, but my ride was some family members who already aren't a big fan of the open carry thing. I didn't want to show up at the car with 8 LEOs in tow!!

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    So, I took the first step. I filed a report with IA. I was shocked, when I was talking to the investigator she said "you said something about a right to carry? You don't have a CCW, what allows you to carry?" I just sort of paused in amazement, and said ".....the second amendment?". Its amazing how many people know about the bill of rights but they think of it as just a pretty piece of paper and nothing more! Just the other day I had a lady go "so its legal to walk around with a gun like that?" the worst one was "oh, so thats legal now huh?" it amazes me every time!
    Last edited by Thejoyofdriving; 09-15-2011 at 04:56 PM.

  20. #20
    Regular Member Firemark's Avatar
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    Yea so with the way you described this scenario you sort of set yourself up to be harrassed. Airport lobby with a bag and a visble holster with no weapon in it is most definitley going to draw hoplophobic security and LE.

    The problem you face is they assume you are a criminal and no talking/convincing otherwise is going to make them think different. You have a holster on which means you MUST have a gun, which means you MUST be up to criminal activity or terrorist intent. The amount of time allowed before somone approached you was them planning how to deal with you in case things went sour real fast, and to them refusing a search or voicing your rights is going sour.

    Yea I know its BS but these are the fearful and illogical times we live in. So regardless of what you said or did, they were going to locate the weapon and run you for prior history, and finding none they would look for something to pin to you.

    LE will makeup what ever story they wish to get you to comply, "federal property" is a verbal judo technique of using something that is difficult to refute because it sounds official but cant be disproved easily. LE pulled that out of his A** to manipulate you to stop arguing and comply. I suggest if you continue to OC do as much research as possible into Verbal Judo techniques to help you deal with this interaction. Also knowing your court cases and penal codes verbatim is also very helpful.

    I dont think you will win the probale cause argument because you put the holster on and that is an indication you have a firearm somewhere in you possession. In court the Judge will probably not let you get away with it. Its almost the same as If a LE noticed a print of a handgun on your belt line when you bend over to pick up your bag. Since we are dealing with "gun" most LE figure you are criminal first and only law abiding citizen when you act submissive and show your papers. You were arguing and standing up for your rights from the get go, criminals that try to avoid LE contact do the same thing.

    In all likelyhood you might have faired better if you were OC'ing with the weapon in plain view and unloaded, now you fall under the realm of PC 12025,12026 and 12031. All they could legally do would be to check loaded status and then they are done, anything else would have been a clear violation of your rights... Having it unseen, which is technically concealed, is what sent this interaction the way that it did.

    You could have thrown U.S. v King at them "A firearm alone does not create a reasonable suspicion of criminal activity." However you possibly having a concealed weapon without immediately producing a ccw is what probably set off the LE to continue the detainment and search. Good point though is if you think the situation is going more bad than good, and you ask "Am I under arrest?" and the answer is no, then follow up with "am I being detained?" and they answer no, Immediately leave, even if your in a strange place, get into a cab and drive away. By staying you are with your actions making the encounter consensual and they can and will continue to poke and prod for info and make every attempt to get you to give them probable cause.

    Sounds like you got off with out to much trouble, be sure next time you have 100% recording high quality capability when carrying in public, reading the transcript is great but hearing the tone and voice inflection and attitude would serve you better in the court, and the court of public opinion.
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    Quote Originally Posted by Firemark View Post
    Yea so with the way you described this scenario you sort of set yourself up to be harrassed. Airport lobby with a bag and a visble holster with no weapon in it is most definitley going to draw hoplophobic security and LE.

    The problem you face is they assume you are a criminal and no talking/convincing otherwise is going to make them think different. You have a holster on which means you MUST have a gun, which means you MUST be up to criminal activity or terrorist intent. The amount of time allowed before somone approached you was them planning how to deal with you in case things went sour real fast, and to them refusing a search or voicing your rights is going sour.

    Yea I know its BS but these are the fearful and illogical times we live in. So regardless of what you said or did, they were going to locate the weapon and run you for prior history, and finding none they would look for something to pin to you.

    LE will makeup what ever story they wish to get you to comply, "federal property" is a verbal judo technique of using something that is difficult to refute because it sounds official but cant be disproved easily. LE pulled that out of his A** to manipulate you to stop arguing and comply. I suggest if you continue to OC do as much research as possible into Verbal Judo techniques to help you deal with this interaction. Also knowing your court cases and penal codes verbatim is also very helpful.

    I dont think you will win the probale cause argument because you put the holster on and that is an indication you have a firearm somewhere in you possession. In court the Judge will probably not let you get away with it. Its almost the same as If a LE noticed a print of a handgun on your belt line when you bend over to pick up your bag. Since we are dealing with "gun" most LE figure you are criminal first and only law abiding citizen when you act submissive and show your papers. You were arguing and standing up for your rights from the get go, criminals that try to avoid LE contact do the same thing.

    In all likelyhood you might have faired better if you were OC'ing with the weapon in plain view and unloaded, now you fall under the realm of PC 12025,12026 and 12031. All they could legally do would be to check loaded status and then they are done, anything else would have been a clear violation of your rights... Having it unseen, which is technically concealed, is what sent this interaction the way that it did.

    You could have thrown U.S. v King at them "A firearm alone does not create a reasonable suspicion of criminal activity." However you possibly having a concealed weapon without immediately producing a ccw is what probably set off the LE to continue the detainment and search. Good point though is if you think the situation is going more bad than good, and you ask "Am I under arrest?" and the answer is no, then follow up with "am I being detained?" and they answer no, Immediately leave, even if your in a strange place, get into a cab and drive away. By staying you are with your actions making the encounter consensual and they can and will continue to poke and prod for info and make every attempt to get you to give them probable cause.

    Sounds like you got off with out to much trouble, be sure next time you have 100% recording high quality capability when carrying in public, reading the transcript is great but hearing the tone and voice inflection and attitude would serve you better in the court, and the court of public opinion.
    I certainly was not in the airport lobby. I was in a food court outside of the airport building, as i said. If they were worried about a concealed weapon on my person they could have just done a terry pat. The bag was sealed by a federal employee, there was no way it could have left the bag, searching it was pointless.

  22. #22
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    You responded very well under the circumstances and yes, it does take experience to reduce the amount of times one looks back and says to themselves, "I should've".

    Again, you expressed non-consent to the search and by expressing that you will not obstruct or by remaining in the area does not invalidate your non-consent. The agents acted under "color of law" with coercive authority while armed. You invoked the protections under the 4th Amendment to which they have no leg to stand on period.

    Here is an excerpt from a class/lecture given at the Federal Law Enforcement Training Center regarding the 4th Amendment and consent;

    Solari: ... Lawful consent has to meet three requirements. First, it has to be voluntarily - a product of free will. Second, the consent has to be given by someone with either actual or apparent authority over that place to be searched. Third the officers must confine their search to the place authorized.


    Miller: How do courts determine whether consents is voluntary?


    Solari: By the totality of the circumstances. The courts appear to find consent voluntary so long as itís not the product of expressed or implied coercion. For instance, the courts consider the suspectís age, intelligence, the number of officers who are present, the tone of voice they used, whether the suspect was in custody and given Miranda rights, and the suspectís experience in the criminal justice system. No single one of those factors is determinative. The courts are going to consider all of them. Officers donít have to tell people that they have the right to refuse a search, but of course if they do, thatís going to weigh heavily in favor of finding that the consent is voluntarily.


    Miller: Well letís get back to our resident at 123 Main Street. Letís assume these facts. Weíve identified the occupant as the owner of the car in the parking lot. I ask the occupant, ďCan we search your car?Ē I explain, ďYou have a right to refuse; however, if you donít let us search the car, Iím going to apply for a warrant.Ē He then said ďokay.Ē I spoke in a conversation tone of voice; however, this guy is in handcuffs at the time Iím having this conversation with him. Do you think that would be a voluntary consent?


    Solari: I think it would be. What would weigh against a determination that the consent is voluntary is the fact that youíve taken him into custody, heís under arrest, and in handcuffs at the time youíre having that conversation; but; that doesnít necessarily mean you canít obtain a voluntary consent to search the car.

    The things that definitely weigh in favor of it being voluntary Ė first, you told him where you wanted to search. You actually told him, even though you didnít have to, that he had a right to refuse to give you consent to search. You also told him that if you donít let us search the car, ďIím going to apply for a warrant.Ē Now that verbiage is pretty important. You simply told him the facts - youíre going to go apply for a warrant if he failed to consent. Importantly, what you canít do is to tell him that if you donít consent, Iím going to get a warrant or somehow pretend that you have a warrant that you donít already have. But all you told him was that you were going to go ask for one. So I think that would be voluntary consent.
    ... ... ...
    Miller: After the consenter authorizes the search, can he withdraw?

    Solari: Absolutely. You bet. However, the courts generally require that withdraw of consent be unequivocal. By that, I mean, the consenter has to then make it perfectly clear to the officer that he no longer consents to the search and wants the officer to stop.


    http://www.fletc.gov/training/progra...o-search.html/
    The world is a dangerous place. Not because of the people who are evil; but because of the people who don't do anything about it. -Albert Einstein
    Liberty that was diminished in increments has never been restored by the same. -Lawful Aim
    One who compromises in steps toward freedom will always be compromising. -Lawful Aim
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  23. #23
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    Fantastic information! Thank you!

  24. #24
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    Quote Originally Posted by bigtoe416 View Post
    Your scenario is very similar to People v. DeLong. In that case the officers unlocked a trunk to inspect a rifle and the courts ruled that it was allowed under 12031. Now maybe those officers that hassled you didn't know about DeLong, but you can be reasonably sure their lawyer will, and I'm guessing the court will likely see little difference between the two cases.

    How should you have acted differently? Don't talk to police officers. You knew right off that you were going to be hassled by a hostile officer. He wasn't having a friendly chat about what kind of holster you were wearing. You knew about 12031(e). So don't talk to them. Or if you decide to talk to them, feel free, but do not ever inform anybody that you have a firearm in a bag. But after you had talked to them and they informed you that you were not detained you should have gotten the hell out of Dodge. Don't sit around and wait for them to figure something out or to get brazen. Leave.

    The only thing you have going for you in this case is that the officers didn't perform the 12031(e) check. They nearly did, but they didn't. Maybe that's a big enough difference to make a court feel that the officers were violating your rights, but I suspect that since they were allowed to be searching through your bag under 12031(e) that they can decide to stop and do something else instead of finishing their search.
    Hello JoyofDriving,

    IMHO, Bigtoe has some good advice here.

    I find it difficult to not answer questions when a person under color of authority asks me questions. When I feel the urge to answer, I answer their question with a question. LEO is trained to entrap you with leading questions--questions that are designed to get one outcome for the police officer: Your admision of guilt! Barring LEOs success at getting an admission of guilt, they will ask for consent to detain you and to search your belongings.

    Once the police officer starts answering your questions, he is on defense. He must justify his actions. You become the interogator.

    Gundude at 5:35 pm has it right. However, if you have trouble keeping your pie-hole shut, ask the officer to quote you PC sections that he is unlawfully detaining under. Ask him if he has RAS. Keep repeating the question: Am I free to leave? If no answer ensues, the cops are fishing and you must slowly get up and slowly walk away.

    Furthermore, the cops tailed you to your pick-up car. They got the license plate number and ran that plate for wants and warrants. You should have left in a cab.

    markm

  25. #25
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    you should have been open carrying - legal in California ariports.

    There is no reason that the gun must be registrered to you in California - you might be a visitor, new resident, or possess a gun imported or received prior to registration by sale requirement.

    Further, as the gun might be borrowed, the police have no reason to check serial numbers anyway.

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