Case Law needed.

bigtoe416 said:

According to the wording of the law, 12031(e) isn't a detention, it is an inspection. There are cases which discuss the length of a detention and when it becomes a de facto arrest though. The supreme court has never established anything below a detention, so California has been treading on thin ice with their "inspection" language for decades. If you are not free to leave or a reasonable person would conclude that you are not free to leave, then you are detained.

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We hold that the examination permitted by Penal Code section 171e and section 12031, subdivision (c) is constitutional and does not violate the Fourth Amendment. In the first place, the examination of the weapon [11 Cal. App. 3d 792] may hardly be deemed to be a search at all. The chamber of a gun is not the proper or usual receptacle for anything but a bullet or a shell. The loading of a gun simply affects the condition of the weapon by making it immediately useful for firing. The ammunition becomes, as it were, part of the gun. There is nothing private or special or secret about a bullet. The use of the word "examine" in the statutes instead of the word "search" is not at all a devious one. In examining the weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself.

But if the examination may be called a search, it is not an unreasonable one; and only unreasonable searches are forbidden by the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) It is, as we have said, limited to a single purpose. It does not have about it any except the slightest element of embarrassment or annoyance, elements overbalanced by far by the purpose of preventing violence or threats of violence. The minimal intrusion does not begin to approach the indignity of the frisk, as graphically described in Terry v. Ohio, supra, at p. 17, fn. 13 [20 L.Ed.2d at p. 903]. It is true that the frisk, as sustained in the Terry case, requires as justification something different than mere possession of a firearm in a proscribed place, but it requires a good deal less than cause for arrest...

...Bearing in mind that a state is free, as Chief Justice Warren put it, "to develop its own law of search and seizure to meet the needs of local law enforcement," provided, of course, that the Fourth Amendment standard of reasonableness be not offended (Sibron v. New York, 392 U.S. 40, 60-61 [20 L.Ed.2d 917, 933-934, 88 S.Ct. 1889]), we hold that the mere examination of a weapon which is brought into a place where it is [11 Cal. App. 3d 793] forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional.

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ConditionThree said:

3) Police need probable cause (not just reasonable suspicion) to seize items in plain view. (Arizona v Hicks) While 12031 creates probable cause for an examination, peace officers must have a seperate probable cause to search the serial number to determine whether a firearm was stolen or used in a crime. This is a distinct and different purpose than a loaded inspection.

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Except where there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.

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An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. People are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalk; nor are they shorn of those interests when they step from the sidewalks into their automobiles.

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bigtoe416 said:

How does 12031 create probable cause?

And on an entirely different note...

If one reads Delaware v. Prouse, one can get an idea how the Supreme Court will rule on 12031. In Prouse an individual was pulled over without having committed a traffic infraction. A police officer spotted cannabis in the car, and arrested Prouse. The Supreme Court ruled that the initial stop was unconstitutional:

Then later, still in the holdings:

This is a somewhat similar situation to an individual carrying a firearm. Driving a car requires being licensed, but the police cannot stop selectively stop people at their discretion. Similarly, carrying a loaded weapon in CA requires an individual to meet one of the various exceptions. Is it a stretch of the imagination that the Supreme Court would classify these two activities in a similar manner, especially given that there is explicit protection of bearing arms in the constitution? There's little doubt in my mind that the conclusions drawn in Prouse will be applied when somebody gets around to challenging 12031.

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ConditionThree said:

The fulcrum on which 12031 lives or dies is not in the constitutionality of loaded check authorized by statute (ie; a forth amendment intrusion), but on whether or not Californians have the right to carry a loaded weapon outside our home. "Bear" will be fully fleshed out before we see an end to 12031. This is why those who have sought support for a premature ($5,000) lawsuit would certainly fail.

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