imported post
lovenme wrote:
Well, I have read most of the postings and even the ones that have had what they refer to as good contacts have been in some way saying that the LEO did not have any right to search the firearm at all. Section 13031(A) states that the gun can be examined to see if it is unloaded. Instead, nobody that I have seen was sayingLEO did thier job, just stated they should have never have been stopped. This day and age I dont see how anyone could say they should have never been stopped. Tell your OC people to stop putting up stuff like that and I will support what you are doing.
OK, let me step in before I go to bed to correct you.
Police have the AUTHORITY but not the OBLIGATION to conduct a 12031 check. What they CANNOT DO is take the gun to their car and run a serial number check. IF they happen to MEMORIZE the serial number during the perfunctory unloaded check and then run it AFTER handing the weapon back to the owner then that is OK.
Here is a letter I wrote to the local PD on that.
Arizona v. Hicks, 480 U.S. 321 (1987). In
Hicks, an officer entered an apartment under exigent circumstances to try to find and stop a person who was firing gunshots from inside the apartment. Once inside, the officer saw very expensive stereo equipment in what was otherwise a squalid apartment.[highlight= rgb(255, 255, 255);]
[/highlight]Suspecting that the equipment was stolen, [highlight= rgb(153, 153, 255);]the officer picked up the equipment to see the serial numbers so he could run the numbers for hits with known stolen property.[/highlight] In an opinion by Justice Scalia, the Court held that moving the equipment to reveal the serial numbers was a search:
It matters not that the search uncovered nothing of any great personal value to respondent - serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
Now, I have highlighted two very important statements, both of which are relevant do the discussions that you and I have had today.
1) Just because something is "unusual" does not give the police a right to conduct a warrantless search of the
person, their house, their papers or effects (altered 4th Amendment). As Scalia said in her opinon, "a search is a search."
To better define the term "search", one need look no further than the dictionary.
To look at or examine (a person, object, etc.) carefully in order to find something concealed
2) Notice that the officer physically lifted and removed equipment to gather evidence, all without a search warrant, so that the equipment could be checked in their database. Again, just because the evidence is not visible or is "unusually" obstructed does not mean that removal of said obstruction is justified.
Now, to look at
Terry vs. Ohio
While the 12031 check gives CA peace officers the power but not the obligation to conduct a 12031(e) check on people carrying a firearm, the scope of the (questionably illegal) "search" is to check if the weapon is unloaded or not. If the weapon is LOADED, then an arrest and thereby a further search can be conducted, since clear and articulable suspicion can be provided. However, if unloaded, the individual must be released to go about his business. The tape over the serial number is not a crime and the mere "hunch" that the person bearing the weapon may be a criminal or have a stolen weapon is not relevant.
Simple “‘good faith on the part of the arresting officer is not enough.’ ... If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” - Beck v. Ohio
Now, you might be wondering... is the bearing of arms a crime? NOPE! There is also no "gun exclusion" to Terry, meaning that just because a gun is present does not mean that a crime has been or is going to be committed. See
Florida v. J.L..
Putting everything together, one can see that carrying a gun is not an indication that a crime has been committed and that it would be a 4th amendment violation to remove tape or accessories from a firearm to uncover and run a serial number.
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There you have it.