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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 11-09-2010, 4:31 PM
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Default Cop recognizes gun case - do you have to open it?

You have a very obvious gun case (Pelican, Gunvault, Glock bag). If a cop sees it and can tell it is indeed a gun case can he/she make you open it? I would think that resistance in this scenario would result in a arrest. Also I believe that if the appearance of a case was obvious then you are obligated to open it or else you could be interfering with investigations. Maybe we should just use backpacks then huh?
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Old 11-09-2010, 4:37 PM
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Quote:
Originally Posted by xxsleepyxx View Post
You have a very obvious gun case (Pelican, Gunvault, Glock bag). If a cop sees it and can tell it is indeed a gun case can he/she make you open it? I would think that resistance in this scenario would result in a arrest. Also I believe that if the appearance of a case was obvious then you are obligated to open it or else you could be interfering with investigations. Maybe we should just use backpacks then huh?
There have been many discussions (arguments) on this subject recently.

For all who say you are not required to show anything without a search warrant, there are just as many it seems, who say you should comply.

My only advice is no matter what you are driving, transport them legally-and, cover up the guns with a tarp, or blanket, or something, so that they are not in "plain view". Whether in a case or not.

This is what I do, no matter if I am only going around the corner with any guns in my vehicle.
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Old 11-09-2010, 4:39 PM
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I don't have it on hand, but I recall there's some case law that says just cuz it's a gun case doesn't mean there's a gun in it ==> therefore no search because of that alone.
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Old 11-09-2010, 4:41 PM
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Tell that to King Palm - Who uses Pelican cases as his travel luggage - Emblazoned with arms related stickers -
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Old 11-09-2010, 4:44 PM
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Originally Posted by bwiese View Post
I don't have it on hand, but I recall there's some case law that says just cuz it's a gun case doesn't mean there's a gun in it ==> therefore no search because of that alone.
Exactly... so what if I carry my sandwich and pudding to work in an HK branded case... it was a 2$ lunchbox since it's worthless for protecting a gun.

If you have a metal box that has "Anthrax" written on the side, are you a terrorist? or just a fan of a great band?
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Old 11-09-2010, 4:52 PM
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http://www.youtube.com/watch?v=i8z7NC5sgik


Repeat after me.

I do not consent to any searches of my person or property. I choose to remain silent. Am I free to go?


If an officer requests that you exit the vehicle, roll up your windows and lock your car first. Then you can exit and proceed to silently/peacefully tell the officer to pound sand.


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Old 11-09-2010, 5:06 PM
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Originally Posted by Munk View Post
Exactly... so what if I carry my sandwich and pudding to work in an HK branded case... it was a 2$ lunchbox since it's worthless for protecting a gun.

If you have a metal box that has "Anthrax" written on the side, are you a terrorist? or just a fan of a great band?
How about a Black Flag sticker?
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Old 11-09-2010, 5:44 PM
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See U.S. v Gust, 405 F.3d 797(2005).

Long story short, the presence of a gun-type case isn't enough to give PC or RS to believe you have a gun in the vehicle under the "single purpose container" exception for warrantless searches.

However, there is language in the opinion that disturbs me which is outside the scope of this particular topic.
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Old 11-09-2010, 5:52 PM
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Whether as protection from cops or criminals, I avoid gun branded gear in public...or private for that matter. No good can come from publicly proclaiming your love of Glock...at least not unless you're Glock Inc.

Plus...my generic gate mouth tool bag from Lowe's Depot is more awesome than any gun related bag I've ever put my paws on.
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Old 11-09-2010, 6:19 PM
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I love how people say, you roll up the window, then get out and lock the door before you close it. The LEO is going to ask you to get out and HOLD the door. If you attempt to close it you will hit him and that will earn an assault / resisting charge. When you try and tell the DA you were trying to close the door to stop an unwarranted search..they are going to laugh at you...you are assuming the LEO was going to do something illegal so you struck him with the door? LOL The door will not be closed, and your assault allows the car to be "inventoried". I saw a PD officer train another Officer to hold the door by the window frame, and while the subject exits the car slide your arm behind them and in between the door and the subject in order to "guide" the subject away from the car. If the officer is using this technique and you try to close the door, you will be striking the officer's arm with the door and it will not close.

I was pulled over with a Bushmaster bag. I used the bag to carry tools and junk for work. I allowed a search of the bag. The Officer let me go even though he found a questionable item inside. (switchblade that I didn't know was in there).
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Old 11-09-2010, 6:29 PM
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how is a switchblade questionable?
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  #12  
Old 11-09-2010, 6:29 PM
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Quote:
Originally Posted by xxsleepyxx View Post
You have a very obvious gun case (Pelican, Gunvault, Glock bag). If a cop sees it and can tell it is indeed a gun case can he/she make you open it? I would think that resistance in this scenario would result in a arrest. Also I believe that if the appearance of a case was obvious then you are obligated to open it or else you could be interfering with investigations. Maybe we should just use backpacks then huh?
This is a very good hypothetical question.
It makes me sometime want to try it out by having a soft rifle case in the backseat of my car, and have it be filled with stinky laundry or something

That way, if I refuse a search of the case by a cop, and he does it anyway, then I can file a wrongful search AND he has touched my unmentionables and fouled socks that have been God knows where, haha!
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  #13  
Old 11-09-2010, 6:38 PM
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Quote:
Originally Posted by dieselpower View Post
I love how people say, you roll up the window, then get out and lock the door before you close it. The LEO is going to ask you to get out and HOLD the door. If you attempt to close it you will hit him and that will earn an assault / resisting charge. When you try and tell the DA you were trying to close the door to stop an unwarranted search..they are going to laugh at you...you are assuming the LEO was going to do something illegal so you struck him with the door? LOL The door will not be closed, and your assault allows the car to be "inventoried". I saw a PD officer train another Officer to hold the door by the window frame, and while the subject exits the car slide your arm behind them and in between the door and the subject in order to "guide" the subject away from the car. If the officer is using this technique and you try to close the door, you will be striking the officer's arm with the door and it will not close.

I was pulled over with a Bushmaster bag. I used the bag to carry tools and junk for work. I allowed a search of the bag. The Officer let me go even though he found a questionable item inside. (switchblade that I didn't know was in there).

Exit the vehicle from the passenger door...
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Old 11-09-2010, 6:43 PM
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Originally Posted by Cali-Shooter View Post
This is a very good hypothetical question.
It makes me sometime want to try it out by having a soft rifle case in the backseat of my car, and have it be filled with stinky laundry or something

That way, if I refuse a search of the case by a cop, and he does it anyway, then I can file a wrongful search AND he has touched my unmentionables and fouled socks that have been God knows where, haha!
You can always file a complaint with his superiors.
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Old 11-09-2010, 7:13 PM
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Quote:
Originally Posted by Cali-Shooter View Post
This is a very good hypothetical question.
It makes me sometime want to try it out by having a soft rifle case in the backseat of my car, and have it be filled with stinky laundry or something

That way, if I refuse a search of the case by a cop, and he does it anyway, then I can file a wrongful search AND he has touched my unmentionables and fouled socks that have been God knows where, haha!
If you have young kids, Glock branded diaper bag.
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Old 11-09-2010, 7:20 PM
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if its in the open (not in your trunk or under a cover) make it legal. no broken laws no problema.
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Old 11-09-2010, 7:28 PM
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From what I gather reading many threads before. If the case looks anything like a guncase then he/she (LEO) has a right to check to see if it is indeed unloaded. To do this you (the gun owner) has to open it. If you refuse he/she may arrest you. If you comply he might let you go (IDEAL OUTCOME) or he might screw you (POSSIBLE OUTCOME). This is why there are 2 ways to go. Take the red pill or the blue pill? Anyone have any text or laws on which way to go in this scenario?
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Old 11-09-2010, 7:45 PM
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It all depends on whether or not that LEO was in a good mood or a bad mood. Travel legal, comply and forget about it.
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Old 11-09-2010, 8:34 PM
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The "look" of a gun case gives LE the "right" to check for loaded weapons
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Old 11-09-2010, 8:35 PM
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I have a lot of Beretta branded crap in the back of the Jeep (sporting clays usually requires a couple of bags, one for boxes and one for loose shells).

What qualifies as a "gun case" ?
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Old 11-09-2010, 8:46 PM
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Quote:
Originally Posted by xxsleepyxx View Post
From what I gather reading many threads before. If the case looks anything like a guncase then he/she (LEO) has a right to check to see if it is indeed unloaded. To do this you (the gun owner) has to open it. If you refuse he/she may arrest you. If you comply he might let you go (IDEAL OUTCOME) or he might screw you (POSSIBLE OUTCOME). This is why there are 2 ways to go. Take the red pill or the blue pill? Anyone have any text or laws on which way to go in this scenario?
so if you refuse, and you get arrested, because you refuse to open it, and it turns out you had dirty laundry inside?

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Old 11-09-2010, 9:16 PM
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It amazes me how many "pro rights" people are so willing to give theirs up.
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Old 11-09-2010, 9:25 PM
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Quote:
Originally Posted by xxsleepyxx View Post
From what I gather reading many threads before. If the case looks anything like a guncase then he/she (LEO) has a right to check to see if it is indeed unloaded. To do this you (the gun owner) has to open it. If you refuse he/she may arrest you. If you comply he might let you go (IDEAL OUTCOME) or he might screw you (POSSIBLE OUTCOME). This is why there are 2 ways to go. Take the red pill or the blue pill? Anyone have any text or laws on which way to go in this scenario?
You are wrong.

A LEO has NO RIGHT to check any case, bag, box, or container unless you state or admit it contains a firearm. Only firearms can be checked to ensure proper storage and safe condition. There is no such thing as a "loaded" case, bag, box, or container... only firearms.

Just because there is a firearm related case, box, bag, or container DOES NOT mean there is a firearm present. And a firearm is the only thing a LEO can perform such a check on.
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Old 11-09-2010, 9:43 PM
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I see absolutely no harm that could ever be done by saying "I do not consent to a search and I'm invoking my right to remain silent." If they want to open it, they're going to. As we've seen time and time again from case after case that gets disseminated here on the forums, I dare to say the police have never said, "Oh, you mean it would be unconstitutional for me to go ahead and search you? OK. Sorry about that. I'll let you go then."

But we have seen that when a person stands up for their rights and does not consent to a search, it can mean everything for them in court. If the police didn't have consent and they were later proven to have needed it, but searched anyways, then the police are the ones in hot water, not you. However if you give them consent, there is no issue as to whether they needed it or not.

Make the police do their job. That is not anti-law enforcement, that is not being a jerk, that is not wrong in any way, shape or form. It is simply the law and the reason why we have a constitution.
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Old 11-09-2010, 9:47 PM
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Quote:
Originally Posted by xxsleepyxx View Post
From what I gather reading many threads before. If the case looks anything like a guncase then he/she (LEO) has a right to check to see if it is indeed unloaded. To do this you (the gun owner) has to open it. If you refuse he/she may arrest you. If you comply he might let you go (IDEAL OUTCOME) or he might screw you (POSSIBLE OUTCOME). This is why there are 2 ways to go. Take the red pill or the blue pill? Anyone have any text or laws on which way to go in this scenario?
Check out Arkansas V. Sanders. It's a 1979 U.S. Supreme Court that created th "Single Purpose Container" rule. As applied to guns, the logic goes like this - A gun case is meant to hold guns, therefore if a LEO sees a gun case, he's entitled to conclude that there's a gun in the gun case." You can argue with the logic - but the court created the rule. One earlier poster in this thread cited the Gust case where the 9th Circuit declined to apply the rule. I know that doesn't help your dilemma, you don't know until its over if you are going to wind up like Gust, or like Sanders. You really can't predict which way the court is going to go.

If you do apply the rule then 12031(e) takes over. A refusal gives the officer PC to arrest you for 12031. Once you're arrested, the officer now has the right to search the gun case (assuming its in your immediate possession) incident to the arrest. If its not in your immediate possession, he's now got the same PC to get a warrant. Once its discovered that there is no weapon in the case, it becomes clear that prosecution for that charge is impossible, and assuming that no other charges are pending, you should expect to be released under the provisions of P.C section 849.
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Old 11-09-2010, 9:49 PM
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Let's get some gun containers and fill them with rocks, then drag them behind us on a chain in front of a police station.
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Old 11-09-2010, 9:56 PM
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Originally Posted by RickD427 View Post
Check out Arkansas V. Sanders. It's a 1979 U.S. Supreme Court that created th "Single Purpose Container" rule. As applied to guns, the logic goes like this - A gun case is meant to hold guns, therefore if a LEO sees a gun case, he's entitled to conclude that there's a gun in the gun case." You can argue with the logic - but the court created the rule. One earlier poster in this thread cited the Gust case where the 9th Circuit declined to apply the rule. I know that doesn't help your dilemma, you don't know until its over if you are going to wind up like Gust, or like Sanders. You really can't predict which way the court is going to go.

If you do apply the rule then 12031(e) takes over. A refusal gives the officer PC to arrest you for 12031. Once you're arrested, the officer now has the right to search the gun case (assuming its in your immediate possession) incident to the arrest. If its not in your immediate possession, he's now got the same PC to get a warrant. Once its discovered that there is no weapon in the case, it becomes clear that prosecution for that charge is impossible, and assuming that no other charges are pending, you should expect to be released under the provisions of P.C section 849.
I'm saying even if you say you do not consent, they can and will check your stuff. All I'm saying is don't give consent. Maybe you could say "I cannot stop you and I am not resisting, but for the record I do not consent to any search." In that case it is their gamble.

If they give you an ultimatum, yes, considering 12031 I can see where it can get hairy. But I still feel like as far as the first step in this scenario goes, the protocol "I do not consent to a search" language should be in effect. The only reason you'd ever have to say this is if they're asking, and if they're asking they probably don't think they have probable cause. I don't see how it does any harm to say "I do not consent" in this particular circumstance. Saying "I do not consent" does not mean "You cannot search me, I will not allow it, and if you attempt to I will physically resist." It says "For legal purposes I am telling you that I do not want to be searched, I do not believe this is a legal search, I am not giving you full permission to search me."
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Old 11-09-2010, 10:14 PM
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So, here's a link to U.S. v Gust, 405 F.3d 797(2005) Justice Gould, from the Nordyke v King panel, wrote the opinion.

IANAL, but it seems to me that Gust really opened himself up:
Quote:
Gust informed the police that the trio had been engaged in target practice and that they had received permission to do so. Gust also told the police that the cases he and his companions were carrying contained guns. Officer Hulsizer searched the gun cases2 and found the sawed-off shotgun that formed the basis for Gust's prosecution and conviction for possession of an unregistered firearm in violation of 26 U.S.C. 5861(d).3
IMHO, that statement very probably would authorize an (e) check in CA. (Gust was from WA.)

However, the opinion concluded
Quote:
We hold that the district court erred in finding that the case in dispute is identifiable as a gun case based on its outward appearance alone, and in applying the "single-purpose container" exception to uphold the warrantless search of the case. Given that the district court had also ruled that the government could not justify the search based on consent or the exigent circumstances exception,
Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), referred to in the case (especially footnotes) is here.

[[I had not seen 'openjurist.org' before this evening. Nice site.]]

While I'm sure that Footnote 13 of Sanders
Quote:
[Footnote 13]

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case), by their very nature, cannot support any reasonable expectation of privacy, because their contents can be inferred from their outward appearance. Similarly, in some cases, the contents of a package will be open to "plain view," thereby obviating the need for a warrant. See Harris v. United States, 390 U. S. 234, 390 U. S. 236 (1968) (per curiam). There will be difficulties in determining which parcels taken from an automobile require a warrant for their search and which do not. Our decision in this case means only that a warrant generally is required before personal luggage can be searched, and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.
must be given some weight, I'm not sure that this means (or should mean) that the outward decoration on an otherwise rectangular-ish container should determine what conclusion an officer may make concerning the contents.

But maybe this bit of the opinion has been used that way.

It'd be nice if Gust predominated in 9th Circuit. Can't be sure if it would.
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Old 11-09-2010, 10:27 PM
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Without specific incidents listed, the edited comment was generic 'cop-bashing'. // Librarian

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Old 11-09-2010, 10:54 PM
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Originally Posted by cbn620 View Post
I'm saying even if you say you do not consent, they can and will check your stuff. All I'm saying is don't give consent. Maybe you could say "I cannot stop you and I am not resisting, but for the record I do not consent to any search." In that case it is their gamble.

If they give you an ultimatum, yes, considering 12031 I can see where it can get hairy. But I still feel like as far as the first step in this scenario goes, the protocol "I do not consent to a search" language should be in effect. The only reason you'd ever have to say this is if they're asking, and if they're asking they probably don't think they have probable cause. I don't see how it does any harm to say "I do not consent" in this particular circumstance. Saying "I do not consent" does not mean "You cannot search me, I will not allow it, and if you attempt to I will physically resist." It says "For legal purposes I am telling you that I do not want to be searched, I do not believe this is a legal search, I am not giving you full permission to search me."
I like your approach of simply stating "I don't consent", and hopefully saying it in a cooperative way with a LEO. I had private persons do that more than once when I asked for consent to do a search. And my simple response has been "I understand, that's your right." There's no offense taken and no retaliation planned. By the same token, I make it a point not to ask for consent when I know that I have some other legal entitlement to do a search. It would simply invite a refusal that ultimately would not be honored.

There is an incredible volume of law governing search and seizure. It's not entirely consistent, and its not entirely logical. Its just the way it is.

Where my competitive spirits, and blood pressure, have been raised is when I undertake a search, using a search authority not requiring consent, or warrant, and meet resistance. Usually that gets resolved through dialogue, but sometimes it has to get resolved through an arrest. When that happens, nobody wins.

LEO's are not perfect. We loose search and seizure cases in court, and I wish that I and other LEO's could better master that quagmire of case law, but if lawyers and judges with seven years of college can't agree on all points, you're not going get LEO's with 26 weeks of academy training to do better.

Your simple "I do not consent" will greatly help frame your court case in the unfortunate circumstance that you wind up going there.
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Old 11-09-2010, 10:54 PM
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Without specific incidents listed, the edited comment was generic 'cop-bashing'. // Librarian
When the officers or anyone taken an oath to uphold the law and constitution and when they didn't before our good citizens.

So, that isn't a 'cop-bashing'. (what the hell is a “generic cop-bashing”?)

Therefore, I did like to ask your members of moderator to take votes to see if you're wrongs.

Thanks folks!

Last edited by IWc; 11-10-2010 at 12:47 AM..
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  #32  
Old 11-10-2010, 12:02 AM
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When the officers or anyone taken a oath to uphold the law and constitution and when they didn't before our good citizens.

So, that isn't a 'cop-bashing'.

Therefore, I will asking your members of mods to take a votes to see if you're wrongs.

Thanks folks!
Uhhhh, engrish prease?!?
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Old 11-10-2010, 6:47 AM
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You're wrong, unless you're stupid and admit to the contents of the case.

See the above case I referenced. This thread really needs to just die, as it's just starting to spread FUD.

Quote:
Originally Posted by xxsleepyxx View Post
From what I gather reading many threads
before. If the case looks anything like a guncase then he/she (LEO) has a right to check to see if it is indeed unloaded. To do this you (the gun owner) has to open it. If you refuse he/she may arrest you. If you comply he might let you go (IDEAL OUTCOME) or he might screw you (POSSIBLE OUTCOME). This is why there are 2 ways to go. Take the red pill or the blue pill? Anyone have any text or laws on which way to go in this scenario?
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Old 11-10-2010, 6:48 AM
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Originally Posted by Luieburger View Post
If an officer requests that you exit the vehicle, roll up your windows and lock your car first. Then you can exit and proceed to silently/peacefully tell the officer to pound sand.
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Originally Posted by dieselpower View Post
I love how people say, you roll up the window, then get out and lock the door before you close it. The LEO is going to ask you to get out and HOLD the door. If you attempt to close it you will hit him and that will earn an assault / resisting charge. When you try and tell the DA you were trying to close the door to stop an unwarranted search..they are going to laugh at you...you are assuming the LEO was going to do something illegal so you struck him with the door? LOL The door will not be closed, and your assault allows the car to be "inventoried". I saw a PD officer train another Officer to hold the door by the window frame, and while the subject exits the car slide your arm behind them and in between the door and the subject in order to "guide" the subject away from the car. If the officer is using this technique and you try to close the door, you will be striking the officer's arm with the door and it will not close.
Well obviously when he said you should slam the door on cops, he didn't mean it literally...
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  #35  
Old 11-10-2010, 6:51 AM
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[QUOTE=Fyathyrio;5275406]Uhhhh, engrish prease?!? [/QUOTE
That's hilarious
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Old 11-10-2010, 6:59 AM
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FN 13 is narrowed by Robbins in terms of officer subjective knowledge being insufficient to derive PC for a search based on outward appearance of the container.

The court has to "assess the nature of a container primarily with reference to general social norms rather than 'solely...by the experience and expertise of law enforcement officers." (769 F.2d at 560).

That's the language that bothers me. They draw a line and then they base the line on the shifting sands of 'general social norms.'

Gust would bind district (Federal) courts in the 9th. Haven't checked to see if there is any negative treatment of Gust since it was published, though.


Quote:
Originally Posted by Librarian View Post
While I'm sure that Footnote 13 of Sanders must be given some weight, I'm not sure that this means (or should mean) that the outward decoration on an otherwise rectangular-ish container should determine what conclusion an officer may make concerning the contents.

But maybe this bit of the opinion has been used that way.

It'd be nice if Gust predominated in 9th Circuit. Can't be sure if it would.
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  #37  
Old 11-10-2010, 7:25 AM
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[Footnote 13]

Quote:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case), by their very nature, cannot support any reasonable expectation of privacy, because their contents can be inferred from their outward appearance.
What does a container for a kit of burglar tools look like? Do burglars use special bags/cases for their equipment?
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  #38  
Old 11-10-2010, 7:25 AM
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Originally Posted by freonr22 View Post
how is a switchblade questionable?
Its not, but there are legal ways to transport one. He mumbled something about out of reach and told me it was best to leave it at home.

He was just being cool with me.
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  #39  
Old 11-10-2010, 7:30 AM
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Quote:
Originally Posted by Glock22Fan View Post
[Footnote 13]


What does a container for a kit of burglar tools look like? Do burglars use special bags/cases for their equipment?
Yes. lock picking kits, car jimmy bar kits, Code scanners. Years ago a burglars kit was a backpack with handtools...lol If an Officer stopped you and shook your backpack, he could use, "I heard the sound of tools inside" as PC to search it. If he found tools commonly used to break into homes you could arrested. No charge would be filed, but your name was in the system and if someone reported a theft in the area...they had a suspect.
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Old 11-10-2010, 7:31 AM
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No he wasn't being cool with you. He couldn't do anything because it was legal and decided to lengths he was doing you a favor.
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