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  #1  
Old 04-08-2019, 12:56 AM
Chewy65 Chewy65 is offline
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Default Warrants to Search Homes for LCMs

There are at least two strategies that CADOJ may employ to go after "upstarts" who acquired LCMs between issuance of Benitez’s Order of enjoinder on March 29 and 5 PM on April 5. Both are based on the seizure of LCM’s as nuisances pursuant to Penal Code §32390. While Michel & Associates may be of the opinion that the code section is unconstitutional and they may well prove to be correct, a court has yet to hold that 32390 is unconstitutional and/or enjoin its enforcement. Many posts and threads have discussed the problem of LCM seizures in public places such as the range, but none or few appear to be concerned with seizures at one’s home. This post is concerned with the later of the two; seizures at your home.

Let’s first take a look at the Penal Code sections governing the confiscation and summary destruction of a LCM. 32390 provides that,


Quote:
Except as provided in Article 2 (commencing with Section 32400) of this chapter and in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any large-capacity magazine is a nuisance and is subject to Section 18010.
The relevant parts of 18010 declare that:

Quote:
(a) The Attorney General, district attorney, or city attorney may bring an action to enjoin the manufacture of, importation of, keeping for sale of, offering or exposing for sale, giving, lending, or possession of, any item that constitutes a nuisance under any of the following provisions:
///
(20) Section 32390, relating to a large-capacity magazine.
///
(b) These weapons shall be subject to confiscation and summary destruction whenever found within the state.
(c) These weapons shall be destroyed in the same manner described in Section 18005, except that upon the certification of a judge or of the district attorney that the ends of justice will be served thereby, the weapon shall be preserved until the necessity for its use ceases.
While it is well settled that the State cannot search your home without a search warrant, absent exigent circumstances or consent, it wouldn’t be past CA DOJ to seek a warrant for which. Of course they will have to be able to convince a (friendly) judge of facts supporting the issuance of that warrant, but they will get those facts and what facts do they need? All they need is to articulate reliable evidence demonstrating a probable cause that search of the home will locate LCMs or documents and things enable the DOJ to locate LCMs subject to32390. Documents such as emails confirming orders and tracking shipments or sales receipts. Places to be searched must be included in the warrant and expect one such place to be computers.

Where is the law enforcement officer applying for a warrant going to get the reliable information needed to obtain a warrant? From CalGuns.net for one. As the site warns users time and time again, the DOJ regularly monitors the site and one expects it was monitored more thoroughly over the last week, when members rushed to regale other members and lurkers regarding the magazines they had bought, from where, and even the quantity and cost of the magazines. While many, many members may have given phony names and addresses when joining the site, some did not. For those that use aliases and made up addresses, I am not convinced that the DOJ will find it that difficult to trace your messages to your computer. But what if it can’t get a member’s identifying information from CalGuns or its internet host?

The DOJ can also go to the vendors. Many of their web sites loudly proclaimed that they were shipping to Calilfornia and that alone should go a long way to establishing probable cause for issuance of a subpoena for their sales and shipping information.

You might think that this would be too much work at too great an expense for the DOJ to do this stuff. Given the political climate and how badly bruised the Attorney General and other top liberals are from the thrashing they got from Judge Benitez, they won’t hesitate to do it and more. This is not to say that everyone that bought a magazine or two is going to have their home raided ala the Special Counsel, but those who so proudly posted about their purchases of thousands of dollars worth of LCM’s could be prime for making an example of and garnering some press.

A brief word about the first path the DOJ can take to seize magazines in public places such as the range, the problem I said I wouldn’t talk of here. Though very few LEOs have any interest in seizing LCMs, it would be surprising if the DOJ didn’t have officers assigned to drop in on a few gun ranges with instructions for confiscating LCMs.
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Old 04-08-2019, 1:41 AM
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A warrant to enforce a nuisance seizure? Sounds like a stretch, even for CA.
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Old 04-08-2019, 1:54 AM
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aint nobody got time fo dat
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Old 04-08-2019, 2:34 AM
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While not legal advice...

This is so far out... No judge in CA is going to authorize a search warrant for anything remotely this, er, contextually irrelevant and vague?

You could likely call the local Sheriff's office right now (not using 911) and admit to owning unlawful guns or mags, and they can't record or trace your call, and they're likely to tell you to resolve it yourself.

As has been posted many times... LE and DOJ are now in a difficult position, and any nuisance confiscation is thus far unknown (to my knowledge) or part of a more relevant crime.

Take heed of the legal advice here. Write down Michel & Associates phone number, and act accordingly if anything happens. (The likelihood of which is wee.)

Breathe...

Last edited by liberty_head; 04-08-2019 at 3:18 AM..
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Old 04-08-2019, 3:01 AM
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Agree, this would be a stretch. Enforcement would more likely be range harasment. LEO asking for reciepts proving dates of purchase type things etc. Even this would be discresionary.
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Old 04-08-2019, 4:20 AM
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Quote:
Originally Posted by wpage View Post
Agree, this would be a stretch. Enforcement would more likely be range harasment. LEO asking for reciepts proving dates of purchase type things etc. Even this would be discresionary.
I disagree.

1. An officer has to have probable cause or reasonable suspicion.
2. Possession alone does not constitute either probable cause or reasonable suspicion
3. From an LEO's point of view, (and I have an Active LEO in my family that I talk to regularly) Unless you are doing something else that warrants their attention they couldn't care less. The paper work involved to pop you for an infraction?? You guy's realize that possession alone was nothing more than an infraction. Infractions can only be enhanced to misdemeanors when their is justification. Mere possession alone is not enough to justify an enhancement.

You guys need to frigging relax. Chewy65, while it is appreciated, your dissection of the laws is one thing. Jumping to the conclusion that the DOJ is chomping at the bit to kick in doors is pure paranoia. There is a court order in place. And while you may be correct on the nuisance issue. I've not heard of anyone having mags confiscated on possession alone, EVER. Meaning the person involved was charged with something else and the mags were collateral damage. Now that court order we have protecting us only covers one section of the code. But once limiting possession is deemed unconstitutional then all state laws limiting possession become unconstitutional. Yes that is a matter for the courts to hash out though.

So I'll say it again. Know the laws. Know your rights. and don't do stupid stuff.

Last edited by kcstott; 04-08-2019 at 4:34 AM..
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Old 04-08-2019, 4:36 AM
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Oh and that nuisance law also cover a lot of stuff sold at gunshows. and I've never seen anyone shut down at a gun show for selling lipstick knives.
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Old 04-08-2019, 4:41 AM
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Old 04-08-2019, 5:13 AM
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OP, you really have a fantastic imagination.
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Old 04-08-2019, 5:55 AM
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So you think the probable cause for a warrant of a residence exists in legal action taken pursuant to a lawful order from a sitting federal court judge?

Ok. We agree to disagree.
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Old 04-08-2019, 5:56 AM
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Not worth the time or money. There's too many variables.

What if a buyer sold the magazines bought on record? What if the package never arrived? What.if the owner got scared and changed them back to 32310 compliance? What if the package was sent to a "dead drop"? What if a package was sent back?

That's just the tip of the iceberg.
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Old 04-08-2019, 6:23 AM
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Quote:
Originally Posted by Librarian View Post
A warrant to enforce a nuisance seizure? Sounds like a stretch, even for CA.
Cops don't care about nuisances. There is no "nuisance squad." Nuisance status is secondary to criminality.
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Old 04-08-2019, 6:31 AM
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Quote:
Originally Posted by God Bless America View Post
Cops don't care about nuisances. There is no "nuisance squad." Nuisance status is secondary to criminality.
Are you sure? I saw a Nick Nolte movie once where they all wore hats and scrambled out of the station at the first sign of a nuisance.

Nuisance Falls, i think it was called.
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Old 04-08-2019, 6:44 AM
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If what the OP describes happens... Michel's office will have the plaintiff they mentioned looking for in the other thread(s). It obviously has not happened yet. Penal Code §32390 has not yet been challenged probably because there has not been a suitable plaintiff for said case...

This hardline enforcement just ain't gonna happen folks, stop being worry warts!
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Old 04-08-2019, 7:07 AM
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OP seems to spread a lot of FUD around this place.
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Old 04-08-2019, 7:09 AM
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Quote:
Originally Posted by Citadelgrad87 View Post
So you think the probable cause for a warrant of a residence exists in legal action taken pursuant to a lawful order from a sitting federal court judge?

Ok. We agree to disagree.
That plus the AG freely admitting in writing that these products are freely acquired and being sold following the judgement will look pretty sweet in the civil suits that would follow.
"California has restricted the acquisition of LCMs for nearly two decades, and until the Judgment is stayed pending appeal, individuals will be free to acquire new LCMs,and there is evidence that sales have begun already."
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Old 04-08-2019, 7:28 AM
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Quote:
Originally Posted by kcstott View Post
Unless you are doing something else that warrants their attention they couldn't care less.

* * *

So I'll say it again. Know the laws. Know your rights. and don't do stupid stuff.
Cops drive around all day long picking and choosing from the hundreds of people they can pull over for VC infractions. Whom do they pick, and why? They pick the one who looks like the biggest dumbs h i t. Because they will have other violations.

Cops do not have the time or resources to check out everybody they can. So, they pick the most promising targets.

Generally speaking, don't look like a promising target, and the police won't notice you.

It's not hard.
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Old 04-08-2019, 7:37 AM
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OP, try cutting out the sweets before bed. I have hallucinations like yours when I eat ice cream before bed.
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Old 04-08-2019, 7:48 AM
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OP, before you go any further, may I suggest that you next do some research and post the laws governing under what circumstances one can be granted a search warrant In CA.

By the way, you wouldn't happen to be related to HighCapAssaultOpinionator, would you?
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Old 04-08-2019, 7:58 AM
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I have a lot of family in Law Enforcement here too, and according to one of them, they (en masse) have very little idea about the current status and nuance of most of this stuff, so good luck. More so, they are not out after anyone, but if you are a felon and breaking rules, even nuisance laws, look out. He had a parolee the other day with ammo and high caps (and a variety of other stuff he shouldnt have been doing), but no gun, and dude was hauled in. Felon plus ammo was the problem, mags made it worse.

It does not seem to be standalone, but it will depend on you and your attitude/preparedness with info (knowing CVC#'s and citing the Benitez case cliff-notes) for them to make the call you're GTG or to let the judge make the call (cited). The laws change so fast, they can only do the best they can to keep us safe. Sometimes, that means following their gut and letting a judge make the call. Life is better if you don't be a tool and piss off the gut.
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Old 04-08-2019, 8:00 AM
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meanwhile at the range. . .

Officer "is that a 30 round mag?"
me "yes"
Officer "Awesome! can I try it out?"
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Old 04-08-2019, 8:17 AM
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HUGE waste of resources - wont happen!
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Old 04-08-2019, 8:20 AM
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LOL nope, not gonna happen. Take off the tin foil hat.
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Old 04-08-2019, 8:22 AM
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If they tried this, the house of cards would crumble further than it has already. An item that is expressly legal to own and possess cannot simultaneously be a nuisance subject to seizure from your house.

They rely on discrete use of that nuisance law (as it pertains to magazines) to keep the charade going. If they were to come out enmasse and try this, and further if they took it to our homes, the kimono would come off and this magazine nuisance law would never survive scrutiny.
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Old 04-08-2019, 8:24 AM
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Not going to happen.
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Old 04-08-2019, 8:33 AM
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In that documentary "Training Day" they got Roger's stash.

Just saying.
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Old 04-08-2019, 8:36 AM
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That story is too far fetched you are reaching OP.
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Old 04-08-2019, 8:37 AM
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You can probably go out of your way in an act of civil disobedience to get their attention so they make an example out of you. Give it a shot and we'll watch. Kevin DeLeon can go on TV and talk about your 30 second ghost clip that holds a hundred magazines.
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Old 04-08-2019, 8:39 AM
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1525.
A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.

IANAL, seems to me about the only way a SCM is going to be seized as a "nuisance" in execution of a search warrant would be if a search warrant was issued for any other cause as described in the PC. While the stay is in place for the Summary Judgement pending appeal, I don't see the standard being met for a judge to sign off on a search warrant to seize LCM's citing the "nuisance" provision, but again, IANAL...

https://leginfo.legislature.ca.gov/f...er=3.&article=
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Old 04-08-2019, 8:54 AM
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Chewy,

I am also concerned that DOJ seems inclined to push the legal envelope with regard to our weapons statutes.

But even with that agenda, I doubt that they would be able to secure a search warrant to search for items that are classified as "Nuisances."

Penal Code section 1524 sets forth 18 different conditions under which a search warrant may be issued. I can't see where any of these 18 conditions would apply where the sole reason for a search was to recover a "Nuisance" magazine.

Prior to the Federal Trial Court decision in Duncan, it was pretty obvious that DOJ strategists were working the "Nuisance" avenue.

But now that there is decision, albeit only in dicta, that the nuisance statute is unconstitutional, I don't see the DOJ proceeding in this direction until the case is fully concluded, or at least until an appellate court revises that finding.
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Old 04-08-2019, 9:23 AM
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Old 04-08-2019, 10:15 AM
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Quote:
Originally Posted by RickD427 View Post
Chewy,

I am also concerned that DOJ seems inclined to push the legal envelope with regard to our weapons statutes.

But even with that agenda, I doubt that they would be able to secure a search warrant to search for items that are classified as "Nuisances."

Penal Code section 1524 sets forth 18 different conditions under which a search warrant may be issued. I can't see where any of these 18 conditions would apply where the sole reason for a search was to recover a "Nuisance" magazine.

Prior to the Federal Trial Court decision in Duncan, it was pretty obvious that DOJ strategists were working the "Nuisance" avenue.

But now that there is decision, albeit only in dicta, that the nuisance statute is unconstitutional, I don't see the DOJ proceeding in this direction until the case is fully concluded, or at least until an appellate court revises that finding.
I realize it is a super stretch and is not very likely to take place, or if the DOJ goes down this path that it will not get stomped in court. Even the AG has to realize that, but that doesn't mean he doesn't due if for, ahem, political purposes.

As for getting a judge to issue a warrant, are you saying that DOJ isn't going to find any that would buy an application based on PC 1524.

Quote:
1524.
(a) A search warrant may be issued upon any of the following grounds: . . .
(4) When the property or things to be seized consist of an item or constitute evidence that tends to show a felony has been committed, or tends to show that a particular person has committed a felony.
I know it's another stretch since a nuisance is not a felony or even a misdemeanor. I don't even think maintenance of a nuisance is a "crime", which is key in conspiracy law. As for the dicta regarding the unconstitutionality of nuisance seizures, that indeed would be extremely important to most men in black. But consider . . .

Penal Code section 32310 is still law, thought enforcement is enjoined. If it is law can a warrant be issued for evidence that a felony has been committed? Perhaps not if to do so would be enforcement of 32310.

Then again, and you would know, thought the wording of California's conspiracy statute requires agreement and an overt act to commit a crime, going way way back I seek to recall that something about things less than a crime, things that were malum in se. I may well have this wrong.

Don't poke at the bear and expect the bear to follow the rules.

One last thing. That my scenario is universally rejected gives me more concern that something like it if not it will be tried.
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Last edited by Chewy65; 04-08-2019 at 10:20 AM..
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Old 04-08-2019, 10:24 AM
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A warrant to enforce a nuisance seizure? Sounds like a stretch, even for CA.
Will at that yoga they do here in CA. . .the state doesn't seem to have a problem stretching these days.
(but yes, I agree, probably better odds at winning the lottery than having agents come looking for your mags at home)
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Old 04-08-2019, 11:36 AM
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One last thing. That my scenario is universally rejected gives me more concern that something like it if not it will be tried.
Interesting concept. I think you're onto something here.

I think it's entirely possible, nay, probable, that the DOJ is going to divert all resources from the Armed Prohibited Persons System (APPS), and instead direct local law enforcement agencies to go to the homes of responsible, law-abiding gun owners with legally purchased and possessed large-capacity magazines, put those citizens into large burlap bags, beat them with reeds, and then ritualistically shave their testicles. I'll be interested to see if anyone agrees with me. If, like your theory, this scenario is universally rejected, then my concern over its occurrence will also be elevated.
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Old 04-08-2019, 11:40 AM
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Long before we had Trump Derangement Syndrome, we had California Paranoia. Both include irrational thought and a denial of logic and fact.
We are seeing a prime example of the latter here.
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Almost every poll shows Trump losing very badly, yet poeple still believe some conspiracy. The party p[icked the weakest candidate so they have to own that.
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Old 04-08-2019, 12:15 PM
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Originally Posted by Mayor McRifle View Post
Interesting concept. I think you're onto something here.

I think it's entirely possible, nay, probable, that the DOJ is going to divert all resources from the Armed Prohibited Persons System (APPS), and instead direct local law enforcement agencies to go to the homes of responsible, law-abiding gun owners with legally purchased and possessed large-capacity magazines, put those citizens into large burlap bags, beat them with reeds, and then ritualistically shave their testicles. I'll be interested to see if anyone agrees with me. If, like your theory, this scenario is universally rejected, then my concern over its occurrence will also be elevated.
First amendment issue. There are those whose religious beliefs prohibit the ritualistic shaving of testicles. Therefore, while your hypothetical is otherwise realistic, I believe that DOJ will need to make available accommodations for those members of the Church of Hairy Balls.
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Old 04-08-2019, 12:17 PM
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Put “hypothetical” in your thread title, ferphucksakes.
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Old 04-08-2019, 12:20 PM
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I've already had my weapon inspected by Fish and Wildlife and the local Sheriff and none of them cared at all. The only thing mentioned was to make sure I wasn't using a high cap to hunt big game.
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Old 04-08-2019, 12:21 PM
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Long before we had Trump Derangement Syndrome, we had California Paranoia. Both include irrational thought and a denial of logic and fact.
We are seeing a prime example of the latter here.
I don't understand the level of paranoia here. What city has the budget to even begin to enforce something so ridiculous.
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Old 04-08-2019, 12:23 PM
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I won’t pretend to know what is in the OP’s mind or his actual intent but this is like paranoia propaganda.
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