#481
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25800. (a) Every person who carries a loaded firearm with the intent to commit a felony is guilty of armed criminal action. (b) Armed criminal action is punishable by imprisonment in a county jail not exceeding one year, or in the state prison. (Added by Stats. 2010, Ch. 711, Sec. 6. Effective January 1, 2011. Operative January 1, 2012, by Sec. 10 of Ch. 711.) More prudent course might be to transport ammo in a separate locked container unless you want to have quick access to your firearm to defend yourself. Then go with 16840(b) definition. That is how many transport. Just hope that you get a cop who understands the law- if necessary, show him/her the CHP page posted in this thread and a printout of 16840(b). Last edited by ifilef; 11-12-2016 at 9:12 AM.. |
#482
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#483
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Yeah, I thought that four word notation wasn't adequate explanation and was subject to ambiguity. The point is that LE would need PC of intent to commit a felony to assert that 'immediate possession' standard should apply to 'armed criminal action' scenarios.
Last edited by ifilef; 11-13-2016 at 11:53 AM.. |
#484
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Your Guns / Cases are visible
Not to point to "Band Camp" stories , but I haven't seen mine addressed. I have been stopped several times on the way to and from range, once in a drunk stop, and three times when involved in, or stopping to help in a minor traffic accident. "My Rifle Cases are always visible in the rear of the jeep along with assorted shooting accessories, so they would be hard to miss and the officer most likely already determined I had them".
In each case, the first question from the officer was, "were you on your cell phone" (maybe that is a better ticket to write)? when I was involved in the accident, the second question was, "have you been drinking", and only once was I asked if, "those were firearms" I gave my ready response (right or wrong) "Yes, Legal, Unloaded, and Locked" at which time the issue was dropped. If the officer would have asked to check the firearms for any reason, I would have responded, "With all due respect, I do not consent to searches, but I understand you have a job to do" Although I trust our local police and sheriff departments, I frequently give rides to workers, teenage friends of my kids etc, so from a legal standpoint I am going to be adamant that I don't consent to searches because of a possible unknown, but the other side of the coin is if I am unlucky and pull that officer with an issue or ax to grind, that I am not saying something to get me in a pissing match with them, as I doubt that is going to go my way.
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"The Only Easy Day Was Yesterday" (Tony Zimos, R.I.P. Frog 2016) |
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some years back i was in a very bad car accident (the fool was doing 100 mph ) he crossed the line and boom.
CHP: he said: if you have any guns, I do not want to know about them. pu had to be towed away due to damage. needed a frend to come and take them away. must have had 10 guns in the truck (long and short). so i say pending how it is that day. .
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big gun's...i love big gun's |
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Let's say you don't consent to a search and request for the LE supervisor, who actually shows up to the scene, what next? Keep saying no and let them tow the car to the station?
Some people have suggested to say No when asked if there are guns in the vehicle, isn't that an added crime in itself if your vehicle is later taken back to the station with guns discovered? If my truck has a locked metal cover and locked tailgate, is that adequately considered a locked container? |
#488
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The trunk qualifies as a locked container, the locked bed of a pickup would certainly qualify.
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- Rich |
#489
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This one will really depend on the circumstances. If the officer requests consent, and has no other source of legal standing to conduct the search, then the refusal of consent is the end of the venture. Quote:
California does not have a broadly written statute that makes it illegal to lie to an officer that is similar to the federal statute (18USC1001). But there is Vehicle Code section 31 which makes it a misdemeanor to lie to an officer engaged in the enforcement of the Vehicle Code. The section does not require that the lie relate to the enforcement of any particular VC section, only that the officer be engaged in the enforcement of the code. If the situation involves a traffic stop, its pretty much a forgone conclusion that the officer was involved in some aspect of VC enforcement. Quote:
I would think so.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
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I really hate the obvious fear and concern some posters seem to have towards police. Police are NOT All Powerful or All Knowing Gods. They are required to act within their authority and within the law. Cops don't get to decide whether your RIGHTS exist. It is up to the individual to decide when, where, and how they exercise their Rights. Be polite. Be respectful. Be aware of the law, your rights under them, and have the stones to stand up for yourself!
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Internet Talk is Cheap Man Up, Show Up, or Shut the @#$! Up. https://www.youtube.com/watch?v=C74HgbjSCLM |
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Getting pulled over while speeding with the motherload...
So I saw this post and it reminded me of just a couple years back when I had a relevant occurrence. Will describe the event in case it helps (since there are a lot of people citing law over experience which is just as important if this ever happens to you i.e. your attitude, actions and demeanor vs. spouting off about some obscure laws to an officer who is going to get even more pissed off). It was about 9:15 AM on a Saturday and I was in a rush driving down Sister Cities Blvd. in South San Francisco. I was going shooting at the now closed Chabot Shooting Range in the Oakland Hills and was trying to get there by 10AM to meet some friends. The car was loaded with a mix of rifles, shotguns and handguns. All guns were cased. All handguns in the trunk only. Some of my rifles, when cased, don't fit in the trunk so they were laying across the back seat of my 4 door sedan ('03 G35). Of course I was pulled over for speeding going 58mph in a 40 zone on a two lane divided road which is straight as an arrow.
So I pull over and the first thing the motorcycle cop asks me upon seeing the rifle cases is if I have firearms in the vehicle. I said "Yes Sir I am going to the range." He asks me to step out of the vehicle and my smart *** asks "Why?" Sounding irritated and for good reason he states, "because I need to write you a ticket and you have firearms in the vehicle. I can't write the ticket and watch out for my safety at the same time." So I calmly step out. Keep in mind I was in a rush and had thrown my boots in the backseat. Of course the one time I break the cardinal rule of driving barefoot, I have to exit my vehicle. I am now standing on the blacktop with no shoes on getting patted down and look like an *******. Before I exited the car though I took a second to think. I took the time to role up all of the windows and take my keys from the ignition. Upon exiting the vehicles I shut the driver door and locked the car with the lock button. The officer proceeded to ask me if I was carrying any weapons. I said no. Then I remembered as he was patting me down, my hands on the roof of my vehicle, that I always carry a Kershaw knife on my person on my belt. He proceeded to find that and place that on the roof of the vehicle along with my car keys. He then had me come around to the back of the vehicle and wait there. He tried opening my driver side door once with a light door handle pull and then asked if I had locked the car. I said yes and he didn't bring it up again an did not ask to search the vehicle. My take was that if the vehicle was locked it was just one more action I had to undo to gain access to a firearm. So he was satisfied / put at ease by that fact the vehicle was locked once he had verified that was in fact the case. While he wrote me up for my 58 in a 40 speeding ticket we got past the unpleasantries of the speeding portion of our dialogue. Cops love to ask you dumb questions like "why did you think you needed to speed" and "was it worth it". I bit my tongue and didn't respond with the "YES" I was thinking inside. Then we started getting into talking about shooting, what service firearm he carried, motorcycles etc. By the end I thought we could be going to the range together. Unfortunately I still got the ticket though (gotta make quota ;-). Before he let me get back in the car he asked if I had handguns. I said yes. He asked if they were in the main passenger compartment and I said no in the trunk and cased. He watched me get in my car then walked to his motorcycle further back behind me and got on to finish up some radio traffic and watched as I drove off. I think cops come in many personalities and with different view on 2A rights. The law can be interpreted in many different ways (thats why we have lawyers). If you get pulled over with firearms in the car, be honest, have your **** locked down and legally transported per local laws, be very respectful, but stand up for your rights and avoid giving the officer unnecessary access or reason to search your person or vehicle. Good luck. Last edited by brikthomas; 12-02-2016 at 10:00 PM.. |
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You do understand that the officer in the circumstance that you described in the above posting had lawful standing to search your vehicle for firearms, and to inspect the firearms to determine if they were loaded - right? Please refer to People v DeLong and Penal Code section 25850(b). The fact that a search authority exists doesn't mean that a wise officer will always seek to make a search. It sounds like the officer in your case made an assessment that you were an otherwise law-abiding citizen (the speeding thing notwithstanding) and accordingly declined to search.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
#493
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So a friend recently purchased a new M&P Shield. It comes in a cardboard box and with a cable lock. The guys behind the counter said "Let us lock that up for you since you are travelling", put the cable lock on and sent him on his way. He has a 4 door pickup so no trunk. He was going to buy some ammo while there but suggested he not.
While the gun itself was locked, there is no locked container. "No locked container was available" but neither was a trunk. I think clearly he should have bought or brought a locking case, but is there any other option in a pickup in this situation? |
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No other option.
That supplied lock satisfied 100% of its legal purpose the moment he stepped away from the counter. Locking the gun with it in the original box was not a legal solution for transport.... NOR was it even legal for transport from the door of the gun shop to his vehicle. Everybody does it and apparently nobody gets busted for it, but legally, the container must be locked before you walk out the door of the gun shop, whether it means you bring in your own lockbox, or slap a TSA lock through the lock loop on the provided plastic box. But just walking from the store to the car and from the car to your front door? Ya... people do it all the time even though it is technically illegally carrying a concealed handgun. NO WAY would I be comfortable carrying unlocked in the cab of a pickup or SUV.
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- Rich |
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Don't expect cops to know gun laws, I was pulled over by CHP once for speeding and informed him for his and my safety that my off-duty weapon was in the vehicle (I don't want to get shot). First thing he said was "Where is it don't touch it!!!" I informed him it was on the inside of my driver's door, he opened my car door and removed my handgun. He then asked what dept I worked for, I informed him and he stated "You can't have a gun! you're not a real cop!", instead of correcting him and making him look stupider than he already did, I said "O.K". He walked away, came back 45 minutes later, handed me a ticket, and my handgun with the magazine removed and told me "Don't put the magazine back in until I leave" Like I was going to shoot another officer. There are some real winners out there! Some of my partners believe that because they are exempt from the hi-cap mag ban they can legally insert 30 round mags into their ARs because "I'm a LEO", I don't think that's how it works, I don't think that's how it works at all.
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#496
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I seem to vaguely recall a statutory exception for transporting from the gun shop a handgun that one just picked up. Later: Apparently not. Notwithstanding the foregoing, I always bring a locked container with me. This does not help newbies picking up their first new handgun who merely place it contained in the original box on or under a seat. Far better to place that box in locked trunk- totally legal, but not available to the OP's friend. Gun counter should have offered to sell him locked container, or warned unlawful to transport, even walk out the door. But they have no duty to do so but they may have made a sale of Pelican! I bring separate locked container because I have a SUV and there's an argument there of which we're all aware re whether in the back it's a secure, fully enclosed, locked container (might access from interior is the argument). Last edited by ifilef; 12-27-2016 at 2:42 PM.. |
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Sent from my SM-G930P using Tapatalk |
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In the past five years I have been pulled over twice by the police. Both times i had guns in the car. The first officer didn't ask and I didn't say anything. The second time the officer asked and I said yes. Three hand guns and a shotgun in the trunk. I explained that I was coming from the range and that all were unloaded. Also said the ammo that was left is locked in the glove box. He asked to see the guns and I complied. We had about a five minute discussion on my XD 40 and then we departed with a handshake and a warning about my speeding. My advise. Just comply.
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#499
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keep your trap shut.
do not talk. just answer politely with a yes or no. sad some leos out there will make your day just for fun. would like to think most would not care. .
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big gun's...i love big gun's |
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The only time I would admit to having guns in the car would be if pulled over after leaving the range. There is absolutely no reason LE need to see your gun or know if you have any if all you are being pulled over for a traffic incident. You can pretty much guess if pulled over for any other reason you be will ordered out of the car and given a pat down.
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Just go along & hope it all gets settled in court & after a LOT of $$$ from the citizen who wasn't doing anything illegal?!? One of the biggest reasons I so strongly advise everyone to not mention having weapons in a vehicle is the large number of cops who don't actually know the law! Why should any citizen endanger their freedom, possessions, and valuable time by volunteering info not pertinent to a traffic stop, in the HOPE that the officer they are encountering actually KNOWS the law?
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Internet Talk is Cheap Man Up, Show Up, or Shut the @#$! Up. https://www.youtube.com/watch?v=C74HgbjSCLM |
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#503
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5th and Reasonable Suspicion for Weapons Sweep
If an officer asks during a traffic stop if there are firearms in the vehicle and the driver invokes their constitutional right to remain silent, does the invocation giver rise to reasonable suspicion to sweep areas of the vehicle readily accessible to the driver for firearms? Some call this a protective search. Hopefully, RickD427 will answer this one.
[Familyfarm essentially asked this on another thread, but I don't think it was directly answered and I am restating the his question on its own thread as I think it an important matter.] |
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How is this question different from the discussion in the sticky, http://www.calguns.net/calgunforum/s...d.php?t=817002 ?
Answer: apparently not. Merged.
__________________
ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. Last edited by Librarian; 02-05-2017 at 6:35 PM.. |
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1) The "constitutional right to remain silent" isn't really a "right" when you're in your car and not under arrest / being interrogated. You can, of course, refuse to answer questions but it is not like pleading the 5th in court where there can be no negative impact by your doing so. When you are not on trial, under arrest *and* being interrogated -- your Miranda Rights and 5th Amendment Right don't really apply. Part 2) Now that we have outlined #1 and the proper place where it applies; Your refusal to answer a question as to whether or not you have a pistol in your pocket, (or in your car) can be used as part of a totality of circumstances that may allow him to do a "pat down" for weapons. If you ran a stop sign and an Officer walked up to you and asked if you had weapons in the car and you said "I plead the 5th, I'm not answering," that alone does not give him enough to search the car for weapons. In my view, it would absolutely illicit the response of having you exit the vehicle and pat searching you for weapons. Then sitting you on the curb while he finished writing you the ticket or whatever he was going to do. Now, second scenario: Drive by shooting occurs three blocks away, vehicle matches yours and the driver was wearing a white t-shirt just like you are. He pulls you over, you give the standard response of not knowing whether or not there are weapons in the car. He is, without hesitation, going to have you exit the vehicle and search you for weapons. He won't search the car yet - and I don't believe he has the legal means to do so even at that point. Then they'll try to get someone to ID you/the car and if they do and you are the bad guy, then they'll arrest and search the car. So, to shorten all of this mumbo jumbo: No, there's not going to be very many scenarios that get an Officer into the car of a law abiding citizen that simply refuses to answer a question as to whether or not they have weapons in the car. It is absolutely conceivable and legal that the same citizen would be required to exit the vehicle and would be pat-searched for weapons if they answered that way, though. A pat search does not include digging in pockets, it's exactly as it sounds - a pat search. Think TSA. |
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There is also a lot of good commentary in the sticky "What to do if stopped with guns in the car." To directly answer your question, I do not believe that a simple refusal to respond to the firearms question would, standing alone, provide probable cause for a search. In the sticky, I did explain how an evasive (as opposed to a refusal) to answer the same question may supply PC. I believe that the appropriate standard for a vehicle search is PC rather than RC. You can do a search of a person for weapons under the RC standard under Terry. I don't know of corresponding case that would extend Terry's holding to permit a vehicle search on RC. If an officer wishes to protect against undiscovered weapons in the vehicle, he's on solid ground ordering the driver and passengers to exit the vehicle. But you also have to remember that natural vacuums do not exist, and the officer is free to draw on all informational sources to develop their PC for a search.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. |
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Thanks guys. I feel better after reading the above and especially what RickD wrote, as I couldn't easily find any definitive authority one way or the other, even though my wild *** guess was the claiming the right would not supply reasonable cause (I think of it as reasonable suspicion but will use rc so as not to further confuse the issue). My thinking being that the raising of a Constitutional right logically does not mean that a person has or has not firearms and even if it did, one should not be disadvantaged for standing on those rights.
Contrarily, given that one's expectations of privacy are less in a motor vehicle and the importance of providing for not just the patrol oficer's safety but persons in the vicinity of a stop, I see little reason for imposing the exclusionary rule. I thought I came across a case extending Terry to the vehicle, but it wouldn't be the first time I saw things that weren't there. I will see if I can locate that and, if so, post it. And I will check the stick. Thanks. Added by edit: I may have wrongly assumed that RickD meant reasonable suspicion when posting of "RC" by which I now believe he meant Reasonable Cause. See Michigan v Long in the next post. Last edited by Chewy65; 02-06-2017 at 11:31 AM.. Reason: Clarify that RC is not RS |
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Protective Sweep of Vehicle Interior
The decision I mentioned and that I believe extends Terry to a limited search of a motor vehicle is Michigan v. Long, 463 U.S. 1032, (1983). See 1049 for the Court's conclusion:
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#510
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An interesting point was raised, which is there is no need to for a protective sweep of a vehicle interior for weapons within reach of a person once they have been removed from the vehicle. The problem is that the officer remains at risk when the suspect is permitted to reenter the vehicle during a detention, they break free and retrieve a weapon, or no arrest is made and following the detention the reenter. See Michigan v Long at 1051.
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Last edited by Chewy65; 02-06-2017 at 12:21 PM.. |
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You've got excellent find in Michigan v Long. I have the case in my e-library, but have always considered it as an authority to remove folks from vehicles. I haven't gone over the case in more than a decade. On giving it a re-read, it does do a very good job of extending Terry to vehicles. Just as in Terry itself, the limitations on the search authority are important. This is a case where understanding the dicta is just as important as understanding the holding.
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If you build a man a fire, you'll keep him warm for the evening. If you set a man on fire, you'll keep him warm for the rest of his life. Last edited by RickD427; 02-06-2017 at 1:02 PM.. |
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Thanks Rick. You may not have been aware of Michigan as the case is often cited for the proposition that the Federal courts have jurisdiction to review a state high court decision on Federal Constitutional grounds even if the state's highest court had made its ruling on an an independent state ground.
I may have retained a distant memory of Michigan as it came down just a couple of years after I finished school and in those days I pretty well kept up with the LADJ. Last edited by Chewy65; 02-06-2017 at 3:03 PM.. |
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It is amazing how often the simple obvious answer is ignored.
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Real life isn't that simple.
Sadly, there are far too many cops on the job who will make something up to violate someone's rights or create some BS PC to dig thru their lives. Anyone who doesn't realize that even "innocent" citizens can and have had their rights violated by corrupt cops is living under a rock. Here is just one example. And this cop KNEW he was being recorded and STILL felt he could get away with this kind of conduct! https://www.youtube.com/watch?v=WXmW-R64QxI
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Internet Talk is Cheap Man Up, Show Up, or Shut the @#$! Up. https://www.youtube.com/watch?v=C74HgbjSCLM |
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I don't get pulled over much, probably been at least 3 years since its happened, and never for anything but basic mild traffic stuff. Just in case I put the Mobile Justice Ca app on my phone. When you hit record it streams the video to the ACLU so if a cop breaks your phone or erases your video it's stored on their server and not gone. Last time a cop asked if I had guns, drugs, etc in the car during a traffic stop I was probably about 20 years old. I'm sure a person's look, demeanor, and location will somewhat dictate the likelihood of being asked those things. If a cop asks anything you don't want to answer not answering is safer than lying since lying can be twisted into a criminal act in many cases. Kinda *****ty that they're allowed to lie to us about anything any time, but not us to them. I would be respectful about the refusal, no sense being a d!ck and getting the cop rilled up over a simple question and possibly escalating the matter.
I've been lied to by a few cops over the years, and a nasty ***** lie one time, but I've also had many good dealings with cops; they're individual people not just cops. I ended a kidnapping with a light pommeling of the criminal, first cop on the scene pulled me aside immediately after cuffing the guy and said "there's a bunch of units coming and you're going to be questioned, as far as that spanking you gave him he resisted and you did what you had to do to detain him". Odd thing is that I didn't remember hitting him very hard, funny how the mind works during/after certain experiences, but when I saw the guy in the back of the patrol car he was unrecognizable and I'd been looking at him for hours during the ordeal. When I initially detained him I was fairly calm and I new I didn't want to do anything that might impede on a clean arrest or get me into trouble so I just held him down. A moment later he smiled at my GF who's neck he'd been holding a shank to for several hours and I just lost it. But as soon as I saw the cop car zooming into the gas station driveway I stopped and just held his hands high up behind his back ready for cuffs. |
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I have been given a ticket for the above discussion. IT was a error to admit I had the gun.-say what the above quotes are saying that you have nothing illegal in the car. MAKE them get a search warrant. They will lie about how they charge you "and" write it up AND I can't get a CCarry now-maybe because of this and it was 25 years ago. I live in El Dorado county by the way.
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#518
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Realizing that this thread is a year old and has been tossed around pretty well, I found myself wondering if any of the new laws in CA applied to this topic. Today, my wife took my car for a quick (<5 mi., if that matters) trip to the store. I did not know she was taking it, and she did not know my guns were in the trunk for tomorrow's range session. If you are driving a car that contains unloaded, legally stored weapons and are pulled over, what is your responsibility as an uniformed driver? How well would "Umm, gee officer, those belong to my husband and I didn't even know they were in there" play if the cops chose to conduct a search (as highly unlikely as that is)? I think it would come down to the individual officer as to how things would proceed. This mistake on my part won't happen again, but folks, we are at the mercy of the police when stopped. Ostensibly, they are bound to follow the law (as are we), but remember that your civil rights come into play after the arrest, in court. You can argue them all day by the roadside, but each LEO has a certain amount of discretion they can exercise. Just sayin'...
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You are under no responsibility, as an uninformed driver, or as a knowing driver, to disclose that you have weapons in the vehicle.
You can't disclose something that you don't know, but this DOES reinforce the common thread of never consenting to a search. "I have nothing illegal in the vehicle" Really? Were your windows partially down when you were parked on that hot day last week? What about those two hood rats that were standing by your car when you got back? Do you know for an absolute fact that one of them didn't panic when he saw you walking toward them and drop a baggie of drugs into your back seat?
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- Rich |
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Now, flowers and candy for the wife, along with an apology and a promise that you won't again put her at such risk. |
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