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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
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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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#2
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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. |
#3
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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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Bill Wiese San Jose, CA CGF Board Member / NRA Benefactor Life Member / CRPA life member
No postings of mine here, unless otherwise specifically noted, are to be construed as formal or informal positions of the Calguns.Net ownership, The Calguns Foundation, Inc. ("CGF"), the NRA, or my employer. No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
#5
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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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#6
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How about a Black Flag sticker?
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#7
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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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More regimes have been brought, piecemeal, to their knees by what was once called “Irish Democracy”—the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people—than by revolutionary vanguards or rioting mobs. |
#8
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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. |
#9
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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). |
#10
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how is a switchblade questionable?
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#11
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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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In Glock We Trust. Quote:
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http://www.calguns.net/calgunforum/s...d.php?t=737563 |
#12
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Exit the vehicle from the passenger door...
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#13
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"Good friends, good food & good wine. Anything else is just a waste of soy sauce.":) |
#14
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#15
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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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We the people are the rightful masters of both the Congress and the Courts - not to overthrow the Constitution but to overthrow men who pervert the Constitution. Abraham Lincoln NRA MEMBER |
#16
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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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#20
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-bb
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NRA Life Endowment Member - CRPA Member "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote." Ben Franklin, 1759 Brand NEW Apple MacBooks and Mini for sale |
#22
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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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Internet Talk is Cheap Man Up, Show Up, or Shut the @#$! Up. https://www.youtube.com/watch?v=C74HgbjSCLM |
#23
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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. |
#24
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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. |
#26
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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." |
#27
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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:
However, the opinion concluded Quote:
[[I had not seen 'openjurist.org' before this evening. Nice site.]] While I'm sure that Footnote 13 of Sanders Quote:
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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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; 11-09-2010 at 10:21 PM.. |
#28
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PC
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Without specific incidents listed, the edited comment was generic 'cop-bashing'. // Librarian Last edited by Librarian; 11-09-2010 at 10:31 PM.. |
#29
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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. |
#30
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Non Sense
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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.. |
#31
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Uhhhh, engrish prease?!?
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"Everything I ever learned about leadership, I learned from a Chief Petty Officer." - John McCain "Use your hammer, not your mouth, jackass!" - Mike Ditka There has never been a shortage of people eager to draw up blueprints for running other people's lives. - Thomas Sowell Quote:
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#32
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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:
__________________
More regimes have been brought, piecemeal, to their knees by what was once called “Irish Democracy”—the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people—than by revolutionary vanguards or rioting mobs. |
#33
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#35
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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:
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More regimes have been brought, piecemeal, to their knees by what was once called “Irish Democracy”—the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people—than by revolutionary vanguards or rioting mobs. |
#36
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[Footnote 13]
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John -- bitter gun owner. All opinions expressed here are my own unless I say otherwise. I am not a lawyer and this is not legal advice. |
#37
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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. |
#38
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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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#40
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You can pick them up at Walmart in the evil-doers isle. There are two good brands, Robem'all and UstealIt. I would not trust any other brand to hold my burglary tools.
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