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Search Seizure Cautions, 4th Amendment The Fourth Amendment applied to the states through the Fourteenth. Amendment provides in part The right of the people to be secure in their. persons houses papers and effects against unreasonable searches and. seizures shall not be violated U S Const amend IV, Michigan v A seizure under the Fourth Amendment occurs when a reasonable person. Chesternut would have believed that he was not free to leave Michigan v Chesternut. 486 U S 567 573 1988 quoting United States v Mendenhall 446 U S 544. 554 1980 opinion of Stewart J Advise the individual that they are free to. leave immediately after performing an e Check and then if desired. continue inquiries on a voluntary basis, Terry v Ohio There are well defined limits on what police officers may do in discharging. their duties and police may be held liable for acting outside these limits. Perhaps the most fundamental of these is the requirement that the police not. interfere with the freedom of private persons unless it be for specific legitimate. reasons See Terry v Ohio 392 U S 1 21 1968 20 L Ed 2d 889 88 S Ct. Duran v Douglas In the absence of a valid warrant the police may generally not stop and detain. an individual for investigation absent a reasonable belief that criminal or. otherwise dangerous activity is afoot Duran v City of Douglas Arizona 904. F 2d 1372 1377 9th Cir 1989, U S v Ubiles Plaintiff s lawful possession of an unloaded firearm could not by itself create a. reasonable suspicion sufficient to justify an investigatory detention and seizure. or arrest See Lawrence Rosenthal Second Amendment Plumbing after. Heller Standards of Scrutiny Incorporation Well Regulated Militias and. Criminal Street Gangs 2009 41 Urb Law 1 37 When applicable law does. not ban carrying a firearm however the Fourth Amendment does not permit a. stop and frisk regardless of any indication that a suspect is armed or potentially. dangerous because there is no indication that the suspect is violating the. law For example in United States v Ubiles 224 F 3d 213 3rd Cir 2000. the Third Circuit found that an individual s lawful possession of a firearm in a. crowded place did not justify a search or seizure Holding that the search. violated Ubiles Fourth Amendment rights the court noted that the situation was. no different than if the informant had told officers that Ubiles possessed a. wallet and the authorities had stopped him for that reason Id Nor the. court continued could the officers rely on the fact that Ubiles possessed the. weapon while in a crowd Id at 219, Florida v J L U S Supreme Court held that law enforcement cannot stop and frisk a citizen.
based solely on an anonymous tip describing only innocent behavior and which. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com, does not sufficiently predict the future actions of a suspect Florida v J L. 529 U S 266 2000, U S v King The Tenth Circuit has also dealt with this question In United States v King. 10th Cir 1993 990 F 2d 1552 the Tenth Circuit found that a firearm alone. did not create a reasonable suspicion of criminal activity permitting such. detentions would render the Fourth Amendment functionally meaningless. Contact Advisory, Contact Officers are expected to appropriately assess each situation and respond in a. safe manner that respects the citizens rights These types of contacts are. difficult in the sense that you will be using different contact tactics that you. may otherwise use in a situation involving a person with a gun that has other. extenuating circumstances Officer s are required to respect the rights of others. and impartially enforce the law Demonstrate the utmost professionalism in. your conduct Assess the situation and monitor the subjects prior to making. contact Use contact and cover while interacting with citizens Clear verbal. commands regarding the weapon inspections should be given with the Officer. retrieving the weapon from the holster Keep in mind that criminals rarely. advertise the fact that they are armed and that a firearm carried openly in a. holster is usually a sign that the individual is attempting to carry a firearm. within the letter of the law, Supervisor If possible a supervisor should be present when contact is made with the. individuals or groups,Identification of Individual Not Required.
PC 148 Unloaded Open Carry enthusiasts most likely will not produce identification. even if requested It is their stance that they are complying with all laws and. are not compelled to identify themselves In short there is no authority that. requires them to identify themselves Do not enforce the PC 148 solely under. this circumstance Absent any other reasonable suspicions of articulable facts. officers cannot arrest for failure to provide Identification Other law. enforcement agencies improperly cite Hiibel v Sixth Judicial District 2004. 542 U S 177 which allowed for a demand for I D this case was in Nevada. which has a Stop and I D statute California has no similar requirement for. I D Thus it is not a PC 148 violation to refuse to identify oneself during an. investigative stop In re Gregory S 112 Cal App 3d 764 1980. INSPECTION OF FIREARM,Limited Authority to Inspect. PC 12031 e In order to determine whether or not a firearm is loaded for the purpose of. enforcing PC 12031 peace officers are authorized to examine any firearm. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com, carried by anyone on his or her person or in a vehicle while in any public place. or on any public street or in any prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section is. in itself probable cause for arrest for violation of 12031. It is important to note that the authority granted by this provision does not. permit any search or seizure beyond mere inspection of the firearm to determine. whether the firearm is loaded It does not without additional factors give you. the right to prolong the contact beyond inspection to run computer checks or. complete an FI To do this you must have consent or additional factors that. justify a reasonable suspicion detention Reasonable suspicion is less than. probable cause but more than no evidence at all Reasonable suspicion is. defined as information sufficient to cause a reasonable law enforcement. officer taking into account his or her training to reasonably believe that the. person to be detained is was or is about to be involved in criminal activity. The Fourth Amendment and Search and Seizure 9th Edition Phillips. PC 833 5 In addition to any other detention permitted by law if a peace officer has. reasonable cause to believe that a person has a firearm or other deadly weapon. with him or her in violation of any provision of law relating to firearms or. deadly weapons the peace officer may detain that person to determine whether a. crime relating to firearms or deadly weapons has been committed For purposes. of this section reasonable cause to detain requires that the circumstances. known or apparent to the officer must include specific and articulable facts. causing him or her to suspect that some offense relating to firearms or deadly. weapons has taken place or is occurring or is about to occur and that the person. he or she intends to detain is involved in that offense The circumstances must. be such as would cause any reasonable peace officer in like position drawing. when appropriate on his or her training and experience to suspect the same. offense and the same involvement by the person in question. Arizona v Hicks Only if the serial number of the weapon comes into plain view during. inspection may it be noted and run against data bases Arizona v Hicks 480. U S 321 324 1987, People v De Long You cannot search for the serial number People v Delong 11 Cal App 3d. PC 12090 Makes it unlawful to alter remove change or obliterate a firearms serial. number it does not however criminalize covering of serial numbers. PC 8571 5 Officers may not seize or confiscate any firearm or ammunition from an. individual who is lawfully carrying or possessing the firearm or ammunition. Officers may temporarily disarm an individual however if the officer. reasonably believes it is immediately necessary for the protection of the officer. or another individual An officer who disarms an individual is to return the. firearm before discharging the individual unless the officer arrests the. individual or seizes the firearm as evidence of the commission of a crime. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com,Loaded v Unloaded, PC 12031 g A firearm is loaded when a firearm shall be deemed to be loaded when there is. PC 626 9 j an unexpended cartridge or shell consisting of a case that holds a charge of. powder and a bullet or shot in or attached in any manner to the firearm. including but not limited to in the firing chamber magazine or clip thereof. attached to the firearm A muzzle loader firearm shall be deemed to be loaded. when it is capped or primed and has a powder charge and ball or shot in the. barrel or cylinder, People v Clark Interpreting PC 12031 s attached language the courts have found that a.
firearm is loaded when a shell or cartridge has been placed into a position from. which it can be fired A firearm is not loaded if the shell or cartridge is stored. elsewhere and not yet placed into a firing position People v Clark 45. Cal App 4th 1147 1153 1996 Conversely a firearm is not loaded if. ammunition is not placed into a firing position, PC 171e A firearm shall be deemed loaded whenever both the firearm and unexpended. PC 12001 ammunition capable of being discharged from such firearm are in the immediate. possession of the same person CAUTION This definition is limited to. persons carrying a firearm with the intent to commit a felony or possession of a. firearm on the grounds of the Governor s Mansion or any other residence of. the Governor the residence of any other constitutional officer or the residence. of any Member of the Legislature in the State Capitol any legislative office. any hearing room in which any committee of the Senate or Assembly is. conducting a hearing the Legislative Office Building at 1020 N Street in the. City of Sacramento or upon the grounds of the State Capitol. Restricted Locations, PC 171b Public Buildings This section prohibits any person from possessing a firearm. within public buildings, PC 171 5 Sterile Areas This section prohibits any person from possessing a firearm in a. sterile area of an airport or passenger vessel terminal. PC 626 9 School Grounds This section prohibits any person from possessing a handgun. in a place that the person knows or reasonably should know is a school zone. unless it is with the written permission of the school district superintendent. designee or equivalent school authority, School Zone Defined as an area in or on the grounds of a public or private school providing. instruction in K 12 inclusive or within a distance of 1 000 feet from the. grounds of the public or private school PC 626 9 e 1. PC 626 95 Playground Youth Center Pursuant to this section violation of PC 12025. 12031 417 a 2 or 417 b while on the grounds of a playground or youth. center during hours when it is open for business classes or school related. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com, programs or at a time when minors are using the facility when the person.
knows that he or she is on or within the grounds are felony wobblers. Playground Defined as any park or recreational area specifically designed to. be used by children that has play equipment installed including public grounds. designed for athletic activities such as baseball football soccer or basketball. or any similar facility located on public or private school grounds or on city or. county parks PC 626 95 c 1, Youth Center Defined as any public facility that is used to host recreational or. social activities for minors while minors are present PC 626 95 c 2. UNLOADED FIREARM LAWS,Carrying Concealed Firearms on the Person. PC 12025 a This section prohibits carrying a concealed handgun upon the person without a. license to carry such a firearm It does not apply to rifles or shotguns Penal. Code 12001, Knowledge The person must know that he was carrying a firearm. Unlocked An otherwise unsecured handgun concealed in an unlocked suitcase. carried by a, Suitcase person is sufficiently upon his person to constitute a violation. People v Dunn 61 Cal App 3d Supp 12 1976, Inoperable It is not a defense to PC 12025 that the firearm is inoperable People.
Firearm Marroquin 210 Cal App 3d 77 82, PC 12025 f Firearms carried openly in belt holsters are not concealed. Firearms Concealed in a Vehicle by Driver, PC 12025 a 1 This section prohibits carrying concealed handguns within a vehicle by the. person controlling or directing the vehicle, Knowledge The person must know the gun was in the car People v Jurado 25. Cal App 3d 1027 1030 31 1972 People v Rubalcava 23 Cal 4th. 322 331 32 2000, Possession The statute does not require that the person have exclusive possession. Control control of the firearm it is enough that the person owned and controlled. the car and knew the gun was below the seat even though the gun was. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com, placed there by someone else and belonged to someone else People v.
Davis 157 Cal App 2d 33 36 1958, Unlocked If a firearm is transported in a vehicle in a manner that it is invisible. unless its, Carrying carrying case is opened it s concealed People v Hodges 70. Cal App 4th 348,Case 1355 1999, PC 12026 1 a 1 This section provides additional methods for transporting a firearm in a vehicle. Trunk It is lawful to transport an unloaded firearm in a vehicle s trunk. Locked It is lawful to transport an unloaded firearm in a vehicle if it is in a. Container container A locked container is a secure container which is fully. enclosed and locked by a padlocked key lock combination lock or. similar locking device PC 12026 1 c,Firearm Concealed in Vehicle by Occupant. PC 12025 a 3 This section prohibits any person to cause to be carried concealed a handgun. within any vehicle in which he or she is an occupant. Knowledge The person must know that he caused the firearm to be concealed in the. car concealing a gun between the seats even if he did not. intentionally bring the gun into the car People v Padilla 98. Cal App 4th 127 134 2002,LOADED FIREARM LAWS,Loaded Firearm on Person or in Vehicle.
PC 12031 a This section prohibits carrying a loaded firearm in public in a vehicle or on. one s person This section applies to any public place on any public street or. in any place where it is unlawful to discharge a firearm. Knowledge The person must know that he was carrying a firearm But knowledge. that the firearm is loaded is not an element of the offense of carrying a. loaded firearm in a public place People v Dillard 154 Cal App 3d. Inoperable A firearm does not need to be in working order if it was designed to. Firearm appears capable of shooting People v Taylor 151 Cal App 3d 43f2. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com,ON LOCATION RETURN OF A FIREARM. If a firearm is determined to be lawfully carried at the time of a Penal Code 12031 e inspection the. firearm must be immediately returned to the individual If the firearm was removed from an. individual s holster the officer shall return the firearm to the holstered position for the individual so as. to not place the individual in a position of brandishing a firearm in a public place. LAW ENFORCEMENT OFFICER SAFETY ACT, On July 22 2004 the Law Enforcement Officers Safety Act LEOSA of 2004 also commonly called. HR 218 became law 18 U S C 926B 926C This federal law allows a qualified law. enforcement officer or a qualified retired law enforcement officer with identification that meets. specified criteria to carry a concealed firearm anywhere in the nation regardless of most other state and. local laws which restrict the possession of concealed weapons. Qualified Law Enforcement Officers, In order to be a qualified law enforcement officer under the LEOSA a person must meet the. following requirements, 1 Is authorized by law to engage in or supervise the prevention detection investigation. or prosecution of or the incarceration of any person for any violation of law and has. statutory powers of arrest,2 Is authorized by the agency to carry a firearm.
3 Is not the subject of any disciplinary action by the agency which could result in. suspension or loss of police powers, 4 Meets standards if any established by the agency which require the employee to. regularly qualify in the use of a firearm, 5 Is not under the influence of alcohol or another intoxicating or hallucinatory drug or. 6 Is not prohibited by Federal law from receiving a firearm. The identification required LEOSA is the photographic identification issued by the governmental. agency for which the individual is employed as a law enforcement officer The photographic evidence. does not have to state that the individual is authorized to carry firearms or any other express language in. order to be valid under LEOSA, There is no requirement that the law enforcement officer be on duty in order to carry a firearm under. LEOSA Further the only documentation that a law enforcement officer must carry for LEOSA to. apply is photographic identification issued by the government agency identifying the individual as a law. enforcement officer or the proper credential carried by the retired law enforcement officer. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com,Qualified Retired Law Enforcement Officers. In order to be a qualified retired law enforcement officer under the LEOSA a person must meet the. following criteria, 1 Be separated from service in good standing from service with a public agency as a law.
enforcement officer, 2 Before such separation was authorized by law to engage in or supervise the prevention. detection investigation or prosecution of or the incarceration of any person for any. violation of law and had statutory powers of arrest. 3 A Before such separation served as a law enforcement officer for an aggregate of. 10 years or more, B Be separated from service with such agency after completing any applicable. probationary period of such service due to a service connected disability as. determined by such agency, 4 during the most recent 12 month period has met at the expense of the individual the. standards for qualification in firearms training for active law enforcement officers as. determined by the former agency of the individual the State in which the individual. resides or if the State has not established such standards either a law enforcement. agency within the State in which the individual resides or the standards used by a. certified firearms instructor that is qualified to conduct a firearms qualification test for. active duty officers within that State, 5 A has not been officially found by a qualified medical professional employed by. the agency to be unqualified for reasons relating to mental health and as a result. of this finding will not be issued the photographic identification. B has not entered into an agreement with the agency from which the individual is. separating from service in which that individual acknowledges he or she is not. qualified under this section for reasons relating to mental health and for those. reasons will not receive or accept the photographic identification. 6 Is not under the influence of alcohol or another intoxicating or hallucinatory drug or. 7 Is not prohibited by Federal law from receiving a firearm. In order to qualify as identification under the LEOSA a credential that is carried by a retired law. enforcement officer must meet one of the following criteria. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com, 1 A photographic identification issued by the agency from which the individual separated.
from service as a law enforcement officer that indicates that the individual has not less. recently than one year before the date the individual is carrying the concealed firearm. been tested or otherwise found by the agency to meet the active duty standards for. qualification in firearms training as established by the agency to carry a firearm of the. same type as the concealed firearm, 2 A A photographic identification issued by the agency from which the individual. separated from service as a law enforcement officer. B A certification issued by the State in which the individual resides or by a. certified firearms instructor that is qualified to conduct a firearms qualification. test for active duty officers within that State that indicates that the individual. has not less than 1 year before the date the individual is carrying the concealed. firearm been tested or otherwise found by the State or a certified firearms. instructor that is qualified to conduct a firearms qualification test for active duty. officers within that State to have met, I The active duty standards for qualification in firearms training as. established by the State to carry a firearm of the same type as the. concealed firearm or, II If the State has not established such standards standards set by any law. enforcement agency within that State to carry a firearm of the same. type as the concealed firearm,Limits of LEOSA, LEOSA is broad and the term firearm includes ammunition not expressly prohibited by Federal law. or subject to the provisions of the National Firearms Act. A law enforcement officer of the Amtrak Police Department a law enforcement officer of the Federal. Reserve or a law enforcement or police officer of the executive branch of the Federal Government. qualifies as an employee of a governmental agency who is authorized by law to engage in or supervise. the prevention detection investigation or prosecution of or the incarceration of any person for any. violation of law and has statutory powers of arrest 18 U S C 926B f. Regarding the requirement that the individual have the statutory power of arrest to be a qualified law. enforcement officer California law allows a peace officer to make an arrest Pen Code 834. Penal Code sections 830 1 through 832 6 specify the persons who are peace officers and when and. where they may use their authority No one else is considered a peace officer under California law Pen. Code 830 Certain federal officers however have been deemed to have LEOSA application For. example LEOSA applies to members of the Coast Guard See People v Booth 20 Misc 3d 549 552. 53 862 N Y S 2d 767 770 N Y Co Ct 2008 member of Coast Guard covered by section 926B held. to be exempt from prosecution for Criminal Possession of Weapon in the Second Degree see also. Alcoast 549 10 See also LaFontaine v City of New York 2009 2009 U S Dist LEXIS 105838 As. Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved. www michellawyers com, such LEOSA is likely to also apply to Navy Shore Patrol Air Force Law Enforcement and Military.
The LEOSA has limits and exceptions It does not apply to all firearms and weapons For example it. does not authorize either qualified law enforcement officers or qualified retired law enforcement. officers to carry any of the following machineguns silencers or destructive devices Likewise the. LEOSA does not supersede all state laws regarding the possession of concealed firearms The LEOSA. states that it shall not be construed to supersede or limit the laws of any State that 1 allow private. persons to prohibit or restrict the possession of concealed firearms on their property or 2 prohibit. or restrict the possession of firearms on any State or local government property installation building. base or park,BOTTOM LINE FOR CARRYING ISSUES, Law abiding citizens are carrying firearms in compliance with California laws with increased frequency. Police may stop a person who is openly carrying a firearm in a belt holster and may inspect the firearm. to see if it is loaded however the person may not be arrested for violating PC 12031 if ammunition is. not in such a position from which it can be fired even though the person may have immediate access to. matching ammunition Upon a determination that the firearm is unloaded the firearm should be. returned and the person in possession advised that he or she is free to leave Further questioning may be. done on a voluntary basis, Copyright 2011 MICHEL ASSOCIATES P C All Rights Reserved.


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