Concealed gun in car....hypothetical question

L

Lavan

New member
LEO's, lawyers, legal experts, a hypothetical question.
In a state where it is illegal to carry a loaded gun in a car, someone puts one in a combination locked briefcase.
What, if any, justification could be used to force him to open the case?
Assuming: he has not displayed a gun nor fired out a window nor in any way given any cause to be suspect of having a gun.
Would an officer be allowed to just look in the case? Wud a warrant be needed? Wud a warrant be granted without any cause apparent?
Curious.
 
Lavan,

I discussed this very topic with my wife (a retired attorney) last night. If the police have any justification to arrest you, they can then use an old ploy: Take an inventory of the car and its possessions to ensure nothing is stolen while you are in custody. If they discover an illegal firearm during this inventory inspection, they can press charges. Please note that I am not endorsing this approach nor am I indicating that it's appropriate; I'm just reporting the facts.
 
DISCLAIMER: I am not a lawyer and this is not legal advice, just the private opinions of someone who has read some stuff about the subject.

There is this little concept called "probable cause". Drive safely, behave yourself, show no outward behavior that justifies interference by LEOs and you can probably drive around all day with a trunk full of grenade launchers.

As for being made to open a briefcase, I believe courts have ruled that a simple trafic stop is not justification to search the vehicle. They can and will look into the car through the windows, but if they see no evidence of a crime that's all they can do. A briefcase is not evidence of a crime. Just say yes, officer, sign the ticket and be done with it. If asked about guns, simply say, "No, I have no guns on me." It's not on you, it's in a locked container. However, if you are asked directly about having a gun in the car, you can say yes, in which case they will take it, check it against the hot list and write you up for it, or you can say no and hope that they don't find a reason to search.

Bottom line is, once you give the LEOs cause to arrest you, everything in your immediate possession is fair game. Same goes if you consent to a search (and it is your right to refuse).

Another caveat: A lot depends on how the law is worded and how the courts have interpreted it. Here in Florida, you can carry in a car so long as the weapon is "encased". That means the glove box (doesn't have to be locked), any container with a lid or even just a holster with a retention snap -- all provided it's not physically on your person. You could put the gun in a show box on the seat next to you and be legal. A friend tells me that the fold-down center console in a Dodge Ram truck holds a 9mm Kahr nicely. All legal without a permit.
 
Is there any difference between concealed.... and...not in plain view.For instance...I was thinking of getting one of those shelfs for my pick up...the ones that affix through the sun visor holes.If one were to lay a pistol up there...loaded..within reach...but out of sight from someone standing at the drivers door....would that be considered a concealed weapon?
 
In the case of a locked briefcase why wouldn't they just "seal" it with tamper proof tape or something to insure nothing had been stolen from it during your custody.

If they are "sincerely concerned" that something might be stolen from your briefcase why would they bust through the locks to open it. That sounds like obvious snooping as opposed to something like my tape idea.

Their inventory could just read:
1) Locked briefcase

David: An even better answer to the gun questioning would be to simply decline to answer as the question has nothing to do with the purpose of the stop..
The "not on me" begs the follow up question of "anywhere in your car?" which backs you into the corner of lying or incriminating yourself.
As a general rule DO NOT answer ANY questions not related to the stop... very bad policy to do so for many reasons.




[This message has been edited by Jordan (edited September 21, 2000).]
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Lavan:
LEO's, lawyers, legal experts, a hypothetical question.
In a state where it is illegal to carry a loaded gun in a car, someone puts one in a combination locked briefcase.
What, if any, justification could be used to force him to open the case?
Assuming: he has not displayed a gun nor fired out a window nor in any way given any cause to be suspect of having a gun.
Would an officer be allowed to just look in the case? Wud a warrant be needed? Wud a warrant be granted without any cause apparent?
Curious.[/quote]

Whether or not the cops claim (rightly or wrongly) the authority to open that locked case, make damn sure it locks with a _combination_ lock. And make _you_ don't open it. If there is no key, and you don't give them the combination, they'll have to break it open--which proves pretty conclusively that they didn't have your permission. It would also, I suspect (I am not a lawyer, nor do I play one on tv) fly in the face of "protecting" your property, since that property was safely locked up until _they_ got at it.
 
These are pretty much as I think it would be.

I don't think you would even have to answer if he asked if you had a gun as it seems to me that the 5th amendment comes into play if it is illegal to have one in a car.

I have a CCW.....but who knows when that will be pulled or not renewed.

This whole thread is based on the premise that the driver has given NO reason to suspect a crime. May be speeding or sumpin but not driving drunk or on sidewalk over pedestrians.

OR

Has been incapacitated in an accident or medical emergency.

My BELIEF is that there could be no conviction if the statement was "I am not going to answer any questions unless I am under arrest." And then, get Mirandized and request an attorney. But say nothing about guns either voluntarily or under questioning.

I can't see ANY way they cud bust into it with no probable cause and get anything to stick.

Just shut up and keep it locked.

Show license, touch nose with eyes closed, lean backwards, sign ticket.

Bye bye officer, have a nice day.

I.......... T H I N K

Unless we have already gone in the toilet.
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Lavan:

My BELIEF is that there could be no conviction if the statement was "I am not going to answer any questions unless I am under arrest." And then, get Mirandized and request an attorney. But say nothing about guns either voluntarily or under questioning. [/quote]

Yeah, the best approach is not give any kind of consent, and not to answer any questions. If they're asking questions, either they're suspicious or they're fishing. Either way, the best response is to simply sit tight and let _him_ take the initiative; if he thinks he has cause to search, you can't stop him--but refusal to consent to search and refusal to answer questions are not (so far as I know) probable cause to act.

It's too bad that things have gotten to the point where treating the cops as the enemy is necessary, but it has. Assume the worst.
 
MrX...That's why I used the COMBINATION locking BRIEFCASE in the scenario.

I am so damn paranoid that I can envision that if you used one of those GUN lock boxes, it would be reasonable to suspect there was a GUN in it.

But a briefcase? If someone asked what is in it, the answer would be "personal things."
A completely honest answer.

And COMBO lock so if u get in accident, there is no key to be found so they can "help" you by searching for ID.

Keep em coming. Especially if u a lawyer.
 
In CA it is illegal to carry a concealed loaded firearm in your car. The firearm has to be unloaded, in a locked box, not accessible to the occupants, with no ammunition attached in any way. Hypothetically, a LEO cannot force you to open a locked container if he has no probable cause. A warrant cannot be issued unless there is probable cause (which is an affidavit).However regarding your question on searching the vehicle. According to Ca law, Officers may search any part of a motor vehicle as long as what they are searching for might reasonably be located in that part of the vehicle. In the search of a vehicle to be legal under probable cause (PC):
1) vehicle must have been lawfully stopped, or otherwise be lawfully accessible,and
2) LEO's must have enough facts, knowledge, training, or experience to provide probable cause that the item they are seeking will be found inside the vehicle they want to search.

LEO's with PC may search the passenger compartment of the vehicle and any container therein, the glove compartment, under hood, trunk, etc. For instance, if a LEO pulled you over and smelled marijuana, or thought you were DUI he can search the vehicle and any container therein including the trunk.

LEO's can also do a PROTECTIVE SEARCH of a vehicle as well where the officer believes, based on specific facts, that there may be a weapon, or item that could be used as a weapon, inside the vehicle. This is a search for weapons only. This does not include the trunk of a vehicle though.

Under consent, we all basically know what that will get you. However, if the consenting person expressly restricts certain areas of the vehicle or items within the vehicle, the officers must honor those restrictions.

When an officer makes a custodial arrest of a person inside the vehicle, LEO's may search:
1)passenger compartment, and
2)everything and anything in it.
The trunk does not apply in this case. However, if the car is being impounded then an inventory will be performed and any contraband will be seized.

Reminder this is CA law. There is another thing called the Exclusionary Rule many of you might not know about. The Exclusionary Rule is not in the Constitution but rather created by the US Supreme Court to encourage proper law enforcement conduct regarding searches. It basically says, if a court finds that a search is not reasonable and that a person's Fourth Ammendment rights have been violated by the gov't, all items seized during the search could be ruled inadmissible or excluded as evidence at trial.

Regarding Lavan's comment on pleading the 5th for self incrimination. You cannot do that because the 5th only applies if you are in a criminal trial. If you fail to answer any LEO's questions, in Ca, he can arrest you for PC 148 which is resisting, obstructing, or delaying a police officer which is a misdemeanor.
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by raven1:
...If you fail to answer any LEO's questions, in Ca, he can arrest you for PC 148 which is resisting, obstructing, or delaying a police officer which is a misdemeanor.[/quote]

According to this, if an LEO walks up and asks you if you've ever broken the law, and you don't answer, he can arrest you for not 'fessing up. If you lie, ("No, officer, I've never broken ANY law.") can he arrest you for lying to an officer?

Even in Kali, there must be more to it than that.
 
I live in Ohio where by law it is illegal to carry a concealed weapon, of course, this violates the Ohio Constitution, but our legislature could care less about "the people have the right to bear arms for defense and security."

What we have in Ohio is an affirmative defense in which you must prove that your justified in carry a concealed weapon. Of course, by the Ohio Constitution, the Second and Ninth Amendment of the Bill of Rights is sufficent enough.

Since the acquital in the Ohio vs. Feely case, I have chosen to secure my rights as laid out in both the US and Ohio Constitutions.

Check out www.chuckkleinauthor.com/Feely.html or www.ohioccw.com for the recent wins in the right to bear arms.
 
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by HankB:
According to this, if an LEO walks up and asks you if you've ever broken the law, and you don't answer, he can arrest you for not 'fessing up. If you lie, ("No, officer, I've never broken ANY law.") can he arrest you for lying to an officer?
[/quote]

I don't know about a CA cop,but if you lie to a _fed_ he can arrest you. They passed a nifty little law a couple or three years ago making it a FELONY to lie to a federal agent, and not just when you're under oath. Any time. Which is why I advise saying NOTHING to a fed, ever (except "Am I free to go? If not, I refuse to say anything until and unless I am arrested and my lawyer is present.")
 
raven1.... If, in CA a LEO asked what was in the briefcase, and you said "personal items" could that be called a lie?

If he asked if there were any weapons in the briefcase, would one be required to answer at all? Would it still be a misdemeanor and obstruction, etc. if one said, "I am not going to state the nature of my personal property nor do I have any intent to harm you?"

Would the situation change if one had rare coins or diamonds in the case? Not cash.

Krapifornia has some restrictive laws. Maybe moving is the best idea.
 
Al M: you said "They passed a nifty little law a couple or three years ago making it a FELONY to lie to a federal agent, and not just when you're under oath. Any time."

This is a new one on me - hard to believe that lying while not under oath is a felony?!?

Can you back this up with an address, pls?

Thanks
Dave
 
I didn't state that correctly, sorry. There is a difference between lying to an officer and obstructing, resisting, or delaying one in an investigation. The LEO cannot simply arrest you for lying to him about a question without PC. If that were the case every person a LEO encounters would be going to jail for lying. However, if that LEO is in a lawful investigation at the time and asks you questions about the crime and you do not answer, you are obstructing and delaying him. In CA, LEO's have discretion as to whether they want to arrest or not. But they have to be performing some sort of investigation of a crime at the same time.

If I were a LEO and just walked up to someone and asked them questions and they lied I could not arrest them (they don't even have to talk to me if they don't want to), but say they're physical description matched a known felon and I walked up on them because of this to ask them questions and they were not cooperative, I could arrest them. I would have to have a reasonable belief he/she has committed a crime.

Lavan...Regarding the briefcase question...If that briefcase was in the passenger compartment of the vehicle and unlocked, and the LEO had probable cause to search your vehicle, he has the right to search that briefcase, so I would not lie to him since he will find out what's in the case. However, if that briefcase was locked he cannot force open it unless he has a warrant and I doubt he is going to get a warrant to open a briefcase unless he suspects you are dealing drugs and has found some drugs in the car or you were known to deal drugs and had prior convictions.

If you are John Q Citizen you have nothing to worry about, LEO's don't mess with law abiding citizens, most will know the scum of the earth from a law abiding person. It is always based on PC, so if the LEO has none he cannot search anything.

If the case was in the trunk and he had PC he can search the trunk and anything in it. If it is locked, again he needs a warrant.

PS> Lying under oath is a misdemeanor, not a felony. Called Contempt of court..
 
Scratch that last PS. I brain farted and was thinking of something else. Lying under oath IS Perjury and that IS a felony.....
 
Raven, unless your name is ol slick willie,then you can lie and obstruct and walk away free!

As to leos not messing with normal citizens I happen to remember a certain Orgeon trooper or cop, who happend to follow my vehicle very close right after leaving a look out and then pulling in behind me when I pulled off at the next look out, he just sat there waiting for me to get moving again to try and find something wrong with a "California car".
I guess that is when I took out all the cameras and tripod and started to set them up that he decided I Had more time than he did and he left.

I leave he follows, I pull into next site seeing spot, he pulls in, I dont believe in coincidence, he was out to find something wrong and I didnt give him a chance, because nothing was wrong.Cept for the outta state plates.
 
Raven-

So if the CA LEO asks, "What is in there?" -in reference to the locked briefcase on the seat next to you what do you say?

What if he uses the old semi-sarcastic,"So, do you have any drugs, guns, knives, or hand grenades in there?"

Another silly question: Would a sticker in your car window saying "Protected by Smith and Wesson" be probable cause for a protective search of the vehicle? What about an NRA sticker?
 
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