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4th LEO encounter!

I am...

  • - Out on Bail.

    Votes: 0 0.0%
  • - Released of my own recognizance.

    Votes: 0 0.0%

  • Total voters
    4

demnogis

Regular Member
Joined
Jul 21, 2008
Messages
911
Location
Orange County, California, USA
imported post

I'm still coming off of the adrenaline rush...

I'm (now) in my old hometown, visiting family. My dad and I registered for the RWVA shoot this whole weekend at Rauhaagauses (or however it is spelled).

I head out at about 9PM. I get into town here, take my exit.

Oh. Crap.

In front of me are two lines of cars. The city is doing a DUI/Sobriety checkpoint - and I just HAD to pick the exit where they're doing this*.

The lines of cars slowly move forward. I took the right lane. As I pulled up I greeted the officers there. One of the officers to my right (officer 2) noticed my firearm, and asked me what it was. I told him that it was my pistol and that it is unloaded. He instructed me to turn off my motorcycle, I complied. I told him I would not interfere if he checked to make sure it was unloaded. He proceeded to unholster my firearm and check that it was, indeed, unloaded. The officer to my left (officer 1) asked "Why are you carrying a pistol?" I responded "As far as I know it is my right to carry a firearm in CA so long as it is unloaded and clearly visible, ie: openly carried. The officer 2 asks officer 1 "Is that right?" Officer 1 responds: "He's right. That is correct. If it's unloaded and openly carried it's ok." He asked me if I had any loaded magazines on me. I told him I have 2 loaded magazines, also in an openly visible holder on my left side. Officer 1 then directed me to pull over into the parking lot to the right so they could check my license, registration, insurance etc. I asked if I should get off and push it, he said no go ahead and drive it over there, officer 2 would meet me over there.

I slowly pulled into a parking stall in the parking lot adjacent to the street, shut off my bike, dismounted and put my bike on the center stand. Right officer asked me to get my driver's license out and I started to. He asked me what was in the case on my back and I told him it was my rifle which was disassembled. He asked me to take it off and set it down. I did, then handed him my license. I told the officer that I also had my voice recorder on me, that it was recording. I was not able to see his badge or nametag at this time. He interrupted and told me that it was illegal for me to be recording our interaction because as an individual he has civil rights too[sup](1)[/sup]. I started to explain that since he is working in his official capacity as a public servant it is not illegal to record our interaction in public. He insisted that it was illegal. He then told me to have a seat on the curb. Not more than a minute goes by and he asks me to stand up again, asks where I have my loaded magazines. I tell him where they are and he pulled them out of the holder and asked me to sit back down.

Shortly thereafter Officer 1 came over to where we were. Officer 2 stands me up and Officer 1 asks me what I was doing coming into his town carrying guns. He tells me that I'm going to jail, tonight, because I had loaded magazines on me. I politely told him that I believed he was wrong, and to check the penal code that applies to the possession of ammunition and a firearm. He insisted that he knew firearms laws better than anyone else in his department. I asked him if I could speak to his seargant. Officer 1 again affirmed that he knows more than his seargant does about firearms laws. I said to him again that there is nothing in the CA penal code that prohibits a person from carrying a firearm and/or ammunition, unless you are a prohibited person[sup](2)[/sup]. I made reference to CA vs. Clark[sup](3)[/sup] and the definition of unloaded 12031[sup](4)[/sup], openly visible firearm (non-concealed) 12025[sup](5)[/sup], locked and unloaded for transport or within a vehicle 12026[sup](6)[/sup]. Officer 1 tells me that I am illegally possessing loaded magazines and a firearm. He again insists that since I'm going to jail tonight, my bike is going to get towed to impound. He tells me to turn around, put my hands behind my back. I ask "Am I being detained?" He responds "You're under arrest."

:what:

I will post part 2 tomorrow when I get home.

Edit: Adding footnote cites:
(1) {Thanks bigtoe} California Recording Law.
(2) PC §12021 Prohibited persons and restrictions.
(3) Clark V. California
(4) PC §12031 Definition of a loaded firearm, restrictions on loading, authority to conduct load checks.
(5) PC §12025 Defining concealed firearms, prohibitions, exemptions and penalties.
(6) PC §12026 Rules and restrictions of transporting firearms (in vehicles), etc.
 

KS_to_CA

Regular Member
Joined
Sep 27, 2008
Messages
443
Location
National City, CA, ,
imported post

I have a three ring binder in my car with all pertinent documents and sheriffs' memos in clear plastic document protector for clear viewing if an officer decides to believe he knows more than anybody about gun law.
 

nukechaser

Regular Member
Joined
Feb 6, 2009
Messages
110
Location
Elk Grove, California, USA
imported post

Please, oh please, tell us you got all of that on tape! :what:

This brings to mind a question:

When one is arrested, does the arresting officer have to say why at the time of arrest? e.g.- "You're under arrest for DUI."

Or is "You're under arrest" sufficient?

Anyone know? (yes, Cato, I am looking your direction) ;)
 

cato

Newbie
Joined
Oct 29, 2006
Messages
2,335
Location
California, USA
imported post

Well ya, you are supposed to tell someone what they are being arrested for. Sometimes that doesn't quite happen until you are back at the station.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=833-851.90
841. The person making the arrest must inform the person to be
arrested of the intention to arrest him, of the cause of the arrest,
and the authority to make it, except when the person making the
arrest has reasonable cause to believe that the person to be arrested
is actually engaged in the commission of or an attempt to commit an
offense, or the person to be arrested is pursued immediately after
its commission, or after an escape.
The person making the arrest must, on request of the person he is
arresting, inform the latter of the offense for which he is being
arrested.
 

nukechaser

Regular Member
Joined
Feb 6, 2009
Messages
110
Location
Elk Grove, California, USA
imported post

cato wrote:
Well ya, you are supposed to tell someone what they are being arrested for.  Sometimes that doesn't quite happen until you are back at the station.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=833-851.90
841.  The person making the arrest must inform the person to be
arrested of the intention to arrest him, of the cause of the arrest,
and the authority to make it, except when the person making the
arrest has reasonable cause to believe that the person to be arrested
is actually engaged in the commission of or an attempt to commit an
offense, or the person to be arrested is pursued immediately after
its commission, or after an escape.
   The person making the arrest must, on request of the person he is
arresting, inform the latter of the offense for which he is being
arrested.
 
See? I knew I was glancing in the right direction! Thanks, Cato!
 

ConditionThree

State Pioneer
Joined
May 22, 2006
Messages
2,227
Location
Shasta County, California, USA
imported post

I think you are free.

I believe that you were arrested, probably taken to the station, and officers discovered that since you are not a prohibited person, they could not charge you with a crime.

The reason why I say this is that your encounter began at 9pm and your posting occured at 1:20am. You didnt even spend the night in jail. Since your post is quite long andnot in mobile text shorthand and not frought with spelling errorsor typos Im sure you didnt use a mobile device.

Now the question remains- What PC did they attempt to apply to you?
 

bigtoe416

Anti-Saldana Freedom Fighter
Joined
Jun 3, 2008
Messages
1,747
Location
Oregon
imported post

Here's my take on your encounter. You said you were stopped at a DUI checkpoint. It is my understanding that in order for these checkpoints to be constitutional they must alert all drivers prior to entering them and allow the drivers to avoid the checkpoint (although I can't find a citation for this). If the checkpoint is on a street, they will usually have a sign an intersection before the checkpoint. Was there a sign in this case? If there wasn't, the checkpoint was unconstitutional, and hence illegal (Michigan Dept. of State Police v. Sitz covers DUI checkpoints supposedly). They are also supposed to randomly stop vehicles based on a one every x number of cars. They stopped you, was it because you were number x or was it because they saw your firearm? See the wikipedia page for guidelines: http://en.wikipedia.org/wiki/Sobriety_checkpoint.

You also answered far too many questions here. Don't tell them you have a rifle, don't tell them you have a recorder. You gain nothing by doing this. This encounter is a great example of how remaining silent can work in your favor. When they sent you to secondary, you should have asked if you were being detained, and if so what was their reasonable suspicion. That's the time to start talking. Start quoting case law like U.S. v. Ubiles and Terry and whatever else comes to mind. Start making them doubt themselves. Start them thinking that they might be wrong and you seem to know an awful lot about laws. I'm guessing criminals don't appeal to case law when they are being detained.

Sucks that the officer was ignorant of the laws. Not sure what you could have done at that point. You might have made it out of there if you challenged the detention right off the bat, although even then I'd wouldn't give you that good of chances.

Recording guidelines: http://www.citmedialaw.org/legal-guide/california/california-recording-law

Hope you're out and uncharged.
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,709
Location
Fairfax County, Virginia, USA
imported post

KS_to_CA wrote:
Can you cite a code or case that says recording a conversation with uniformed officers performing public duties is legal?
Well, its legal by definition unless you can point to a statute against it; even then, 2 party notification for wire recording statutes have been held unconstitutioal by courts around the USA when recording police doing public acts.
 

virginiatuck

Regular Member
Joined
Feb 5, 2009
Messages
787
Location
Loudoun County, Virginia, USA
imported post

bigtoe416 wrote:
You also answered far too many questions here. Don't tell them you have a rifle, don't tell them you have a recorder. You gain nothing by doing this. This encounter is a great example of how remaining silent can work in your favor. When they sent you to secondary, you should have asked if you were being detained, and if so what was their reasonable suspicion. That's the time to start talking. Start quoting case law like U.S. v. Ubiles and Terry and whatever else comes to mind. Start making them doubt themselves.
Maybe his point of it all is that there's nothing wrong with having handguns, loaded magazines, and rifles. And there's nothing wrong with being a gentleman and openly carrying on a polite conversation with some law enforcement officers. :cool:

I think part II will be posted after Sunday, June 21, 2009 at 4:00 PM (PT), when the Piru, CA Appleseed Shoot is over.
 

bigtoe416

Anti-Saldana Freedom Fighter
Joined
Jun 3, 2008
Messages
1,747
Location
Oregon
imported post

virginiatuck wrote:
Maybe his point of it all is that there's nothing wrong with having handguns, loaded magazines, and rifles. And there's nothing wrong with being a gentleman and openly carrying on a polite conversation with some law enforcement officers. :cool:

I think part II will be posted after Sunday, June 21, 2009 at 4:00 PM (PT), when the Piru, CA Appleseed Shoot is over.
I'd gladly be a gentleman to Cato and CrumpyCoconut, two of the police officers on the california board. I'd be more hesitant being a gentleman when dealing with police officers I personally know. I'd be extremely hesitant being a gentleman when dealing with police officers I don't know.

I definitely have respect for a state and its law enforcement officers if one can be open and honest about open carrying without having to worry about arrest. I don't think California is there just yet though.
 

CA_Libertarian

State Researcher
Joined
Jul 18, 2007
Messages
2,585
Location
Stanislaus County, California, USA
imported post

KS_to_CA wrote:
Can you cite a code or case that says recording a conversation with uniformed officers performing public duties is legal?
As Mike pointed out, it's not up to us to prove what is legal, but to determine that which is prohibited/illegal.

Here's the only thing I could find in CA penal code (my emphasis bolded/underlined):

632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment...

...(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Logically, any communication taking place in public is likely to be overheard. Now, it's possible this side lot was secluded enough. Assuming no other people were present (i.e. another person being investigated in the lot, but not party to the communication in question), the officer may be able to claim he reasonably thought the communication was confidential. (Don't have a citation, so I won't argue about privacy rights of officers while performing public duties. I'll simply assume they have a right to privacy while on duty.) However, by notifying the officer the recording was taking place, there is no way the officer could claim he reasonably believed the communication was not being recorded.
 

pullnshoot25

Regular Member
Joined
Jul 24, 2008
Messages
1,140
Location
Escondido, California, USA
imported post

CA_Libertarian wrote:
KS_to_CA wrote:
Can you cite a code or case that says recording a conversation with uniformed officers performing public duties is legal?
As Mike pointed out, it's not up to us to prove what is legal, but to determine that which is prohibited/illegal.

Here's the only thing I could find in CA penal code (my emphasis bolded/underlined):

632. (a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment...

...(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Logically, any communication taking place in public is likely to be overheard. Now, it's possible this side lot was secluded enough. Assuming no other people were present (i.e. another person being investigated in the lot, but not party to the communication in question), the officer may be able to claim he reasonably thought the communication was confidential. (Don't have a citation, so I won't argue about privacy rights of officers while performing public duties. I'll simply assume they have a right to privacy while on duty.) However, by notifying the officer the recording was taking place, there is no way the officer could claim he reasonably believed the communication was not being recorded.

In California, party consent only refers to communications on a closed circuit (e.g. a phone line) or a private setting (e.g. exclusive area). Public=public=public, no matter how one cuts it. Therefore, that officer needs to go through some remedial training in logic and interpersonal skills. If he wants to play the privacy card while being in public, he needs to join the KGB, I am sure they would love him to join.
 

CA_Libertarian

State Researcher
Joined
Jul 18, 2007
Messages
2,585
Location
Stanislaus County, California, USA
imported post

pullnshoot25 wrote:
In California, party consent only refers to communications on a closed circuit (e.g. a phone line) or a private setting (e.g. exclusive area). Public=public=public, no matter how one cuts it. Therefore, that officer needs to go through some remedial training in logic and interpersonal skills. If he wants to play the privacy card while being in public, he needs to join the KGB, I am sure they would love him to join.
I would argue that it's possible that a place could be both public and secluded/exclusive. If we're in the middle of the desert or in the mountains far off the beaten trail, I'd say it's reasonable to assume the communication is confidential. I can imagine the DA attempting to extend that analogy to a secluded parking lot under cover of freeway noise (where it's unlikely anybody further away than 50 feet would be able to hear anything spoken). I can also imagine a jury buying that, whether I agree with it or not.

In most public places, this isn't even an issue. I'm just urging discretion.
 

Mike

Site Co-Founder
Joined
May 13, 2006
Messages
8,709
Location
Fairfax County, Virginia, USA
imported post

CA_Libertarian wrote:
pullnshoot25 wrote:
In California, party consent only refers to communications on a closed circuit (e.g. a phone line) or a private setting (e.g. exclusive area). Public=public=public, no matter how one cuts it. Therefore, that officer needs to go through some remedial training in logic and interpersonal skills. If he wants to play the privacy card while being in public, he needs to join the KGB, I am sure they would love him to join.
I would argue that it's possible that a place could be both public and secluded/exclusive. If we're in the middle of the desert or in the mountains far off the beaten trail, I'd say it's reasonable to assume the communication is confidential. I can imagine the DA attempting to extend that analogy to a secluded parking lot under cover of freeway noise (where it's unlikely anybody further away than 50 feet would be able to hear anything spoken). I can also imagine a jury buying that, whether I agree with it or not.

In most public places, this isn't even an issue. I'm just urging discretion.
No, when police are acting in their official capacity they are carrying on public business - everything they say is on the record and recordable - sounds like you californians need to have 2 recorders - one obvious, and if they confiscate it, great, cause then they are going to say crazy stuff recorded on the surreptitious one.

I am waiting to hear about one of you guys filing a lawsuit - once a civil suit is filed on this open carry harassment (e.g., in incorporated areas, more than a de minimis and anonymous encounter to see if the gun is loaded), all this harassment will taper off quickly.
 
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