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Know your rights

Why you should: I’ve dealt with you.

All this over airsoft.

Posted in uncategorized on July 16th, 2012 by SayUncle | RSS 2.0 |

22 Responses to “Know your rights”

  1. countertop Says:
    July 16th, 2012 at 8:43 am

    Whats the backstory?

    These people obviously know each other. Does this cop keep harrassing them? Why did someone report guns for sale? Was this in California?

    If your having a yards sale, youve opened your yard to the punlic. it tough to say a cop can’t walk up. He might have to leave when you ask him too, but tough to criticize him for coming to sale.

  2. Divemedic Says:
    July 16th, 2012 at 9:22 am

    But she asked him to leave, and he refused. Since he is refusing to leave, and has no legal ability to be there, it is armed trespassing.

  3. Bryan S. Says:
    July 16th, 2012 at 9:52 am

    Its California… rights dont matter there. Much like NJ and NYC.

  4. Chris Says:
    July 16th, 2012 at 10:19 am

    This was in California. The cops received a call that the lady was selling real guns at her yard sale. He had to check them out. You can’t simply ask a cop to leave your yard if he is investigating a potential crime.

  5. Cargosquid Says:
    July 16th, 2012 at 10:23 am

    Warrants? Probable Cause?

  6. countertop Says:
    July 16th, 2012 at 10:42 am

    Sure seems like he left.

    But once you open your yard to the public in the firm of yard sale, expectations as to access change. It’s no longer private but becomes a public venue, at least for the period of the publicly open yard sale. And suspected guns are in plain sight. He didn’t snoop around anything else other than what he said he was investigating – which may or may not give him probable cause.

    Still, background on history here would be helpful. But based on this video, I’d side with the cop.

  7. divernurse Says:
    July 16th, 2012 at 10:57 am

    I recognize the folks in the video.
    The woman is a well known open carrier, and 2A advocate.
    Before the law in Kalifornia changed, she was routinely harassed, particularly at Santana Row in San Jose.

    She and her family participate in copwatch, SAF, CalGuns and other pro 2A orgs.

    The cops were wrong. Without a warrant, they had no right to enter and search her private property. A call is not probable cause. Much like a neighbor who smells pot smoke and calls in a complaint, cops may not enter your property without a warrant. Think about it for a second.

    Her daughter is a wicked shot, and I don’t mean with a camera 🙂 From the video, I garner it was a routine, run of the mill yard sale, offering amongst other things, a few airsoft. Bright orange tips could not been seen from the sidewalk????????

  8. Divemedic Says:
    July 16th, 2012 at 11:39 am

    Countertop: You are wrong. Opening your property for the purposes of a yard sale is a conditional license. That is, it is revocable at any time. Just like WalMart can ask you to leave, and it is trespassing if you refuse, so it is with a yard sale.

  9. Chris Says:
    July 16th, 2012 at 1:11 pm

    He didn’t need probable cause or a warrant. Just reasonable suspicion. The fact that he got a complaint and that the guns were in plain sight gave him all he needed. He walked up, verified they were not real and then left. Perfectly legal.

  10. countertop Says:
    July 16th, 2012 at 1:38 pm

    No. I’m not wrong.

    People v Strider (177 Cal.App.4th 1393 – which found that possession of a gun by a gang banger, on a private, fenced in, yard wasn’t possession in a public place) makes it pretty clear that not only is there no expectation of privacy, but that California law would clearly consider this yard sale, open to the public, on the front yard of the home, to lack any expectation of privacy whatsoever. The cops do not need a warrant to be there.

    I’ve got work to do. So I’ll just cut and paste the analysis from Strider, without going into it on my own.

    But its also worth pointing out, that when asked, the cop left.

    Places of business and parking lots on private property, open to the general public, have consistently been held to be public places. In People v. Vega (1971) 18 Cal.App.3d 954, 958, 96 Cal.Rptr. 391, the court concluded a parking lot was a public place within the meaning of the statute at issue here, section 12031. The defendant was arrested with a loaded gun in the market parking lot while conducting a drug deal. The court quickly disposed of his contention that the area was not a public place, reasoning, “[t]he parking lot of a market, being accessible to members of the public having business with the market, is a public place for purposes of section 12031 of the Penal Code.” (People v. Vega, supra, at p. 958, 96 Cal.Rptr. 391; see also People v. Green (1971) 15 Cal.App.3d 766, 771, 93 Cal.Rptr. 433 [hospital parking lot, accessible to members of public having business with the hospital, was a public place]; People v. Belanger (1966) 243 Cal.App.2d 654, 657–659, 52 Cal.Rptr. 660 [for purposes of section 647, subd. (f), public streets, highways, and sidewalks were obviously public places].)

    In In re Danny H., supra, 104 Cal.App.4th at pages 104, 128 Cal.Rptr.2d 222 to 105, we concluded that a railroad trestle (i.e., a raised dirt area adjacent to railroad tracks) was a public place for purposes of section 594.1, subdivision (e)(1), which prohibits a person under 18 from possessing an aerosol paint container for purposes of defacing property while at any public place. The trestle was on private property, but did not belong to the defendant, and he had no ownership or possessory interest in it. (In re Danny H., supra, at p. 105, 128 Cal.Rptr.2d 222.) Moreover, the trestle was “readily accessible; no member of the public wishing to access the trestle was prevented from doing so by any physical barrier.” (Ibid.) It was “unenclosed, visible to the public, and exposed to general view.” (Ibid.)

    It has been held that a “public place includes the area outside a home in which a stranger is able to walk without challenge.” (People v. Cruz, supra, 44 Cal.4th at p. 674, 80 Cal.Rptr.3d 126, 187 P.3d 970.) For example, in People v. Olson (1971) 18 Cal.App.3d 592, 96 Cal.Rptr. 132, an intoxicated woman rang the doorbell at a residence, *1403 was allowed in by the homeowner, who was a stranger to her, **73 and fell asleep at the homeowner’s kitchen table. The homeowner summoned police in an effort to obtain help for the defendant. Police arrested the woman for being intoxicated in a public place (§ 647, subd. (f)). (People v. Olson, supra, at pp. 594–595, 96 Cal.Rptr. 132.) Olson concluded that the area outside the house, including the driveway, lawn, and porch, “was a public place within the meaning of section 647, subdivision (f)…. Inasmuch as defendant, a complete stranger to [the homeowner], was able to walk through the outside area of her home to the front door without challenge, it can hardly be denied that the area is open to ‘common’ or ‘general use.’ ” (People v. Olson, supra, at p. 598, 96 Cal.Rptr. 132.)

    In People v. Jimenez, supra, 33 Cal.App.4th 54, 39 Cal.Rptr.2d 12, the defendant sold narcotics in a residential driveway. His sentence was enhanced pursuant to Health and Safety Code section 11353.6, which applied, inter alia, to the sale of controlled substances within “public areas” located within 1,000 feet of schools. (People v. Jimenez, supra, at pp. 57–58, 39 Cal.Rptr.2d 12.) The court concluded the unfenced residential driveway was a public area within the meaning of Health and Safety Code section 11353.6. (People v. Jimenez, supra, at p. 60, 39 Cal.Rptr.2d 12.) It reasoned that “ ‘public area’ ” was not synonymous with “ ‘public property.’ ” (Id. at p. 59, 39 Cal.Rptr.2d 12.) Instead, for purposes of Health and Safety Code section 11353.6, “ ‘public area’ ” encompassed not only publicly-owned locations “such as streets, sidewalks and bus stops” but also “those portions of private property which are readily accessible to the public.” (People v. Jimenez, supra, at p. 60, 39 Cal.Rptr.2d 12.)

    Similarly, People v. Yarbrough, supra, 169 Cal.App.4th 303, 86 Cal.Rptr.3d 674, held that in a prosecution for violation of section 12031, it was not error to instruct the jury that the area in front of a home, including a private driveway, was a public place if it was reasonably accessible to the public without a barrier. (Id. at pp. 315, 319, 86 Cal.Rptr.3d 674.) There, the defendant was observed by police with a group of men gathered on a driveway, next to an abandoned vehicle, in front of an unoccupied, unfenced house with a “for sale” sign on the front lawn. (Id. at pp. 307–308, 319, 86 Cal.Rptr.3d 674.) The residence did not belong to any of them. The homeowner was not present, and had not given permission for the group to congregate there. The driveway was “unenclosed, visible to the public, exposed to general view, and had no other physical barrier to access.” (Id. at p. 319, 86 Cal.Rptr.3d 674.)

    In People v. Perez (1976) 64 Cal.App.3d 297, 301, 134 Cal.Rptr. 338, we held that an apartment hallway was a public place for purposes of section 647, subdivision (f) because it was readily accessible to all who wished to go *1404 there. “There were no locked gates or doors to keep the public from entering. Hallways and stairways of multiple dwellings are open to delivery men, service men, solicitors, visitors and other strangers, whether those hallways are interior or exterior to the buildings…. In other words, a ‘public place’ within the meaning of [section 647, subdivision (f) ] is a location readily accessible to all those who wish to go there rather than a place which the general public frequents.” (People v. Perez, supra, at p. 301, 134 Cal.Rptr. 338, fn. omitted.)

  11. Kristopher Says:
    July 16th, 2012 at 2:42 pm

    Countertop:

    Yes, a cop can walk into a business’s open to the public area without a warrant.

    No, he cannot stay and dig into shit if the owner trespasses him.

  12. Mr Evilwrench Says:
    July 16th, 2012 at 3:12 pm

    It does gratify me to see the three of them standing on the sidewalk picking their noses after someone with some knowledge hands their asses to them. You know she just castrated them; a lot of them just can’t stand not controlling the situation.

  13. Divemedic Says:
    July 16th, 2012 at 4:12 pm

    But countertop: I am not saying that they couldn’t enter. I am saying that they cannot remain.

  14. HL Says:
    July 16th, 2012 at 4:58 pm

    Lets get to brass tacks here. If the gun was real, would it have made any difference? I am not sure about Cali’s laws, but in TN, if the gun were real and a cop walked up and said “hey we got a call you were selling a gun here at your yard sale”, I would say “ayup, you looking to buy?”. That would pretty much be the end of it.

  15. ctr Says:
    July 16th, 2012 at 6:31 pm

    I still don’t understand what law they thought was being broken that the police needed to go check out?

  16. Free-range Oyster Says:
    July 16th, 2012 at 6:44 pm

    “what law they thought was being broken”
    Being uppity

  17. Lyle Says:
    July 16th, 2012 at 9:10 pm

    In which cops get all pissed off because not everyone lets them get away with anything.

    And People, seriously; “Probable Cause” as used in the 4th amendment refers only to getting a warrant. It DOES NOT refer to cops being able to do ANYTHING ELSE but get a warrant. Read it, please.

  18. SBeck Says:
    July 17th, 2012 at 12:30 am

    My brother was LEO for 32 years. How he would of handled it “Dang, is that real? I have been looking for something like this for training. you have any more? You know someone thought you were selling guns. I just want to remind you that to legally blah blah blah…….”

    They would be offering him a cup of coffee and cookies before he got done. Probably get a nice email at the chiefs office telling him how nice Officer X was.

    He became a cop when they served, and it was never them against us. He had perps tell him he is the nicest cop to ever take them down because he always apologized.

  19. Seerak Says:
    July 17th, 2012 at 2:35 am

    In Cali, all sales, including FTF and long guns, must go through FFL. The only exception I think may exist is some esoteric loophole for 50+ year old shotguns. So, I imagine the PC they’d claim in court is investigating possible intent to illegally offer for sale.

    On the other side, even if they were real guns, the owners could simply say they were looking for buyers, and that once they were found they were going to exchange information and meet with an FFL later. After all, you have to find buyers somehow.

    All that said, I’d simply say that “private property” sounds so quaint in when invoked in California.

    IANAL (but used to live in Cali).

  20. HL Says:
    July 17th, 2012 at 12:09 pm

    Ahh Seerak…so the cops were just going by to remind them not to break the law in case they were going to sell the gun…like if they just pulled people over to remind them not to speed.

  21. TIM Says:
    July 18th, 2012 at 1:06 am

    Regardless of being in Cali. or not they have the right to investigate a possible illegal gun sale.I dont think she would have a leg to stand on claiming private property at a apartment complex.Plus the yard sale openly invites public to come onto property.

  22. Kristopher Says:
    July 18th, 2012 at 7:35 am

    TIM: They should have gotten permission from the manager. At which point, the renter could not trespass them.

    Which is why I will have nothing to do with apartment renting.

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