Opinion
George V. Denny, III and Ralph J. Leardo, Beverly Hills, for defendant and appellant.
John K. Van De Kamp, Dist. Atty., Donald J. Kaplan, Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and respondent.
OPINION AND JUDGMENT FOSTER, Judge.
Victor George Zonver was convicted of violating Penal Code section 12031, subdivision (a). On this appeal from the judgment, we must decide whether a request must first be made of the owner of a firearm carried in a vehicle in a prohibited public place before a peace officer may enter the vehicle to examine the firearm pursuant to subdivision (e) of section 12031. We follow People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193 and People v. Greer (1980) 110 Cal.App.3d 235, 167 Cal.Rptr. 762 in holding that such a request is not an essential prerequisite to an entry and examination.
Section 12031
Unless otherwise specified, all code sections refer to the Penal Code.
About midnight Officer Edward Kreins of the Beverly Hills Police Department, while on patrol, observed a white Cadillac sedan illegally parked in a loading zone in front of a restaurant. He was going to issue a citation but decided first to ask the restaurant parking lot attendant, Carlos Lopez, if he knew the owner. Lopez told him that it belonged to a police chief, because it had a telephone inside, antennas on the trunk, and a gun between the front seats.
By illuminating the interior of the Cadillac with his flashlight, Kreins could see the handle and trigger of a gun protruding from between the front seats. He could not see the chamber to determine whether it was loaded. He asked Lopez if he had a key, and when Lopez unlocked the door, Kreins went in and obtained the gun. When he examined it, he found it to be a revolver with five bullets in the cyclinder, one being under the hammer. He took the serial number, replaced the gun where he had found it and locked the car.
Kreins checked by car radio with the records bureau and found both the gun and the automobile registered to defendant. There was no report of the gun having been stolen. Kreins did not know, however, whether Zonver had a permit to carry it.
As Kreins was completing his records check, Zonver and a female companion emerged from the restaurant, got into the Cadillac, and drove away. Following, Kreins called for assistance and stopped the Cadillac. After asking Zonver to alight, Kreins went to the Cadillac and observed the gun in the same location. He retrieved it and asked Zonver if he was in law enforcement or had a permit to carry a gun. When Zonver replied in the negative, he was placed under arrest.
Pursuant to Penal Code section 1538.5, Zonver moved to suppress evidence of Kreins' examination of the gun, and his later statements to Kreins, as products of an illegal search. Relying upon People v. Kern (1979) 93 Cal.App.3d 779, 155 Cal.Rptr. 877, he urged that before Kreins could enter the Cadillac to examine the firearm he was obligated to seek out the owner of the firearm and request to examine it. There is no dispute that Kreins made no such request and that Lopez did not have Zonver's permission to open the Cadillac for such an examination.
After reviewing People v. Kern, supra, and People v. Greer, supra, the trial judge denied the motion. Zonver then pleaded guilty, and judgment and this appeal followed. His sole contention on appeal is that as a legal requirement under subdivision (e) of section 12031 of the Penal Code, Kreins was obligated first to make a request of Zonver to inspect the gun before examining it. Absent such a request, he maintains, a peace officer must have independent probable cause to believe the gun loaded or there must exist exigent circumstances justifying a search before entering the vehicle.
On appeal, the People have suggested theories for upholding Kreins' entry into the Cadillac alternative to subdivision (e) of section 12031 of the Penal Code. Defendant responds that these are theories not urged in the trial court but raised for the first time on appeal. Upon our examination of the record, we are unable to find any basis for the People's alternative theories, or any evidence that they were urged or considered in the trial court. The only basis for an affirmance is subdivision (e) of section 12031 of the Penal Code.
Subdivision (e) of section 12031 provides:
"(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section." Section 12031 of the Penal Code was enacted in 1967 as one section of a statute declared by the Legislature to be emergency legislation arising from a growing concern over an increase in the carrying of loaded firearms. The facts constituting the emergency were stated to be:
"The State of California has witnessed, in recent years, the increasing incidence of organized groups and individuals publicly arming themselves for purposes inimical to the peace and safety of the people of California.
"Existing laws are not adequate to protect the people of this state from either the use of such weapons or from violent incidents arising from the mere presence of such armed individuals in public places. Therefore, in order to prevent the potentially tragic consequences of such activities, it is imperative that this statute take effect immediately." (Stats.1967, ch. 960, § 6.)
As part of the legislative scheme, section 12031 was enacted, prohibiting the carrying of a loaded firearm on the person or in a vehicle "while in any public place or on any public street ...." (Subd. (a).) Subdivision (e) was included "for the purpose of enforcing this section" and authorizes peace officers, "[i]n order to determine whether a firearm is loaded" to conduct an examination of a firearm carried on the person or in a vehicle.
Originally, this subdivision appeared as subdivision (c) of section 12031. Later, it was renumbered as subdivision (e). Although confusion may arise when quotations and references are made to various decisions because of this change in numbering, at all times we refer to the same text, which has been unchanged since section 12031's original enactment.
At the time DeLong was decided, the subdivision here at issue, (e) appeared as subdivision (c) to, section 12031. It was redesignated subdivision (e) when section 12031 was amended in 1976 (Stats.1976, ch. 1425, § 9). The language of the subdivision was not changed.
In the same statute, sections 171c and 171d of the Penal Code were enacted, prohibiting the carrying of loaded firearms in certain public buildings, in state universities and colleges, and in the residences or on the residential grounds of certain state officials. Section 171e was also enacted and made applicable to the enforcement of sections 171c and 171d. It contains language almost identical with that of subdivision (e) of section 12031, authorizing peace officers to examine any firearm carried on the person or in a vehicle, in the locations prohibited by sections 171c and 171d, to determine whether it is loaded. It may therefore be seen that authority to examine any firearm carried by anyone in a prohibited location on his person or in a vehicle, in order to determine whether it is loaded, was deemed by the Legislature integral to the enforcement of all three sections. People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193, upheld the constitutionality of subdivision (e) of section 12031 and section 171e. In that case, a campus police officer observed what appeared to be rifles in the trunk of an automobile and called a deputy sheriff to the scene. The deputy approached DeLong, who was seated behind the wheel of the automobile, and told him of the information he had received. DeLong denied the presence of guns in the trunk, and when requested to open it, denied having a key. He was ordered to alight and as he did so, he dropped a key with which the deputy opened the trunk. Inside were two rifles, which upon examination proved to be unloaded. But also in plain sight in the trunk was a quantity of marijuana. The appeal challenged an order of the trial court denying DeLong's motion to suppress the marijuana.
Because the search in DeLong was of a motor vehicle on a junior college campus, the Court of Appeal believed it more likely that the potential offense was governed by Penal Code section 171c and hence section 171e, authorizing inspection, would be applicable rather than subdivision (e) of section 12031. The court found it unnecessary to decide the question because of the near identity of the wording in subdivision (e) and section 171e. "Since the statutes relating to inspection of the firearms are essentially the same, it is not necessary to discuss the applicability of the one or the other of the statutes." (11 Cal.App.3d at p. 790, 90 Cal.Rptr. 193.)
An excellent discussion of the meaning of the term "contraband" may be found in Guidi v. Superior Court, supra, 10 Cal.3d at page 12, footnote 10, 109 Cal.Rptr. 684. (See p. 227, infra.)
After reviewing their statutory background, the Court of Appeal observed that under section 12031, subdivision (e), and section 171e, for the purpose of enforcing the respective statutes "peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle and ... refusal to allow a peace officer to inspect a firearm pursuant to statute constitutes probable cause for arrest for violation of the statute." (11 Cal.App.3d at p. 790, 90 Cal.Rptr. 193.) Despite the urging of the People in that case, the court found no independent probable cause for examining the gun apart from the authority given peace officers by the sections under review to examine firearms to determine whether they are loaded, but it found no necessity for the existence of such independent probable cause. It rejected appellant's suggestion that there must be other circumstances which of themselves would justify a search of the automobile, such as specific indicia that the gun was loaded, or evidence of a riot in progress, or facts implicating defendant in the commission of a crime or an outstanding warrant for his arrest, or a weapon in plain sight in the passenger compartment, pointing out that "if conditions such as those suggested were necessary, the statutes would be rendered nugatory." (11 Cal.App.3d p. 791, 90 Cal.Rptr. 193.) In upholding the constitutionality of subdivision (e) and section 171e, the Court of Appeal noted the minimal intrustion into the privacy of the owner of a gun, which the statutes permitted, in an examination to see if it is loaded. It is barely equivalent to a search, but if it is a search, it is not an unreasonable one. Continuing, it stated:
Merely observing a firearm, without additional grounds for suspicion, does not provide probable cause to believe it loaded in violation of section 12031 and thus subject to search and seizure as evidence of the commission of a crime. (People v. Muniz (1970) 4 Cal.App.3d 562, 567, 84 Cal.Rptr. 501.)
Of course, DeLong was not passing on the constitutionality of these statutes at all. Such an inquiry would be directed to the constitutional competency of the Legislature to proscribe the carrying of loaded guns in certain designated public areas (cf. People v. Satchell (1971) 6 Cal.3d 28, 41-42, 98 Cal.Rptr. 33). If such proscription is within the constitutional powers of the Legislature (as it undoubtedly is), the method of enforcement, even if flagrantly illegal, could not cast doubt on the constitutionality of the enactment itself. Rather, each case would turn on its own facts and would be controlled by the search and seizure provisions of the state and federal Constitutions. DeLong merely decided (incorrectly, in my view) that the method of enforcement utilized in that case was "constitutional."
"What is 'probable' in the case of a weapon must be tested by different standards from those which apply to other objects. When a gun is pointed at a bank teller, he might indeed reason to himself that it is just as probable that the gun is unloaded as that it is loaded, and that unless there were some particular indication to the contrary, he might act with assurance in refusing the demands of the person exhibiting the gun. But the nature of weapons is such that one does not measure probabilities by the standards that apply to other objects. It is true, of course, that in this case there was no such threat as exists in the case of the bank teller, but on the other hand, the carrying of weapons, particularly if it were done in large numbers on a college campus or in the other places mentioned by the statutes, would produce a show of force even though the weapons, or some of them, were unloaded.
"Bearing in mind that a state is free, as Chief Justice Warren put it, 'to develop its own law of search and seizure to meet the needs of local law enforcement,' provided, of course, that the Fourth Amendment standard of reasonableness be not offended (Sibron v. New York, 392 U.S. 40, 60-61 [20 L.Ed.2d 917, 933-934, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 933-934] ), we hold that the mere examination of a weapon which is brought into a place where it is forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional.
" * * *
"The exceedingly limited inspection permitted by the statutes in question, applied only to persons who do choose to carry firearms where loaded firearms are forbidden, comes well within the orbit of reasonable inspection or search." (11 Cal.App.3d at pp. 792-793, 90 Cal.Rptr. 193.)
In People v. Kern, supra, 93 Cal.App.3d 779, 155 Cal.Rptr. 877, subdivision (e) again came under review. There, police officers investigating possible narcotics violations observed defendant Kern place a carbine in the trunk of an automobile. The vehicle was stopped to make a check on the weapon and to see if the vehicle had been stolen. An officer opened the trunk and discovered that the carbine was loaded and additionally found narcotics equipment, restricted drugs and a sawed-off rifle.
In the trial court, defendant's motion to suppress the evidence seized from the trunk was granted. On appeal, the Court of Appeal affirmed, stating:
"The question is whether the provision in section 12031, subdivision (e) that 'refusal to allow a police officer to inspect a firearm pursuant to ... this section constitutes probable cause for arrest for violation of this section,' implies that a request to inspect must be made before there can be a lawful search. The trial court ruled that a request to inspect the firearm was a prerequisite to a search under this section. Because no such request was made in this case, the information was dismissed." (93 Cal.App.3d p. 782, 155 Cal.Rptr. 877.)
Although the opinion does not directly answer the question posed, by affirming the trial court's order of suppression inferentially it found that such a request was a prerequisite.
Kern reviewed DeLong and noted its holdings that " 'the mere examination of a weapon which is brought into a place where it is forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional.' " (Kern, at p. 782, 155 Cal.Rptr. 877.) But it went on to state: "In DeLong, the court was only considering the propriety of the inspection of the firearm itself. The concern in the present case is not with the examination of the firearm but with whether the police officer was authorized to open the car trunk in order to inspect the weapon." (p. 782, 155 Cal.Rptr. 877.)
Essentially, although not stated explicitly, the Court of Appeal in Kern holds that, although the first sentence of subdivision (e) authorizes an examination of a firearm in a vehicle in a prohibited area to determine if it is loaded, a peace officer may not enter the trunk of a vehicle to conduct such an examination without some independent basis. It found in the second sentence a legislative purpose to avoid frustration of such an examination by making refusal to allow a police officer to inspect a weapon probable cause to arrest for a violation of section 12031, subdivision (a). However, "[i]n the present case, Harris made no request to inspect the firearm. Where there is no request there can be no refusal. Hence, section 12031, subsection (e), did not justify an arrest, and the search was not incident to a lawful arrest." (P. 782, 155 Cal.Rptr. 877.) It acknowledged also that a police officer "could properly open the trunk if he had independent probable cause to believe that the weapon, which he knew to be inside, was loaded," (p. 782, 155 Cal.Rptr. 877) and it acknowledged that exigent circumstances would permit opening a trunk to search for a firearm, but it found present none of the circumstances providing a basis, independent of subdivision (e), for a search of the vehicle. (p. 783, 155 Cal.Rptr. 877.)
Subsequently, the Court of Appeal in People v. Greer, supra, 110 Cal.App.3d 235, 167 Cal.Rptr. 762 again reviewed subdivision (e). There, deputy sheriffs stopped an automobile being driven in an erratic manner and both occupants were ordered to alight. When Greer was asked if he had a gun, he replied that it was in the car and that he believed it to be unloaded. One of the deputies went to the vehicle and from a duffel bag on the front seat seized two .38 pistols, one of which was loaded. After the guns were seized, one of the deputies received a radio broadcast advising that the automobile which had been stopped was stolen. Later, additional information was received implicating Greer and his companion in a kidnaping and robbery which had occurred earlier that morning.
On appeal, Greer contended that the trial judge erred in denying his motion to suppress the guns. The contention was rejected by a majority of the justices, who stated:
"Here, Greer stated that he had a firearm in the car and he expressed a belief that the firearm was unloaded. The statute gave the officer the right to examine the firearm to determine whether it was loaded.
"Since the officer had the right to arrest Greer, had Greer refused to authorize an inspection of the firearm, in that such refusal would constitute probable cause for such arrest, the officer had the right to search and seize the firearm as incident to the arrest had there been a refusal to permit inspection. Does the fact that no request was made make the search illegal and require suppression of the evidence? The answer is 'No.' 1 When it becomes known (as here by admission and by observation as in People v. Kern, supra, 93 Cal.App.3d 779 [155 Cal.Rptr. 877] and People v. DeLong (1970) 11 Cal.App.3d 786 [90 Cal.Rptr. 193] ), that a firearm is in the car, its seizure due to the mobility of the automobile is permissible. A firearm, loaded or not, is such an instrument of potential danger that the section gives the officer authorization to examine it." (110 Cal.App.3d pp. 238-239, 167 Cal.Rptr. 762.)
Footnote 1 reads: "We are cognizant of a contrary holding in People v. Kern (1979) 93 Cal.App.3d 779 [155 Cal.Rptr. 877] ... but we can see neither logic nor reason for its result."
The presumption of invalidity can, of course, be overcome by the prosecution. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272.)
Zonver urges us to follow Kern. He recognizes that the opinion in Greer "apparently is in disagreement with Kern." but he contends that "the apparent holding in Greer " is "not necessary to the decision," and its reasoning is "patently unsound." We believe it clear that the holding in Kern conflicts with the holdings in Greer and DeLong. In that circumstance, this court "must make a choice between the conflicting decisions." (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321.) We find the better reasoning in DeLong and Greer.
We believe first that Kern misinterprets DeLong. Although Kern cites DeLong with approval and presumes to follow it, Kern, in holding that some independent basis must be present before an entry into a vehicle to conduct the examination permitted by subdivision (e) of section 12031, distinguishes DeLong on the ground that in DeLong, "the court was only considering the propriety of the inspection of the firearm itself." (93 Cal.App.3d 782, 155 Cal.Rptr. 877.) Kern overlooks the context in which the question arose in DeLong. There, the sheriff's deputy opened the trunk of DeLong's automobile, with the key he had dropped when ordered from the vehicle, in order to examine the rifles inside to determine if they were loaded. When the trunk was opened, the deputy found the rifles were unloaded, but he also observed marijuana inside. DeLong was not arrested for violating section 12031 of the Penal Code but for possession of marijuana, and he was convicted only of that offense. He sought only to suppress the marijuana and his appeal concerned only the denial of his motion. The deputy's entry into the trunk could be justified solely by the authority of subdivision (e) or section 171e to examine the rifles to determine whether they were loaded. No independent basis had been established and the Court of Appeal found none necessary. In short, the only issue before the court in DeLong was whether the deputy's entry into the trunk was justified solely by subdivision (e) or section 171e from the deputy's knowledge it contained a firearm. DeLong held that the sections did justify such entry and the Legislature could constitutionally enact them. Probable cause for an examination arises from the inherently dangerous nature of a firearm, whether or not loaded, and "[t]he exceedingly limited inspection permitted by the statutes in question, applied only to persons who do choose to carry firearms where loaded firearms are forbidden, comes well with the orbit of reasonable inspection or search." (11 Cal.App.3d at p. 793, 90 Cal.Rptr. 193.)
Secondly, although it is questionable that Kern holds, as urged by Zonver, that subdivision (e) requires in every instance a request of the owner of a firearm before it may be examined, we do not believe that the subdivision may be so read.
As we read Kern, it was concerned only with whether or not there was an independent basis for entering the trunk of the vehicle. A violation of the second sentence of subdivision (e), i.e., a "[r]efusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section," constitutes probable cause for an arrest for carrying a loaded firearm. A search of the vehicle would normally be justified as incident to the arrest for an offense of this nature. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563-564, 128 Cal.Rptr. 641; People v. Jochen (1975) 46 Cal.App.3d 243, 247, 119 Cal.Rptr. 914.) Kern implied the necessity of a request as a condition precedent to a refusal so as to trigger the second sentence, and without it there could be no arrest and no search incident to an arrest. Thus Kern's discussion of the absence of a request could be construed as limited to the specific facts of that case and not as an intent to announce a rule of general application, that a request must precede an examination under subdivision (e).
The People do not suggest that the parking attendant could consent to the search of appellant's car; nor is it contended that Officer Kreins held a good-faith belief that the attendant was so authorized.
Subdivision (e) contains two sentences which, although dealing with the same problem, concern different aspects of it. The first is a grant of authority to peace officers to examine firearms in prohibited places to determine whether they are loaded. On its face it is unqualified and unconditional, providing that "peace officers are authorized to examine any firearm carried by anyone ... in a vehicle while in any public place or upon any public street ...."
The second sentence preserves the peace officer's authority to conduct such an examination, granted by the first, by providing that "[r]efusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section." Thus, the second sentence creates a sanction for obstruction of the examination authorized by the first. The two sections thereby provide a consistent and coherent means of dealing with the problem of individuals arming themselves in public places, which the Legislature perceived to be of emergency proportion, by assuring that firearms so carried on the person or in a vehicle may be inspected to determine whether they are loaded.
A condition that a request for an examination of a firearm must be first made does not appear in subdivision (e) but, if it does exist, must be read in by implication. Although Kern reads a request for an examination as a condition precedent to the refusal subjecting an individual to arrest under the second sentence of subdivision (e), we would doubt that a refusal is restricted to a denial of a request. Thus, an individual carrying a firearm on his person or in a vehicle might interfere physically with the peace officer's examination, or upon the officer's approach he might attempt to secrete it, or to dispose of it by throwing it off a cliff or into the ocean. Any of these methods would be equally obstructive of the enforcement of section 12031.
But if we assume that a request is a condition precedent to the refusal contemplated by the second sentence of subdivision (e), we perceive no basis for inferring a legislative intent to make a request a condition to the examination apparently explicity authorized by the first, particularly since to read such a requirement in would render the first sentence virtually redundant.
That result follows of logical necessity. If a request is acceded to voluntarily, whatever authority is granted in the first sentence is superfluous, since the examination would then be by consent. If it is refused, an examination of the weapon would be authorized as incident to the arrest allowed by the second sentence, and the first sentence is again superfluous. It would be only in those instances in which the request is acceded to involuntarily or there was no one present of whom to make a request that the section would have any meaning. In the former instance, and only in that instance, subdivision (e) would have a meaning, of then allowing an examination when there would be no other basis for it. In the latter, if a request were necessary, the peace officer presumably would have to wait until someone appeared (which might be never if the possessor of the weapon were aware of the officer's presence), or the officer would have to conduct a search to try to locate the possessor. We see no reason why the Legislature would choose to adopt this indirect and convoluted approach to allowing examination of firearms when, as indicated in DeLong and, not challenged in Kern, it could constitutionally authorize an examination directly.
As already observed, case authority uniformly holds that the "mere presence" of a weapon, without more, does not give rise to probable cause to believe the weapon is loaded (see p. 223, ante ).
We believe that DeLong is correct in interpreting subdivision (e) as providing probable cause for a peace officer to examine or "search" a firearm to determine whether it is loaded when it is brought into a location where a loaded firearm is prohibited. With probable cause to examine the firearm when it is located in a vehicle, a peace officer may seize it and examine it "by any means reasonably available." (Wimberly v. Superior Court, supra, 16 Cal.3d 557, 571, 128 Cal.Rptr. 641; People v. Cook (1975) 13 Cal.3d 663, 668, 119 Cal.Rptr. 500; People v. Gregg (1974) 43 Cal.App.3d 137, 141-142, 117 Cal.Rptr. 496.) Officer Kreins' directing of the parking lot attendant to open the Cadillac for such an examination was authorized under subdivision (e). The judgment is affirmed.
The dissenting opinion challenges the reasoning of the Court of Appeal in DeLong in upholding the constitutionality of subdivision (e) [then subd. (c) ] of section 12031 and section 171e of the Penal Code as authority for the search there under review.
Cases which suggest that a weapon inside a vehicle may be seized pursuant to a valid detention include People v. Green, supra, 15 Cal.App.3d at page 772, 93 Cal.Rptr. 433, and an earlier decision of this court, People v. Jones (1975) 52 Cal.App.3d Supp. 12, 125 Cal.Rptr. 172.
JONES, J., concurs.
BERNSTEIN, Presiding Judge, dissenting.
I dissent. I would hold that appellant's conviction must be reversed, inasmuch as the People's evidence was obtained by means of an unlawful search of appellant's vehicle. In my opinion, the search was unlawful for want of probable cause. Further, I disagree with the majority's analysis of the holdings in People v. Kern (1979) 93 Cal.App.3d 779, 155 Cal.Rptr. 877, and People v. Greer (1980) 110 Cal.App.3d 235, 167 Cal.Rptr. 762. Finally, I am compelled to disavow what I believe to be the unconstitutional construction my colleagues give Penal Code section 12031, subdivision (e). 1
The instant case turns upon the usual Fourth Amendment considerations involving lawful searches and seizures. Under the traditional rules of criminal procedure, police officers may lawfully (assuming proper scope is not exceeded) search for evidence under any of the following circumstances:
1. SEARCH INCIDENT TO LAWFUL ARREST:
(Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768]; People v. Brisendine (1975) 13 Cal.3d 528, 539, 119 Cal.Rptr. 315; Miller v. Superior Court (1981) 127 Cal.App.3d 494, 503-511, 179 Cal.Rptr. 783.
2. SEARCH BASED UPON PROBABLE CAUSE (and, if warrantless, upon exigent circumstances):
Chambers v. Maroney (1970) 399 U.S. 42, 47-52, 90 S.Ct. 1975, 1979-1981, 26 L.Ed.2d 419; People v. Johnson (1981) 30 Cal.3d 444, 450-451, 179 Cal.Rptr. 209; Wimberly v. Superior Court (1976) 16 Cal.3d 557, 566, footnote 5, 128 Cal.Rptr. 641.
3. PLAIN VIEW SEIZURE WITHOUT PRELIMINARY SEARCH:
(Coolidge v. New Hampshire (1971) 403 U.S. 443, 464-472, 91 S.Ct. 2022, 2037-2041, 29 L.Ed.2d 564; People v. Hill (1974) 12 Cal.3d 731, 746, 117 Cal.Rptr. 393 (overruled on other grounds by People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786); Guidi v. Superior Court (1973) 10 Cal.3d 1, 10-18, 109 Cal.Rptr. 684; People v. Curley (1970) 12 Cal.App.3d 732, 747-748, 90 Cal.Rptr. 783.)
4. SEARCH INCIDENT TO A VALID DETENTION:
Terry v. Ohio (1968) 392 U.S. 1, 25-26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889; People v. Collins (1970) 1 Cal.3d 658, 661-663, 83 Cal.Rptr. 179; People v. Mickelson (1963) 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18; In re Richard C. (1979) 89 Cal.App.3d 477, 488, 152 Cal.Rptr. 787; People v. Huff (1978) 83 Cal.App.3d 549, 558, 147 Cal.Rptr. 316.
5. SEARCH BASED ON EFFECTIVE CONSENT:
People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447; People v. Szabo (1980) 107 Cal.App.3d 419, 430-431, 165 Cal.Rptr. 719; People v. Jones (1977) 72 Cal.App.3d 624, 627-628, 140 Cal.Rptr. 236.
Heretofore, these five alternatives have represented the only lawful means through which police officers could search for criminal evidence. The majority in the instant case now offers a sixth alternative upon which to base a "lawful" search: Section 12031, subdivision (e). I am unable to agree with my colleagues that this statute is of such profound constitutional import.
The principal analytical error to which the majority fall victim is their failure to distinguish an inspection of a lawfully seized firearm from the search (if one occurred) which produced the weapon. The court in People v. DeLong (1970) 11 Cal.App.3d 786, 90 Cal.Rptr. 193, in purporting to rule on the "constitutionality" of subdivision (e) 2 had this distinction clearly in mind:
"We hold that the examination permitted by Penal Code section 171e and section 12031, subdivision (c) is constitutional and does not violate the Fourth Amendment. In the first place, the examination of the weapon may hardly be deemed to be a search at all. The chamber of a gun is not the proper or usual receptacle for anything but a bullet or a shell. The loading of a gun simply affects the condition of the weapon by making it immediately useful for firing. The ammunition becomes, as it were, part of the gun. There is nothing private or special or secret about a bullet. The use of the word 'examine' in the statutes instead of the word 'search' is not at all a devious one. In examining the weapon, the officers are not attempting to find some kind of contraband which is unrelated to the gun itself."
(11 Cal.App.3d at pages 791-792, 90 Cal.Rptr. 193) [emphasis added]. The DeLong court summed up the import of its decision accordingly: "[W]e hold that the mere examination of a weapon which is brought into a place where it is forbidden to have a loaded weapon, is not unreasonable and that the statutes authorizing such examination are constitutional" (11 Cal.App.3d at pages 792-793, 90 Cal.Rptr. 193).
As to the basis in law for the search of the trunk of DeLong's automobile, the court is not nearly as articulate;
"... if the statutes which are to be discussed are valid, their objectives may not be frustrated simply by depositing firearms which have been exposed to view or which are otherwise known to the officers to be present in such part of the vehicle or in such container as obscures them from view."
(11 Cal.App.3d at p. 791, 90 Cal.Rptr. 193.) It is, or should be, apparent that a police officer's entry into a locked automobile trunk is a "search" within the meaning of the Constitution regardless of what the officer believes he will find. (See People v. Hill (1974) 12 Cal.3d 731, 748, 117 Cal.Rptr. 393--an officer's observation of marijuana in the interior portion of a vehicle is not a search if the officer makes such observation from a vantage point outside of the vehicle; however, subsequent entry into the vehicle for the purpose of seizing the contraband held to constitute a search; see, also, People v. Gale (1973) 9 Cal.3d 788, 794-795, 108 Cal.Rptr. 852:
"[T]he dispositive question in this proceeding is whether Officer Aumond's initial entry into the Pontiac and the Porsche was lawful. His observation while outside each vehicle--whether of the exterior or the portion of the interior visible from that vantage point--was not a 'search' in the constitutional sense (citation). But his ensuing entry into each car was, under numerous cases, a search within the meaning of the Fourth Amendment to the United States Constitution and article I, section 19 of the California Constitution (citation).")
Searches, of course, may be perfectly legal, even in the absence of a warrant. For a warrantless search of an automobile to be legal, the foundational requirement is probable cause to believe that "the contents of the automobile offend against the law" (Carroll v. United States (1925) 267 U.S. 132, 159, 45 S.Ct. 280, 287, 69 L.Ed. 543). Under the Carroll doctrine (better known as the "automobile exception" to the warrant requirement), probable cause such as will support a warrantless search of a vehicle exists whenever an officer is aware of "specific articulable facts which give reasonable cause to believe that seizable items are contained in the vehicle at the time of the search" (People v. Weston (1981) 114 Cal.App.3d 764, 774, 170 Cal.Rptr. 856) (emphasis added). "Seizable items" consist of either contraband or (other) evidence of a crime. (People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425; People v. Odom (1980) 108 Cal.App.3d 100, 109, 166 Cal.Rptr. 283.)
A firearm being carried in a vehicle is evidence of a crime if either (a) it is loaded and the carrier is not a person exempted from the operation of section 12031, subdivision (a); or (b) the seizing officer reasonably believes, as a result of specific facts known to him at the time of the seizure, that the weapon to be seized is linked to a particular crime. (See People v. Hill, supra, 12 Cal.3d at pp. 762-764, 117 Cal.Rptr. 393. Cf. People v. Marceaux (1970) 3 Cal.App.3d 613, 616-617, 83 Cal.Rptr. 798 [officers could properly seize rifle from defendant's car when they had reason to believe that the rifle had been used in an assault some time earlier].)
Under these settled principles of search and seizure law, it is apparent that a weapon not known to be loaded or to have been involved in the commission of a particular crime can only be considered "contraband" 3 subject to seizure if the weapon's mere existence gives rise to probable cause to believe that the weapon is loaded (i.e., is evidence of a violation of § 12031). It appears that each published Court of Appeal decision to directly address this question in the context here significant has answered it in the negative. People v. Kern, supra, 93 Cal.App.3d at pp. 782-783, 155 Cal.Rptr. 877; People v. DeLong, supra, 11 Cal.App.3d at pp. 790-791, 90 Cal.Rptr. 193; People v. Muniz (1970) 4 Cal.App.3d 562, 567, 84 Cal.Rptr. 501 (wherein Justice Kaus writes that "Farey [a police officer] obviously did not have probable cause to believe that the firearm was loaded" upon observing it on the floor of a vehicle pulled over for a mechanical violation).
An interesting anomoly occurs by reason of the DeLong court's holding in this regard. Although the only lawful means by which the officers could conduct a nonconsensual search of DeLong's car trunk would require probable cause to believe that the weapons in the trunk were loaded (or were otherwise evidence of a crime), the court takes great pains to emphasize that no such probable cause existed :
"The argument is that probable cause to believe that the guns [in the trunk] were loaded appears from the fact that appellant made two false statements to the officer and the officer knew them to be false. The first was appellant's denial that there were guns in the car, and the second, his saying that he had no key to the car. This gave rise to a reasonable belief, says respondent, that the guns were loaded or were stolen or were the instrumentalities of some crime.
"We do not agree with this reasoning. The officers knew of no particular crime in which the guns might have been used, and they did not have probable cause for believing them to have been stolen merely from the fact that some exchange of articles, perhaps for money, had been made. Besides, the deputy sheriff testified that the purpose of opening the trunk was to see if the guns which were there were loaded weapons. Nor does the false statement that there were no guns in the car, as made by appellant, supply sufficient probable cause, apart from the statutes which are to be discussed under the next heading, to believe that the guns were loaded. Appellant's denial of the presence of the guns and also his dropping of the key, although they were evasive actions, would not, we believe, justify opening of the trunk in the absence of these statutes. [Penal Code, §§ 171e and 12031, subd. (c), now designated subd. (e).]"
(11 Cal.App.3d at p. 790, 90 Cal.Rptr. 193.) (Emphasis added.) Thus, in its apparent zeal to pass upon the "constitutionality" of the statutes, the DeLong court ironically gave them an arguably unconstitutional construction. 4 Furthermore, the court in DeLong, in holding the inspection authorization portion of section 12031 to be "constitutional," engaged in an entirely unnecessary and superfluous exercise. Before DeLong, indeed, before section 12031, subdivision (e), the law of search and seizure in California permitted inspections of lawfully seized items, be they loaded weapons or otherwise. Eleven years prior to the passage of section 12031 our Supreme Court validated this course of action by police officers:
"The radio was in plain sight, and it fitted the general description of property known by the officers to be stolen. Under the circumstances, there appears to be no reason in law or common sense why one of the officers could not pick up [seize] the radio and examine [inspect] it for the purpose of dispelling or confirming his suspicions."
(People v. Roberts (1956) 47 Cal.2d 374, 380.) Roberts makes it clear that no innovation of constitutional significance is embodied in section 12031, subdivision (e). In fact, subdivision (e) could have been omitted entirely without affecting the enforcement of the statute in any material way. The power to inspect a lawfully seized item predates both DeLong and section 12031. The only new wrinkle in subdivision (e) is the passage dealing with "refusal" to permit inspection, the significance of which I will address infra.
The courts of this state have never questioned the right of a police officer engaged in a lawful investigation or search to take reasonable measures for self protection, including, if necessary, the frisking and disarming of a detainee for whom no probable cause to arrest exists. (People v. Turner (1969) 2 Cal.App.3d 632, 635-637, 82 Cal.Rptr. 763; People v. Lumar (1968) 267 Cal.App.2d 900, 904-905, 73 Cal.Rptr. 682; People v. Dumas (1967) 251 Cal.App.2d 613, 617, 59 Cal.Rptr. 541.) It is scarcely likely that a pre-DeLong or presection 12031, subdivision (e) police officer who lawfully seized a firearm would thereafter find himself faced with the need to procure a warrant before he could legally examine the weapon to see if it was loaded. Such examination was permitted before the carrying of a loaded weapon in certain areas was even a crime (People v. Murphy (1959) 173 Cal.App.2d 367, 377-378).
Search Versus Inspection
The issue in the instant case, as well as in DeLong, in Kern and in Greer, is not the propriety, or "constitutionality" of the inspection of the firearms seized in those cases. The issue is instead the legality of the search which, in each of the four cases, preceded that inspection. If the searches were unlawful, the seizure (and examination) of the weapons was likewise unlawful: "Of course, a seizure of evidence discovered in the course of a search without a warrant is presumptively invalid--because the prior search is presumptively invalid." 5 (Guidi v. Superior Court, supra, 10 Cal.3d at p. 15, fn. 15, 109 Cal.Rptr. 684). (Emphasis in original omitted.)
DeLong and Kern involved searches of automobile trunks. Greer involved the search of a duffle bag located in the passenger compartment of a lawfully detained vehicle. The instant matter involves the "search" of the passenger compartment of an unoccupied vehicle. All of the searches were conducted without a warrant. I understand the majority's position to be that each of these searches are authorized by statute; specifically, section 12031, subdivision (e). Section 12031, subdivision (e) provides as follows:
"In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section."
My colleagues insist that this section, in "authorizing" police officers to inspect weapons which they encounter in public places, permits officers to conduct any manner of search, reasonable or unreasonable, with or without probable cause (as that term has heretofore been defined), to facilitate the enforcement of the section. Though I find this proposition startling, at least two courts (DeLong and Greer ), impliedly at least, lend support to this "interpretation" of section 12031, subdivision (e). Fortunately, there exists better-reasoned authority to the contrary (Kern; People v. Green (1981) 115 Cal.App.3d 259, 263, 171 Cal.Rptr. 210; People v. Green (1971) 15 Cal.App.3d 766, 771-772, 93 Cal.Rptr. 433). In my view, section 12031 merely defines a crime, i.e., the carrying of a loaded firearm in areas where unauthorized persons are prohibited from so doing. I do not believe that this statute modifies in any way the commands of the Fourth Amendment or of Article I, section 13 of the California Constitution. Thus, I offer a more "traditional" search and seizure analysis than that of the majority. Under this analysis, any valid nonconsensual search will require, at the threshold, the existence of probable cause to search. A further requirement, also traditional in nature, demands that the probable cause to search must exist at the time the search is undertaken.
The Loaded Firearm Was Not The Product Of A Plain-view Seizure
The People correctly contend that Officer Kreins did not "search" appellant's automobile by merely looking in the window. A police officer's observations, if made from a place where the officer has a right to be, do not in themselves constitute a "search" (People v. Hill, supra, 12 Cal.3d at p. 748, 117 Cal.Rptr. 393; North v. Superior Court of Riverside County (1972) 8 Cal.3d 301, 306, 104 Cal.Rptr. 833; People v. Rico (1979) 97 Cal.App.3d 124, 133, 158 Cal.Rptr. 573). Of course, appellant herein did not seek to suppress the officer's observations from outside of appellant's car; these were of no evidentiary significance. Rather, it was the officer's subsequent observations (wherein he determined that the gun inside of the car was loaded), made from inside the vehicle, that appellant sought to suppress in the trial court.
Numerous authorities hold that a police officer's entry into a vehicle is, in the constitutional sense, a search of that vehicle. (People v. Gale, supra, 9 Cal.3d at pp. 794-795, 108 Cal.Rptr. 852; People v. Rico, supra, 97 Cal.App.3d at 133, 158 Cal.Rptr. 573 [the Rico court observed that "the use of a flashlight to look into a vehicle is of no constitutional significance and does not constitute a search if the officer is standing where he has a right to be and does not open any doors or enter the automobile." (emphasis added) ].)
Thus, it cannot be maintained that the evidence against appellant was not procured through a search, but was seized while in "plain view." The weapon was not in "plain view" from outside of the car, i.e., it was not "readily visible and accessible" (People v. Roberts, supra, 47 Cal.2d at p. 379; Bielicki v. Superior Court (1962) 57 Cal.2d 602, 607, 21 Cal.Rptr. 552), nor was it "fully disclosed and open to the eye and hand" (People v. Marshall (1968) 69 Cal.2d 51, 58, 69 Cal.Rptr. 585) (overruled on other grounds in People v. Cook (1975) 13 Cal.3d 663, 668-669, fn. 4, 119 Cal.Rptr. 500). Because the officer's entry into the automobile was a search, the validity of the subsequent seizure of the weapon turns upon the lawfulness of that search (Guidi v. Superior Court, supra, 10 Cal.3d at p. 15, fn. 15, 109 Cal.Rptr. 684).
The Search of the Vehicle Was Unlawful
The search in the instant case was unconsented to by appellant. 6 It was not incident to appellant's arrest (which occurred at a later time at a different location). In order to sustain the search, there would have to exist either probable cause to believe that "seizable" items were in appellant's vehicle (Chambers v. Maroney, supra, 399 U.S. at p. 48, 90 S.Ct. at 1979), or reasonable cause to detain appellant and ascertain thereby if appellant was armed (In re Richard C., supra, 89 Cal.App.3d at pp. 488-489, 152 Cal.Rptr. 787).
No Probable Cause to Search Was Occasioned By the Officer's Observations From Outside Appellant's Car
Possession of a firearm is not unlawful per se. Before such possession constitutes a crime, certain additional facts must be present (i.e., that the possessor had been convicted of a felony (§ 12021); that the weapon was concealed and its possessor lacked a license to carry a concealed weapon (§ 12025); or that the weapon was loaded and was being carried in a prohibited area by a person without a license permitting such activity (§ 12031)). Therefore, it follows that a firearm such as that carried by appellant does not, in the absence of other known facts, constitute "contraband" as that term is defined by the California Supreme Court:
"The term 'contraband' is one of common legal usage but imprecise legal meaning. Black's Law Dictionary defines it as: 'Against law or treaty; prohibited.' (4th ed. (1957) at p. 393.) The term has been consciously defined in isolated cases as meaning property which is unlawfully possessed. (See United States v. Old Dominion Warehouse, Inc. (2d Cir. 1926) 10 F.2d 736, 738; State v. Butler (1929) 148 S.C. 495 [146 S.E. 418, 419].) Most cases merely use the term without defining it; this tacitly tautological usage is reflected in the Supreme Court's declaration that 'contraband is indeed property in which the Government holds a superior [property] interest, but only because the Government decides to vest such an interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime.' (Warden v. Hayden, supra, 387 U.S. at p. 306, fn. 11 [87 S.Ct. 1642 at p. 1649, fn. 11, 18 L.Ed.2d 782 at p. 792]; cf. Aday v. Superior Court (1961) 55 Cal.2d 789, 800 .)
"Proper usage would appear to convey the sense of property which can only be unlawfully possessed, as opposed to stolen property, which can be lawfully possessed by its rightful owner. The distinction between stolen property and contraband is particularly important in regard to plain view seizures. Generally contraband items bear indicia of unlawfulness on their face, while only knowledge of the unique characteristics of a particular chattel or of the circumstances surrounding its possession can establish that any given item of property has been stolen from another. Stolen property, unlike true contraband, does not advertise its own unlawfulness. As may be seen in our examination of the Roberts and Gilbert cases, positive identification of stolen property, as opposed to contraband, generally requires preliminary inspection of the item thought to have been stolen in order to establish, by going beyond the limits of what is 'in plain sight,' whether or not the item is in fact stolen. Even though such 'inspections' or 'examinations' take place within a residence without benefit of warrants, they have not been invalidated as 'per se' unreasonable warrantless searches. This result has apparently been reached by treating the examination as an incident of the power to effect a plain view seizure even of a merely suspicious item, i.e., an item which an officer has probable cause to believe has been stolen, but which he must in fact 'search' in order to confirm is stolen. This rationale is consistent with the legal posture of plain view seizures and searches of items thus seized. Such seizures and searches incident thereto do not fall under the warrant procedure, and hence are governed by the objective standard of reasonableness, rather than probable cause to believe an offense has been or is being committed."
(Guidi v. Superior Court, supra, 10 Cal.3d at 12, fn. 10, 109 Cal.Rptr. 684, emphasis added.) Officer Kreins, before undertaking the search of the car, possessed no "knowledge of the unique characteristics" of the weapon or of the "circumstances surrounding its possession" (to wit: It was loaded, and therefore constituted evidence of a crime, assuming the owner was unlicensed).
Because the pistol did not "advertise its own unlawfulness" to persons outside of appellant's car (in contrast to, for example, illegal drugs or outlawed weaponry such as brass knuckles), probable cause to search the car was not supplied by Krein's observations. Therefore, the numerous cases which hold that an officer's observations of contraband within a vehicle furnishes probable cause to search that vehicle (Wimberly v. Superior Court, supra, 16 Cal.3d at pp. 564-565, 128 Cal.Rptr. 641; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 816-817, 91 Cal.Rptr. 729; People v. Terry (1969) 70 Cal.2d 410, 428, 77 Cal.Rptr. 460), or the passenger compartment of the vehicle, at least, are inapposite to the facts of the instant case. 7
Thus, Officer Kreins conducted a search at a time when he had no probable cause to do so. "It is well established that the later discovery of facts which, if known to the officers at the time, would have justified a search, does not validate conduct which was unlawful" (People v. Tellez (1982) 128 Cal.App.3d 876, 880, 180 Cal.Rptr. 579). It is precisely because DeLong (impliedly) and Greer (explicitly) sanction such retroactive "justification" that I find the holdings and reasoning in those cases to be unacceptable.
The Gun Was Not The Product Of a Lawful Detention
It is settled law that a peace officer, even in the absence of probable cause to arrest, may detain an individual whom he reasonably suspects to be involved in criminal activity (In Re Tony C. (1978) 21 Cal.3d 888, 892-893, 148 Cal.Rptr. 366; In Re Michael V. (1974) 10 Cal.3d 676, 681, 111 Cal.Rptr. 681; People v. Mickelson (1963) 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18). Furthermore, the detaining officer may, if he reasonably believes the person detained is armed, engage in a limited search (usually restricted to a pat down) to discover and secure the weapon (Terry v. Ohio, supra, 392 U.S. at p. 27, 88 S.Ct. at p. 1883; People v. Watson (1970) 12 Cal.App.3d 130, 134, 90 Cal.Rptr. 483).
It is not here necessary to discuss whether the "limited search for weapons" that is authorized as incident to a valid detention might, under appropriate circumstances, encompass the seizure of the weapon from the inside of a car belonging to a person detained in the immediate vicinity. 8 This is because Officer Kreins, unwilling to seek out appellant (Kreins had been informed by the parking attendant that appellant was inside the restaurant immediately adjacent to the parked vehicle), conducted his "search incident to detention" without a detainee. Clearly, a detainee is a necessary element of a valid detention, just as an arrestee is necessary before an arrest (and search incident thereto) may be said to have taken place (see People v. Egan (1967) 250 Cal.App.2d 433, 58 Cal.Rptr. 627, where the court invalidated a search "incident to arrest" because, although "[t]he officers had probable cause to arrest Egan... Egan had not made his appearance. With the stage thus set, the officers sprung the trap with the suspect far away" (250 Cal.App.2d at p. 437, 58 Cal.Rptr. 627)).
Thus, no detention took place in the instant case. The weapon was not, therefore, the product of a search for weapons incident to a valid detention. If, instead, Kreins had refrained from going about his immediate search and had sought out appellant at the nearby location where he knew appellant to be, a valid detention, followed by a lawful arrest for violation of section 12031, subdivision (a), would have been certain to ensue. Such a course of action would not have necessitated Kreins' permitting appellant to re-enter his car (and thereby gain access to the weapon) before initiating an investigative detention.
Such a procedure could have arguably exposed Kreins to some unnecessary danger. It must be observed, however, that Kreins was clearly not at any time in fear for his own safety. An officer in such fear would not, as Kreins did, replace the weapon, still loaded, and then permit the driver to enter his vehicle and drive off--with Kreins following to effect the eventual stop for the purpose of arresting appellant for violation of section 12031, subdivision (a). Another reasonable inference which may be drawn from these facts is that the officer realized at some point that perhaps he had acted too hastily in executing his impetuous search; he therefore replaced the loaded gun and effected the subsequent stop (at some danger to himself) in order to save the arrest from the suspected illegality of his initial intrusion into appellant's automobile. Since the officer's views as to the state of the law are irrelevant, this conjecture is nothing more than mental exercise.
I am forced to conclude that Officer Kreins' preliminary search of appellant's car was unlawful, in that no probable cause (nor exigent circumstances) existed at the time the search was undertaken; nor was a detention then in progress. There is simply no lawful basis upon which the search in the instant case may be upheld. Appellant's suppression motion pursuant to section 1538.5 should have been granted. A Request Is Not Necessary Before A Firearm May Be Examined Pursuant To Section 12031, Subdivision (e)
"... Refusal to allow a peace officer to inspect a firearm pursuant to the provisions of this section constitutes probable cause for arrest for violation of this section." (§ 12031, subdivision (e).)
The majority opinion discusses at length the question of whether the above-quoted subdivision requires that a request to inspect a firearm precede such inspection. According to the majority, appellant's "sole contention on appeal is that as a legal requirement under subdivision (e) of section 12031 of the Penal Code, Kreins was obligated first to make a request of Zonver to inspect the gun before examining it." The majority further represent that People v. Kern, supra, supports this purported contention of appellant.
In my opinion, appellant does not contend, nor does Kern hold, that a police officer must request to inspect a weapon before he may lawfully do so.
Neither Kern nor appellant suggest anything beyond the unremarkable proposition that a lawful search (not an inspection) must, if unconsented to, be based either upon probable cause or be incident to a valid arrest or detention.
The facts in Kern did not give rise to probable cause to search the vehicle in that case, or to arrest Kern and his companion. In similar fashion, no probable cause existed in the instant case at the moment Officer Kreins undertook the search of appellant's vehicle. What section 12031, subdivision (e) provides in situations such as these is "probable cause for the asking" (the Legislature presumably thought that any weapon known to the arresting officer to exist would be procurable through a search incident to the arrest occasioned by the suspect's "refusal" to allow inspection). As such, subsection (e) is both constitutional and effects the intent of the Legislature that all guns carried in public places should be subject to examination by police officers at all times. That Kern held no more than a request, if made, will serve to supply probable cause where it otherwise does not exist, is amply demonstrated by the court's consideration of the question of whether, in that case, probable cause had come into being from some other source, given the officers' failure, in that case, to ask.
Although the majority's discussion seems to focus principally upon the second stop of appellant by Kreins (where appellant was arrested), this stop is irrelevant. The critical point in analytical terms was reached the moment Kreins entered appellant's vehicle while it was parked in front of the restaurant. If the entry was unlawful, nothing Kreins did (or did not do) during his subsequent stop and arrest of appellant could have dissipated the taint (Wong Sun v. United States (1963) 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441) and rendered the arrest of appellant lawful. Conversely, if Kreins' initial search was proper, he had valid probable cause to arrest appellant from the moment he became aware that the gun was loaded. The fact that appellant was only arrested afterwards would not serve to invalidate the prior, lawful search. (See People v. Teresinski (1982) 30 Cal.3d 822, 180 Cal.Rptr. 617.) Thus, whether Kreins did or did not ask appellant if Kreins could inspect appellant's gun is irrelevant to the outcome.
"A request to inspect a firearm in order to determine if it is loaded is not the only possible basis for a lawful search. A police officer could properly open the trunk if he had independent probable cause to believe that the weapon, which he knew to be inside, was loaded. (Cf. People v. DeLong, supra, 11 Cal.App.3d 786, 791 [90 Cal.Rptr. 193].) Where the officer knows only that there is a weapon inside the trunk but has no other information which would lead him to believe the weapon is loaded, as is the case here, the officer does not have probable cause to believe the weapon is loaded. (Cf. People v. DeLong, supra, 11 Cal.App.3d 786, 790-791 [90 Cal.Rptr. 193].)"
I do not, under the facts presented by this case, think that the trunk/passenger compartment distinction is of any significance. Neither case involved a readily accessible firearm that could have been used "to assault an officer or resist arrest."
(People v. Kern, supra, 93 Cal.App.3d at 782-783, 155 Cal.Rptr. 877.) (emphasis added.)
I would reverse the judgment.
"(a) Except as provided in subdivision (b), (c) or (d), every person who carries a loaded firearm on his person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory is guilty of a misdemeanor."
Were the question an open one, we would find those sections constitutional. Although we have not canvassed the decisions to ascertain whether, as suggested in the dissent, there are only five categories of circumstances permitting search of a vehicle aside from the authority of the sections in question, we are mindful of the words of Chief Justice Warren in Sibron v. New York (1968) 392 U.S. 40, 60-61, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 933-934, that each state, within the constraints of the Fourth Amendment, is free "to develop its own law of search and seizure to meet the needs of local law enforcement." While most developments have arisen from judicial decisions (See, e.g., People v. Zelinski (1979) 24 Cal.3d 357, 363, fn. 7, 155 Cal.Rptr. 575), the Legislature is not impotent to develop laws authorizing search to meet a felt necessity. (E.g., Pen.Code, § 490.5 [as amended by Stats. 1981, ch. 650, § 1], which, to meet the growing problem of shoplifting, authorizes merchants and employees of library facilities upon detention of a person suspected of taking items, to conduct "a limited and reasonable search" of "packages, shopping bags, handbags or other property in the immediate possession of the person detained," a grant of authority to those merchants and employees not previously enjoyed under the law. Cf. People v. Zelinski, supra.) We have no doubt that the extraordinarily lethal potential of firearms, which in the United States kill and maim literally thousands of people each year, provides ample reason for the Legislature to invest peace officers, knowing that a firearm is being carried on the person or in a vehicle in a prohibited area, with authority to take whatever steps are reasonably necessary to examine the weapon in order to determine whether it is loaded.
But the question is not an open one. DeLong holds squarely that those sections are constitutional. No other appellate decision holds that they are not, but to the contrary, all, including Kern (see 93 Cal.App.3d at p. 782, 155 Cal.Rptr. 877), agree with this holding. As an inferior court, we are bound by DeLong, and should we seek to depart from its holding we would exceed our jurisdiction. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 457, 20 Cal.Rptr. 321.)