People v. Kern

California Court of Appeal Jun 1, 1979 No. Crim. 18773Published

Before: Christian

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Holding. The court held that the warrantless search of the defendant's car trunk was unlawful because the officers lacked a request to inspect the firearm, independent probable cause to believe it was loaded, or exigent circumstances.

Issues

Whether a request to inspect a firearm is a prerequisite to a search under Penal Code section 12031, subdivision (e).
Whether the search of the vehicle trunk was justified by probable cause or exigent circumstances in the absence of a request to inspect.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the absence of a request to inspect, probable cause to search and any exigent circumstances, the opening of the car trunk was unlawful.”

“Where there is no request there can be no refusal. Hence, section 12031, subdivision (e), did not justify an arrest, and the search was not incident to a lawful arrest.”

Opinion

CHRISTIAN, J.

The People have appealed from an order dismissing (Pen. Code, § 995) an information which charged Dale A. Kern with possession of a sawed-off shotgun (Pen. Code, § 12020) and possession of methamphetamine (Health & Saf. Code, § 11377). The question is

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whether the court acted correctly when it determined that the evidence admitted against Kern at the preliminary hearing had been seized in violation of the Fourth and Fourteenth Amendments of the Constitution of the United States.

On the morning of July 21, 1977, Officer Bachman of the Oakland Police Department was watching an Oakland residence in which the police believed methamphetamine was being sold. Officer Bachman was in an unmarked van parked near the residence.

While the surveillance continued, an informant who had been inside the residence told Officer Bachman that an old Dodge parked nearby was being started with a screwdriver in the ignition; the informant thought that the Dodge was stolen. The informant also told Officer Bachman that one of the men inside the residence was carrying a rifle. At that point Officer Bachman radioed for help.

Officer Bachman then saw two men come out of the residence. One was carrying a .30 caliber carbine and an attache case; the other, respondent Kern, was carrying what was described as a musical instrument case. The two men placed their luggage and the carbine in the trunk of the Dodge. About this time, Officer Harris arrived. Bachman told Harris what he had seen and asked him to stop the car. Harris followed and stopped the car “to make a check on the weapon and to check the vehicle to see if it was a stolen vehicle.”

Harris explained to the two occupants why they had been stopped. Both occupants were asked to step out of the car; they were pat-searched, and placed in patrol cars. Harris then opened the trunk of the car. Inside the trunk, Harris found a .30 caliber carbine lying on top of a black attache case. He picked up the carbine and drew back the bolt; a live cartridge was ejected from the chamber. Harris noticed that the rifle did not have a clip attached, for which the rifle was designed.

People v. Kern

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CHRISTIAN, J.

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