• Welfare and Institutions Code Section 8102 Deadly Weapon Seizure Found to Violate Fourth Amendment
  • November 19, 2008 | Authors: Laura L. Crane; James R. Touchstone
  • Law Firm: Best Best & Krieger LLP - Ontario Office
  • On October 27, 2008, in People v. Sweig, California’s Third District Court of Appeal held that a warrantless search of a residence resulting in the seizure of an illegal semi-automatic assault rifle violated the Fourth Amendment despite the fact the search was conducted for the primary purpose of seizing deadly weapons as mandated by Welfare and Institutions Code section 8102.

    In Sweig, an individual was taken into custody under Welfare and Institutions Code section 5150 because he was suffering from a mental disorder that made him dangerous to himself or others. The court stated that a person taken into custody pursuant to section 5150 retained his or her Fourth Amendment rights. The court noted that Welfare and Institutions Code section 8102, which requires a member of a law enforcement agency to confiscate any deadly weapon found in the possession, custody or control of an individual taken into custody under such circumstances, did not authorize a warrantless entry into a residence. The court explained that a statute such as section 8102 could not permissibly strip a mentally disordered person of their Fourth Amendment right against a warrantless entry into his or her residence, unless justified by exceptional circumstances recognized by courts. The court specifically rejected the People’s argument that officers were allowed to enter the home under the “community caretaking exception” to the warrant requirement, which permits officers to enter a residence without a warrant to take reasonable steps to protect persons or property from harm. Finally, the court stated that an officer could not obtain a search warrant to enter and seize deadly weapons pursuant to section 8102 because the situation specified in section 8102 was not contained in the limited grounds provided for the issuance of a search warrant set forth in Penal Code section 1524. The court suggested that the Legislature amend Penal Code section 1524 to address the “statutory flaw” highlighted in the case.

    Because of this holding, before conducting a search of a residence to seize deadly weapons pursuant to section 8102, it is now more important than ever for officers to obtain and fully document the knowing and voluntary consent to search for weapons from an individual legally capable of providing consent to the search.

    It is unclear at this time whether the Attorney General’s Office will seek review of this decision by the California Supreme Court or whether the Legislature will take action to correct this perceived flaw in the statutory scheme for seizure of deadly weapons pursuant to section 8102.