How do they know which a/c have "an operable transponder"? Besides, applying the letter of the law (91.215); if the transponder is out of the 24 month inspection, it should not be turned on. This is just a what if discussion; I would turn it on; I know it still works.
(c)
Transponder-on operation. Except as provided in
paragraph (e)(2) of this section, while in the airspace as specified in
paragraph (b) of this section or in all controlled airspace, each person operating an
aircraft equipped with an operable ATC transponder maintained in accordance with § 91.413 shall operate the transponder, including Mode C equipment if installed, and shall reply on the appropriate code or as assigned by ATC, unless otherwise directed by ATC when transmitting would jeopardize the safe execution of air traffic control functions.