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 #60177  by David
 
Have fun with this one:

In a “concealed carry” state, it is still possible for an officer to have reasonable suspicion that a person is possessing a gun in violation of law. Factors may warrant an officer to conduct a stop and frisk on reasonable suspicion of possession of a weapon, even though it creates a risk of stopping innocent people. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 147750 (D. N.M. December 8, 2011):

Rodriguez may object that the practical end result of the Court's decision is that, in New Mexico, a police officer's observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances. The Court reiterates, however, that it is not deciding whether seeing a concealed handgun by itself might trigger a reasonable suspicion that a crime is being committed under all factual scenarios. The surrounding circumstances would likely affect that inquiry in ways the Court need not address today.

Consequently, the officers could permissibly conduct an investigatory stop and question Rodriguez based on their reasonable suspicion that he was carrying a concealed firearm, at least until the investigatory stop transformed into an arrest under the Fourth Amendment. "[A] police officer may in appropriate circumstances," possession of reasonable suspicion, "and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. at 23.
 #60179  by SCUBA9097
 
So I guess this means that an officer can now stop you for driving a vehicle because, after all, the car may be stolen or you may be driving without a license. :roll:

Interesting to see how this may play out in the end.
 #60194  by Mr.Skellington
 
That was a ton of reading and subsequent reading of other relevant cases. I'll probably need to go back a reread some of that again just to get all the little nuances.


My initial thoughts are that the court danced a fine line of avoiding having to opine on a few areas that would have been to the benefit of the defendant as well creating case law favoring individual liberty rather than policing powers. The first, and most obvious is this
One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances. The Court reiterates, however, that it is not deciding whether seeing a concealed handgun by itself might trigger a reasonable suspicion that a crime is being committed under all factual scenarios.
Meaning that only for this particular case and based on factors specific to this case (prison style tattoos, tipster, high crime area, etc) the court has ruled in favor of the allowing the 'investigatory stop'. The court avoided reiterating the determination from another case that states that the presence of a firearm on its own is not sufficient reason for a stop/seizure by citing the officers other specific observations which formed 'reasonable suspicion' in the eyes of the court.

Its very important to note that an investigatory stop does not need to rise to the level of probable cause which is the benchmark for an arrest. An investigatory stop is different from an arrest however knowing where the line is drawn between the two is not always clear or objective. For example there is no specific length of time that separates an investigatory stop from an arrest only the subjective opinion of the courts as to what is reasonable or temporary. It doesn't take much to be considered 'reasonable suspicion' and thus allow police to perform an investigatory stop. Information to better understand what an investigatory stop is can be found here http://dps.alaska.gov/APSC/docs/legalma ... PFRISK.pdf


Overall I'd have to say that this case really doesn't set any new precedent which hasn't already been made in previous cases. It may be new information or shocking to people unacquainted with the way the courts interpret the constitution or allow temporary infringements of it for policing purposes but its pretty much par for the course. If others read this differently let me know.
Last edited by Mr.Skellington on Fri Dec 30, 2011 4:13 am, edited 1 time in total.
 #60195  by Lascivious1
 
So, Basically what this is saying is that if a LEO thinks your carrying. he now has the right to stop you and tell you that he believes so and can pat you down?

Personally this doesnt bother me even if i dont have a CCDW permit. since i will only be OC anyway and its the criminals that carry concealed.

But im not much on polictics and law. can someone explain tome how this can hurt us if we are not criminals?
 #60196  by Mr.Skellington
 
Lascivious1 wrote:So, Basically what this is saying is that if a LEO thinks your carrying. he now has the right to stop you and tell you that he believes so and can pat you down?

Personally this doesnt bother me even if i dont have a CCDW permit. since i will only be OC anyway and its the criminals that carry concealed.

But im not much on polictics and law. can someone explain tome how this can hurt us if we are not criminals?
While I don't think that this will hurt us what it does present is that precious little is required of officers to form 'reasonable suspicion' which, as I previously stated, is all that's needed to temporarily detain you. Being detained and interrogated on such flimsy grounds is enough of an issue to me. So while its not harm in the physical sense it is an infringement on your civil liberties to hold that something barely above a hunch is grounds for a seizure no matter how temporary it may be.


So to your first question no the officer can not simply stop you and pat you down. But if he can come up with a couple of other factors such as 'high crime area', 'unusual hour of night', 'gang colors worn', or some other observable things deemed suspicious (not too hard to do considering what the courts have allowed in the past) then he may proceed with an investigatory stop which will likely include the familiar terry 'stop and frisk'.
 #60197  by SugarBoy13
 
Mr.Skellington wrote:
While I don't think that this will hurt us what it does present is that precious little is required of officers to form 'reasonable suspicion' which, as I previously stated, is all that's needed to temporarily detain you. Being detained and interrogated on such flimsy grounds is enough of an issue to me. So while its not harm in the physical sense it is an infringement on your civil liberties to hold that something barely above a hunch is grounds for a seizure no matter how temporary it may be.


So to your first question no the officer can not simply stop you and pat you down. But if he can come up with a couple of other factors such as 'high crime area', 'unusual hour of night', 'gang colors worn', or some other observable things deemed suspicious (not too hard to do considering what the courts have allowed in the past) then he may proceed with an investigatory stop which will likely include the familiar terry 'stop and frisk'.
I agree with your assessment on the caselaw here. I saw nothing groundbreaking but, may consider this case a nice summary of what constitutes a stop, an arrest and what could reasonably be expected during each encounter. I found a lot of valuable information.

Keep in mind, this case revolves around concealed carry which, by default, is illegal in NM and DE. Your justification is the issuance of a permit or license. So, it is reasonable for LE, if they see or have some articulable clue that you may be carrying concealed, to stop and ask for your permit. This is a "stop" and is within the bounds of Terry. Therefore, a frisk and temporary confiscation of your firearm is permitted during this detainment.

Open carrying is a very different situation because, (at least in DE) there is no law or statue prohibiting the act. As such, the mere fact someone is OCing does not rise to the level of reaso able suspicion necessary for a terry stop. This is why many of us advocate keeping your mouth shut during these "stops" to avoid saying something that may give reason to lawfully detain you, making the initial stop now legal. And as Skelly mentioned, the bar for reasonable suspicion is low and can be a compilation of several facts including some rather broad assumptions. So don't fuel the fire...

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 #60199  by Condition1
 
SugarBoy13 wrote: [...]

Open carrying is a very different situation because, (at least in DE) there is no law or statue prohibiting the act. As such, the mere fact someone is OCing does not rise to the level of reaso able suspicion necessary for a terry stop. This is why many of us advocate keeping your mouth shut during these "stops" to avoid saying something that may give reason to lawfully detain you, making the initial stop now legal. And as Skelly mentioned, the bar for reasonable suspicion is low and can be a compilation of several facts including some rather broad assumptions. So don't fuel the fire...

[...]
Although there might not be direct law or statue prohibiting Open Carry, some persons are prohibited from possessing firearms.
Using the same argument – “'high crime area', 'unusual hour of night', 'gang colors worn', or some other observable things deemed suspicious[…] (viewtopic.php?p=60196#p60196)” – I see there is not difference whether one is OCing or CCing, the Police Officer may still proceed with the stop to investigate if the person is prohibited or not from possessing firearms.


I am not a lawyer.
 #60291  by George
 
SugarBoy13 wrote:

...
Keep in mind, this case revolves around concealed carry which, by default, is illegal in NM and DE. Your justification is the issuance of a permit or license. So, it is reasonable for LE, if they see or have some articulable clue that you may be carrying concealed, to stop and ask for your permit. This is a "stop" and is within the bounds of Terry. Therefore, a frisk and temporary confiscation of your firearm is permitted during this detainment.

...

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I am surprised at your reasoning Sugar, so your saying that since driving a car is by default is illegal in NM and DE. Your justification is the issuance of a permit or license. So, it is reasonable for LE, if they see or have some articulable clue that you may be driving a car, to stop and ask for your permit.