Discussion about specific topics of Delaware law. Suggest new topics of discussion in General Discussion forum.
 #98233  by David
A good case in Ohio separating "Can I see your ID" from a warrants check:

Taking and retaining defendant’s DL without reasonable suspicion then running his name for warrants was suppressed. State v. Westover, 2014-Ohio-1959, 2014 Ohio App. LEXIS 1898 (10th Dist. May 8, 2014):

[*P28] We find the running of a warrants check to be the critical distinction between Jones and McDowell. As noted above, the Fourth Amendment is not implicated when an officer approaches an individual, asks them general questions, and asks to see their identification. An officer in receipt of an individual’s identification may accordingly jot down the information presented on the identification without implicating the Fourth Amendment. However, when an officer takes the further action of retaining an individual’s identification to run a warrants check, the officer has implicitly commanded the individual to remain on the scene, as no reasonable person would abandon their identification, and has demonstrated that they suspect that criminal activity is afoot. An officer must have some reasonable, articulable suspicion that criminal activity is afoot before they may detain someone in this manner to run a warrants check. Compare State v. Owens, 10th Dist. No. 03AP-423, 2004-Ohio-5159, ¶ 23 (noting that, because the officer lacked reasonable, articulable suspicion of criminal activity, the officer “was without legal authority to demand appellant’s driver’s license in order to run the LEADS check”).
 #101285  by David
A well written explanation from the Arizona Supreme Court regarding Terry stops and firearms:

Decision: http://www.azcourts.gov/Portals/0/Opini ... 0306PR.pdf

Summary: Being armed in Arizona is not reasonable suspicion for a frisk. There must also be reasonable suspicion that a crime might occur. Otherwise, law abiding armed citizens are always subject to a frisk without reasonable suspicion. State v. Serna, 2014 Ariz. LEXIS 140 (August 7, 2014):

P18 Nonetheless, the State argues that a frisk satisfies the Fourth Amendment when the officer has reason to believe that the individual to be frisked is armed and dangerous, even if the officer has no reasonable suspicion of criminal activity. But many of the cases on which the State relies for this proposition are unhelpful because the courts there found reasonable suspicion of criminal activity. See, e.g., United States v. Ellis, 501 F.3d 958, 962 (8th Cir. 2007) (finding “there was reasonable suspicion [of criminal activity] to justify a pat-down search”); United States v. Romain, 393 F.3d 63, 71-72 (1st Cir. 2004) (evaluating whether pat-down was appropriate “following a valid Terry stop” and determining that defendant’s behavior “gave rise to a reasonable suspicion … [of] criminal wrongdoing”); United States v. Davis, 202 F.3d 1060, 1062 (8th Cir. 2000) (stating that “[t]o be constitutionally reasonable, a protective frisk must also be based upon reasonable suspicion that criminal activity is afoot”); United States v. $84,000 U.S. Currency, 717 F.2d 1090, 1098-99 (7th Cir. 1983) (upholding pat down, but finding reasonable suspicion of criminal activity).

P19 Another case on which the State relies, United States v. Bonds, considered the frisk of a drug dealer who arrived at an associate’s apartment while police were executing a search warrant. 829 F.2d 1072, 1073-74 (11th Cir. 1987). The court found it unnecessary to establish reasonable suspicion of criminal activity by the defendant, instead focusing on the inherent dangerousness of the circumstances: the officer was executing a search warrant for drugs, knew Bonds dealt drugs, and “had reason to believe that Bonds was a person to be feared and … was carrying a gun.” See id. at 1074-75. Thus, while Bonds provides some support for the State’s argument, it is distinguishable from the case at hand.

P20 The State urges us to follow United States v. Orman, 486 F.3d 1170, 1173 (9th Cir. 2007), in which the Ninth Circuit determined that “Terry did not cabin the use of officer safety patdowns to lawful investigatory detentions.” In Orman, an off-duty officer, having heard that Orman was carrying a gun in the mall, stopped him and asked if he was armed. Id. at 1171-72. Orman acknowledged that he had a gun in his waistband. Id. at 1172. The officer retrieved the weapon, and Orman was later charged with unlawfully possessing the firearm. Id. The district court denied Orman’s motion to suppress the gun. Id. at 1173. The Ninth Circuit affirmed, reasoning that “a Terry stop-and-frisk ‘constitutes two independent actions.'” Id. at 1174 (quoting United States v. Flippin, 924 F.2d 163, 165 n.2 (9th Cir. 1991)). The court held that the encounter was consensual, but the seizure was nonetheless justified “for safety purposes.” Id. at 1176-77. It concluded that “reasonable suspicion that [a person is] carrying a gun … is all that is required for a protective search under Terry.” Id. at 1176.

P21 We disagree and conclude that Terry allows a frisk only if two conditions are met: officers must reasonably suspect both that criminal activity is afoot and that the suspect is armed and dangerous. See, e.g., Johnson, 555 U.S. at 326. Because the analysis in Orman ignores one prong of Terry, we disagree with the Ninth Circuit’s reasoning.

P22 We also disagree with the Ninth Circuit’s determination that mere knowledge or suspicion that a person is carrying a firearm satisfies the second prong of Terry, which itself involves a dual inquiry; it requires that a suspect be “armed and presently dangerous.” See Terry, 392 U.S. at 30 (emphasis added); see also Johnson, 555 U.S. at 326-27 (observing that “to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous”). In a state such as Arizona that freely permits citizens to carry weapons, both visible and concealed, the mere presence of a gun cannot provide reasonable and articulable suspicion that the gun carrier is presently dangerous.
 #101286  by pick_six
David, the last paragraph in that finding seems to follow the scotus ruling a year or 3 ago, pushed up from NC, IIRC. where open carry is legal, OC is not RAS. AZ would also seem to be one of those places. DE too. :)
 #105020  by David
6th Circuit decision regarding legal open carry in an open carry state. Plantiff was walking a dog while open carry. A passerby called 911 to report MWAG. Officer responds. Full decision below:

The Ohio legislature decided that open carry is permissible with a CCW. Plaintiff was stopped and handcuffed for thirty minutes and let go. He states a claim and qualified immunity is no defense. “Where it is lawful to possess a firearm, unlawful possession ‘is not the default status.’” Northrup v. City of Toledo Police Dep’t, 2015 U.S. App. LEXIS 7868 (6th Cir. May 13, 2015):

http://www.ca6.uscourts.gov/opinions.pd ... 92p-06.pdf

Story from Washington Post on same decision: http://www.washingtonpost.com/news/volo ... -is-legal/
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