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[Timjoebillybob]

Actually the original case may not have anything to do with this discussion. But the MA SC did address this subject.

In the case at hand, the judge's findings and the record make clear that the police had no probable cause to believe that the defendant was or had been engaged in any criminal activity. There is no evidence to suggest, and the Commonwealth does not claim, that the defendant was acting suspiciously when he was seen by the clerk at the convenience store. There is no indication that the gun which was seen was used in any manner to threaten or intimidate the store clerk. There is no suggestion that the defendant lingered for an unusual period of time at the store or that he was "casing the joint" in preparation for a robbery. See Terry v. Ohio, 392 U.S. 1, 6 (1968). Rather, the police only knew that a man had been seen in public with a handgun. Under Toole, this unadorned fact, without any additional information suggesting criminal activity, does not give rise to probable cause. The police in this case had no reason to believe, before conducting the search of the vehicle, that the defendant had no license to carry a firearm. A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.

And this leads me to believe that without any other reason other than carrying a gun, is not cause for a Terry stop and or search and seizure. Which detaining a person and ordering them to present their LTCH would fall under a Terry stop.

We briefly add that, while the motion judge did not address this issue, the Commonwealth is incorrect in its claim that the stop and subsequent search of the vehicle was justified under the principles of Terry v. Ohio, 392 U.S. 1 (1968). There is no question that the stop of the pickup truck constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution. See United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. BrignoniPonce, 422 U.S. 873, 878 (1975). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, supra. As we discussed above, there is absolutely no indication that the defendant in this case was engaged in criminal activity. The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.

So yes this case was about a search and seizure of a vehicle, but the state was claiming it was allowed under a Terry Stop which doesn't just apply to vehicles does it?

 

[DKSuddeth]

That decision was the result of an arrest in the Commonwealth of Massachusetts. If you can show me that USSC has applied that to all 50 states (especially Indiana), I'll cease and desist.

As you had stated just a couple of posts earlier, and I stipulated this when I first posted it, this was a MA Supreme Court decision and not a federal court, which would not preclude an IN police officer from effecting a search and seizure of the individual carrying, but could be used as precedent in a defense to prosecution.

 

[DKSuddeth]

I would take this to mean that the cout would approve of the officer asking to see the permit.

A full copy of the ruling can be found here.
COUTURE, COMMONWEALTH vs., 407 Mass. 178

This, I could see happening and would then come down on whether the state has a stop and identify statute or a specific statute to produce a license upon demand as long as there was some other reasonable suspicion of a crime.

 

[Frank_N_Stein]

As you had stated just a couple of posts earlier, and I stipulated this when I first posted it, this was a MA Supreme Court decision and not a federal court, which would not preclude an IN police officer from effecting a search and seizure of the individual carrying, but could be used as precedent in a defense to prosecution.

Thanks for the clarification. I thought it was a decision from SCOTUS.

I spoke with a Marion County Superior Court Judge this morning and asked him about the MA court ruling and about stopping an individual who is OC'ing to ask them for their LTCH. The Judge said that a state supreme court ruling would not apply to any other state. He said that a US supreme court ruling concerning a state other than Indiana could apply to Indiana, if that court ruling was brought up during an appeal of the state court ruling. I know, clear as mud.

As far as stopping someone OC'ing just to determine if they had their LTCH, he said he did not see a problem with it and that he didn't think the temporary detention was unreasonable. I am sure that other judges could have differing opinions.

 

[DKSuddeth]

Thanks for the clarification. I thought it was a decision from SCOTUS.

I spoke with a Marion County Superior Court Judge this morning and asked him about the MA court ruling and about stopping an individual who is OC'ing to ask them for their LTCH. The Judge said that a state supreme court ruling would not apply to any other state. He said that a US supreme court ruling concerning a state other than Indiana could apply to Indiana, if that court ruling was brought up during an appeal of the state court ruling. I know, clear as mud.

As far as stopping someone OC'ing just to determine if they had their LTCH, he said he did not see a problem with it and that he didn't think the temporary detention was unreasonable. I am sure that other judges could have differing opinions.

very funny thing about judges.....you never know where they are really going to go with things.
The MA decision definitely does not apply to Indiana, however, a judge could possibly USE that decision as a guiding rod. or not.

 

[Jack Ryan]

In full uniform I keep my wallet in my car. I cannot sit on it for 8.5 hrs w/o causing pain. I understand wanting ID if I am in plain clothes but in full uniform it seems a bit confrontational. Once I am up at your door, I'm not going back to my car to retrieve my ID if I'm in full uniform. You are just going to have to assume that a fully uniformed officer in a fully marked car is legit. Heck, just the shirt/pants cost me 120.00. The leather is about 400.00, pistol 500.00, boots 100.00, radio 3,000.00, taser 800.00. If I can afford all of that I can afford a BS ID.

So if I drive a $30,000 truck, buy a fancy $500 suit and $500 Gucci shoes and have a $1000 gun in my pocket will ya take my word for it I'm a working tax paying citizen of the country at the airports?

"Sorry officer friendly. You want to make me dig through the glove box for something put in there 11 months ago and your official kingdom's permission to travel, I'm afraid I really must insist on the official form of identification all the king's men are authorised to carry. It's a dangerous world out here with identity thieves, facial recognition software and what not. Really sorry about the torrential down pour down your back. I'd say that's rain, "sir".

 

[Fenway]

Let's keep this civil Jack Ryan. Thread has been going well so far.

Screw you copper. You want to make me dig through the glove box for something put in there 11 months ago and your official kingdom's permission to travel, if I can make you walk back to the car and dig for yours, then wear your hiking shoes. Even better if it's raining.

 

[Ashkelon]

Okay, here is a stab at these issues: Do not solely rely upon the word of a Marion County Judge. Do not solely rely upon the representations of an officer. Do not solely rely upon the representations of your lawyer.
Keep your things and your possessions tight and intact handle yourself with dignity and respect and that will be enough when you do that and in conjunction rely upon the advice of others.
Not every situation is the same and not every person is the same. The more we take care of ourselves and the less we rely upon others or play the blame game the better off we will all be.

 

[Denny347]

So if I drive a $30,000 truck, buy a fancy $500 suit and $500 Gucci shoes and have a $1000 gun in my pocket will ya take my word for it I'm a working tax paying citizen of the country at the airports?

I don't work for the airport so I cannot answer that. While in full uniform in a fully marked car, I am not required to show you ID on a traffic stop. However, State law requires you to provide yours to me when stopped. I promise I had nothing to do with enacting this law that is probably 40yrs old.

"Sorry officer friendly. You want to make me dig through the glove box for something put in there 11 months ago and your official kingdom's permission to travel, I'm afraid I really must insist on the official form of identification all the king's men are authorized to carry. It's a dangerous world out here with identity thieves, facial recognition software and what not. Really sorry about the torrential down pour down your back. I'd say that's rain, "sir".

I'll assume that your unedited post was the result of a bad day at work or something, we all have those. Not "my" kingdom but "our" kingdom. I do not answer to a King nor do I act as though I do. I am not a "King's man", nor a "jack booted thug", nor a "Nazi". Although I am in a profession that gets calls these on a daily basis. This is not just a "job" for me. It is a calling. I do this because this is as much of who I am as being a good husband and dad to my kids. I do my job as directed by the USSC as well as our Indiana SC. I do my job well and with dignity and professionalism. I am well aware that there are those who hate me for what I am and it is too bad. I know I'm a good officer in a good profession and wish people would not talk to me as though I am a jack booted thug. Oh well, life goes on

 

[Denny347]

Okay, here is a stab at these issues: Do not solely rely upon the word of a Marion County Judge. Do not solely rely upon the representations of an officer. Do not solely rely upon the representations of your lawyer.
Keep your things and your possessions tight and intact handle yourself with dignity and respect and that will be enough when you do that and in conjunction rely upon the advice of others.
Not every situation is the same and not every person is the same. The more we take care of ourselves and the less we rely upon others or play the blame game the better off we will all be.

Sounds like a winner to me.

 

[Jack Ryan]

I'll assume that your unedited post was the result of a bad day at work or something, we all have those.

Nope it wasn't. It wasn't totally provoked by your comments alone either though. I've read those kind of comments many times and heard them spoken in person by law enforcement many times before they began provoking that kind of reaction. I've never been arrested for more than a speeding ticket and haven't had one of those in decades either so don't jump to the usual cop response about how I'm could only possibly be a cop hater criminal bitter over some imagined harm.

Since the cause of that attitude was brought up I'll be glad to share the reasoning behind it. It's years of seeing that attitude from police, one law for us and another for the rest of the people. It's cops speeding to the doughnut shop or making a 90 mile an hour run with their family to the mall in Indianapolis because their time is way more important than the regular citizens. It's cops joshing and joking around with the prosecutor and judge 5 minutes before a trial and then acting all belligerent if a defendant has the nerve to question the possibility of getting a fair trial.

It's politics, politicians and their government thug enforcers treating the citizens of this country like they are a commodity for them to regulate and make most efficient use of to their own best interest. You say you are not "one of them" but you signed up for the job and picked your side. Don't act now like you didn't. When the man next up the line puts his name on an order you are going to say how high, not "is this constitutional?" You couldn't currently be on the police payroll and not have done it already.

 

[1032JBT]

So much for the civil discussion...................

 

[Chefcook]

Me personally I have never been asked for ID or LTCH I have always had an officer come from behind me grab my gun (glock 22) remove it from my holster ( after letting me know he is a LEO) handcuff me take out my wallet remove my ID and LTCH make there calls field strip my gun and remove ammo from mag stick it all in different pockets and let me go (without saying sorry or have a nice day) last time this happened was sunday march 22 at the plainfield wal-mart with my wife and 3 children there asking "is daddy going to jail" that is the way it goes for me at least... I am not saying all LEO are like this as I have many friends in LE that would rather write a warning than a ticket if you know what I mean

I hope you are kidding or at least exaggerating.... Coming up behind someone and grabbing at their gun is a good way to get yourself killed...

 

[Paul]

Nope it wasn't. It wasn't totally provoked by your comments alone either though. I've read those kind of comments many times and heard them spoken in person by law enforcement many times before they began provoking that kind of reaction. I've never been arrested for more than a speeding ticket and haven't had one of those in decades either so don't jump to the usual cop response about how I'm could only possibly be a cop hater criminal bitter over some imagined harm.

Since the cause of that attitude was brought up I'll be glad to share the reasoning behind it. It's years of seeing that attitude from police, one law for us and another for the rest of the people. It's cops speeding to the doughnut shop or making a 90 mile an hour run with their family to the mall in Indianapolis because their time is way more important than the regulat citizens. It's cops joshing and joking around with the prosecutor and judge 5 minutes before a trial and then acting all beligerant if a defendant has the nerve to question the possibility of getting a fair trial.

It's politics, politicians and their government thug enforcers treating the citizens of this country like they are a commodity for them to regulate and make most efficient use of to their own best interest. You say you are not "one of them" but you signed up for the job and picked your side. Don't act now like you didn't. When the man next up the line puts his name on an order you are going to say how high, not "is this constitutional?" You couldn't currently be on the police payroll and not have done it already.

this is by far one of the best post i have read on this forum.

 

[Agent 007]

This thread proves it once again:

I'll take the bravery of someone who risks his life for people he doesn't know, on a daily basis, over the internet bravado of some blowhard with authority issues and a computer.

 

[Joe Williams]

This thread proves it once again:

I'll take the bravery of someone who risks his life for people he doesn't know, on a daily basis, over the internet bravado of some blowhard with authority issues and a computer.

I can't believe you just did an Obama...

 

[Denny347]

Oh it's ok. I KNOW what kind of job I do and person I am. I will take his OPINION of them with a grain of salt. I need to go spit shine my Jackboots.

 

[Agent 007]

I can't believe you just did an Obama...

You should see my bowling scores.

 

[1032JBT]

Oh it's ok. I KNOW what kind of job I do and person I am. I will take his OPINION of them with a grain of salt. I need to go spit shine my Jackboots.

 

[Jack Ryan]

Every one's entitled to an opinion. Funny how you can get good reps and bad reps in the same thread and never change yer opinion.

Seems to be a dividing line there some where, looks to me to be pretty close along the "in the service of the king" and every one else that makes the difference. Seemed to hit about the same division of opinion between the sherrif of Nottingham and the surrounding communities they pillaged with the full legal blessing of their authorities.