IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Discussion of other state's CHL's & reciprocity

Moderators: Keith B, carlson1

User avatar

Topic author
ELB
Senior Member
Posts: 5609
Joined: Tue May 22, 2007 9:34 pm
Location: Seguin

IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby ELB » Mon Aug 29, 2016 5:54 pm

"Mere possession of a firearm, which is legal, cannot produce reasonable suspicion to justify a Terry stop" per the Indiana Court of Appeals.

Link to article: http://www.wibc.com/blogs/gun-guy/court ... rying-guns

The article is a blog post on the website of radio station WIBC in Indianapolis. The blog author is Guy Relford, who does a lot of 2A law in the Indy area and IIRC has his own radio program on WIBC every week. Relford is not the lawyer for the appellant in this case, the appellant has a public defender.

The appellant is not exactly a 2A poster boy. He and a female friend were getting out of a taxi at a movie theater when he dropped a handgun. The taxi driver noticed and called police, gave them a description. Two cops showed up, got a description of the couple, then went inside. They saw a woman matching the description walking away from a man who also matched, so they stood in front of him and (among other things probably) asked him if he had a gun. He denied having one but according to police he was "nervous." They asked/told him to stand up and when he did, one officer noticed the butt of a handgun in one of the guy's front pockets. The police arrested him for carrying without a license, and it subsequently turned out the guy also had felony conviction, so the charge was upgraded from misdemeanor to felony.

The man's lawyer asked for the evidence to be suppressed, arguing that this was an illegal stop by the police, but the trial court denied this. However (if I understand correctly) the trial court did grant a motion to take this question (stopping person solely for carrying a handgun) to the Indiana Court of Appeals. The appeals court ruled that it was an illegal stop, using (among other things) the verbiage at the top of the post.

Some lawyers on an Indiana website I follow think this is headed to the Indiana Supreme Court, and think there's no way the ISC is going to let this stand. Standby.

Actual opinion:
Pinner vs State
USAF 1982-2005
____________
The Most Interesting Texan in the World. :txflag:


casp625
Senior Member
Posts: 671
Joined: Sun Jan 04, 2015 9:24 pm

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby casp625 » Mon Aug 29, 2016 8:28 pm

Does Indiana have constitutional carry? If the individual did not possess a license, how in fact is the stop deemed "illegal"? Did the court completely ignore the purpose of a Terry stop? Seeing the butt of a handgun should be reasonable suspicion to perform a stop and frisk...


TreyHouston
Senior Member
Posts: 904
Joined: Fri Feb 19, 2016 5:00 pm
Location: Tomball

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby TreyHouston » Mon Aug 29, 2016 8:51 pm

I agree. IMHO there is nothing wrong with a LEO asking if you have a firearm AND if you are licensed. I KNOW other here have a different opinion on showing your LTC but i see nothing wrong with that! WE have got to keep guns out if felons and law breakers hands, or pockets! Who knows what the guys might have done, eventually....
"Jump in there sport, get it done and we'll all sing your praises." -Chas

How many times a day could you say this? :cheers2:

User avatar

Topic author
ELB
Senior Member
Posts: 5609
Joined: Tue May 22, 2007 9:34 pm
Location: Seguin

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby ELB » Tue Aug 30, 2016 12:53 am

casp625 wrote:If the individual did not possess a license, how in fact is the stop deemed "illegal"?

Whether or not the individual ultimately had a license is of course completely irrelevant to whether the stop was legal or not.
The legality of a stop can only turn on information (reasonable suspicion) that is available to the officer BEFORE he makes the stop, it would be absurd to base it on the results of the stop.

As Mr. Relford notes, police generally may not stop you to check for a driving license just because you are driving a car. The act of driving a car, an activity licensed by the state, does not provide reasonable suspicion that you might not have a valid license to drive. In the hierarchy of constitutional rights, driving a car certainly ranks below keeping and bearing arms. So why would the fact that you are carrying a handgun, also an activity licensed by the state, be reasonable suspicion that you don't have a license to carry?

I believe that is the point the Indiana appeals court came to.
USAF 1982-2005
____________
The Most Interesting Texan in the World. :txflag:

User avatar

TexasTornado
Senior Member
Posts: 721
Joined: Sun Jan 03, 2016 7:23 pm
Contact:

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby TexasTornado » Tue Aug 30, 2016 5:26 am

I probably would agree except for the call made to police. He was being careless with his weapon, which would make me wonder if he possibly intoxicated or any other number of things. Given that he was seen with a weapon, upon checking on the situation that was called in, the LEO had every right for his/her own safety to ask if the gentleman was armed and then to see a licence once the weapon was seen, especially since the gentleman lied about its possession (never ever lie to an officer about possessing a weapon :nono: ) If the officer had meerly seen the butt of a pistol while walking down the street I'd agree, but in this case I believe the LEO was just acting in the interests of public and personal safety.
Image
"I can see it's dangerous for you, but if the government trusts me, maybe you could."

NRA Lifetime Member

User avatar

LabRat
Senior Member
Posts: 409
Joined: Sat May 17, 2008 7:38 pm

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby LabRat » Tue Aug 30, 2016 6:59 am

TexasTornado wrote:I probably would agree except for the call made to police. ...<snip>>


I'm going to disagree. Calls come into the police all the time. Its the duty of police to gather facts surrounding the event to determine if an officer is required. Not all PD's do this, but in the interest of resources and priority, it's something they should be doing. It also would prevent these types of situations from ever developing.

Additional questions would be "is he pointing the gun at anyone?", "is he threatening anyone?", etc....anything that would indicate a crime is afoot. If we subscribe to the idea that all calls to police should result in an officer response, then any report, regardless of how facetious, would require a police officer to intervene, even when the citizen activities are completely legal. Swatting would take on a whole new meaning and the privacy of the citizens would be eliminated completely. The police could stop you and demand "papers" at any time. That's not the society we envisioned.

I'm not for any criminal escaping punishment for a criminal transaction, but this ruling actually protects law-abiding citizens from governmental overreach. No crime had occurred or suspicion of a crime been witnessed, IMHO. That's what makes the stop a violation of the 4th amendment protection from unreasonable search and seizure.

LabRat
I didn't say it was your fault, I said I was blaming you.
The last thing I want to do is hurt you....but it's still on my list.
In filling out an application, where it says, "In case of Emergency notify...", I answered "a doctor"
This is not legal advice.

User avatar

Jusme
Senior Member
Posts: 3778
Joined: Tue Jan 19, 2016 4:23 pm
Location: Johnson County, Texas

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby Jusme » Tue Aug 30, 2016 10:48 am

LabRat wrote:
TexasTornado wrote:I probably would agree except for the call made to police. ...<snip>>


I'm going to disagree. Calls come into the police all the time. Its the duty of police to gather facts surrounding the event to determine if an officer is required. Not all PD's do this, but in the interest of resources and priority, it's something they should be doing. It also would prevent these types of situations from ever developing.

Additional questions would be "is he pointing the gun at anyone?", "is he threatening anyone?", etc....anything that would indicate a crime is afoot. If we subscribe to the idea that all calls to police should result in an officer response, then any report, regardless of how facetious, would require a police officer to intervene, even when the citizen activities are completely legal. Swatting would take on a whole new meaning and the privacy of the citizens would be eliminated completely. The police could stop you and demand "papers" at any time. That's not the society we envisioned.

I'm not for any criminal escaping punishment for a criminal transaction, but this ruling actually protects law-abiding citizens from governmental overreach. No crime had occurred or suspicion of a crime been witnessed, IMHO. That's what makes the stop a violation of the 4th amendment protection from unreasonable search and seizure.

LabRat




:iagree:

This.

Of course we may not have all of the facts of the case, as to why the police were called, or whether they were led to believe a crime may have been in progress, but this was the debate during the legislative session on open carry here in Texas. The left wanted to give the authority to the police to check for LTC verification, simply if someone was seen carrying. This was echoed by left leaning police chiefs. The legislature said that the police can ask for verification, but not solely based on seeing someone carrying a handgun. There must be other mitigating circumstances. Too many times, the police overstep their boundaries regarding stop and frisk, unlawful searches etc..
While I agree that felons should not carry guns, if we allow the police carte blanc, next time, it may not be a felon who's rights are deprived. Being a former LEO, I have a very high regard, and respect for the job the police have to perform. If I were a victim of swatting, I would be very cooperative, and comply with a request to show my LTC. I would then want to file a formal complaint against the swatter. By the same token, if LEO decided on his/her own to demand verification, I would still be cooperative, but would file a formal complaint against the officer.JMHO
Take away the Second first, and the First is gone in a second :rules: :patriot:

User avatar

TexasTornado
Senior Member
Posts: 721
Joined: Sun Jan 03, 2016 7:23 pm
Contact:

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby TexasTornado » Tue Aug 30, 2016 12:17 pm

Jusme wrote:
LabRat wrote:
TexasTornado wrote:I probably would agree except for the call made to police. ...<snip>>


I'm going to disagree. Calls come into the police all the time. Its the duty of police to gather facts surrounding the event to determine if an officer is required. Not all PD's do this, but in the interest of resources and priority, it's something they should be doing. It also would prevent these types of situations from ever developing.

Additional questions would be "is he pointing the gun at anyone?", "is he threatening anyone?", etc....anything that would indicate a crime is afoot. If we subscribe to the idea that all calls to police should result in an officer response, then any report, regardless of how facetious, would require a police officer to intervene, even when the citizen activities are completely legal. Swatting would take on a whole new meaning and the privacy of the citizens would be eliminated completely. The police could stop you and demand "papers" at any time. That's not the society we envisioned.

I'm not for any criminal escaping punishment for a criminal transaction, but this ruling actually protects law-abiding citizens from governmental overreach. No crime had occurred or suspicion of a crime been witnessed, IMHO. That's what makes the stop a violation of the 4th amendment protection from unreasonable search and seizure.

LabRat




:iagree:

This.

Of course we may not have all of the facts of the case, as to why the police were called, or whether they were led to believe a crime may have been in progress, but this was the debate during the legislative session on open carry here in Texas. The left wanted to give the authority to the police to check for LTC verification, simply if someone was seen carrying. This was echoed by left leaning police chiefs. The legislature said that the police can ask for verification, but not solely based on seeing someone carrying a handgun. There must be other mitigating circumstances. <snip>


If dropping you're weapon doesn't suggest mitigating circumstances I don't know what does. In this case I believe the LEOs acted correctly. At very least this individual was not maintaining control of their weapon, they could have just as easily been intoxicated or otherwise a danger to themselves or others. We aren't talking about a weapon that was in a holster or concealed in this case. If the accused had acted responsibly with the weapon it would probably have never been an issue.
Image
"I can see it's dangerous for you, but if the government trusts me, maybe you could."

NRA Lifetime Member

User avatar

bblhd672
Senior Member
Posts: 2445
Joined: Mon Jun 06, 2016 10:43 am
Location: DFW, TX

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby bblhd672 » Tue Aug 30, 2016 12:30 pm

According to the appeal the cab driver told the police he was afraid that he was going to be robbed. Which doesn't make a bit of sense because....he didn't get robbed by the passenger who dropped the gun. Every time I've ridden in a cab after I paid the driver and walked away, the driver never waited around to see if I was coming back to rob him.
Sounds like the cab driver was racially profiling his black customer.
NRA Life Member, TSRA Member
“The consolidation of the states into one vast empire, sure to be aggressive abroad and despotic at home, will be the certain precursor of ruin which has overwhelmed all that preceded it.” Robert E. Lee

User avatar

Jusme
Senior Member
Posts: 3778
Joined: Tue Jan 19, 2016 4:23 pm
Location: Johnson County, Texas

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby Jusme » Tue Aug 30, 2016 12:45 pm

TexasTornado wrote:
Jusme wrote:
LabRat wrote:
TexasTornado wrote:I probably would agree except for the call made to police. ...<snip>>


I'm going to disagree. Calls come into the police all the time. Its the duty of police to gather facts surrounding the event to determine if an officer is required. Not all PD's do this, but in the interest of resources and priority, it's something they should be doing. It also would prevent these types of situations from ever developing.

Additional questions would be "is he pointing the gun at anyone?", "is he threatening anyone?", etc....anything that would indicate a crime is afoot. If we subscribe to the idea that all calls to police should result in an officer response, then any report, regardless of how facetious, would require a police officer to intervene, even when the citizen activities are completely legal. Swatting would take on a whole new meaning and the privacy of the citizens would be eliminated completely. The police could stop you and demand "papers" at any time. That's not the society we envisioned.

I'm not for any criminal escaping punishment for a criminal transaction, but this ruling actually protects law-abiding citizens from governmental overreach. No crime had occurred or suspicion of a crime been witnessed, IMHO. That's what makes the stop a violation of the 4th amendment protection from unreasonable search and seizure.

LabRat




:iagree:

This.

Of course we may not have all of the facts of the case, as to why the police were called, or whether they were led to believe a crime may have been in progress, but this was the debate during the legislative session on open carry here in Texas. The left wanted to give the authority to the police to check for LTC verification, simply if someone was seen carrying. This was echoed by left leaning police chiefs. The legislature said that the police can ask for verification, but not solely based on seeing someone carrying a handgun. There must be other mitigating circumstances. <snip>


If dropping you're weapon doesn't suggest mitigating circumstances I don't know what does. In this case I believe the LEOs acted correctly. At very least this individual was not maintaining control of their weapon, they could have just as easily been intoxicated or otherwise a danger to themselves or others. We aren't talking about a weapon that was in a holster or concealed in this case. If the accused had acted responsibly with the weapon it would probably have never been an issue.


Maybe, but the court didn't see it that way. I have never dropped my gun, but I'm sure that it does happen, but is that reason enough to call the police? If someone drops their gun, picks it up, and goes on about their business, then, I'm not calling 9-1-1.
Take away the Second first, and the First is gone in a second :rules: :patriot:

User avatar

Jusme
Senior Member
Posts: 3778
Joined: Tue Jan 19, 2016 4:23 pm
Location: Johnson County, Texas

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby Jusme » Tue Aug 30, 2016 12:49 pm

bblhd672 wrote:According to the appeal the cab driver told the police he was afraid that he was going to be robbed. Which doesn't make a bit of sense because....he didn't get robbed by the passenger who dropped the gun. Every time I've ridden in a cab after I paid the driver and walked away, the driver never waited around to see if I was coming back to rob him.
Sounds like the cab driver was racially profiling his black customer.



Possibly, again, without more info, it's hard to say. I agree, if the passenger was going to rob the cab driver, it would have happened. I think that he called the police after seeing a gun, told them he thought he was going to be robbed, and then the police went looking for the guy, who had left the scene without incident, and with no probable cause to stop him.
JMHO.
Take away the Second first, and the First is gone in a second :rules: :patriot:


Soccerdad1995
Senior Member
Posts: 2326
Joined: Mon Jan 04, 2016 8:03 pm

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby Soccerdad1995 » Tue Aug 30, 2016 12:55 pm

If it is a crime to drop your gun, in that jurisdiction, then I think this should have been a valid stop. Asking whether the man had a gun would be very relevant to the investigation of whether this crime had actually occurred.

I agree with others that the mere possession of a gun should not be reasonable suspicion for a stop anymore than driving a car should be reasonable suspicion for unlicensed driving. I just think this might not be the purest test case. Police stopping an OC'er who was doing nothing strange or provocative would be a much better case.

And the stated fear of a possible crime that could have possibly happened, but didn't, is a terrible justification for a stop, by the way. That would be like me calling the police when I see a Hillary bumper sticker on a car because I fear that anyone who is a supporter of a known felon might possibly rob me.
Ding dong, the witch is dead

User avatar

bblhd672
Senior Member
Posts: 2445
Joined: Mon Jun 06, 2016 10:43 am
Location: DFW, TX

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby bblhd672 » Tue Aug 30, 2016 12:59 pm

Soccerdad1995 wrote:That would be like me calling the police when I see a Hillary bumper sticker on a car because I fear that anyone who is a supporter of a known felon might possibly rob me.


That is a real possibility! Or a possible escapee from a mental hospital.
NRA Life Member, TSRA Member
“The consolidation of the states into one vast empire, sure to be aggressive abroad and despotic at home, will be the certain precursor of ruin which has overwhelmed all that preceded it.” Robert E. Lee

User avatar

Topic author
ELB
Senior Member
Posts: 5609
Joined: Tue May 22, 2007 9:34 pm
Location: Seguin

Re: IN: Court of Appeals: Merely having a gun not "reasonable suspicion"

Postby ELB » Tue Aug 01, 2017 4:13 pm

While writing a post on another case, I just realized I never followed up on this thread.

The Indiana Supreme Court found in favor of the defendant in the original trial and ruled that the search of the defendant was in violation of the 4th Amendment. Effectively, in Indiana, the mere fact of having a gun in public is not justification for police to stop the person to see if he has a LTCH or is otherwise in legal possession of the firearm.

http://www.in.gov/judiciary/opinions/pdf/05091701RR.pdf
USAF 1982-2005
____________
The Most Interesting Texan in the World. :txflag:


Return to “Other States”

Who is online

Users browsing this forum: No registered users and 2 guests