Arrested last night

I must also say that I don't understand how this case will ever go to trial. The resulting arrest was based purely on the misconduct of the officer, and therefore the arrest was illegitimate to begin with, and therefore illegal and an unconstitutional violation of his Fourth Amendment right to be free from search and seizures.

Being as this arrest was unreasonable and unconstitutional, whatever evidence they are planning to use against him should not be permitted in the trial under the exclusionary rule.

The officer can't claim that the firearm was seized based on the plain view doctrine because the firearm was not an illegal item and the location where it was carried was not in violation of the law.

His detainment was not based on RAS that a crime was being committed -- because there was no crime being committed -- therefore the entire incident and arrest are purely the result of the illegal actions of the officers, and again, this will not allow the case to be tried.

The search that followed his detainment was unconstitutional because there was no probale cause that supported the search of his vehicle, because again, he had not committed a criminal offense. Even after he was detained and cuffed, they have no authority to search his vehicle because he no longer had access, and an openly carried firearm does not give them probable cause to believe they would find illegal items. They could have searched the vehicle if it was impounded, but the only reason it should be impounded is if he was arrested in the vehicle for actually breaking the law where the arresting officers actually had probable cause to initiate the arrest.

This entire case stinks, and I am still amazed a prosecutor is going to try and obtain a conviction. I hope he has aquired a good lawyer that can have this case dismissed at the initial, unless he has already had it.

This might help as well:

(“The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”); Norwell v. City of Cincinnati, Ohio, 414 U.S. 14, 16 (1973)

Are there any updates yet? Has your attorney filed a "motion to suppress?" Since this stop started over an illegal seizure (since the firearm absolutely did not have any "incriminating character") I don't see a judge allowing it to go forward if the defense attorney is doing his job correctly. The actions that followed the "illegal" seizure were caused by the officer's "illegal" actions, and therefore inadmissable. And the First Amendment protects your right to yell at the officers if you believed your rights were violated -- which they were! I am anxiously awaiting some news if you can share.

A motion to supress has been filed. The officer is claiming to have taken the weapon "for officer safety". I have been told that since it was a check point the officer could run my license for warrants and whatever. I, however, am skeptical on this. Unless I can cite to solid cases that make it unreasonable for him to have me pull over this will likely go to trial.

CharleyCherokee said:

A motion to supress has been filed. The officer is claiming to have taken the weapon "for officer safety". I have been told that since it was a check point the officer could run my license for warrants and whatever. I, however, am skeptical on this. Unless I can cite to solid cases that make it unreasonable for him to have me pull over this will likely go to trial.

Click to expand...

The SCOTUS has already bastardized the 4th "in the interest of public safety" at checkpoints, however that only applied to stopping you in the first place. Confiscating the gun is another matter entirely.


The federal court ruling in St.John v Alamogordo Police Order comes to mind.

UnfetteredMight said:

The SCOTUS has already bastardized the 4th "in the interest of public safety" at checkpoints, however that only applied to stopping you in the first place. Confiscating the gun is another matter entirely.


The federal court ruling in St.John v Alamogordo Police Order comes to mind.

Click to expand...

But aren't they still confined within the (admittedly large) bounds of Terry and it's progeny? That's the need to have RAS/PC of a crime about to be committed/being committed/was committed in order to stop you in the first place. Since the "safety checkpoint" did not appear to develop RAS/PC for the stated reasons the stop, search and charge are outside "officer safety".

stay safe.

CharleyCherokee said:

A motion to supress has been filed. The officer is claiming to have taken the weapon "for officer safety". I have been told that since it was a check point the officer could run my license for warrants and whatever. I, however, am skeptical on this. Unless I can cite to solid cases that make it unreasonable for him to have me pull over this will likely go to trial.

Click to expand...

KRS 237.104. There are cases where the presence of a firearm is not RAS, and in KY it is not illegal to have a firearm in plain sight, or in other locations per KRS 527.020. The officer cannot run your license unless he has RAS that a crime is afoot (unless you give him your permission), and the presence of a legally carried firearm does not constitute RAS in any way whatsoever. The officer can only check that your license is valid at a checkpoint and nothing more without RAS. This should be common knowledge for a judge or a prosecutor. You need to suppress under authority of the Exclusionary rule.

The Exclusionary rule "renders evidence gathered during an 'unreasonable' search, seizure or arrest INADMISSABLE in a criminal case," (Intro. to Criminal Investigations, CRC Press, 344). The seizure of your firearm was unreasonable; the arrest of yourself was unreasonable; and the search of your vehicle was also unreasonable. If your lawyer has not brought the Exclusionary rule into play I would infrom her of the need to do so ASAP. Make sure she has ALL relevant statutes concerning firearms -- especially 237.104. The Holland v. Commonwealth case will be of extreme importance to your case.

Let's help give him the information he needs folks; I can't recall the case where a firearm carried in plain sight is not cause for RAS in a jurisdiction that allows it to be carried in plain sight.

KRS 65.870 could also be of help, since it will show that only the State legislature can control firearms and their possession, that there is no statute that makes the carrying of a firearm in plain sight a crime, and that there are extreme consequences for violation of said statute.

The KY constitution will help since it states of our right to bear arms.

Anyone have anything else that could help prove this officer was violating his rights, violating the law, and violating his oath to uphold the law and Constitution?

The bottom line is an officer can only stop you and disarm you if they have RAS that a crime was being committed. The RAS an officer has cannot be a hunch, which is what this was. You were NOT violating ANY State statutes, and therefore the officer had no reason to disarm you -- especially at a safety checkpoint. You were NOT "breaking" the law, so the stop and seizure were illegal; this means all evidence they would use against you cannot be used because the officer was wrong in his judgement and violated your rights.

Edit: the Kentucky State Police web-site has a FAQ page where there is a question that asks, "Where can I openly carry a firearm?" Having this could also help prove your case, because it does not state a vehicle is off-limits. ANYTHING that shows you are right, and that proves your case will help. The more evidence you have to prove the officer's actions were illegal and unconstitutional, and that you were stopped because you were OBEYING the law the better.

skidmark said:

But aren't they still confined within the (admittedly large) bounds of Terry and it's progeny? That's the need to have RAS/PC of a crime about to be committed/being committed/was committed in order to stop you in the first place. Since the "safety checkpoint" did not appear to develop RAS/PC for the stated reasons the stop, search and charge are outside "officer safety".

stay safe.

Click to expand...

As I said, the seizure of the firearm is a different matter. The "stop" refers to stopping his car and even checking him out in the first place, before he was asked to get out of the car.

Yes they are bound by Terry, the ruling plainly stated that the act of carrying a firearm, where legal, was not RAS for a Terry stop.

Here Charley, this is a PDF copy of the federal court ruling that I referenced earlier and this is the relevant part of the ruling.

"As discussed above, Mr. St. John was seized and searched in violation of his Fourth Amendment rights. The question then becomes whether, at the time of the incident, Mr. St. John's rights were clearly established. The Court finds that they were. Relying on well-defined Supreme Court precedent, the Tenth Circuit and its sister courts have consistently held that officers may not seize or search an individual without a specific,
legitimate reason. See Terry, 392 U.S. at 21; Fuerschbach,439 F.3d at 1204-6 (holding that a seizure without a reasonable suspicion of criminal activity "would violate the most minimal Fourth Amendment standard"); Jones v. Hunt, 410 F.3d at 1228 ("Where no legitimate basis
exists for detaining [an individual], a seizure is plainly unreasonable."); Duran, 904 F.2d at 1378 ("If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police officer may not detain an individual simply on the basis of suspicion in the air. No matter how
peculiar, abrasive, unruly or distasteful a person's conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed or that there is an imminent danger to persons or property."); see also Lawrence Rosenthal, Second Amendment
Plumbing after Heller: Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1, 37 (2009) (“When applicable law does not ban carrying a firearm, however, the Fourth Amendment does not permit a stop-and-frisk regardless of any
indication that a suspect is armed or potentially dangerous because there is no indication that the suspect is violating the law.”). For example, in Sorrel v. McGuigan, 38 Fed.Appx. 970, 973 (4th Cir. 2002) (unpublished) the Fourth Circuit denied qualified immunity to an officer who seized
an individual for lawfully carrying weapon. Noting that a state statute made the plaintiff's Case 6:08-cv-00994-BB-LAM Document 48 Filed 09/08/2009 concealed carrying of the weapon legal, the court found that, though "[q]ualified immunity protects law enforcement officers from bad guesses in gray areas," the fact that the plaintiff's actions were clearly permissible under the statute meant that the officer "was not in a gray area."
Id. at 974.

The applicable law was equally clear in this case. Nothing in New Mexico law prohibited Mr. St. John from openly carrying a firearm in the Theater. See N.M. Stat. § 30-7 et seq. Because both New Mexico law and the Fourth Amendment prohibition on unjustified seizure
were clearly established, and a reasonable officer is presumed to know clearly established law, see, e.g., Harlow, 457 U.S. at 818-9, qualified immunity does not protect Defendants. Accordingly, Mr. St. John's motion for summary judgment is granted with regard to his Fourth
Amendment and New Mexico constitutional claims. Defendants' motion for summary judgment is denied with regard to the same and with regard to qualified immunity.

I appreciate the help. The issue is going to be the claim that at the check point the officer had the authority to run my license for warrants and the like. Can he ask me to pull over at a check point without RAS of a crime? I need cases that state he can't. With your help I already have tons of cases dealing with the firearm and RAS. That portion will not be a problem. The issue that will be a problem is showing that they didn't have the authority to have me pull over at a check point in the first place.

CharleyCherokee said:

I appreciate the help. The issue is going to be the claim that at the check point the officer had the authority to run my license for warrants and the like. Can he ask me to pull over at a check point without RAS of a crime? I need cases that state he can't. With your help I already have tons of cases dealing with the firearm and RAS. That portion will not be a problem. The issue that will be a problem is showing that they didn't have the authority to have me pull over at a check point in the first place.

Click to expand...

Yes he does have the authority if he believes you are intoxicated, whether he actually believes it or not he can act like he does for the purposes of determining if you are indeed intoxicated. Youre not going to win that one, the SCOTUS already ruled on this in Michigan v. Sitz.

http://caselaw.duicenter.com/sitz01.html

However stopping you because of the firearm and running your license for anything other than to prove its validity, is not within their authority according to City of Indianapolis v. Edmond. In that case the SCOTUS disproved of a checkpoint being set up to check for criminals. They cant have it both ways except in the rare case of a crime having just recently been committed on that particular stretch of road, of which is not the case.

(a) The rule that a search or seizure is unreasonable under the Fourth
Amendment absent individualized suspicion of wrongdoing has limited
exceptions. For example, this Court has upheld brief, suspicionless seizures
at a fixed checkpoint designed to intercept illegal aliens, United
States v. Martinez-Fuerte, 428 U. S. 543, and at a sobriety checkpoint
aimed at removing drunk drivers from the road, Michigan Dept. of
State Police v. Sitz, 496 U. S. 444. The Court has also suggested that
a similar roadblock to verify drivers’ licenses and registrations would
be permissible to serve a highway safety interest. Delaware v. Prouse,
440 U. S. 648, 663. However, the Court has never approved a checkpoint
program whose primary purpose was to detect evidence of ordinary
criminal wrongdoing. Pp. 37–40.

Obviously the reason you were detained and searched was not because of the questionable state of your sobriety, but was indeed to check for the existence of reasons that you could not possess the firearm, without RAS of a crime having been committed in the first place. Did they perform a breathalyzer test? Did they perform coordination tests? Did they perform blood or urine tests after the arrest?

They need to prove the reason for the detainment in the first place, was it intoxication or your possession of a firearm?

But you must ask yourself. Were you calm and matter of fact in your statements? Did you get belligerent with the officers? You can say whatever you want at a stop, but that doesn't mean you can yell, scream and flail your arms at them, that would be DC. I wasn't there so I don't know, only you do.

However, the illegal detainment and search would be bargaining power in getting them to drop the charges for your arrest if you were being belligerent and disorderly.

UnfetteredMight said:

Yes he does have the authority if he believes you are intoxicated, whether he actually believes it or not he can act like he does for the purposes of determining if you are indeed intoxicated. Youre not going to win that one, the SCOTUS already ruled on this in Michigan v. Sitz.

http://caselaw.duicenter.com/sitz01.html

However stopping you because of the firearm and running your license for anything other than to prove its validity, is not within their authority according to City of Indianapolis v. Edmond. In that case the SCOTUS disproved of a checkpoint being set up to check for criminals. They cant have it both ways except in the rare case of a crime having just recently been committed on that particular stretch of road, of which is not the case.

(a) The rule that a search or seizure is unreasonable under the Fourth
Amendment absent individualized suspicion of wrongdoing has limited
exceptions. For example, this Court has upheld brief, suspicionless seizures
at a fixed checkpoint designed to intercept illegal aliens, United
States v. Martinez-Fuerte, 428 U. S. 543, and at a sobriety checkpoint
aimed at removing drunk drivers from the road, Michigan Dept. of
State Police v. Sitz, 496 U. S. 444. The Court has also suggested that
a similar roadblock to verify drivers’ licenses and registrations would
be permissible to serve a highway safety interest. Delaware v. Prouse,
440 U. S. 648, 663. However, the Court has never approved a checkpoint
program whose primary purpose was to detect evidence of ordinary
criminal wrongdoing. Pp. 37–40.

Obviously the reason you were detained and searched was not because of the questionable state of your sobriety, but was indeed to check for the existence of reasons that you could not possess the firearm, without RAS of a crime having been committed in the first place. Did they perform a breathalyzer test? Did they perform coordination tests? Did they perform blood or urine tests after the arrest?

They need to prove the reason for the detainment in the first place, was it intoxication or your possession of a firearm?

But you must ask yourself. Were you calm and matter of fact in your statements? Did you get belligerent with the officers? You can say whatever you want at a stop, but that doesn't mean you can yell, scream and flail your arms at them, that would be DC. I wasn't there so I don't know, only you do.

However, the illegal detainment and search would be bargaining power in getting them to drop the charges for your arrest if you were being belligerent and disorderly.

Click to expand...

You need to read this, it is the officer's statement on his report of the incident. This case is dead before it even begins because the officer has incriminated himself in the report:


"Above came through a traffic safety checkpoint at the Ledbetter bridge. Above had a handgun in plain view on the center console. Above was then ordered out of the vehicle to secure the weapon. Above was then directed to a secondary location to continue checking the vehicle. Above was upset with this and was speaking to Lt. White, U/100. Above squared off against him and pointed his finger in Lt. White's face placing Lt. White in reasonable apprehension of imminent physical injury. Above was then told to put his hands on the car. He continued to be argumentative and irate. Above was placed in handcuffs for safety. Above was told that he was detained and continued to argue in public in a loud manner that he was arrested. Above was creating public alarm which served no legitimate purpose."

The stop was purely because he had a firearm in plainview, which is completely legal, and can be proven so easily. Holland v. Commonwealth will put an end to this quickly.

This is from a Kentucky Supreme Court ruling concerning openly carried firearms:

"In our state the legislature is empowered only to deny to citizens the right to carry concealed weapons. The constitutional provision is an affirmation of the faith that all men have the inherent right to arm themselves for the defense of themselves and of the state. The only limitation concerns the mode of carrying such instruments. We observe, via obiter dicta, that although a person is granted the right to carry a weapon openly, a severe penalty is imposed for carrying it concealed. If the gun is worn outside the jacket or shirt in full view, no one may question the wearer’s right so to do..."

They seized his firearm, detained him, and continued to search his vehicle all because he had a lawfully carried firearm in plain view! This case is a major deprivation of rights!

KYGlockster said:

You need to read this, it is the officer's statement on his report of the incident. This case is dead before it even begins because the officer has incriminated himself in the report:


"Above came through a traffic safety checkpoint at the Ledbetter bridge. Above had a handgun in plain view on the center console. Above was then ordered out of the vehicle to secure the weapon. Above was then directed to a secondary location to continue checking the vehicle. Above was upset with this and was speaking to Lt. White, U/100. Above squared off against him and pointed his finger in Lt. White's face placing Lt. White in reasonable apprehension of imminent physical injury. Above was then told to put his hands on the car. He continued to be argumentative and irate. Above was placed in handcuffs for safety. Above was told that he was detained and continued to argue in public in a loud manner that he was arrested. Above was creating public alarm which served no legitimate purpose."

The stop was purely because he had a firearm in plainview, which is completely legal, and can be proven so easily. Holland v. Commonwealth will put an end to this quickly.

This is from a Kentucky Supreme Court ruling concerning openly carried firearms:

"In our state the legislature is empowered only to deny to citizens the right to carry concealed weapons. The constitutional provision is an affirmation of the faith that all men have the inherent right to arm themselves for the defense of themselves and of the state. The only limitation concerns the mode of carrying such instruments. We observe, via obiter dicta, that although a person is granted the right to carry a weapon openly, a severe penalty is imposed for carrying it concealed. If the gun is worn outside the jacket or shirt in full view, no one may question the wearer’s right so to do..."

They seized his firearm, detained him, and continued to search his vehicle all because he had a lawfully carried firearm in plain view! This case is a major deprivation of rights!

Click to expand...

Oh....well then go for complete dismissal with the officer or he faces a civil lawsuit. Take the night in jail and learn from the experience. Next time, keep your anger in check so its all on them.

UnfetteredMight said:

Oh....well then go for complete dismissal with the officer or he faces a civil lawsuit. Take the night in jail and learn from the experience. Next time, keep your anger in check so its all on them.

Click to expand...

Exactly!

I found this to be beyond unbelievable in that it happened in KY, one of the most gun-friendly states in the Union.

I would bet this trooper was brought in from out of state; this has been happening alot lately with numerous agencies in KY. There are people here in my county on the Sheriff's department that have come from Georgia (Atlanta), Tennessee (?), and other places that I am not familiar with as of yet. Things like this happen when officers are not familiar with state law and Constitutional rights, and it is a shame.

The sad thing is Charley has just as much of a right to carry his firearm in Kentucky as the officer that arrested him; I would like to see that officer placed in the same situation, I bet he would have been distraught.

No, I wasn't being beligerent or disorderly. But I have to say Unfetteredmight you have given me precisely what I was looking for and I thank you for that.

CharleyCherokee said:

No, I wasn't being beligerent or disorderly. But I have to say Unfetteredmight you have given me precisely what I was looking for and I thank you for that.

Click to expand...

That's cool man and if such is the case and you can prove it, take them apart. No problem and good luck.

KYGlockster said:

Exactly!



Things like this happen when officers are not familiar with state law and Constitutional rights, and it is a shame.

Click to expand...

All LEO's should be familiar with Constitutional rights and state law(s). But sadly, many are not. The part that pisses me off the most is if we are not familiar with a certain law and we violate it we have to pay, while most LEO that violate the law(s) do so without consequences. I hope to hell that Charlie can beat this and make them pay.

Update

Suppression hearing was today. The judge wants briefs before he makes a ruling. I should know on Dec. 6th.

CharleyCherokee said:

Suppression hearing was today. The judge wants briefs before he makes a ruling. I should know on Dec. 6th.

Click to expand...

Good luck.

MrOverlay said:

Good luck.

Click to expand...

Hey MrOverlay...haven't heard from you in a while. Best of luck to Charlie in Dec..

CharleyCherokee said:

Suppression hearing was today. The judge wants briefs before he makes a ruling. I should know on Dec. 6th.

Click to expand...

I may have missed it, but what evidence are you looking to suppress?