Open carrier stopped in Dayton

BB62 · Mar 17, 2014

MyWifeSaidYes said:
...I believe both people involved in the Riverside 'payday' stop are in their 20's...

Adam Seaton is 18, and his friend is 23.

Werz · Mar 17, 2014

MyWifeSaidYes said:
The Lorain open carrier is 24 ...

That is the one I addressed in my earlier post. No strawmen, please.

MyWifeSaidYes said:
A person may start driving at age 16 in Ohio.

How many 16 and 17-year-olds are stopped JUST for 'looking too young'?

How many 18 to 20-year-olds are stopped JUST for 'looking too young'?

Serious questions.

Serious answer: This is not the operation of a motor vehicle. Did I mention: No strawmen, please?

This case involves a person walking on the street with an openly carried rifle. This is that person:

*
Officer at Suppression Hearing: "I saw the youth walking down the street, alone and carrying a rifle slung on his back. I suspected that he was under eighteen years of age, and that he had been provided that firearm unlawfully, or that he had unlawfully acquired the firearm on his own. I stopped the youth and asked him to identify himself to determine if he was old enough to possess the firearm without adult supervision."

Consider similar Ohio case law:

"We are mindful of Brooklyn’s right to enforce its curfew laws, and we do not fault the police for detaining Kaczor under the circumstances. Police may reasonably suspect and detain someone for being out past curfew." Brooklyn v. Kaczor, 2013-Ohio-2901, at ¶13 (8th Dist.)

"[T]he officer saw a group of individuals who appeared to be young in age walking in the street rather than on the sidewalk at 1:15 a.m. He recognized one member of the group and knew that individual to be under the age of 18 and therefore out after curfew. When the group saw the officer, they began walking away at a fast pace. The officer had reasonable suspicion to stop the group and investigate further." State v. Wise, 2010-Ohio-2040, at ¶18. (5th Dist.)

What would a trial judge say at a suppression hearing? What would an appellate judge say?

* Image publish pursuant to Fair Use, 17 U.S.C. §107.

Primus · Mar 17, 2014

Werz said:
That is the one I addressed in my earlier post. No strawmen, please.

Serious answer: This is not the operation of a motor vehicle. Did I mention: No strawmen, please?

This case involves a person walking on the street with an openly carried rifle. This is that person:
View attachment 11387*
Officer at Suppression Hearing: "I saw the youth walking down the street, alone and carrying a rifle slung on his back. I suspected that he was under eighteen years of age, and that he had been provided that firearm unlawfully, or that he had unlawfully acquired the firearm on his own. I stopped the youth and asked him to identify himself to determine if he was old enough to possess the firearm without adult supervision."

Consider similar Ohio case law:

What would a trial judge say at a suppression hearing? What would an appellate judge say?

* Image publish pursuant to Fair Use, 17 U.S.C. §107.

Reasonable person could believe this kid is under 18

Sent from my XT907 using Tapatalk

OC for ME · Mar 18, 2014

Werz said:
<snip>

Officer at Suppression Hearing: "I saw the youth walking down the street, alone and carrying a rifle slung on his back. I suspected that he was under eighteen years of age, and that he had been provided that firearm unlawfully, or that he had unlawfully acquired the firearm on his own. I stopped the youth and asked him to identify himself to determine if he was old enough to possess the firearm without adult supervision."

No, the cop guessed, had a gut feeling, nothing but a mere hunch, a hope if you will.

Other than seeing a gun, the only observable fact, and not unlawful in and of it self at that point it seems. The cop observing a "young-looking" dude, that cop cobbled together all those possible crimes from one observable fact and a desire to find a <18 year old in possession of that gun.

I wonder if that cop stops (age check) young-looking folks who smoke in public. Smoking is a violation if under 18 is it not. Yes, driving is analogous to the cops fantasy "RAS" because he articulated it.

OC for ME · Mar 18, 2014

Primus said:
Reasonable person could believe this kid is under 18

Sent from my XT907 using Tapatalk

Then I must be unreasonable, or blind, because I do not, these days, base my age determination of another citizen on mere "looks." That cop did though. He attempts to justify his guess based on a bias that the dude looks younger than what that cop thought a armed adult should look like.

The cop gets a free pass because his reasonable belief is the only belief the courts will give weight to.....he's a cop after all.

Werz · Mar 18, 2014

OC for ME said:
No, the cop guessed, had a gut feeling, nothing but a mere hunch, a hope if you will.

Other than seeing a gun, the only observable fact, and not unlawful in and of it self at that point it seems. The cop observing a "young-looking" dude, that cop cobbled together all those possible crimes from one observable fact and a desire to find a <18 year old in possession of that gun.

And you could argue that, and you could stomp your feet and scream it, but you don't make that call. A trial judge, who will sit face-to-face with the young fellow, will make that decision. And in the absence of an abuse of discretion, an appellate judge will uphold the trial judge on findings of facts, specifically, how old the person appears to be. Once a reasonable suspicion of less-than-18 is established, the lawful explanations of him walking down the street, alone and with an AK-47, is limited.

This may contravene your narrative and your near-religious convictions on the subject matter, but that doesn't make it any less the truth. Wishing doesn't make it so.

OC for ME · Mar 18, 2014

Werz said:
And you could argue that, and you could stomp your feet and scream it, but you don't make that call. A trial judge, who will sit face-to-face with the young fellow, will make that decision. And in the absence of an abuse of discretion, an appellate judge will uphold the trial judge on findings of facts, specifically, how old the person appears to be. Once a reasonable suspicion of less-than-18 is established, the lawful explanations of him walking down the street, alone and with an AK-47, is limited.

This may contravene your narrative and your near-religious convictions on the subject matter, but that doesn't make it any less the truth. Wishing doesn't make it so.

The cop gets a pass because what a citizen looks like, in his opinion, is RAS.

This case is not about the citizen who looks <18, it is about a cop who sees a gun, and he then manufacturing RAS of a crime, where no other facts are evident, is based only on the appearance of the citizen with the gun. This is dangerous ground and a pattern can be easily established that the gun is the only reason for the stop. Unless of course the gun is all the RAS the cop needs and the age issue is the determining factor, after the fact, as to whether or not a crime is being committed.

Simply put, the gun is the crime if no other fact evident, or is needed, until a investigation is completed.

Werz · Mar 18, 2014

OC for ME said:
The cop gets a pass because what a citizen looks like, in his opinion, is RAS.

And if that opinion is reasonable under the circumstances, and if he articulates it adequately at a suppression hearing, it constitutes a reasonable articulable suspicion.

OC for ME said:
This case is not about the citizen who looks <18, it is about a cop who sees a gun, and he then manufacturing RAS of a crime, where no other facts are evident, is based only on the appearance of the citizen with the gun. This is dangerous ground and a pattern can be easily established that the gun is the only reason for the stop. Unless of course the gun is all the RAS the cop needs and the age issue is the determining factor, after the fact, as to whether or not a crime is being committed.

If reasonable suspicion of criminal activity exists, the Fourth Amendment is not violated, even if a reasonable officer would not have stopped that person absent some additional law enforcement objective. Whren v. United States, 517 U.S. 806 (1996).

Now, in all fairness, this will always be case-specific, and the truth is, based on their individual appearances, 24-year-old Mr. Septaric in Lorain is more likely to appear under the age of eighteen than is 18-year-old Mr. Seaton in Dayton, with his neo-Elvis sideburns and all. That's why the carry-a-gun-and-refuse-ID game is best not played by youngsters.

Grapeshot · Mar 18, 2014

Werz said:
And if that opinion is reasonable under the circumstances, and if he articulates it adequately at a suppression hearing, it constitutes a reasonable articulable suspicion.

If reasonable suspicion of criminal activity exists, the Fourth Amendment is not violated, even if a reasonable officer would not have stopped that person absent some additional law enforcement objective. Whren v. United States, 517 U.S. 806 (1996).

Now, in all fairness, this will always be case-specific, and the truth is, based on their individual appearances, 24-year-old Mr. Septaric in Lorain is more likely to appear under the age of eighteen than is 18-year-old Mr. Seaton in Dayton, with his neo-Elvis sideburns and all. That's why the carry-a-gun-and-refuse-ID game is best not played by youngsters.

Agree. To do otherwise in those circumstances indicates a predisposition to the concept of a "free lunch."

OC for ME · Mar 18, 2014

Werz said:
And if that opinion is reasonable under the circumstances, and if he articulates it adequately at a suppression hearing, it constitutes a reasonable articulable suspicion.

If reasonable suspicion of criminal activity exists, the Fourth Amendment is not violated, even if a reasonable officer would not have stopped that person absent some additional law enforcement objective. Whren v. United States, 517 U.S. 806 (1996).

Now, in all fairness, this will always be case-specific, and the truth is, based on their individual appearances, 24-year-old Mr. Septaric in Lorain is more likely to appear under the age of eighteen than is 18-year-old Mr. Seaton in Dayton, with his neo-Elvis sideburns and all. That's why the carry-a-gun-and-refuse-ID game is best not played by youngsters.

Whren is not the case you should cite. Prouse is a better case to determine reasonableness. Whren even cites Prouse on that issue.

There was no criminality in evidence. That cop claims the citizen is underage without any facts to substantiate his claim, and desires the court to hold his opinion as reasonable. This is very much a case of not only is a gun not enough, but appearance, without more, must not be enough. This is dangerous ground.

Anyway, the cop will slide, a court will rule that looks=RAS and liberty is chipped away, again.

Werz · Mar 18, 2014

Werz said:
And if that opinion is reasonable under the circumstances, and if he articulates it adequately at a suppression hearing, it constitutes a reasonable articulable suspicion.

If reasonable suspicion of criminal activity exists, the Fourth Amendment is not violated, even if a reasonable officer would not have stopped that person absent some additional law enforcement objective. Whren v. United States, 517 U.S. 806 (1996).

OC for ME said:
Whren is not the case you should cite. Prouse is a better case to determine reasonableness. Whren even cites Prouse on that issue.

Whren v. United States, 517 U.S. 806 (1996), is exactly the case I should cite, and it is the one that you seem desperate to disavow. Delaware v. Prouse, 440 U.S. 648 (1979), stands for the proposition that a stop cannot be made without reasonable suspicion of unlawful activity. Whren stands for the proposition that if reasonable suspicion exists - even if it is just a reasonable suspicion that the person in possession of a firearm is an unsupervised juvenile - then a stop is justified, even if the officer has other motives for making the stop. You may not like that part, but it's still the law.

OC for ME said:
There was no criminality in evidence. That cop claims the citizen is underage without any facts to substantiate his claim ...

Whoa! You need to roll back and realize what we're talking about. Septaric was not arrested; he was not charged; there was no suppression hearing; "the cop" made no such claim; and a judge made no ruling on the same. This is about a statement of a training officer at Lorain County Community College that, "he has reasonable suspicion to stop you and to make sure that you're old enough to have the firearm." My point is that Septaric looks young enough (that's why I posted his image) to allow the officer to make that argument, and even if the officer had other motives to stop him, the reasonable suspicion regarding his age is sufficient to justify the stop, regardless of the other motives. You may not like that, but there are many things in this life that some of us don't like, but we need to know how to adapt to them.

OC for ME · Mar 18, 2014

Werz said:
Whren v. United States, 517 U.S. 806 (1996), is exactly the case I should cite, and it is the one that you seem desperate to disavow. Delaware v. Prouse, 440 U.S. 648 (1979), stands for the proposition that a stop cannot be made without reasonable suspicion of unlawful activity. Whren stands for the proposition that if reasonable suspicion exists - even if it is just a reasonable suspicion that the person in possession of a firearm is an unsupervised juvenile - then a stop is justified, even if the officer has other motives for making the stop. You may not like that part, but it's still the law.

I see. Whren did not revolve around "other motives" but PC for a stop due to a observed traffic violation, no turn signal. But this seems to be minutia at this point. The premise that appearance alone is reasonable suspicion is problematic for me. But, this is my problem.

Werz said:
Whoa! You need to roll back and realize what we're talking about. Septaric was not arrested; he was not charged; there was no suppression hearing; "the cop" made no such claim; and a judge made no ruling on the same. This is about a statement of a training officer at Lorain County Community College that, "he has reasonable suspicion to stop you and to make sure that you're old enough to have the firearm." My point is that Septaric looks young enough (that's why I posted his image) to allow the officer to make that argument, and even if the officer had other motives to stop him, the reasonable suspicion regarding his age is sufficient to justify the stop, regardless of the other motives. You may not like that, but there are many things in this life that some of us don't like, but we need to know how to adapt to them.

I see, again. I was stuck on the below in a previous post of yours.

This case involves a person walking on the street with an openly carried rifle. This is that person:

Officer at Suppression Hearing: "I saw the youth walking down the street, alone and carrying a rifle slung on his back. I suspected that he was under eighteen years of age, and that he had been provided that firearm unlawfully, or that he had unlawfully acquired the firearm on his own. I stopped the youth and asked him to identify himself to determine if he was old enough to possess the firearm without adult supervision."

I did not connect the dots to a training officer's opinion and what appeared to me, incorrectly now, as a excerpt form a court case. Dangerous ground if looks = RAS. If a gun is not RAS, where it is not, then looks cannot be RAS. I'll get over it. Thanks for the clarifications.

Open carrier stopped in Dayton

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