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Thread: Case law?

  1. #1
    Regular Member Difdi's Avatar
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    Case law?

    I've occasionally seen a court decision mentioned here, that has to do with the police being unable to lawfully assume that someone engaging in a licensed behavior (driving, CCW, etc) lacks a license as a pretext for the stop, that they must have some other reason, a reasonable articulable suspicion.

    I'm in an argument with a guy on another site, and the topic has come up. Can anyone point me to the case in question?

  2. #2
    Regular Member Fallschirmjäger's Avatar
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    There's always U.S. v DeBerry

    He was found guilty, but only because in Illinois carrying a concealed weapon is illegal and that was part of the tip the police were given. If I may extract a quote...
    The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon.   The tipster informed the police that DeBerry was armed, and it appears from the facts before us that the weapon was not in plain view.   I do not agree that this case would necessarily come out the same way if Illinois law, like the law of many states, authorized the carrying of concealed weapons.   At that point, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?).   This kind of nonincriminatory allegation, in my view, would not be enough to justify the kind of investigatory stop that took place here.   It would mean, in states that permit carrying concealed weapons, that the police no longer need any reason to stop citizens on the street to search them.   However, we do not have that situation.   Because I therefore consider the Court's comments on lawful concealed weapons to be dicta, I concur in the result reached today.

    POSNER, Chief Judge.

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    Regular Member Fallschirmjäger's Avatar
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    Is 'that person' asserting that someone's Fourth Amendment rights are in some way negated because of the nature of his lawful behavior? That there is no suspicion of illegality when merely seeing someone driving an auto on the highway ( a licensed activity) but that there is a suspicion of illegality when someone has a firearm (another, often but not always, licensed activity)?

    Have you asked him where the firearms exception to the Fourth Amendment can be found?

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    Regular Member sudden valley gunner's Avatar
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    Regaldo vs State is a Florida case that agreed with many of our assesments. That PC or RS isn't created by simple observation of a licensed activity.

    Lammo a prosecutor from the dry side of our state. Posted a fairly recent Washington case that posted the same.

    To me it is simple common law/constitutional law sense.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  5. #5
    Regular Member sudden valley gunner's Avatar
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    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Regular Member Difdi's Avatar
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    While searching for the citation I found City of Seattle v. Mesiani, which probably suffices since the discussion I mentioned in my earlier post is specifically about Washington. Can anyone think of any other Washington-specific rulings along those lines?

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    why would not the Lammo citation suffice? It looks thorough and on point to me, persuasive.
    I am responsible for my writing, not your understanding of it.

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    Campaign Veteran slapmonkay's Avatar
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    Quote Originally Posted by Nightmare View Post
    why would not the Lammo citation suffice? It looks thorough and on point to me, persuasive.
    More specifically, a copy and paste of part of Lammo's post.

    Terry Stops. An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. Here, there is no evidence that the 911 caller felt intimidated or alarmed when shown the gun, or that the person who was holding the gun discharged it or pointed the gun at anyone. State v. Cardenas-Muratalla, COA No. 68057-9-1 (Feb. 3, 2014). http://www.courts.wa.gov/opinions/pdf/680579.pdf
    A quote from the case ruling:
    Grosse, J. —To be valid under both state and federal law, a warrantless,
    investigatory stop, or Terry1 stop, must be reasonable, and it is the State's
    burden to prove reasonableness. An investigatory stop is reasonable if the
    arresting officer can testify to specific and objective facts that provide a
    reasonable suspicion that the person stopped has committed or is about to
    commit a crime. In determining whether an investigatory stop and frisk is
    reasonable, courts look at the totality of the circumstances. The circumstances
    mustsuggest a substantial possibility that the particular person has commiled a
    specific crime or is about to do so. Here, an anonymoustip reporting conductnot
    constituting a crime did not suffice to justify a Terry stop. Accordingly wgg
    reverse.

    The presence of a firearm in public alone is insufficient for an investigatory stop,11 but
    a report of actual or threatened use of a firearm can present a significant risk to
    public safety supporting an investigatory stop.1

    11) Florida v.J.L. 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)
    Last edited by slapmonkay; 06-23-2014 at 12:20 PM.
    I Am Not A Lawyer, verify all facts presented independently.

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    Regular Member EMNofSeattle's Avatar
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    Prouse v Delaware is another...... Dealing with drivers licenses
    they love our milk and honey, but they preach about some other way of living, when they're running down my country man they're walkin' on the fightin side of me

    NRA Member

  10. #10
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by EMNofSeattle View Post
    Prouse v Delaware is another...... Dealing with drivers licenses
    +1 The principle remains the same.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  11. #11
    Regular Member 509rifas's Avatar
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    There is a newer case law for WA, within the past year, that elaborated on Cassad, that basically said lawful carry is not RAS absent other specific behaviors. I can't link it right now as I am on a phone.
    There are also all the SCOTUS rulings mentioned, refering to people doing nothing wrong and hence no RAS as well, but there is one for WA recently that was very specific for guns and I think in regards to 9.41.270.
    Will post the ruling tomorrow if no one beats me to it.
    LIVE FREE OR DIE TRYING

  12. #12
    Regular Member Difdi's Avatar
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    Please do. The argument I mentioned up top is already over, but I'd love to read the citation anyway.

  13. #13
    Regular Member 509rifas's Avatar
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    Quote Originally Posted by Difdi View Post
    Please do. The argument I mentioned up top is already over, but I'd love to read the citation anyway.
    I guess it is the "Lammo citation," so it's no new information I guess... however the link is broken. http://caselaw.findlaw.com/wa-court-...s/1656591.html seems to work, I'll try to upload the PDF of the case. (And no, I can't, the filetype limit is 488kb and it is 502kb. If you go to http://courts.mrsc.org/appellate/index_dtSearch.html and put in "State v. Cardenas-Muratalla" the only result is a PDF of the case.)

    It it a published opinion however, which means it is law.

    State v. Cardenas-Muratalla, COA No. 68057-9-1 (Feb. 3, 2014)

    "The presence of a firearm in public alone is insufficient for an investigatory stop, but a report of actual or threatened use of a firearm can present a significant risk to public safety supporting an investigatory stop...
    " The informant said Cardenas–Muratalla showed him his gun, but that he (the informant) did not feel threatened. Carrying a firearm is a crime if it is carried or displayed in a manner that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons,20 or if it is willfully discharged in a place where there is a reasonable likelihood that humans, domestic animals, or property will be jeopardized. There is no evidence in the record that the 911 caller reported being intimidated or alarmed when the suspect showed him the gun or that the suspect discharged the gun or pointed it at anyone. In fact, the caller told the 911 operator, “He didn't threaten me. It's just that he showed me. I seen it․ Just calling to tell you, just calling to tell you."...
    [As a side note, I saw "WILLFULLY" discharged there, I recall at least one case on here about four or five years back of one guy getting a charge for unlawful discharge when a Jimenez went off in his pocket on a bus and he shot himself in the leg.]
    "Cardenas–Muratalla's presence in a high crime area at night, looking startled upon seeing the patrol car, and walking away from the doorway while talking on a cell phone do not justify a stop..."
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