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Thread: Supreme court law makes open carry reasonable suspicion?

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    Supreme court law makes open carry reasonable suspicion?

    What's up everyone, so I was at the bar with a few people the other day after work and we got on topic about gun laws. As we touched base on numerous laws, a eavesdropper came up to us claiming to be a former officer now turned lawyer stating that open carrying now grants an officer the ability to not only detain you but check your weapon and demand your identification. I live in an open carry state (MAINE) and am somewhat familiar to most laws pertaining to open carrying and presenting identification and have yet to hear about this. He presented an article in which had no reputation but it stated that this was passed at the Supreme Court level. Is he a moron or am I not up to date on my laws?


    I thought that Maine State statute 17A-15A subsection "1" paragraph (A) states that only when being summonsed or arrested you have to provide identification (NAME&DOB).

    Also, I was under the impression that DEL V PROUSE and OHIO V TERRY concluded that a law enforcement official is REQUIRED to state the crime being committed in order to detain an individual?




    Any help would be greatly appreciated!
    Thanks guys!

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    Cops are notorious liars, particularly on points of law.
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    Moderator / Administrator Grapeshot's Avatar
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    Moved this to the Maine sub-forum as some of the particulars will be state specific.
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    Quote Originally Posted by Nightmare View Post
    Cops are notorious liars, particularly on points of law.
    And when cops become attorneys..........well..........

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    Quote Originally Posted by CoastalMaine View Post
    I thought that Maine State statute 17A-15A subsection "1" paragraph (A) states that only when being summonsed or arrested you have to provide identification (NAME&DOB).

    Also, I was under the impression that DEL V PROUSE and OHIO V TERRY concluded that a law enforcement official is REQUIRED to state the crime being committed in order to detain an individual?

    Any help would be greatly appreciated!
    Thanks guys!
    It looks like 17A-15A is in conflict with Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177.
    I suggest you go read DEL V PROUSE and OHIO V TERRY and make up your own mind as to what they say.


    And welcome to the forum.
    Last edited by color of law; 02-15-2015 at 06:19 PM.

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    Quote Originally Posted by CoastalMaine View Post
    [ ... ]I thought that Maine State statute 17A-15A subsection "1" paragraph (A) states that only when being summonsed or arrested you have to provide identification (NAME&DOB).
    Carefully differentiate identifying yourself from providing identification documents. You may identify yourself orally, as "John Q. Public of Your Town, Your State," or not as one always has the Fifth Amendment Right to silence. The officer can arrest you minimizing many of your rights, including your Fourth Amendment Right to privacy in your person, papers and effects, and search you and seize your identification papers.

    An officer is not required to lie to you about his reason to arrest you. He can arrest you for any reason or no reason. You may beat the rap but you will not beat the ride - the extra-legal harassment often in the backseat.
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    Regular Member Fallschirmjäger's Avatar
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    1) If, as I understand it, Maine is a "traditional open carry state" requiring no license then exactly what license is Officer Friendly going to demand?

    2) If I understand §15-A.2. correctly, then an officer has the authority to demand a person's correct name, address or date of birth; not to demand papers.

    Quote Originally Posted by Nightmare View Post
    "... You may identify yourself orally, as "John Q. Public of Your Town, Your State," or not as one always has the Fifth Amendment Right to silence...
    I would point out that a person who 'intentionally fails or refuses to provide to that officer reasonably credible evidence of that person's correct name, address or date of birth commits a Class E crime' per §15-A.2..

    Title 29-A, §1408 2. is an Officer's authority for a citizen to display his/her license for examination. Title 29-A, §1408 1. says it only applies when operating a motor vehicle. Leaving the license in one's car eliminated any problem with it being demanded when one is afoot.
    Last edited by Fallschirmjäger; 02-15-2015 at 07:26 PM.

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    Quote Originally Posted by color of law View Post
    It looks like 17A-15A is in conflict with Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177.
    I suggest you go read DEL V PROUSE and OHIO V TERRY and make up your own mind as to what they say.

    And welcome to the forum.
    I'm not so sure...I believe Hiibel detention was valid prior the the ID demand, whereas in the example given by the OP, merely open carrying is not a crime. I'm not familiar with Prouse, but I believe that Terry also hinged on what constitutes justification for a legal detention in the first place (always a prerequisite for demanding identification in non- stop-and-ID jurisdictions).
    Last edited by OC4me; 02-16-2015 at 11:24 AM.

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    Quote Originally Posted by OC4me View Post
    I'm not so sure...I believe Hibel dentention was valid prior the the ID demand, whereas in the example given by the OP, merely open carrying is not a crime. I'm not familiar with Prouse, but I believe that Terry also hinged on what constitutes justification for a legal detention in the first place (always a prerequisite for demanding identification in non- stop-and-ID jurisdictions).
    Your guessing makes it clear you have not read Hiibel. Read Hiibel. http://www.law.cornell.edu/supct/pdf/03-5554P.ZO

    Quick overview of Delaware v. Prouse 440 U.S. 648 (1979)
    https://www.youtube.com/watch?v=nLZJtkmaw9s

    Questions are OK on the forum about procedures. But, if you are going to open carry a gun and even conceal carrying a gun you need to know your rights. And that requires reading court opinions. If what I just said applies to you then so be it, if not......

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    Quote Originally Posted by color of law View Post
    It looks like 17A-15A is in conflict with Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177.
    I suggest you go read DEL V PROUSE and OHIO V TERRY and make up your own mind as to what they say.


    And welcome to the forum.
    How is 17A-15A in conflict with Hiibel? Hiibel sets a minimum standard for state law allowing a police officer to demand ID. States are free to restrict their officers farther, giving more freedom to the people. Maine and many other states err on the side of caution regarding identification by not requiring their citizens to ID themselves unless being summonsed or arrested.

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    Quote Originally Posted by color of law View Post
    Your guessing makes it clear you have not read Hiibel. Read Hiibel. http://www.law.cornell.edu/supct/pdf/03-5554P.ZO

    Quick overview of Delaware v. Prouse 440 U.S. 648 (1979)
    https://www.youtube.com/watch?v=nLZJtkmaw9s

    Questions are OK on the forum about procedures. But, if you are going to open carry a gun and even conceal carrying a gun you need to know your rights. And that requires reading court opinions. If what I just said applies to you then so be it, if not......
    Read. Hiibel was 'lawfully detained' prior to the identification demand. The Hiibel detention was valid prior to the the ID demand.

    Exact quote from the Hiibel decision "...Here there is no question that the initial stop was based on reasonable suspicion,..." [page 5 last sentence]

    Color of Law, I am not trying to argue, just reinforce my original point that a distinction need be made between whether the LEO lawfully detained someone or not. An OCer, not lawfully detained (in a non- Stop-and-ID state) would not have to produce identification. This point is directly relevant to the OP's original post (assuming Maine is not a Stop-and-ID state).
    Last edited by OC4me; 02-16-2015 at 08:37 PM.

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    Accomplished Advocate color of law's Avatar
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    Name only.....

    When open carrying we are not required to have any type of identification on our persons.

    Under Terry v. Ohio, 392 U.S. 1 (1968), a law enforcement officer has wide leeway during an investigatory stop. But, that wide leeway is not unlimited. A stop under Terry is limited by the Fourth Amendment of the U.S. Constitution. and also limited by Article I Section 5 of the Maine Constitution. §15-A is unconstitutional as written. MRS §15-A states in part “...who intentionally fails or refuses to provide to that officer reasonably credible evidence of that person's correct name, address or date of birth commits a Class E crime...” §15-A goes well beyond the holding of Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al, 542 U.S. 177 (2004).

    The U.S. Supreme Court in Hiibel stated that:
    Beginning with Terry v. Ohio, 392 U. S. 1, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U. S. 221, 229, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34.
    The Hiibel court made it abundantly clear that, until Hiibel, an open question existed as to whether a suspect can be arrested and prosecuted for the refusal to answer questions, ie a suspect exercising their Fifth Amendment right. Through Hiibel the U.S. Supreme Court has ruled that the Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. The Court did not extend that principle beyond the giving of the suspect's name.

    For example, here in Ohio the court made it clear why name only.

    State v. Brown, 2004 Ohio 4058 - Ohio: Court of Appeals, 2nd Appellate Dist. 2004
    {¶25} “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” Hiibel, 124 S.Ct. at 2460; Cincinnati v. Bawtenheimer (1992), 63 Ohio St.3d 260, 264, 586 N.E.2d 1065 (“The Fifth Amendment protects the person against incrimination through compelled testimony or other compelled acts having some testimonial character.”). In order for a disclosure to be testimonial, the defendant’s communication “must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Hiibel, 124 S.Ct. at 2460. The Supreme Court has recognized that the stating of one’s name may constitute an assertion of fact relating to one’s identity. Id. It noted:
    {¶26} “The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a question to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. In every criminal case, it is known and must be known who has been arrested and who is being tried. Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.” Hiibel, 124 S.Ct at 2461 (citations omitted).
    The Ohio courts understand that it's name only.

    And if challenged in Maine I would bet the courts will say name only.

    Also, Maine revised their law in 2003, Hiibel was Decided June 21, 2004.
    Last edited by color of law; 02-16-2015 at 12:48 PM.

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    Also, Maine statute §71-2. And; or. The words "and" and "or" are convertible as the sense of a statute may require.

    Maine statute §17A-15A would be in conflict with Hiibel if the term "or" would mean "and." The statute uses the term "or."

    1, who intentionally fails or refuses to provide to that officer reasonably credible evidence of that person's correct name, address or date of birth commits a Class E crime, if the person persists in the failure or refusal after having been informed by the officer of the provisions of this subsection. If that person furnishes the officer evidence of the person's correct name, address and date of birth and the evidence does not appear to be reasonably credible, the officer shall attempt to verify the evidence as quickly as is reasonably possible.
    The violation of law uses the term "or." The second part uses "and," but that part applies to the officers duty.

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    Good stuff guys I appreciate the welcoming along with the citations and explanations and will be sure to read and study all of it to get a better idea. I never believed the man but it did get me thinking with the current path our country is on. I guess I am confused somewhat still with conflicting points being made about this. Based on what I have read, it seems you HAVE to give your name only to an officer if stopped for anything whatsoever (openly carrying in this case) no matter if your state is a traditional open carry state. Where I second guess it is when I see so many videos, some being in maine, where there is refusal of all information when requested by the officer for the reason of seeing you openly carrying and wanting to "see who you are" and "make sure you're not a felon". Are these guys ultimately intimidating police to back down or do you not have to provide anything when being stopped for no reason as I orginally thought? I left a message with the Chief of the State Police and hope he'd give an honest answer but have not heard back. I love how these idiots in office make a million laws so you never know what the hell is right or wrong.

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    Quote Originally Posted by CoastalMaine View Post
    Good stuff guys I appreciate the welcoming along with the citations and explanations and will be sure to read and study all of it to get a better idea. I never believed the man but it did get me thinking with the current path our country is on. I guess I am confused somewhat still with conflicting points being made about this. Based on what I have read, it seems you HAVE to give your name only to an officer if stopped for anything whatsoever (openly carrying in this case) no matter if your state is a traditional open carry state. Where I second guess it is when I see so many videos, some being in maine, where there is refusal of all information when requested by the officer for the reason of seeing you openly carrying and wanting to "see who you are" and "make sure you're not a felon". Are these guys ultimately intimidating police to back down or do you not have to provide anything when being stopped for no reason as I orginally thought? I left a message with the Chief of the State Police and hope he'd give an honest answer but have not heard back. I love how these idiots in office make a million laws so you never know what the hell is right or wrong.
    How did you come to that conclusion? No, a cop cannot just walk up to you and demand your name or ID. Did you not read Terry?

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by CoastalMaine View Post
    Good stuff guys I appreciate the welcoming along with the citations and explanations and will be sure to read and study all of it to get a better idea. I never believed the man but it did get me thinking with the current path our country is on. I guess I am confused somewhat still with conflicting points being made about this. Based on what I have read, it seems you HAVE to give your name only to an officer if stopped for anything whatsoever (openly carrying in this case) no matter if your state is a traditional open carry state. Where I second guess it is when I see so many videos, some being in Maine, where there is refusal of all information when requested by the officer for the reason of seeing you openly carrying and wanting to "see who you are" and "make sure you're not a felon". Are these guys ultimately intimidating police to back down or do you not have to provide anything when being stopped for no reason as I originally thought? I left a message with the Chief of the State Police and hope he'd give an honest answer but have not heard back. I love how these idiots in office make a million laws so you never know what the hell is right or wrong.
    Read the statute again, it's not for 'anything whatsoever' it's is only when stopped/detained for a suspected crime. Open carry, in and of itself, cannot be a crime in Maine.
    It is your responsibility to ask if you are being detained or not and I can almost guarantee that's a question Officer Friendly will Not want to answer affirmatively if he has no RAS.
    Last edited by Fallschirmjäger; 02-16-2015 at 06:17 PM.

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    Quote Originally Posted by color of law View Post
    How did you come to that conclusion? No, a cop cannot just walk up to you and demand your name or ID. Did you not read Terry?

    Bad choice of wording that I knew I should have re-worded. That was what I originally thought. Please bare with me here, this is my first time on here and I am an older gentleman trying to see if what I know still holds to be true. Yes, I read Terry. Without being suspected of committing a crime, you cannot legally be detained.

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    Quote Originally Posted by Fallschirmjäger View Post
    Read the statute again, it's not for 'anything whatsoever' it's is only when stopped/detained for a suspected crime. Open carry, in and of itself, cannot be a crime in Maine.
    It is your responsibility to ask if you are being detained or not and I can almost guarantee that's a question Officer Friendly will Not want to answer affirmatively if he has no RAS.
    Again, I did not mean to write it out that way and I apologize for the confusion. I always have asked if I am being detained when stopped although as I walk away they seem to change their mind all of a sudden then ask where I am headed, where I live, my first name, if the gun is loaded, etc. You all know the ropes, most of you better than me which is why I came here in the first place, so again, thank you all. Yes, it has always been in my experience that an officer will NEVER answer you affirmatively and pound you with questions. It has been a few years since I have exercised my rights and am merely trying to brush up on them and see if anything has changed much. When the so called cop turned lawyer shared his article it got me worried.



    So basically, when applied to openly carrying:

    DeBerry V US=Cannot be detained for legally carrying a firearm

    Terry V OHIO=Cannot have gun seized without reasonable suspicion

    Brown V Texas=Cannot demand identification without reasonable suspicion

    And Delaware V Prouse is essentially applied to motorist but basically the same meaning for all of them.
    Last edited by CoastalMaine; 02-16-2015 at 07:13 PM.

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    First rule!!!!!! NEVER LISTEN TO A COP WHEN HE TRIES TO GIVE YOU LEGAL ADVISE!!!!!

    Now, I'm done screaming.

    You need to spend time reading these forums. Lots of info here.

    I believe your question has been answered. BUT, do not run off because we scream at you. If you don't understand ask the question again and again.

    OK?????

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    Brown V Texas=Cannot demand identification without reasonable suspicion.
    Wrong.

    Thecourt held that:

    "The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable.""

    While the application of the relevant Texas law was held unconstitutional in the case, the constitutional status of the law itself was not addressed.

    Now read Hiibel.....Name only.

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    Quote Originally Posted by color of law View Post
    Wrong.

    Thecourt held that:

    "The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable.""

    While the application of the relevant Texas law was held unconstitutional in the case, the constitutional status of the law itself was not addressed.

    Now read Hiibel.....Name only.


    That seems absurd. So basically at all times I need to give my name whenever asked to dispel any suspicion that they could fabricate to run my name? But I may use my 5th amendment right at times? I was always under the impression that unless an actual crime can be presented that I am involved in or have committed that I do not have to provide ANY IDENTIFICATION. Otherwise, they could literally make anything up for anyone to "legally" check everyone out. Thanks again, I understand how frustrating someone like me can be with questions, I just see so much conflicting info. Cheers!

    But In this case of me legally openly carrying that alone is technically not considered suspicious activit

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    Quote Originally Posted by color of law View Post
    First rule!!!!!! NEVER LISTEN TO A COP WHEN HE TRIES TO GIVE YOU LEGAL ADVISE!!!!!

    Now, I'm done screaming.

    You need to spend time reading these forums. Lots of info here.

    I believe your question has been answered. BUT, do not run off because we scream at you. If you don't understand ask the question again and again.

    OK?????


    Haha, thanks I appreciate that. I won't go running off, you all seem like a great group of people offering knowledge to those who aren't quite there yet (me!). And yes, I never do which Is why I came to you guys to brush up on my laws (basically contacted chief of police to see if he would lie knowing you all would be of much greater truthful help). I am starting to understand how to move around and search the forum so I don't create similar threads that have already been answered. Thanks again.
    Last edited by CoastalMaine; 02-16-2015 at 11:04 PM.

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    Quote Originally Posted by CoastalMaine View Post
    That seems absurd. So basically at all times I need to give my name whenever asked to dispel any suspicion that they could fabricate to run my name? But I may use my 5th amendment right at times? I was always under the impression that unless an actual crime can be presented that I am involved in or have committed that I do not have to provide ANY IDENTIFICATION. Otherwise, they could literally make anything up for anyone to "legally" check everyone out. Thanks again, I understand how frustrating someone like me can be with questions, I just see so much conflicting info. Cheers!

    But In this case of me legally openly carrying that alone is technically not considered suspicious activit
    This will vary from state to state. In WV there's no law that I can find but I did find a ruling. A person was convicted for obstruction for not providing their proper name to a cop. The cop was looking for someone he had a warrant for. Anyway it was turned over by the Supreme Court of Appeals.
    In the court's written opinion "a law enforcement officer has (to) communicated the reason why the citizen's name is being sought in relation to the officer's official duties.
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    Quote Originally Posted by CoastalMaine View Post
    That seems absurd. So basically at all times I need to give my name whenever asked to dispel any suspicion that they could fabricate to run my name? But I may use my 5th amendment right at times? I was always under the impression that unless an actual crime can be presented that I am involved in or have committed that I do not have to provide ANY IDENTIFICATION. Otherwise, they could literally make anything up for anyone to "legally" check everyone out. Thanks again, I understand how frustrating someone like me can be with questions, I just see so much conflicting info. Cheers!

    But In this case of me legally openly carrying that alone is technically not considered suspicious activit
    No!!!!!!!

    Terry v. Ohio basically says: Reasonable articulable suspicion is a legal standard of proof that is less than probable cause. Reasonable articulable suspicion must be more than an inchoate and unparticularized suspicion or hunch. It must be based on specific and articulable facts, taken together with rational inferences from those facts and the suspicion must be associated with the specific individual. If the cops additionally have reasonable suspicion that the detained person is armed and dangerous, they may frisk the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the reasonable person or reasonable officer standard in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity. It depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

    In other words, if the cop cannot tell you why s/he wants to talk to you then you have no obligation to converse with the cop. That means you have no obligation to tell the cop your name, rank or serial number. Not even your mommies name or shoe size, period.

    Now, if the cop says s/he thinks you are about the rob the jewelry store because you are standing on the sidewalk looking in the store front window at 2 a.m. Then per Hiibel all you are required to do is give your name and nothing more. Not your rank or serial number, not even your mommies name or shoe size.

    And other than having your driver's license on you when driving, you are not required under any circumstance required to have any form of ID on your person.

    Caveat, some states require you to have on your person a conceal carry license when carrying.
    Last edited by color of law; 02-17-2015 at 12:10 AM.

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