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Thread: 5th or 4th Amendment rights question

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    5th or 4th Amendment rights question

    We will call this a 'hypothetical" question.
    Opinions please, highly thankful!

    A person is being charged with Ohio RC 2923.15 (A) which reads as : Using weapons while intoxicated.

    (A) No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.

    (B) Whoever violates this section is guilty of using weapons while intoxicated, a misdemeanor of the first degree.

    Effective Date: 01-01-1974

    Short and sweet and no definition of what intoxicated even constitutes as.

    Here is an abstract from 2923.12

    2923.12 Carrying concealed weapons.

    (A) No person shall knowingly carry or have, concealed on the person's person or concealed ready at hand, any of the following:

    (1) A deadly weapon other than a handgun;

    (2) A handgun other than a dangerous ordnance;

    (3) A dangerous ordnance.

    (B) No person who has been issued a concealed handgun license shall do any of the following:

    (1) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a concealed handgun license and that the person then is carrying a concealed handgun;

    (2) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly fail to keep the person's hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;

    (3) If the person is stopped for a law enforcement purpose, if the person is carrying a concealed handgun, and if the person is approached by any law enforcement officer while stopped, knowingly remove or attempt to remove the loaded handgun from the holster, pocket, or other place in which the person is carrying it, knowingly grasp or hold the loaded handgun, or knowingly have contact with the loaded handgun by touching it with the person's hands or fingers at any time after the law enforcement officer begins approaching and before the law enforcement officer leaves, unless the person removes, attempts to remove, grasps, holds, or has contact with the loaded handgun pursuant to and in accordance with directions given by the law enforcement officer;

    (4) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person's hands in plain sight.

    If a licensee is stopped for a law enforcement purpose and if the licensee is carrying a concealed handgun at the time the officer approaches, the licensee shall promptly inform any law enforcement officer who approaches the licensee while stopped that the licensee has been issued a concealed handgun license and that the licensee currently is carrying a concealed handgun; the licensee shall not knowingly disregard or fail to comply with lawful orders of a law enforcement officer given while the licensee is stopped or knowingly fail to keep the licensee's hands in plain sight after any law enforcement officer begins approaching the licensee while stopped and before the officer leaves, unless directed otherwise by a law enforcement officer; and the licensee shall not knowingly remove, attempt to remove, grasp, or hold the loaded handgun or knowingly have contact with the loaded handgun by touching it with the licensee's hands or fingers, in any manner in violation of division
    (B) of section 2923.12 of the Revised Code, after any law enforcement officer begins approaching the licensee while stopped and before the officer leaves.

    (D) A person who holds a valid concealed handgun license issued by another state that is recognized by the attorney general pursuant to a reciprocity agreement entered into pursuant to section 109.69 of the Revised Code or a person who holds a valid concealed handgun license under the circumstances described in division (B) of section 109.69 of the Revised Code has the same right to carry a concealed handgun in this state as a person who was issued a concealed handgun license under section 2923.125 of the Revised Code and is subject to the same restrictions that apply to a person who carries a license issued under that section.


    PARTICULARS OF THIS HYPOTHETICAL CASE

    1.The person has a legal CCW, had it securely out of site in a handbag, was walking home after an argument , late at night, and was stopped by the police.
    2.After the stop the person was offered 3 options, go back to where she was arguing with a family member to 1) press charges, 2 get a cab ( had no money), or 3 go to the police station with the office ( no reason??)
    3. The person asked to be aloud to continue on their way and was told they could not.
    4. Before giving the officer the ID, she put her hands in the air and announced that she had a CCW and loaded weapon in her purse, as she was taught that was the law in the state of XXXX
    5. Upon revealing this information, she was put in handcuffs and put in the police car and told she was guilty of a Felony 5, her gun was confiscated and was told to blow for an alcohol count, which read .06
    6. The person asked to do other sobriety test to show t hat they were not intoxicate, but was denied.
    7. The person was denied the opportunity to have someone pick them up at the scene
    8. The persons ID and CCW was not even checked until going to the police station
    6. The person was taken to booking and charged with Ohio RC 2923 15 "Using a weapon while intoxicated" a M1 charge, and then taken to The XXX County Jail, and given bail.
    7. After weeks of trying to get a report, and the audio, this person was finally sent the report from from her Public Defender.
    8. All of the paperwork was marked " cannot be used for public purposes, only Police investigations" Ns the Video was not aloud released
    9. When asking the Public Defender to collaborate the story by listening to the Video, was told that the Video/audio was not started until after they were booked, therefore there was no proof of what was said or seen before the arrest.

    The Report from the unnamed officer stated, and I quote "On June 20. 2015 I was eastbound on XXX when I observed XXXX XXXX walking down the sidewalk crying. I pulled up next to XXXXX and got out to check on her. I could detect a moderate odor of an unknown alcoholic beverage emitting from XXXXX. XXXXX informed me she and her daughter had gotten into an argument on the way home from XXXXXXX Pub in XXXXXX. XXXX said she got out of the car and began walking on XXXXX RD near XXXX XXXXX. When asked for ID,before reaching into her purse, XXXX informed me that she had a (out of state) XXXXXX CCW permit and was carrying a loaded firearm in her purse. I took the purse from XXXXX and placed her in the back of cruiser #2. In XXXX's purse I recovered a Smith & Wesson .38 loaded with five rounds. Once removing the firearm, I gave the purse back to XXXXX who provided me with her (out of state) XXXXX drivers license and XXXX CCW permit. I asked XXXXX to perform a breathe sample on the PBT, which read .060. XXXX was placed under arrest for carrying a loaded firearm and booked her into the XXXX County jail.

    Here is my question.....Is it possible that this person's 5th amendment rights were violated, as she was required to, by the states law, to announce that she had a weapon before giving the officer her ID or proceeding in anyway with the stop?

    After all, she was not stopped for any "lawful crime", and was not found guilty/suspect of any other crime at that time, or even after her arrest.
    There was not a crime until she revealed that she had the firearm and CCW, which was itself a required state law.
    Wasn't she technically incriminating herself by telling the officer she had the gun? Wasn't it a violation of her rights?
    If she wasn't stopped, or even if she was, she did not have to reveal that she had a CCW, if she was able to just hand over her license, and as a result,she would have most likely have been let go, as there was no additional crime.

    At least, that's what I am leaning towards. I may be way off base, but would love to hear some others thoughts on this.

    I'm just looking for opinions.
    Thank you in advance!
    Don't wait until you are ready to take action. Instead take action to be ready -Jens

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    Thank you for the welcome, and for the warning I have thought about that...trust me!

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    The 5th Amendment standpoint has been a long complaint as a reason to remove notification. Unfortunately, those at the statehouse and those for the FOP (the biggest lobbying group against eliminating it) do not see it that way. Unfortunately, most are not willing to push the issue too far as most likely the person will be offered a plea deal in court. Assuming no other criminal history, they may be offered a plea of something along the lines of Disorderly Conduct which is simply a MM and at most a $150 fine.

    Since the fight to apply the 5th will most likely require an appeal, thereby more legal fees, which does one take? A $150 fine or $5000 + in legal fees?

    It all depends on how much one is willing to stand firm on what they believe in and how much one is willing to take the easiest route out.

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    Quote Originally Posted by JediSkipdogg View Post
    [ ...]Since the fight to apply the 5th will most likely require an appeal, thereby more legal fees, which does one take? A $150 fine or $5000 + in legal fees? It all depends on how much one is willing to stand firm on what they believe in and how much one is willing to take the easiest route out.
    Actually, an appeal requires a conviction.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Nightmare View Post
    Actually, an appeal requires a conviction.
    Not if the prosecutor is appealing a not guilty verdict - limited circumstances though.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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    Quote Originally Posted by Grapeshot View Post
    Not if the prosecutor is appealing a not guilty verdict - limited circumstances though.
    Surrenders further prosecution to double jeopardy.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Grapeshot View Post
    Not if the prosecutor is appealing a not guilty verdict - limited circumstances though.
    Quote Originally Posted by Nightmare View Post
    Surrenders further prosecution to double jeopardy.
    http://criminal.findlaw.com/criminal...tion-ends.html
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Nightmare View Post
    Actually, an appeal requires a conviction.
    I know it does and I am saying one would be convicted initially. Usually cases dealing with Amendments are won in appeals court and not municipal courts.

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    I appreciate all of you taking the time to look this over. You have been a great help, and brought up many interesting points. It is very much appreciated!
    One other point if possible interest is that the person involved in this case, was denied copies of her charges, was forced to to sleep in her car for 3 days to await court, and also will have to make at least 2 trips back to Ohio, just to be able to defend herself. This is another concern, as financially, she does not have the money to make the trips. And, if she cant,she will then have warrant for her arrest!

    The Public Defender handling the case has a written and signed paper giving him the right to enter a plea of no contst, to a charge of Disorderly Conduct for her, in her absence. However, if the prosecutor refuses the charge, then there is a pretrial and a jury trial already scheduled.

    The thing that really bothers me the most is that, one would be think the entire stop would have been recorded, but that's not the case. Once the attorney got the tape, nothing was recorded before her rights were read. Therefore, the stop and her defense are not there to show the whole picture. Somehow that seems very convenient to me...

    Also, upon speaking with the officers Sgt. She was even told by him that the arresting officer was "quick to react, restless and pretty new". This was all recorded on a smartphone, but I'm not sure it would be admissible. It was taken by someone other than her.
    The Sgt. Recommended that she plea to disorderly, then she could also file a request to get her gun back and have it expunged easily, He even offered to have the arresting officer call the prosecutor to recommend the charges be dropped or lessened. But, he later called back to let her know that the officer refused, but would agree to it if the prosecutor were to call him.

    It's incomprehensible to me how an officer of the law, would rather lock up a mother and grandmother, instead of try to work with her, and help her, especially when she has never had any kind of drug, alcohol or weapon charge...ever! She did have a domestic in 2001, where she and her sister got into an argument, but it was lowered to a disorderly, and she hasn't had even as much as a set belt ticket since.

    I thought about the 4th amendment first, but wasn't sure how to prove that either. That's why I started thinking about the fact that there was no way to follow the letter of the law regarding notifying the officer immediately about the Weapon, without self incriminating herself.

    Her attorney did say he is going to file a motion to suppress the gun. I'm not sure for what reason, perhaps for the 4th amendment violation?

    It's very disheartening that the exact people you expect to help you when you need them, would rather turn on you, as a law abiding citizen, and hurt you more.

    One other thing. Shouldn't the officer have been required to call in her drivers license and CCW, before taking her to jail, to check and see if she had any criminal record worth pursuing the charge? And, why was he aloud to take away her legal firearm? Especially since either way it was a misdemeanor charge?

    Again, I can't thank you enough for your time.


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    Quote Originally Posted by kbrock69 View Post
    I appreciate all of you taking the time to look this over. You have been a great help, and brought up many interesting points. It is very much appreciated!
    One other point if possible interest is that the person involved in this case, was denied copies of her charges, was forced to to sleep in her car for 3 days to await court, and also will have to make at least 2 trips back to Ohio, just to be able to defend herself. This is another concern, as financially, she does not have the money to make the trips. And, if she cant,she will then have warrant for her arrest!
    I'm not sure how she was forced to see in her car for three days. Also, the trips back is the unfortunate part of being arrested if one wants to appear themselves. Otherwise, they can leave it all up to the attorney to appear and hope they have a competent attorney that can speak for your behalf.


    Quote Originally Posted by kbrock69 View Post
    The thing that really bothers me the most is that, one would be think the entire stop would have been recorded, but that's not the case. Once the attorney got the tape, nothing was recorded before her rights were read. Therefore, the stop and her defense are not there to show the whole picture. Somehow that seems very convenient to me...
    Not many departments record. In a case like this, I can believe not much was recorded until they knew they had an actual violation of law and therefore started the arrest. Prior it was most likely just a consensual encounter with looking for the other half of a verbal argument that got the police called.


    [QUOTE=kbrock69;2153253]It's incomprehensible to me how an officer of the law, would rather lock up a mother and grandmother, instead of try to work with her, and help her, especially when she has never had any kind of drug, alcohol or weapon charge...ever!

    Age? Sorry, this day and age a grandmother is 35-90 years old. It also does sound like they tried to work with her but she had to notify and was in violation of the law. Yes, the law sucks, but it's the law. It's been tried to be removed for the last 6 years and so far no firearm group has been successful in removing notification. Of course, carrying a weapon while intoxicated has been on the books since 1974.


    Quote Originally Posted by kbrock69 View Post
    She did have a domestic in 2001, where she and her sister got into an argument, but it was lowered to a disorderly, and she hasn't had even as much as a set belt ticket since.
    She may be federally disqualified from even owning a firearm if she had a DV plead to a DC on her record.

    See https://www.atf.gov/file/58786/download for more info.

    Quote Originally Posted by kbrock69 View Post
    One other thing. Shouldn't the officer have been required to call in her drivers license and CCW, before taking her to jail, to check and see if she had any criminal record worth pursuing the charge? And, why was he aloud to take away her legal firearm? Especially since either way it was a misdemeanor charge?
    Did he maybe do it on his computer in his cruiser? The firearm is evidence of the crime, therefore he can take it away during the trial and depending on the outcome if she can get it back or not. Doesn't matter that it was a misdemeanor or not.

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    Let me start by thanking you for your reply, as all and any information is of great help

    Quote Originally Posted by JediSkipdogg View Post
    I'm not sure how she was forced to see in her car for three days. Also, the trips back is the unfortunate part of being arrested if one wants to appear themselves. Otherwise, they can leave it all up to the attorney to appear and hope they have a competent attorney that can speak for your behalf.
    She was forced to sleep in her car, because the $300.000 she had to pay for bail, was money that was meant to be used for gas/hotel expenses to drive back hone to Florida. Also, she had to spend an additional $150.00 to drive her teenage daughter to her grandparents home in North Carolina, so that she too wouldn't have to go through the ordeal. And, that money had to be added to a credit card, which only added more financial burden.

    Quote Originally Posted by JediSkipdogg View Post
    Not many departments record. In a case like this, I can believe not much was recorded until they knew they had an actual violation of law and therefore started the arrest. Prior it was most likely just a consensual encounter with looking for the other half of a verbal argument that got the police called.
    First off, there was no police call, the original verbal altercation took place at least an hour earlier, in a different city, she had walked from one city to the very line of the next when approached ( actually a line where 3 different jurisdictions met) And, I find that hard to believe, as if you look at most any arrests or stops, the police are recording from the beginning, so that they are protected at the very least. what if he had stopped a woman who said that he had improperly touched her, or suggested he forget everything for a favor? I bet if she screamed something like that, the rest of the tape would happen t show up.


    Quote Originally Posted by kbrock69 View Post
    It's incomprehensible to me how an officer of the law, would rather lock up a mother and grandmother, instead of try to work with her, and help her, especially when she has never had any kind of drug, alcohol or weapon charge...ever!
    Age? Sorry, this day and age a grandmother is 35-90 years old. It also does sound like they tried to work with her but she had to notify and was in violation of the law. Yes, the law sucks, but it's the law. It's been tried to be removed for the last 6 years and so far no firearm group has been successful in removing notification. Of course, carrying a weapon while intoxicated has been on the books since 1974. [/QUOTE]

    I agree with you here, my point is that, as a law enforcement officer, whom is sworn to not only uphold the law, but also offer civil service and help to the citizens, one would think that he would try a more compassionate route, rather than to arrest someone who was already hurt, distraught, walked 2 miles late at night , and was not breaking any rules. At the very least, wouldn't it have been more efficient for him to have let her make a call for a ride, or offered to give her a ride himself to safety?

    Instead, she was denied any other alternative, except to do what he said, when he said to do so. She was not even aloud t have her boyfriend, why called while it was all going on, pick her up and he was 2 minutes away. Instead, the officer hung up the phone and immediately took off, which is why he did not check any of her credentials until they made it to the police department.

    Unless she posed some sort of threat to the officer, I would think , she should have been treated with more respect, rather than as a hardened criminal. The officer specifically told her " he had her for a felony 5, for carrying a gun". Once at the police department, he even said to her " You can call me a lair, you;re right , your CCW is legal in Ohio, so I'm going to cut you a break". A break?? How is finding something, anything, to charge her with a break? In my opinion, he knew he had a bad arrest, so he needed to find something to charge her with, and he used the good old catch all of "Using a weapon while intoxicated". As you stated, it has been on the books since 1974, and has never been emended in any way. So, I'm sure all officers know that it exists.

    Even when she was being fingerprinted at the jail, and she didn't know what her charges were she was told by a sheriff that she needed to fight the charges, because he read the report and it was a bogus charge. It was he who told her what her charges were.

    I know legally, the officer had the right to do what he did according to the catch all law, but ethically, it doesn't sit so well with me.

    Quote Originally Posted by JediSkipdogg View Post
    She may be federally disqualified from even owning a firearm if she had a DV plead to a DC on her record.
    See https://www.atf.gov/file/58786/download for more info.

    When she got her CCW, she had to get proof from Ohio and the NCIS, saying that she was only guilty of disorderly and that the domestic wasn't a concern, it took her months. Also it was in 2001, and her sister and she had long since made up. No one was hurt, other than feelings of course, and it was a highly emotional time, as it was regarding their mother's health and care,so, both of their emotions were out of control, and they quickly made up, as siblings do.

    So, she already went through all of that fun Not, to mention, at least in Florida there is a clause of some sort that allows certain people to get their CCW after a certain amount of time, and if their voting rights are restored.

    posted from
    http://www.leg.state.fl.us/statutes/...s/0790.06.html

    Has not had adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been sealed or expunged;

    (l) Has not been issued an injunction that is currently in force and effect and that restrains the applicant from committing acts of domestic violence or acts of repeat violence; and
    (m) Is not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.

    Quote Originally Posted by JediSkipdogg View Post
    Did he maybe do it on his computer in his cruiser? The firearm is evidence of the crime, therefore he can take it away during the trial and depending on the outcome if she can get it back or not. Doesn't matter that it was a misdemeanor or not.
    He didn't do any check until after the arrest, and at the police department, as that is when he looked up her record and mentioned that she " only ever gets into trouble in Ohio" and realized that yes, her CCW was legal in the state. I would think that would be the first thing to do when stopping someone.

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    Please allow me to start by thanking you for taking the time to offer your opinion, everything helps

    Quote Originally Posted by JediSkipdogg View Post
    I'm not sure how she was forced to see in her car for three days. Also, the trips back is the unfortunate part of being arrested if one wants to appear themselves. Otherwise, they can leave it all up to the attorney to appear and hope they have a competent attorney that can speak for your behalf.
    Because, she had to pay $300.00 in bail, which was money that was to be used for the trip back to Ohio. Also, they had to spend an additional $150.00 to drive her teenage daughter to North Carolina,so that she wouldn't have to go through all of the chaos, she was already upset enough. They were forced to max out their credit cards as a result of everything, which only added to their burden!

    Also, rather than be able to go back to Florida, as planned, they were forced to wait until the following Tuesday to go to court, and even after that they still had to wait another 2 days to be sure that the Public Defender could stand in for her, so that she could get home to her her business and her fiancee back to work.

    Quote Originally Posted by JediSkipdogg View Post
    Not many departments record. In a case like this, I can believe not much was recorded until they knew they had an actual violation of law and therefore started the arrest. Prior it was most likely just a consensual encounter with looking for the other half of a verbal argument that got the police called.
    I find that hard to believe. How many times do you see where a video has not been taken from the initial stop until finish, if for no other reason, at least for the safety of the officer. Almost always! Just look at the incident right now involving the young lady who was stopped for a simple traffic stop, the video was on!

    what if she had said he sexually touched her, or offered to let her go for exchange of "favors"? I bet if she started screaming that, all of a sudden that tape would show up in its entirety. Because if not, then that would be his word against hers, but I'm sure it would be taken very seriously at that point, because it would have been against him and not her

    Also, the police were not called because of any argument ( go back and red his report...he states " he saw her walking and crying, and when questioned she said that she and her daughter had an earlier argument) . FYI The earlier argument took place in another city, at least an hour earlier, and she had walked from that city to the exact line of the city she was arrested in, which, by the way, just so happen to be right where three jurisdictions met.

    [QUOTE=kbrock69;2153253]It's incomprehensible to me how an officer of the law, would rather lock up a mother and grandmother, instead of try to work with her, and help her, especially when she has never had any kind of drug, alcohol or weapon charge...ever!

    Quote Originally Posted by JediSkipdogg View Post
    Age? Sorry, this day and age a grandmother is 35-90 years old. It also does sound like they tried to work with her but she had to notify and was in violation of the law. Yes, the law sucks, but it's the law. It's been tried to be removed for the last 6 years and so far no firearm group has been successful in removing notification. Of course, carrying a weapon while intoxicated has been on the books since 1974.
    I agree with you on this. I had even mentioned the charge being on the books since 1974, with no amendments ever. I believe it's there as a catch all charge, and I believe the cop thought he had a Felony charge ( as that's what he originally told her), and then realized he didn't ,therefore he had to find something, otherwise it would have been a false arrest.

    My remark is more based upon the fact that as an officer of the law, who has taken an oath to both SERVE and protect, I would have expected that he may have been more concerned about her safety, and the fact that she was upset and just walked miles through a dangerous area, after all he already knew she was having a very bad time. I would have expected at the very least wait with her while she called for a ride, or even gave her a ride, she was less than a mile away from her destination by then. But, he refused, even hanging up on her boyfriend who was offering to come and get her. Which, is why no checked were done at that time, he immediately wanted to get on the road and take her to the police department before the boyfriend arrived.


    Quote Originally Posted by JediSkipdogg View Post
    She may be federally disqualified from even owning a firearm if she had a DV plead to a DC on her record.

    See https://www.atf.gov/file/58786/download for more info
    She had to get proof from both Ohio and NCIS that the crime of domestic violence was not committed, and prove that she was not a threat. It was an arrest from 2001, when she and her sister got into an argument over their mother. No one was hurt, other than a few feelings, and they quickly made up as siblings do. So it took her 2-3 months to get it all straight and she did, which only adds insult to injury over this whole thing.

    Please see the following:

    According to http://www.leg.state.fl.us/statutes/...s/0790.06.html

    (1) The Department of Agriculture and Consumer Services is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section. Each such license must bear a color photograph of the licensee. For the purposes of this section, concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but the term does not include a machine gun as defined in s. 790.001(9). Such licenses shall be valid throughout the state for a period of 7 years from the date of issuance. Any person in compliance with the terms of such license may carry a concealed weapon or concealed firearm notwithstanding the provisions of s. 790.01. The licensee must carry the license, together with valid identification, at all times in which the licensee is in actual possession of a concealed weapon or firearm and must display both the license and proper identification upon demand by a law enforcement officer. Violations of the provisions of this subsection shall constitute a noncriminal violation with a penalty of $25, payable to the clerk of the court
    (a)............................................... ..........
    .................................................. .......(j)
    (k) Has not had adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been sealed or expunged;
    (l) Has not been issued an injunction that is currently in force and effect and that restrains the applicant from committing acts of domestic violence or acts of repeat violence; and
    (m) Is not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.


    Quote Originally Posted by JediSkipdogg View Post
    Did he maybe do it on his computer in his cruiser? The firearm is evidence of the crime, therefore he can take it away during the trial and depending on the outcome if she can get it back or not. Doesn't matter that it was a misdemeanor or not.
    Nope, nothing was taken until she was taken to the local Police Dept, then he looked through her history and even told her that she "could call him a liar, because she was right, she did have a legal right to carry in Ohio...then he wen on to tell her he was going to do her a favor this time". She was never even told what she was being charged with until she was taken to the county jail, and then, while being fingerprinted the Sheriff told her her charges, and that he had read the report, and that she should fight it, because it was a bogus charge!"

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    I'm no lawyer. IMO, if you weren't actually detained at point #1 (I think you were, but it could be argued you weren't), you must certainly were at point #2 because your movements were restricted. This doesn't appear to be a legal detention and was a 4th amendment rights violation, from which everything else stemmed. You don't need a public defender. Perhaps a small legal fund and a good gun/civil rights attorney would better serve you.
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    Quote Originally Posted by Liberty-or-Death View Post
    I'm no lawyer. IMO, if you weren't actually detained at point #1 (I think you were, but it could be argued you weren't), you must certainly were at point #2 because your movements were restricted. This doesn't appear to be a legal detention and was a 4th amendment rights violation, from which everything else stemmed. You don't need a public defender. Perhaps a small legal fund and a good gun/civil rights attorney would better serve you.
    Thank you for responding. That's a great idea! I know the saying goes, and I'll paraphrase, "Only a fool has themself as a client" or something along those lines,,but should I just fire the public defender, and try to defend myself? He won't even file a motion to supress under my 4th amendment rights. Wouldn't the exclusionary rule apply? Perhaps I'll start a crowd fund page, and then if and when I sue ( assuming I won), I could greatfully, pay them all back.

    A lot, the majority actually, think I should just take the disorderly charge, if they are willing to lower it that is. But, it's more than just the unjust arrest of me, but more about the principal, the ethical questions, and the idea that so many innocent people are being bullied because of this type of thing.

    You have given me food for thought, thank you.

    Quote Originally Posted by that_girl View Post
    Let me start by thanking you for your reply, as all and any information is of great help



    She was forced to sleep in her car, because the $300.000 she had to pay for bail, was money that was meant to be used for gas/hotel expenses to drive back hone to Florida. Also, she had to spend an additional $150.00 to drive her teenage daughter to her grandparents home in North Carolina, so that she too wouldn't have to go through the ordeal. And, that money had to be added to a credit card, which only added more financial burden.



    First off, there was no police call, the original verbal altercation took place at least an hour earlier, in a different city, she had walked from one city to the very line of the next when approached ( actually a line where 3 different jurisdictions met) And, I find that hard to believe, as if you look at most any arrests or stops, the police are recording from the beginning, so that they are protected at the very least. what if he had stopped a woman who said that he had improperly touched her, or suggested he forget everything for a favor? I bet if she screamed something like that, the rest of the tape would happen t show up.




    Age? Sorry, this day and age a grandmother is 35-90 years old. It also does sound like they tried to work with her but she had to notify and was in violation of the law. Yes, the law sucks, but it's the law. It's been tried to be removed for the last 6 years and so far no firearm group has been successful in removing notification. Of course, carrying a weapon while intoxicated has been on the books since 1974.
    I agree with you here, my point is that, as a law enforcement officer, whom is sworn to not only uphold the law, but also offer civil service and help to the citizens, one would think that he would try a more compassionate route, rather than to arrest someone who was already hurt, distraught, walked 2 miles late at night , and was not breaking any rules. At the very least, wouldn't it have been more efficient for him to have let her make a call for a ride, or offered to give her a ride himself to safety?

    Instead, she was denied any other alternative, except to do what he said, when he said to do so. She was not even aloud t have her boyfriend, why called while it was all going on, pick her up and he was 2 minutes away. Instead, the officer hung up the phone and immediately took off, which is why he did not check any of her credentials until they made it to the police department.

    Unless she posed some sort of threat to the officer, I would think , she should have been treated with more respect, rather than as a hardened criminal. The officer specifically told her " he had her for a felony 5, for carrying a gun". Once at the police department, he even said to her " You can call me a lair, you;re right , your CCW is legal in Ohio, so I'm going to cut you a break". A break?? How is finding something, anything, to charge her with a break? In my opinion, he knew he had a bad arrest, so he needed to find something to charge her with, and he used the good old catch all of "Using a weapon while intoxicated". As you stated, it has been on the books since 1974, and has never been emended in any way. So, I'm sure all officers know that it exists.

    Even when she was being fingerprinted at the jail, and she didn't know what her charges were she was told by a sheriff that she needed to fight the charges, because he read the report and it was a bogus charge. It was he who told her what her charges were.

    I know legally, the officer had the right to do what he did according to the catch all law, but ethically, it doesn't sit so well with me.



    See https://www.atf.gov/file/58786/download for more info.

    When she got her CCW, she had to get proof from Ohio and the NCIS, saying that she was only guilty of disorderly and that the domestic wasn't a concern, it took her months. Also it was in 2001, and her sister and she had long since made up. No one was hurt, other than feelings of course, and it was a highly emotional time, as it was regarding their mother's health and care,so, both of their emotions were out of control, and they quickly made up, as siblings do.

    So, she already went through all of that fun Not, to mention, at least in Florida there is a clause of some sort that allows certain people to get their CCW after a certain amount of time, and if their voting rights are restored.

    posted from
    http://www.leg.state.fl.us/statutes/...s/0790.06.html

    Has not had adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled, or the record has been sealed or expunged;

    (l) Has not been issued an injunction that is currently in force and effect and that restrains the applicant from committing acts of domestic violence or acts of repeat violence; and
    (m) Is not prohibited from purchasing or possessing a firearm by any other provision of Florida or federal law.



    He didn't do any check until after the arrest, and at the police department, as that is when he looked up her record and mentioned that she " only ever gets into trouble in Ohio" and realized that yes, her CCW was legal in the state. I would think that would be the first thing to do when stopping someone.[/QUOTE]


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    Sounds like Summit County to me, and even if it isn't, she needs to ditch the public defender
    That's why she isn't getting all her paperwork and motions filed, the public defender isn't doing his job.
    I have experience with Summit County public defender's office flat out refusing to make motions to exclude evidence and even for discovery.

    I hope she lawyers up and gets out of this trouble,,,

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    This was in Stark County (North Canton). Her case is viewable at the Stark County Court web site.
    Last edited by RT48; 07-26-2015 at 07:18 AM.

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    Quote Originally Posted by RT48 View Post
    This was in Stark County (North Canton). Her case is viewable at the Stark County Court web site.
    A link would be nice for anyone wishing to look at the particulars.
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    Quote Originally Posted by Chuck! View Post
    Sounds like Summit County to me, and even if it isn't, she needs to ditch the public defender
    That's why she isn't getting all her paperwork and motions filed, the public defender isn't doing his job.
    I have experience with Summit County public defender's office flat out refusing to make motions to exclude evidence and even for discovery.

    I hope she lawyers up and gets out of this trouble,,,
    Summit isn't to far away.

    The city of Canton already has enough money issues, it amazed me that they are willing to charge someone from another state with a "catch all" crime, and then also have to pay for her defense. I'm sure the good people of Canton just love that!

    In the meantime, real criminals are being let out, because the jails are supposedly full in Stark County, and I believe I read somewhere that they are also going to be renting some of their beds to Summit County.

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    Quote Originally Posted by Grapeshot View Post
    A link would be nice for anyone wishing to look at the particulars.
    I was going to add the link, but I see that RT48 already did

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    Quote Originally Posted by that_girl View Post
    Summit isn't to far away.

    The city of Canton already has enough money issues, it amazed me that they are willing to charge someone from another state with a "catch all" crime, and then also have to pay for her defense. I'm sure the good people of Canton just love that!

    In the meantime, real criminals are being let out, because the jails are supposedly full in Stark County, and I believe I read somewhere that they are also going to be renting some of their beds to Summit County.
    So should they not go after speeders that live out of state? It's a catch all crime after all. And if a warrant is issued because they failed to appear they can then be locked up on said warrant.

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    Quote Originally Posted by JediSkipdogg View Post
    So should they not go after speeders that live out of state? It's a catch all crime after all. And if a warrant is issued because they failed to appear they can then be locked up on said warrant.
    Correct me if I'm wrong, but with regards to "speeding", for the most part it is a ticket, which can be paid through the mail. There is no need for a Public Defender, discovery, prosecution, judge and Jury. Under normal circumstances, you would not be handcuffed, your property taken from you, and hauled off to jail, forced to pay bail, and then have to return 2,3 maybe even 4 more times to get it all solved.

    Now, if they are speeding, and they are drinking, and/or driving under a suspension, by all means, that is a crime. But, as far as I know Walking While White after midnight is not.

    You tell me, you obviously are an advocate for the right to bear arms, correct?
    If you are, how would you feel about having your gun taken away from you because you did something you were supposed to do, so not to break a law. Now, try to imagine for a minute that you are at a work party, and your car breaks down, and say you have to walk 2-3 miles through a pretty bad area late at night after bar close, in order to get home. Now, imagine that while you were at that work party, you had two maybe 3 drinks in the span of 4 to 5 hours, and your judgment was clear enough that you knew you would be okay to drive, had your car not broken down, and you also were of sound mind enough to know that you had to lock your car, call a tow truck in the morning, and walk safely to your destination. Now, would you get your gun out and carry it with you? Or, would you leave it in the car and walk those miles without your legal protection?

    You must be missing the part where she was doing nothing other than walking and talking on the phone with a friend while she was upset, she wasn't legally drunk in comparison to driving while intoxicated. But, unfortunately, there is no standard to compare against, because the charge she was charged with, in my opinion, is a catch all charge, which even the officer's own Sgt. said " is there to basically get people off of the street".

    You know,had she been in a car and driving, and had her gun closed in the glove-box, and the officer not known, he would have had to let her drive home. So, obviously, if he and the law makers thought that she could be trusted enough, to handle a 2 ton vehicle on the roads, late at night in the dark, after blowing a .06, then surely she was safe enough to be walking with her gun, secured inside of a zipped closed purse, with her legal CCW.

    It's always so easy to play devil's advocate if it's not you in such a situation, but try to imagine you in the same situation, how would you feel? Like, perhaps that your rights were violated, and that maybe your $600.00 ,new 38- special, snub nose, Smith & Wesson, revolver, was stolen from you, and that possibly, by trying to be a lawful citizen, you were treated like a POS criminal and thrown jail? I think you just might!

    Even trying to compare a speeding ticket to a charge like "using a weapon while intoxicated" is like comparing apples and oranges...it' just doesn't fly!
    Last edited by that_girl; 07-28-2015 at 02:19 PM.

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