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Thread: PA: Plain view of possession of a firearm is RS to see if the person is licensed

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    PA: Plain view of possession of a firearm is RS to see if the person is licensed

    “‘[P]ossession of a concealed firearm in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.’” Commonwealth v. Mason, 2015 PA Super 268, 2015 Pa. Super. LEXIS 839 (Dec. 22, 2015) [Contrast that to open carry states where courts have held that there is no reasonable suspicion from possession of a firearm because it’s the nature of the licensing law.] http://www.pacourts.us/assets/opinio...65122.pdf?cb=1 94.1 KB 9 pages

    http://fourthamendment.com/?p=20139 H/T John Wesley Hall's FourthAmendment.com
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    Yay! for John W. Hall mentioning open carry!

    As for the court opinion--yawn. Carrying a concealed firearm without a license (LTCH) in PA is illegal as far as I know. Thus, it makes sense (from a statist viewpoint) that somebody carrying a concealed gun might be breaking the law and worthy of a Terry Stop to check whether he's licensed.
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    Quote Originally Posted by Citizen View Post
    Yay! for John W. Hall mentioning open carry!

    As for the court opinion--yawn. Carrying a concealed firearm without a license (LTCH) in PA is illegal as far as I know. Thus, it makes sense (from a statist viewpoint) that somebody carrying a concealed gun might be breaking the law and worthy of a Terry Stop to check whether he's licensed.
    Whaaat? Where's RAS is that? Nowhere.

    "Sir, could I see that gun you are carrying that you carry to protect yourself from me?" Gov't official

    days later...

    "Not guilty your honor" Juror.

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    Quote Originally Posted by Citizen View Post
    Carrying a concealed firearm without a license (LTCH) in PA is illegal as far as I know. Thus, it makes sense (from a statist viewpoint) that somebody carrying a concealed gun might be breaking the law and worthy of a Terry Stop to check whether he's licensed.
    But then we have this:

    75 Pa. C.S. § 1501. Drivers required to be licensed.
    (a) General rule.--No person, except those expressly exempted, shall drive any motor vehicle upon a highway or public property in this Commonwealth unless the person has a driver's license valid under the provisions of this chapter. As used in this subsection, the term "public property" includes, but is not limited to, driveways and parking lots owned or leased by the Commonwealth, a political subdivision or an agency or instrumentality of either.

    Based on the theory that just because someone is seen carrying concealed, and is thus subject to be stopped and questioned, one would assume the same would apply to stopping anyone seen driving a car to check and see if they're so licensed. I believe the courts have ruled, however, that an LEO requires probable cause of nonlicensure in order to effect such a stop.

    Should not the same probable cause requirement apply to carrying concealed?

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    Quote Originally Posted by davidmcbeth View Post
    Whaaat? Where's RAS is that? Nowhere.

    "Sir, could I see that gun you are carrying that you carry to protect yourself from me?" Gov't official

    days later...

    "Not guilty your honor" Juror.

    Days later?? Try, months.

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    Quote Originally Posted by Statkowski View Post
    But then we have this:

    75 Pa. C.S. § 1501. Drivers required to be licensed.
    (a) General rule.--No person, except those expressly exempted, shall drive any motor vehicle upon a highway or public property in this Commonwealth unless the person has a driver's license valid under the provisions of this chapter. As used in this subsection, the term "public property" includes, but is not limited to, driveways and parking lots owned or leased by the Commonwealth, a political subdivision or an agency or instrumentality of either.

    Based on the theory that just because someone is seen carrying concealed, and is thus subject to be stopped and questioned, one would assume the same would apply to stopping anyone seen driving a car to check and see if they're so licensed. I believe the courts have ruled, however, that an LEO requires probable cause of nonlicensure in order to effect such a stop.

    Should not the same probable cause requirement apply to carrying concealed?

    Well, that statue has the operative word DRIVE in it; driving = commercial use of motor vehicle. Seems like you can travel and use a motor vehicle w/o a license?

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    Quote Originally Posted by Brian D. View Post
    Days later?? Try, months.
    "many days" better?

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    Quote Originally Posted by Statkowski View Post
    [ ... ] Should not the same probable cause requirement apply to carrying concealed?
    From page 6 and follows, Opinion cited above: "This court has previously stated that, “possession of a concealed firearm in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed. [my emphasis]”
    Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super. 1991), citing Commonwealth v. Mears, 424 A.2d 533 (Pa.Super. 1981), and Commonwealth v. Lagana, 537 A.2d 1351 (Pa. 1988); see also Commonwealth v. Stevenson, 894 A.2d 759, 772 (Pa.Super. 2006).
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    Reasonable suspicion is no probable cause. It may indeed lead to it, but it's not the same.

    How about, “driving a 5,000-pound motor vehicle on a public road is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.”?

    Why the miscreant's attorney did not use the driver's license vs. firearm license comparison is anyone's guess, but it's all moot now.
    Last edited by Statkowski; 12-28-2015 at 01:01 PM.

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    Quote Originally Posted by Statkowski View Post
    Reasonable suspicion is no probable cause. It may indeed lead to it, but it's not the same.

    How about, “driving a 5,000-pound motor vehicle on a public road is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.”?

    Why the miscreant's attorney did not use the driver's license vs. firearm license comparison is anyone's guess, but it's all moot now.
    cuz the nice LE's can stop citizens driving their vehicle on a public road and ask to see their privilage driving card as long as they do so in a 'reasonable period' all w/o PC!!

    Judicially upheld.

    ipse
    Last edited by solus; 12-28-2015 at 01:33 PM.
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    Quote Originally Posted by Statkowski View Post
    SNIP Should not the same probable cause requirement apply to carrying concealed?
    Well, yes. That's why I included the words "from a statist viewpoint".

    Insofar as I've seen a couple references to probable cause meaning a 51% probability, I would raise the bar even higher than probable cause. (Think about it for a moment. Anybody defining probable cause as 51% probability or better is also necessarily saying he's willing for 49% of arrestees and search-ees to be innocent. Meaning, he's willing for functionally half of all arrests and searches to be against people who are actually innocent.) But, that's just me.

    Remember well that Terry v Ohio, the case that legalized police seizing someone on mere suspicion, invented that police power out of thin air.*

    While I admit I haven't read the entire court opinion in the OP, the quote about possible dangerousness being justification to seize someone is an outrage to any liberty-minded individual. In the end, that analysis renders your freedom and mine subject to whatever behavior that public opinion considers "dangerous". And, we all know how the Supreme Court holds itself up as able to read the minds of 300 million people--through tea leaves I suppose--when determining whether the public would consider a certain activity private. So, all it takes is for the Supreme Court, via its special divination power not granted to mere mortals, to determine that "the public" considers any gun "dangerous", and suddenly all OCers can be temporarily seized to run their ID to see if they are a prohibited possessor, etc. etc.

    Even Terry v Ohio required reasonable articulable suspicion that a person was about to commit a crime, had committed a crime, or was committing a crime. The rationale about dangerousness does away with even that. If that opinion stands, merely possessing a firearm is dangerous, justifying a detention--no suspicion about a crime necessary.

    So, unless the holding (the legally operative part of the court opinion) relies on the licensing angle for something otherwise illegal, that court just slid the justification for seizing an American citizen even further.

    So, Statkowski, I withdraw my yawn. Thanks for calling me out on it and forcing me to think it through further. Now I am going to have to read the entire OP court opinion in order to decide how angry I shall be.



    *Read Terry v Ohio. Early in the opinion, SCOTUS (Supreme Court of the United States), shoots down one of the government's arguments. The government had argued that detaining Mr. Terry and searching him did not count as a seizure for Fourth Amendment purposes because Terry was not arrested into custody at that point. SCOTUS shot down that argument by quoting one of my all-time favorite legal statements:

    No right is held more sacred, or more carefully guarded by the common law than the right of all individuals to the control and possession of their own persons, free from all restraint and interference, unless by clear and unquestionable authority of law. Union Pacific Rail Co vs Botsford.

    So, SCOTUS quoted that earlier court case to show that detaining someone and searching them, but short of taking them into custody by full arrest, is still a seizure. But, then, later in the opinion, SCOTUS just up and declares that it is reasonable for a police officer to seize someone to investigate the officer's suspicions. Except for one little question: if Terry had a right to control and possession of his own person, free from all restraint and interference unless by clear and unquestionable authority of law, then how did Terry's case make it all the way to the Supreme Court? The seizure of Terry could not possibly have been grounded on clear and unquestionable authority of law. If the law had been clear and unquestionable, there would have been no reason for it to be argued about all the way to the US Supreme Court.

    The second proof that SCOTUS invented Terry Stops/detentions/detainments out of thin air is in one of the dissents. A dissenting justice points out that the court is handing police more power than a magistrate. By which the dissenting justice means, magistrates are required to be presented with probable cause--supported by oath or affidavit, thank you--before they can authorize the seizure of another human being. The dissenting justice is pointing out that the majority opinion is handing police even more power to seize someone than a magistrate has. If the majority was not inventing that power out of thin air, there would be no reason for the dissenter to even mention the comparison between magistrates and police in the present tense. That is to say, the dissenter did not say a previous decision wrongly gave police that power, the then-current majority opinion was giving them that power.

    Thin air. Such decisions lend weight to the accusation that the Supreme Court acts as an on-going constitutional convention amending the Bill of Rights.
    Last edited by Citizen; 12-28-2015 at 07:41 PM.
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    PC is now almost equal to RAS now.

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    Quote Originally Posted by davidmcbeth View Post
    Well, that statue has the operative word DRIVE in it; driving = commercial use of motor vehicle. Seems like you can travel and use a motor vehicle w/o a license?
    Who do you know that drives a statue? Most statues don't have wheels...
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    Quote Originally Posted by JamesCanby View Post
    Who do you know that drives a statue? Most statues don't have wheels...
    My statues have wheels .. they go round and round ....

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    Quote Originally Posted by davidmcbeth View Post
    My statues have wheels .. they go round and round ....
    Keep pedaling/peddling - what goes up will come down.

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    Quote Originally Posted by solus View Post
    Originally Posted by Statkowski
    Reasonable suspicion is no probable cause. It may indeed lead to it, but it's not the same.

    How about, “driving a 5,000-pound motor vehicle on a public road is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed.”?

    Why the miscreant's attorney did not use the driver's license vs. firearm license comparison is anyone's guess, but it's all moot now.
    cuz the nice LE's can stop citizens driving their vehicle on a public road and ask to see their privilage driving card as long as they do so in a 'reasonable period' all w/o PC!!

    Judicially upheld.

    ipse
    What USSC case says that? All the court has ever said is a roadblock can be set-up to stop all passing through it just like DWI roadblocks. And strict procedures must be followed to set-up that roadblock. To generally just stop a car without RAS to check to see if the driver has a license is unconstitutional.

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    This is a typical case where the court leaves out half of the facts or law making the reading of the opinion illogical and nonsensical.

    And when you have to read the cases the court cites to understand their opinion leaves the reader confused.

    Judges not writing an understandable opinion needs to be thrown off the bench.

    Lets look at the case as to what the court left out that leaves most in the dark.

    A License to Carry Firearms is issued to carry a firearm concealed on one’s person or in a vehicle within this Commonwealth. Any person who carries a firearm concealed on or about his person except in his place of abode or fixed place of business without a valid and lawfully issued license commits a felony of the third degree. See 18 Pa.C.S.A. § 6106.

    The court cited Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super. 1991)
    In the instant case, the only testimony presented at the suppression hearing was that of Officer Hamman of the Pittsburgh Police Department. Her uncontradicted testimony established that on April 16, 1989 appellee was observed by Officer Hamman while on routine patrol. The officer saw appellee bending over into a van with a gun sticking out of the back of his shorts.
    Seeing the gun in the car gave the officer RAS.

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    Quote Originally Posted by color of law View Post
    --snipped--
    The court cited Commonwealth v. Robinson, 600 A.2d 957, 959 (Pa.Super. 1991)
    In the instant case, the only testimony presented at the suppression hearing was that of Officer Hamman of the Pittsburgh Police Department. Her uncontradicted testimony established that on April 16, 1989 appellee was observed by Officer Hamman while on routine patrol. The officer saw appellee bending over into a van with a gun sticking out of the back of his shorts.
    Seeing the gun in the car gave the officer RAS.
    With seeing the man bent over, the nice officer was able to proceed.

    I'm sure it was quick and relatively painless.
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    Quote Originally Posted by Grapeshot View Post
    With seeing the man bent over, the nice officer was able to proceed.

    I'm sure it was quick and relatively painless.
    The officer claimed he wasn't practicing medicine without a license.....

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    Quote Originally Posted by color of law View Post
    The officer claimed he wasn't practicing medicine without a license.....
    No turning head and coughing request/demand.
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    Quote Originally Posted by davidmcbeth View Post
    Well, that statue has the operative word DRIVE in it; driving = commercial use of motor vehicle. Seems like you can travel and use a motor vehicle w/o a license?
    +1--- Travel is the optimum word... However trying to articulate "travel" from " driving" to the local kangaroo
    traffic court judge and prosecutor, that are both being compensated by the same local township or municipality is not so easy, I always request a change of venue to the superior court..

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    Regular Member jahwarrior72's Avatar
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    Am I missing something? Carrying a concealed firearm is a crime, unless you are licensed. So if an officer thinks you may have a concealed firearm, and finds that you do, you'd need to produce a license to show you're doing so legally.
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    Quote Originally Posted by jahwarrior72 View Post
    Am I missing something? Carrying a concealed firearm is a crime, unless you are licensed. So if an officer thinks you may have a concealed firearm, and finds that you do, you'd need to produce a license to show you're doing so legally.
    Well, yes. The debate is actually about the premise. Government is saying that discreetly possessing the means to exercise the fundamental human right of self-defense is reduced to the same level as criminality.

    That is to say, if government criminalizes discreetly exercising the fundamental human right, then, yes, requiring a license is logical within that framework. The absurdity (irrationality) begins earlier with government criminalizing a fundamental human right, then providing an exception (license) to that criminality. Who gives a fig if government provides an exception to the criminality? The argument was lost the instant a person agreed that it was OK to criminalize a fundamental human right.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

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    Quote Originally Posted by jahwarrior72 View Post
    Am I missing something? Carrying a concealed firearm is a crime, unless you are licensed. So if an officer thinks you may have a concealed firearm, and finds that you do, you'd need to produce a license to show you're doing so legally.
    And if Officer Friend thinks you do have a concealed firearm but you do not? What then. A cop could simply state to the judge that the bulge he saw indicated to him due to his experience and the area of town the presence of a concealed firearm.

    This discussion should remain focused on the claimed justification for the stop, and a cop will lie to justify his actions when he discovers that he got it wrong, and not the interaction after you are unjustly stopped.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
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    Quote Originally Posted by OC for ME View Post
    And if Officer Friend thinks you do have a concealed firearm but you do not? What then. A cop could simply state to the judge that the bulge he saw indicated to him due to his experience and the area of town the presence of a concealed firearm.

    This discussion should remain focused on the claimed justification for the stop, and a cop will lie to justify his actions when he discovers that he got it wrong, and not the interaction after you are unjustly stopped.
    Per Terry v. Ohio
    Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U. S. 89, 91 (1964); Brinegar v. United States, 338 U. S. 160, 174-176 (1949); Stacey v. Emery, 97 U. S. 642, 645 (1878). [Footnote 23] And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.
    A hunch?????

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