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US v. Ubile

C

CA_Libertarian

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Just happened across this gem, and decided to share it.

US v Ubile (can't figure out the exact citation on it - clickification here).

The police responded to an anonymous tip that someone in a parade crowd had a gun. The concealed gun turned out to be unregistered and had the serial number defaced.

The court ruled that the mere presence of a gun does not meet the burden of Terry v Ohio, unless some other evidence leads the officers to believe the person is dangerous or engaged in some criminal activity. The convictions were thrown out, as the evidence was gathered during an unlawful search/seizure.

One thing that is particularly interesting is what the court has to say about the presumption that a person is not licensed to possess a firearm (my emphasis added):

Code: 
At a hearing on this motion, the Government presented no evidence suggesting that Leonard or Officers Jackson and Garcia knew anything about Ubiles other than the information with which the anonymous informant had provided them. Leonard stated that no one had told them anything that would lead them to believe (1) that Ubiles posed a danger to himself, the other officers, or the crowd; (2) that Ubiles had brandished the gun or machete in his possession; or (3) that Ubiles did not have a license to carry the gun in his possession. See App. at 71-73. Leonard testified merely that he was "very concerned about the situation" and therefore stopped and frisked Ubiles. Id. at 65.
Following the logic presented here, even a reliable tip that a firearm is concealed does not meet the burden of Terry v Ohio, unless the officers have some reason to believe the person does NOT have a license to conceal a firearm.
 
N

NightOwl

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Nice find! That's interesting, and perhaps the most interesting part to me is that a judge made a ruling that actually makes sense. Becoming less and less common these days...
 
bigtoe416

bigtoe416

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This is AWESOME CA_Libertarian! How did you find this?

I love this quote:
This situation is no different than if Lockhart had told the officers that Ubiles possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities had stopped him for this reason. Though a search of that wallet may have revealed counterfeit bills--the possession of which is a crime under United States law, see 18 U.S.C. SS 471-72-- the officers would have had no justification to stop Ubiles based merely on information that he possessed a wallet, and the seized bills would have to be suppressed. The District Court's rationale for not suppressing thefirearm in this case is troubling, therefore, insofar as it seems to endorse the stop based on the fruits obtained as a result of the subsequent search.
Click to expand...
It would certainly appear that a ruling such as this would be a great case to cite in any weapons found to be loaded after a 12031(e) check was performed. This case should also help anybody who has been found with a concealed weapon without a permit, as long as the officers who find the weapon had the same amount of information regarding the person carrying the weapon as the officers did in this case.

Very cool!
 
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Theseus

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Two major problems with this case for us...

  1. The weapon was concealed.
  2. There was no PC12031.
The claim was that the police had no PC to search and initiate a "Terry" stop. The fact that the gun in this case was not visible prevented PC. In our (UOC) case, the weapon would in fact be visible and in California with the PC12031 it gives them the PC to believe a crime is in progress because it basically says that any gun in public is believed to be in violation of 12031 and thus gives officers the PC and authorization to inspect.

It is more helpful to the people that might choose to illegally conceal that to UOC'rs.
 
bigtoe416

bigtoe416

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I guess what I find interesting in this case is the argument that the presence of a firearm doesn't qualify as reasonable suspicion. Now we all know that 12031(e) basically says the exact opposite of that:

(e) In order to determine whether or not a firearm is loaded for the purpose of enforcing this section, peace officers are authorized to examine any firearm carried by anyone on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or prohibited area of an unincorporated territory. Refusal to allow a peace officer to inspect a firearm pursuant to this section constitutes probable cause for arrest for violation of this section.
Click to expand...
So the Ubiles case would seemingly give us a case to cite if/when the constitutionality of 12031(e) is challenged in court. The judges in this case make it very clear that in order for an officer to detain an individual with a gun, the officer must have reasonable suspicion that a crime has/or will be occurring. Simply having a firearm where firearms are not outright banned does not qualify as reasonable suspicion.

I would be willing to bet that the same judges would argue that 12031(e) is unconstitutional.
 
C

CA_Libertarian

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bigtoe416 wrote:
This is AWESOME CA_Libertarian! How did you find this?
Click to expand...
Actually I was cleaning off my desk and found two case names written down on scratch paper. I have no idea when I wrote them down, but decided to check into them before I threw it away. This was one of the cases.

The other is US v Dudley - I've had no luck finding that one yet... I only hope it's as exciting as this one. The only US v Dudley I could find was an import tariffs case from a century ago...


Theseus wrote:
Two major problems with this case for us...
  1. The weapon was concealed.
  2. There was no PC12031.
The claim was that the police had no PC to search and initiate a "Terry" stop. The fact that the gun in this case was not visible prevented PC. In our (UOC) case, the weapon would in fact be visible and in California with the PC12031 it gives them the PC to believe a crime is in progress because it basically says that any gun in public is believed to be in violation of 12031 and thus gives officers the PC and authorization to inspect.

It is more helpful to the people that might choose to illegally conceal that to UOC'rs.
Click to expand...
In fact, the court makes it clear the concealment was not the reason the case was thrown out. The weapon was concealed, but the court presumed the anonymous tip was reliable. Therefor, the cops reasonably knew the gun was in his possession. That's why this case still helps us.

Another way this case is a huge help to us, is when there are false accusations of concealment. In my detention last July, for example, the officers claimed they believed I was carrying concealed, and that was their RAS to stop me. If they had turned up any evidence of a crime during my detention, it would be inadmissible.

This case also proves that the detention was unlawful, even if you buy the falsified report that was written.
 
bigtoe416

bigtoe416

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Dudley is Hiibel's first name (from Hiibel v. Sixth Judicial District Court of Nevada), I'm not sure if you happened to write down his first name instead of his last.
 
C

CA_Libertarian

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bigtoe416 wrote:
Dudley is Hiibel's first name (from Hiibel v. Sixth Judicial District Court of Nevada), I'm not sure if you happened to write down his first name instead of his last.
Click to expand...
I don't think so...

I remember now what I was doing when I made these notes. I was reading a case, and it cited these two cases. It was very late, so I wrote them down so I would remember to look them up and read them. I can't remember what case I was reading... I'll have to do some more research on this one...
 
C

CA_Libertarian

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smn wrote:
The US v. Dudley 854 F.Supp. 570, 580 (S.D.Ind.1994) opinion can be found here in PDF form:
http://www.insd.uscourts.gov:8080/isysquery/ad5c7cbd-838f-42dd-9d35-3f41b5425cbc/1/doc/EC1411O1.PDF

http://tinyurl.com/ol9s8m

For searchability it's case IP 93-141-CR, Judge John D. Tinder presided
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Both links come up blank. I'll see if I can search it on FindLaw. Thanks for the info.

ETA: found it on the District Court's website. Downloaded the PDF, and attached for everybody here. Still reading through it to see if it's helpful to our cause, but the case at least seems to be related to 2A/4A issues.
 
C

CA_Libertarian

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Almost through the decision, and have found another case to read. Packer, 15 F.3d at 658 as cited in the Dudley decision:

"A telephone report of citizens possessing guns or merely engaging in "suspicious" activity, standing alone, cannot amount to reasonable suspicion of crime. Packer, 15 F.3d at 658 (telephone tip about suspicious vehicle "lacked the minimal detail of information that would point to any arguably particularized suspicion of criminal conduct.").

As soon as I'm done reading Dudley, I'll locate Packer and post a PDF link to that case. I have a feeling that it may be the legal answer to all the LEO claims of "we have an obligation to conduct investigatory stops in response to any report of a person with a firearm."
 
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I found Packer in Google cache here: http://74.125.93.132/search?q=cache:M3Q7wwdhwwIJ:altlaw.org/cite/15%2BF.3d%2B654+united+states+v.+packer+1994&cd=2&hl=en&ct=clnk&gl=us

The relevant quote:
17 The Supreme Court has held that an anonymous telephone tip, if corroborated by independent police work, could exhibit sufficient indicia of reliability to provide reasonable suspicion for an investigatory stop. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable." Id. at 329, 110 S.Ct. at 2416. The telephone call in this case simply reported that a "suspicious" Cadillac was parked at a certain location with four black men sitting inside. While the word "suspicious" suggests by itself at least a modicum of questionable activity, the caller did not describe any definite wrongdoing in progress. Thus, although the caller's description of the vehicle and its location was corroborated by police observation, the police lacked the minimal detail of information that would point to any arguably particularized suspicion of criminal conduct.
Click to expand...
(empasis mine)

So, we should jump to Alabama v. White? Here: http://supreme.justia.com/us/496/325/case.html

Alabama v. White:

Summary:
Police received an anonymous telephone tip that respondent White would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular motel, and that she would be in possession of cocaine. They immediately proceeded to the apartment building, saw a vehicle matching the caller's description, observed White as she left the building and entered the vehicle, and followed her along the most direct route to the motel, stopping her vehicle just short of the motel. A consensual search of the vehicle revealed marijuana and, after White was arrested, cocaine was found in her purse. The Court of Criminal Appeals of Alabama reversed her conviction on possession charges, holding that the trial court should have suppressed the marijuana and cocaine because the officers did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U. S. 1, to justify the investigatory stop of the vehicle.

Held: The anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. Pp. 496 U. S. 328-332
Click to expand...
The "independent police work" is the key here for fishing expeditions. I don't think showing up to a MWAG call and asking questions of the (presumably) lawful OC/CC'er will work.
 
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smn

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FYI: There are other sources for Packer. Google United States v. Rogest Packer.
 
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