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Thread: What was that SCOTUS case that said mere firearms possession is not probable cause?

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    Regular Member Michigander's Avatar
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    I know it's been brought up before, so sorry to make another thread about it, but I've been searching and I can't find it. I'd like to have it printed out to carry it with me while I OC.

    Anyone have that case info handy?


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    Michigander wrote:
    I know it's been brought up before, so sorry to make another thread about it, but I've been searching and I can't find it. I'd like to have it printed out to carry it with me while I OC.

    Anyone have that case info handy?

    The cases are referenced at the bottom. This is on the info thread and is a good read.


    WHEN APPROACHED BY POLICE WHILE OPEN CARRYING.

    By John M. Collins, Esq.,
    General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts

    Because it is legal in most states to carry a handgun if properly licensed, a report that an individual possesses a handgun, without any additional information suggesting criminal activity, might not create reasonable suspicion that a crime is being or will be committed.1 Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest,2 it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop. The same applies to persons in motor vehicles. An investigatory stop is only justified when the police have "a reasonable suspicion, based on specific, articulable facts and reasonable inferences there from," that the subject "had committed, was committing, or was about to commit a crime."3

    State laws vary regarding both open and concealed carrying of firearms, but courts are usually sensitive to officer and public safety concerns over the presence in public of firearms. Mere possession may not be sufficient to authorize police action, but in circumstances where the gun presents an imminent threat because of shots just fired, or likely to be fired, and thereby presents a "suggestion of threats of violence, acts of violence, impending criminal activity, or concern for public safety," a court is likely to find there was reasonable suspicion for a threshold inquiry.4

    Anonymous Tip

    In a 1990 decision, the U.S. Supreme Court confirmed that, through corroboration of its detail, an anonymous tip can be enough to give rise to the reasonable suspicion required for a stop.5 More recently though, the U.S. Supreme Court in 2000 ruled that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer's stop and frisk of that person, even where descriptive detail regarding the subject has been corroborated. The Court declined to adopt the "firearms exception" to Terry's requirement of reasonable suspicion.6 Similarly, in another 2000 Supreme Court case, an anonymous tip with a physical description and location that a person had a gun was not enough for reasonable suspicion, absent anything else to arouse the officer's suspicion.7 In that case the Court ruled that it was irrelevant that the defendant fled when the officer got out of his car and ordered the defendant to approach him.8 The tipster need not deliver an ironclad case to the police to justify an investigatory stop; it suffices if a prudent law enforcement officer would reasonably conclude that the likelihood existed that criminal activities were afoot and that a particular suspect was probably engaged in them.9

    Clearly, not every report of a citizen is worthy of belief or sufficient to justify a response by an officer. A caller could, for example, intend merely to harass someone by making an anonymous call to police and claiming someone had a gun hidden in his or her vehicle or on his or her person.

    The ultimate issue on the report's usefulness is whether the contents (and other attendant circumstances) create a reasonable suspicion that a dangerous situation exists, creating authority to detain or frisk or both. It certainly helps if the report contains particular facts that do one or more of the following:

    • Create a suggestion of threats of violence in this situation
    • Are themselves acts of violence
    • Indicate impending criminal activity
    • Raise a reasonable concern for public safety

    Of course, in the many jurisdictions where carrying a concealed weapon is illegal, this analytical step may be obviated and inquiry will proceed to the next issue, the likely veracity of the information source. In the case of an anonymous tip, the question will be whether corroboration of detail goes beyond the mere description of a person already in public.

    Examples of Appropriate Police Actions

    Examples may be helpful here. Police officers would be acting reasonably in stopping and frisking an individual after receiving information on the street from a known bystander that the person was displaying a handgun on a street corner in a high crime area at 5:30 in the morning, or if it reasonably appears that a suspect is not only armed but also dangerous, as would be the case if the individual appeared to be reaching for his or her weapon. The possession of a firearm by a minor in many states may be viewed as presumptively illegal, and thus sufficient to justify an investigatory stop of the minor by the police, again provided the information source is sufficiently credible. A constitutionally reliable report of the sighting of someone carrying a sawed-off shotgun-especially in states where this is illegal-would likely justify an immediate investigatory stop. Loading a weapon in public, especially where there is no clearly lawful reason for doing so (to begin hunting or target shooting, for instance), and especially in a high crime area at night or during early morning hours, could provide the extra information some courts require in order to allow police officers to conduct an investigatory stop and frisk of a person reportedly in possession of a firearm.


    Enforcement Guidelines

    Where a police officer receives a report that a person is in possession of a firearm, but the weapon is not visible to the officer, the following options are available:

    • Engage in a voluntary contact and simply ask the person if he or she has a firearm.
    • If he or she confirms he or she is in possession of a gun, the officer may ask the person to voluntarily hand it over just while the interview takes place, or insist that they hand it over if there is a reasonable belief that the safety of the officer or public is in jeopardy, or that the person has used it in a crime or is about to do so.
    • If the person denies having a firearm or refuses to answer, and the officer does not otherwise have (legally sufficient) reasonable suspicion of criminal activity, the officer must allow the person to continue on his or her way.
    • If the person denies having a firearm or refuses to answer, but the officer has a reasonable suspicion that the person is armed and presents a danger to the officer or public, the officer may conduct a stop and frisk the person. If the officer finds a weapon, the officer may hold it while conducting the field inquiry. As long as the person is properly licensed, and no arrest takes place, the officer must return the gun at the conclusion of the interview.
    • If the officer has a warrant or has probable cause to arrest the person for a crime, the officer may conduct a thorough search (not merely a frisk) and take possession of any weapon.
    • Where the person appears to be a minor and therefore too young to have firearm (in most states), the police may have reason to believe that a crime is being committed (unlawful carrying of a firearm) and may therefore conduct a stop rather than a mere encounter.

    1 See, for example, Com. v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990), cert. denied, 498 U.S. 951, 111 S. Ct. 372, 112 L.Ed.2d 334 (1990).
    2 Id.
    3 See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (196 4 Com. v. Alvarado, 423 Mass. 277, 667 N.E.2d 856 (199 .
    5 Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L.Ed.2. 301 (1990).
    6 Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000).
    7 Pennsylvania v. D.M., U.S. 120 S. Ct. 203, 146 L.Ed.2d 953 (2000).
    8 Id.
    9 Alabama v. White, 496 U.S. 325, 1105 S. Ct. 2412, 110 L.Ed.2d 301 (1990); U.S. v.
    Diallo, 29 F.3d 23 (1st Cir. 1994); U.S. v. Taylor, 162 F.3d 12 (1st Cir. 199 .

    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    There have been many cases that refer with this term.

    I've found many cases that refer to it.

    US vs Smith (SCOTUS)
    US vs Phelps (9th Circuit) http://openjurist.org/877/f2d/28
    US vs Holmes (2nd Circuit) http://caselaw.lp.findlaw.com/cgi-bi...case&no=961039

    Possibly the best one is JL vs Florida (SCOTUS): http://www.law.fsu.edu/library/flsup...1/op-90361.pdf

    Also see Jury instructions: http://www.juryinstruction.com/membe...r117/117_3.htm

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    Regular Member Michigander's Avatar
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    Thanks guys. :?

    I agree that the Florida one is the best. I'm going to carry that one in my wallet.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    Michigander wrote:
    I know it's been brought up before, so sorry to make another thread about it, but I've been searching and I can't find it. I'd like to have it printed out to carry it with me while I OC.

    Anyone have that case info handy?

    Does anyone have knowledge of a police officer that actually took & read any of this information that some carry?

    Has it ever made a difference in how a stop went?

    The cops I know already know EVERYTHING about every law and are not about top be told by a citizen what they are. Not interested not going to look at it.

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    Leader wrote:
    Michigander wrote:
    I know it's been brought up before, so sorry to make another thread about it, but I've been searching and I can't find it. I'd like to have it printed out to carry it with me while I OC.

    Anyone have that case info handy?

    Does anyone have knowledge of a police officer that actually took & read any of this information that some carry?

    Has it ever made a difference in how a stop went?

    The cops I know already know EVERYTHING about every law and are not about top be told by a citizen what they are. Not interested not going to look at it.

    We have heard stories on both. Sometimes it helped and sometime it didn't. Generally you are right LEO's are not going to look at something you give them. But offering to inform them may help ina complaint or civil action down the road.

    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

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    Well I'm glad to hear it has helped someone.

    I really didn't think it ever had.

  8. #8
    Regular Member Michigander's Avatar
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    The only thing that is certain is that you have better odds of it helping you if you have it with you.

    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    Regular Member Bronson's Avatar
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    Michigander, I gotta ask ....do you wear one of these?



    I would think you must, with all the stuff you carry with you

    Bronson
    Those who expect to reap the benefits of freedom, must, like men, undergo the fatigue of supporting it. Thomas Paine

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    Regular Member Michigander's Avatar
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    Paper work is easy to stuff in my wallet. Not a big deal.


    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    Michigander wrote:
    Paper work is easy to stuff in my wallet. Not a big deal.

    I bet you have a costanza wallet.


  12. #12
    Regular Member Michigander's Avatar
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    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    I have given the pamphlets and the LEAF documents etc. to friends of mine who are LEO's with various depts. and I give them enough to give to colleagues/fellow LEO's so that way they might actually read the stuff.

    Generally my interactions with LEO's are as stated above, they do not wish to be educated by a mere "Joe/Jane Citizen"

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    Regular Member Michigander's Avatar
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    stephgrinage23 wrote:
    Generally my interactions with LEO's are as stated above, they do not wish to be educated by a mere "Joe/Jane Citizen"
    Some will take the information, some won't. Those that don't, if they illegally detain or otherwise wrong us, can be filmed refusing to take the information.

    There is potential for it to help either way.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

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    I have a court date next week and needed to look up these laws too...thanks!:celebrate

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    I think your best bet when approached by a LEO that is showing strong evidence he is going to give you a hard time, wrongfully arrest, or detain you on the simple fact of you legally carrying a firearm.
    Just keep your mouth shut. Do notvolunteer any information at all. What that LEO plans on making happen is going to happen if you like it or not. You are not going to win an argument with law enforcementoutside of the courtroom.



  17. #17
    Regular Member Bronson's Avatar
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    Michigander wrote:
    Paper work is easy to stuff in my wallet. Not a big deal.

    Yeah but that and your 3-5 recording devices, gun, spare ammo, maybe a spare gun, probably a pocket knife, phone, wallet, keys, change and hopefully some breath mints makes for a might hefty load.

    :P

    Bronson
    Those who expect to reap the benefits of freedom, must, like men, undergo the fatigue of supporting it. Thomas Paine

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    Bronson wrote:
    Michigander wrote:
    Paper work is easy to stuff in my wallet. Not a big deal.

    Yeah but that and your 3-5 recording devices, gun, spare ammo, maybe a spare gun, probably a pocket knife, phone, wallet, keys, change and hopefully some breath mints makes for a might hefty load.

    :P

    Bronson
    You're forgetting water bottle, spare bladder and rations. lol J/K

  19. #19
    Regular Member Michigander's Avatar
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    Bronson wrote:
    Yeah but that and your 3-5 recording devices, gun, spare ammo, maybe a spare gun, probably a pocket knife, phone, wallet, keys, change and hopefully some breath mints makes for a might hefty load.

    :P

    Bronson
    Umm, seriously, no.

    I currently carry 3 recorders (modern recorders are small), usually 2 spare mags, wallet (yes, with paper work in it), phone, keys, chewing gum in place of breath mints, holster, and only one gun.

    I don't carry knives while OCing, because some police in this state will do anything they can to cite you for a law. Knives are not preempted, so I don't carry one with a gun. It is extremely annoying and wrong to have to make that decision, but I feel it is the best course of action at this point.

    Compare that to carrying a tool belt with a hammer, nails, speed square, utility knife, tape measure, chalk line, pencils, pry bar, pliers, and maybe some other stuff depending on the job, and it ends up being a very small amount of things to carry. Hell, compare it to all the crap a cop carries. OCing just isn't very cumbersome.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

  20. #20
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    Michigander wrote:
    SNIP...compare it to all the crap a cop carries.
    No LEO bashing, please. Not all cops are stuck up or constipated.


    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.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Citizen wrote:
    Michigander wrote:
    SNIP...compare it to all the crap a cop carries.
    No LEO bashing, please. Not all cops are stuck up or constipated.

    now now citizen, bashing is only bashing if it is untrue or unjustified....

    not all cops are stuck up or constipated--just a great number of them.

  22. #22
    Regular Member Michigander's Avatar
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    Well, I decided to put the following on a piece of paper sized to envelope around my ID.

    ***WARNING TO POLICE***
    Without probable cause, a Terry stop is illegal. Mere
    Possession of a firearm where possibly legal is not
    probable cause, and I do not consent to any searches. If
    you are forcibly Terry stopping or otherwise detaining me
    merely because of open carrying, you are clearly
    violating the following Federal and State laws:
    -42 USC 1983 - Mi Const. art. 1 sec 6
    -Title 18, Sec 242, USC -Terry v Ohio
    -2, and 4 Amd. B.O.R. -JL v Florida (SCOTUS) 2000
    Refer questions to Dean Greenblat, firearms attorney
    -248 644 8760



    The beauty of this is that if I get forcibly detained and my ID taken (if I'm carrying it), the officer who takes my ID will have no choice but to get confronted by the laws he or she is breaking. Running a LEIN system check of my ID would be proof positive that they knowingly violated these laws.
    Answer every question about open carry in Michigan you ever had with one convenient and free book- http://libertyisforeveryone.com/open-carry-resources/

    The complete and utter truth can be challenged from every direction and it will always hold up. Accordingly there are few greater displays of illegitimacy than to attempt to impede free thought and communication.

  23. #23
    Regular Member Generaldet's Avatar
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    That's pretty clever Michigander. I might have to look into that.

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