Results 1 to 14 of 14

Thread: RAS Thread

  1. #1
    Campaign Veteran smellslikemichigan's Avatar
    Join Date
    Jun 2008
    Location
    Troy, Michigan, USA
    Posts
    2,321

    Post imported post

    venator requested... and we really need to move the discussion to a new thread. so here it is.
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
    http://www.graystatemovie.com/

  2. #2
    Campaign Veteran smellslikemichigan's Avatar
    Join Date
    Jun 2008
    Location
    Troy, Michigan, USA
    Posts
    2,321

    Post imported post

    venator and i were having a private discussion about whether RAS could be established by simply OCing in an area that is illegal for some to OC in. the specific example is OC (with a CPL) in a Meijer which is subject to the liqour control act. only those with a valid CPL can posses a firearm, whether OC or CC in that store.
    so, the question is, can an officer prove RAS simply based on the fact that you are observed with a firearm in that store?
    venator and i were arguing the point with a car/driver's license analogy. i think we both have good points, but maybe others can add some light, or their opinion, to the situation.
    venator's argument:
    if an officer sees someone who appears to young to have a DL driving a car, he would have RAS to pull them over and ask for a DL
    smellslikemichigan's argument:
    if we compare someone without a CPL to someone WITH a driver's license. and someone with a CDL to someone with a CPL (bear with me, sorry for all the abbreviations). if it's illegal for me to drive a big rig without a CDL (open carry in a store with liqour with no CPL) is it reasonable to pull everyone over in a big rig to see if they have a CDL?

    BTW, i used the term argument, but we were having a friendly, civil discussion...
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
    http://www.graystatemovie.com/

  3. #3
    Campaign Veteran
    Join Date
    Nov 2008
    Location
    Ann Arbor, Michigan, USA
    Posts
    1,544

    Post imported post

    smellslikemichigan wrote:
    venator and i were having a private discussion about whether RAS could be established by simply OCing in an area that is illegal for some to OC in.* the specific example is OC (with a CPL) in a Meijer which is subject to the liqour control act.* only those with a valid CPL can posses a firearm, whether OC or CC in that store.
    so, the question is, can an officer prove RAS simply based on the fact that you are observed with a firearm in that store?
    venator and i were arguing the point with a car/driver's license analogy.* i think we both have good points, but maybe others can add some light, or their opinion, to the situation.
    venator's argument:
    if an officer sees someone who appears to young to have a DL driving a car, he would have RAS to pull them over and ask for a DL
    smellslikemichigan's argument:
    if we compare someone without a CPL to someone WITH a driver's license.* and someone with a CDL to someone with a CPL (bear with me, sorry for all the abbreviations).* if it's illegal for me to drive a big rig without a CDL (open carry in a store with liqour with no CPL) is it reasonable to pull everyone over in a big rig to see if they have a CDL?

    BTW, i used the term argument, but we were having a friendly, civil discussion...
    In my opinion, an officer can't pull over every big rig just to make sure the driver is properly licensed, unless there is reasonable suspicion that the driver is NOT properly licensed. Get it?

    It's similar to "innocent until proven guilty." An officer cannot assume that every person driving down the road is unlicensed, and just pull people over to make sure they are. Similarly, they cannot assume that everyone walking around with a firearm is carrying an unregistered one, or is unlicensed to do so.

    They must assume the gun is registered, and the person is licensed, until there is suspicion otherwise.

    There's no RAS for carrying in a restricted area (a store that sells alcohol). What suspicion do they have that you are NOT licensed? If this is all they know about you, they can't force you to ID to prove you are.

    Now, in the totality of the situation, were they to observe you removing, loading and holstering your firearm from the trunk of your vehicle, then walk into an establishment that sells alcohol, there may be RAS there, as a person with a CPL wouldn't need to load up from the trunk. (However, in this case, it would be up to the courts to decide.)

  4. #4
    Regular Member
    Join Date
    Jul 2007
    Location
    Grand Rapids, Michigan, USA
    Posts
    1,416

    Post imported post

    Carrying a concealed pistol is also prohibited without a CPL. That doesn't mean that officers can stop someone just because they are carrying a concealed pistol. The same principal applies if one is openly carrying in a prohibited zone. Both acts require a CPL. The officer must articulate RS to stop someone. Can they do so to a judges contentment? Possibly, but I don't think the prescience of a gun is good enough. There needs to be more.

    I don't think that it means that an officer cannot articulate RS, but again it needs to be more than just the presence of the gun (be it in a prohibited zone, or in a prohibited manner).

    That doesn't mean that they can't stop you, just that they may not be able to justify that stop later on, under scrutiny.



  5. #5
    Campaign Veteran smellslikemichigan's Avatar
    Join Date
    Jun 2008
    Location
    Troy, Michigan, USA
    Posts
    2,321

    Post imported post

    i agree with you both. venator has posed the question to a respected attorney and we're awaiting response.
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
    http://www.graystatemovie.com/

  6. #6
    Campaign Veteran
    Join Date
    Nov 2008
    Location
    Ann Arbor, Michigan, USA
    Posts
    1,544

    Post imported post

    smellslikemichigan wrote:
    i agree with you both.* venator has posed the question to a respected attorney and we're awaiting response.
    as have I.

  7. #7
    Michigan Moderator DrTodd's Avatar
    Join Date
    Jun 2008
    Location
    Hudsonville , Michigan, USA
    Posts
    3,337

    Post imported post

    Well, admittedly this response is long, but I attempted to put in enough information that the reader can make up their own mind. This is just my humble opinion and in no way reflects legal advice; this is information gleaned from my research. I am not an attorney and strongly suggest that if you are in need of legal advice based upon a specific incident that you consult a licensed attorney.


    In the example given, we have a person observed by a trained police officer carrying an exposed pistol in a "Prohibited Premises", which is illegal (MCL 750.234d). One of the few exceptions to this is that a person who has a CPL may carry a pistol on prohibited premises, or alternatively, a CPL holder could carry openly in one of the "Pistol Free Zones" listed in the Mich. Concelaed Weapons Act or in the "Gun-free School Zones"

    To conduct an investigatory stop, a police officer must have specific and articulable facts sufficient to create a reasonable suspicion of criminal activity. People v Shankle, 227 Mich App 690, 693; 577 NW2d 471 (1998) and Florida v J L, (2000)

    To almost all laws, there are exceptions. To assume that anyone apparently committing a crime automatically falls under one of the exceptions to the law is, in my opinion, quite illogical. For example, an officer is driving down a street at noon on a Saturday and observes someone taking a sledgehammer to a door in a business district. Although the person observed is the owner of the building, that fact is not known to the Police Officer. The officer stops his car, walks up to the person, and demands to know what he is doing. Would the owner believing that, without any evidence to the contrary, the officer has no "reasonable and articulable suspicion" to ascertain the identity of the person smashing the door in? I think not.

    IMHO, the example of a driver not having a driver's license is not in any way related. It is estimated that approximately 95% of the population of adults in Michigan have a valid driver's license (The Century Foundation:National Commission on Federal Election Reform, 2008) Allowing that there are a large number of adults who would not have a driver's license and would never be able to actually be able to get behind the wheel of a car, the number of people who are physically able to drive a car but not in possession of a valid driver's license is probably a little lower than the 5% listed above. Therefore, the chances that anyone driving an automobile without a valid operator's permit in Michigan is minuscule
    .
    In Michigan, the number of cpl holders is approximately 193,640 out of a population of 10,003,422, which is approximately 1.93% of the Michigan population.
    (Annual Estimates of the Resident Population for the United States, Regions, States, and Puerto Rico: April 1, 2000 to July 1, 2008". United States Census Bureau) and Current Number of Concealed Pistol Permit Holders, http://www.mcrgo.org/mcrgo)


    Even if every person who had a CPL chose to wear their pistol openly rather than concealed, the number of people who could be carrying a pistol openly on prohibited premises under the cpl exception is very, very small. The number of people who are driving an automobile while carrying a pistol is also very small. Therefore, I think that an officer could, at least to some degree, articulate a reasonable suspension that a person carrying a firearm on prohibited premises or carrying a pistol openly in a vehicle is committing a crime and upon a legal stop, can ascertain whether any legal exceptions apply.


    People often bring up the case Florida v J L, 529 US 266; 120 S Ct 1375; 146 L
    Ed 2d 254 (2000) as support for the belief that the mere report that a person is carrying a firearm is not sufficient to form a reasonable and articulable suspicion to stop an individual.

    I aver that such a belief overstates the issue. I take the following directly from PEOPLE OF THE STATE OF MICHIGAN v. LAJAMILLE HORTON dated February 17, 2009
    In Florida v J L, 529 US 266; 120 S Ct 1375; 146 L Ed 2d 254 2000, an anonymous caller reported to the police that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. The caller did not indicate how he knew of the gun or provide any basis for believing that he had inside information about the subject. Id. at 271. An unspecified time after the police received the information, two officers were sent to the scene, and they arrived six minutes after the dispatch.


    The police saw three black males, including 16-year-old J L, who was wearing a plaid shirt. Id. The officers had no reason other than the tip to suspect illegal conduct. They searched the three males and found a gun in J L’s pocket. Id. The Supreme Court held that the anonymous tip alone, which “lacked [even] moderate indicia of reliability,” did not provide reasonable suspicion justifying the police officers’ stop and frisk of the suspect. Id. at 271, 274.


    “The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” Id. at 271. The Court rejected the view that the reliability of the information was sufficiently demonstrated because the police found a person matching the description at the location given by the informant, explaining: an accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
    [Id. at 272.]

    We conclude that J L does not undermine the analysis in Tooks, because courts have recognized that a tip made in person by a citizen who is unwilling to disclose his name is distinct from an anonymous telephone tip.

    Justice Kennedy’s concurrence in J L discusses this distinction:
    If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. [Id. at 276 (Kennedy, J., concurring).]
    See, also, United States v Sanchez, 519 F3d 1208, 1214 (CA 10, 2008), and United States v
    Valentine, 232 F3d 350, 354-355 (CA 3, 2000), and cases cited therein. The Court specifically noted that it was “not dealing with an anonymous telephone tip to a police station . . . .”
    Moreover, other facts of this case distinguish it from J L. The tipster in that case did not indicate how he knew that the individual at the bus stop was carrying a gun and did not supply any information to show that he had inside knowledge about the individual or the “concealed criminal activity.” J L, supra at 272. In the present case, the tip concerned readily observable activity, and the tipster indicated the basis for his knowledge, i.e., his recent viewing of the activity. Cf. People v Rollins, 382 Ill App 3d 833, 840; 892 NE2d 21 (2008).



    The totality of the circumstances provided reasonable suspicion for the police to briefly detain defendant in this case. The tipster indicated that he had personally observed an individual waving an “Uzi-type” gun at a specific location approximately a mile away and had just left that location. He described the make, model, and color of the suspect’s vehicle. The descriptive information was detailed, and the police corroborated it in less than five minutes. Information provided to law enforcement officers by concerned citizens who have personally observed suspicious activities is entitled to a finding of reliability when the information is sufficiently detailed and is corroborated within a reasonable period of time by the officers’ own observations.”


    In conclusion, I believe that it is "the totality of the circumstances" that allow an officer to believe that RAS exists. From the cases listed above, I believe that an officer personally observing behavior which, barring any exception listed in the law, could easily defend the RAS on a stop. However, I would believe that in an area in which the behavior is "apparently" legal, such as open carrying while at the gas station or OCing while walking down the street, RAS would need to be developed based upon other factors.

    edit: Formatting

    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

  8. #8
    Campaign Veteran
    Join Date
    Nov 2008
    Location
    Ann Arbor, Michigan, USA
    Posts
    1,544

    Post imported post

    As has been said, you need a CDL to get behind the wheel of a big rig. Can an officer stop any big rig just to make sure he's got his CDL endorsement?

    How about anyone riding a motorcycle?

  9. #9
    Regular Member Michigander's Avatar
    Join Date
    Aug 2007
    Location
    Mulligan's Valley
    Posts
    4,830

    Post imported post

    Anything is possible, but the odds of a criminal OCing to a CC free zone are unlikely beyond easy verbal description. OCers are probably in the top 5% of the population for being law abiding, and those who will actually OC to a CC free zone are going to be in the top percentile of OCers for legal knowledge and clean backgrounds.

    It is a near mathematical certaintly that an OCer in a CC free zone will be a non criminal. Aside from a lie filled 911 call about an OCer, safe and legal OCing contains no RAS if the OCer keeps his or her mouth properly shut, and that is all there is to it. I don't know of a court case that has ever deemed otherwise.
    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.

  10. #10
    Anti-Saldana Freedom Fighter Venator's Avatar
    Join Date
    Jan 2007
    Location
    Lansing area, Michigan, USA
    Posts
    6,446

    Post imported post

    we all see those accesses between freeways that have those signs that say AUTHORISED VEHICLES ONLY. So some people are allowed to use these accesses and others are prohibited.

    A police officer sees an unmarkedvehicle in one of these accesses (Is the vehicle an unmarked patrol car or a detectives vehicle and he is responding to a call, or is it just me?). Does he have RAS to determine if the personis authorised to use this access?

    If he doesn't then I know of hundreds of people that have received a $60 ticket for unlawful use of these accesses.

    If the LEO does have RAS to determine if a person is authorised to use the access, how is that different from checking a person with a firearm in a prohibited area to see if they are authorised to have one there?

    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.

  11. #11
    Michigan Moderator DrTodd's Avatar
    Join Date
    Jun 2008
    Location
    Hudsonville , Michigan, USA
    Posts
    3,337

    Post imported post

    Michigan has a Primary Enforcement Law in regards to seatbelts; an officer can stop your vehicle if you aren't wearing it. A driver is pulled over about 2 times a month for not wearing a seatbelt, even though he has a letter from his physician which is written in conformance with Michigan law. With this letter in his possession, he is allowed to be unbuckled in a moving vehicle. Do the police have RAS to stop his vehicle when he drives without a seatbelt?
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

  12. #12
    Regular Member autosurgeon's Avatar
    Join Date
    Sep 2008
    Location
    Lawrence, Michigan, United States
    Posts
    3,845

    Post imported post

    DrTodd wrote:
    Michigan has a Primary Enforcement Law in regards to seatbelts; an officer can stop your vehicle if you aren't wearing it. A driver is pulled over about 2 times a month for not wearing a seatbelt, even though he has a letter from his physician which is written in conformance with Michigan law. With this letter in his possession, he is allowed to be unbuckled in a moving vehicle. Do the police have RAS to stop his vehicle when he drives without a seatbelt?
    I would say if the officer does not know the guy yes! If it is the same officer over and over no.
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

  13. #13
    Campaign Veteran
    Join Date
    Nov 2008
    Location
    Ann Arbor, Michigan, USA
    Posts
    1,544

    Post imported post


  14. #14
    Regular Member
    Join Date
    Aug 2008
    Location
    , ,
    Posts
    625

    Post imported post


Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •