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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.
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