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Thread: Need the name of a case

  1. #1
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    Where the guy challanged 942.23 and 167.31 were not compatable, and lost as the court ruled the gun could be transported out of reach.....


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    SprayAndPray wrote:
    Where the guy challanged 942.23 and 167.31 were not compatable, and lost as the court ruled the gun could be transported out of reach.....


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    Alloy,

    There are a few unanswered questions with that case though, The information that I have been able to find never states if the firearm was loaded, or unloaded.


    The guy was also charged with several other charges including manslaughter which were all successfully fought in court. Maybe the courts found the way they did just to get at least one charge to stick to him?

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    Thx.... Got a buddy got busted for ccw in the glovebox of a pickup... Trying to convince his lawyer to re argue the discrepency between 942 and 167

    it was subsiquent to a DUI, but the DUI has been dropped completely... No other charges

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    Regular Member Interceptor_Knight's Avatar
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    In the case of your buddy, it will be hard to argue any discrepancy as he hid the encased firearm in the glove box which is within reach.

    Alloy did not merely have an encased firearm on his seat, he had the encased firearm hidden in a metal box between the seats. Walls is even more damning. The opinion of the court in the Walls appeal states that the weapon must be observable by someone in another vehicle approaching or passing your vehicle on the streets or highways if it is within reach. It must be observable without inspecting the vehicle for that purpose. Observable by people in ordinary contact. If someone standing outside of the car can not see the encased weapon without deliberately looking into the car then it is hidden in their opinion. The court had a skewed view and a clear prejudice of concealed weapons. They referenced common law from England...:?
    The carry of a concealed or hidden weapon has been uniformly considered contrary to sound public policy
    AlloyAppeal

    Walls Appeal

    Both Alloy and Walls are criminals who were not merely stopped for a moving violation. Although I recommend the trunk for people, I will continue to carry my encased firearms on my seat when it makes sense to do so. When I go hunting, my trunk is normally full of other stuff, so it makes sense to set my case on the back seat. Often times it is vertical from the floor up onto the seatcar so that anyone driving by can see it sticking up.

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    My reading of the Walls appeal leads me to believe that if you had a cased firearm that was not loaded on the dashboard of a vehicle, it would circumvent the conditions listed. This would also make a rear window gun rack a viable option.

    But, who in their right mind would park a car with firearms viewable to passersby? it would be irresistible to the common street thug, and enticing to even the most amateur of thieves.

    I have stated previously that I keep my rifles, and shotguns leaning against the passenger seat with the butt-end on the floorof my truck when travelling. And reading Walls makes me even more confident in my choice of transport.

    Spray, did this friend of yours have a loaded firearm in the glovebox without it being in another case? I do not see him avoiding getting nailed for that. The laws couldn't be more clear in those regards.
    BUT!, if the OWI was tossed, what reason did the police have to conduct a search of the vehicle?
    If I was trying this case, I would go aftera differentangle instead.
    How or why was the DWI charge thrown out? Did he fail the roadside and come up negative on the breath, blood or urine analysis? Was he under the limit but still had a measurable amount of alcohol in his blood?

    There are some very intelligent people that read and post on this forum, give us some details and I bet someone will come up with some great arguments for the attorney to use during the trial.

    Here's is a little synopsis of a failed prosecution that happened up here,
    this should give you a clear picture of what I am trying to say>
    A woman is investigated for embezzlement of $60K form a grocery store, she does not admit her crime until after the police got a warrant signed by a judge to get her banking records and confronted her with the large deposits and how it does not match her pay-scale.
    So she admits the theft of funds, they charge her, it goes to court. And the judge finds that the other judge that signed the warrant to obtain her banking records did not have probable cause to sign the warrant.
    So that evidence and her confession gets thrown out. Now the prosecution has no evidence against her and she walks away with no punishment. Hopefully that attorney ate up the money she stole from the grocery store so she does not benefit from her crimes at all.


    Using this example, could the attorney have the vehicle search found to have been done without probable cause? Was this something where the cop was suspicious of something, arrested the defendant on bogus charges to try and fabricate probable cause?? Something has got a hinky feeling about it in this case, a more detailed explanation may help.



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    Not sure why the DUI was tossed , some technicality about him being in his driveway ad the scenario the cop wrote was not a physical possibilityor something, Didn't ask too much as the DUI does not interest me.



    His Lawyer is already challanging the search and try to supress the discovery of the firearm , under Gantv arizona (i believe) as they found the gun in the glove box after he was in the cruiser for the DUI, I read the states rebuttal and they make some decent points , but so does his lawyer, it will hinge on what constituties "good faith ", whether or notthe cops have a reasonable expectation they might find further evidence of the DUI by searching the car, and whether a supreme court case decided after the arrest, but before conviction has any bearing ona case in progress...



    My question was asked if that avenue fails for him....

    my line of thought (and I will admit I was posting from a bar after a few beers) , is that if there is no legal way to carry a firearm in a motor vehicle (and there is not , the state ADMITTED that in a recient "Dear Dave letter"), in this case a regularcab pick up truck where no where is "out of reach" as stated in"alloy", they should not be able to prosocute for carrying a firearm in a motor vehicle , regardless of how it was carried .....

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    Regular Member Interceptor_Knight's Avatar
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    SprayAndPray wrote:

    My question was asked if that avenue fails for him....

    my line of thought (and I will admit I was posting from a bar after a few beers) , is that if there is no legal way to carry a firearm in a motor vehicle (and there is not , the state ADMITTED that in a recient "Dear Dave letter"), in this case a regularcab pick up truck where no where is "out of reach" as stated in"alloy", they should not be able to prosocute for carrying a firearm in a motor vehicle , regardless of how it was carried .....
    The courts will not look at hypotheticals. They will not address the question "Would he still be/have been charged had the handgun been in the rear-most portion of the vehicle? In a truck, this is behind the seat and not under the feet of the driver. In a car, this is in the back seat in the corner away from the driver. They will only address the facts as they were identified in the case at hand. A glove box, a metal box between the seats, under your seat by your feet are all within your reach and are hidden for the purposes of a Concealed Carry citation. On the seat next to you and legally encased has a chance of being ruled in plain view depending on the court. The court in the Walls appeal case stated that it is hidden and therefore concealed. The court in one of the other cases stated that a legally encased handgun on the seat may be ok but they do not/will notaddress hypotheticals.

    The Walls appeals court is horrible. Pray you do not find yourself as a defendent before that group. They stated that it can not be concealed to "ordinary observation" as the car travels down the road/street PRIOR to being stopped. The transparent case on the dash or on the rear window shelf are about the only 2 scenerios which this court would likely find acceptable.

    Walls Appeal



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    SprayAndPray wrote:
    His Lawyer is already challanging the search and try to supress the discovery of the firearm , under Gantv arizona (i believe) as they found the gun in the glove box after he was in the cruiser for the DUI, I read the states rebuttal and they make some decent points , but so does his lawyer, it will hinge on what constituties "good faith ", whether or notthe cops have a reasonable expectation they might find further evidence of the DUI by searching the car, and whether a supreme court case decided after the arrest, but before conviction has any bearing ona case in progress...


    Being found "Not Guilty" does not equate to innocent. If they had reasonable suspicion to arrest him, then they may have been able to search the vehicle once he is arrested for whatever related contraband they wish. There is a reasonable expectation that someone driving while impaired may have drugs or open alcohol in the vehicle.

    If they were to impound the vehicle, then they may do an "inventory search"...


    Old standard......

    In analyzing the facts of this case, the United States Supreme Court cited New York v. Belton, 453 U.S. 454 (1981),in which the Court held “that when a police officer has made a lawful custodial arrest of an occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest.” The Court noted that the valid custodial arrest, standing alone, supports these searches and that an officer need not articulate any further suspicion that the arrestee actually is in possession of evidence or weapons.
    Gant V Arizona......
    However, the boundaries of this search have changed with time. Most recently, on April 21, 2009, in Gant v. Arizona, the Court restricted the circumstances under which police officers could rely on a search incident to arrest to search a vehicle. The Court held that after police have arrested and secured the occupant of a vehicle, the police may not use this exception to search the vehicle.

    This is a significant departure from prior rulings in this area. For nearly 30 years, police officers have been using the search incident to arrest exception to search the entirety of a vehicle’s passenger compartment when an arrest involves an individual in an automobile.

    In Gant, the Court left some room for police officer discretion for cases involving search incident to arrest. The Court acknowledged that a search incident to arrest could be justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”

    In the Gant case itself, the search was not justified, because Gant was just arrested for driving on a suspended license; there was no additional evidence of the offense that the police could have found. But what if he had been arrested on another charge, such as drugs? The Court left open the possibility that the offense of arrest may itself supply sufficient grounds for searching the passenger compartment of the vehicle, including containers.

    Even with this open-ended possibility though, the holding places substantial restrictions on the scope of search incident to arrest. Accordingly, this holding seems like a victory for privacy rights advocates. Unfortunately, the ultimate consequences may not be as significant as they initially appear.

    Inventory Search

    The problem, from the standpoint of someone interested in protecting the privacy rights of individuals, is that police may still access the vehicle through an inventory search. For more than 30 years, the Court has allowed routine police inventory searches of the contents of impounded vehicles, even if a car was only impounded for ordinary traffic violations.

    One potential consequence of Gant is that police departments may change their policies and opt to impound cars as a matter of course. On a DWI arrest, for example, police may previously have stopped the car, arrested the driver, searched the car incident to arrest and then let a sober passenger drive it away. Now, after Gant, they may change their policies to tow the vehicle every time so that they are allowed to search the vehicle every time − even if that means inconveniencing passengers for no good reason


  9. #9
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    The vehicle was on private property when this took place? Was he followed while he was on the streets. DWI/OWI is not a valid charge when on private property unless the copwitnessed him driving upon public roadways and met himat private property for the stop. But if he never left the property, nothing can be done with the suspected OWI and/or the concealed weapon charges. This can be interpolated from Hamden.
    That should nullify the charge right there, Look at the case-law in Hamden for the answer.
    Can you list the statute numbers that he was charged with? can you add more detail?



    Try and get some more details on this situation,

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    Spary and Spray:

    The correct statute number is 941.23 Prohibition of carrying a concealed weapon.

    In State v. Fry the Wisconsin Supreme Court found Fry guilty of carrying a concealed weapon because he had a firearm locked in the glove compartment of his automobile. That is probably damaging to your friend's case.

    The case you refer to where the confilct between 941.23 and 167.31 was challenged was State v. Nick Alloy. The III District Court of Appeals ruled there wasn't a confilct between the two statutes. A person is required to comply with both statutes and can do so by carrying the encased weapon out of reach. This opinion by the Court of Appeals was unpublished and I belive it istherefore non-precedential and cannot be cited.

    My opinion is that the III District of Court of Appeals erred with that judgement. It overlooked thecircumstance wherein firearms are transported on a number of vehicles that are constructed such that carry of an encased weapon out of reach is not possible, therefore under those circumstances the conflict is still alive. Two such vehicles are ATV's and snowmobiles. SS23.33 under the rules of operation restriciton of ATV's state that if a firearm is transported on a ATV it must be encased. That indicates that carry of a firearm on an ATV is not unlawful, however there is no way to do it without running afoul of statutes. If the weapon is uncased it violates 167.31 if it is encased it meets all the conditions of concealment with no way to avoid those conditions by carrying the weapon out of reach, as suggested by the Court of Appeals.

    That situation goes against the Wisconsin Supreme Court ruling in Hamdan that the State must allow a person a way to carry a weapon or yield to the amendment Article I section 25. In other words it is unconstitutional for the State toenforce statutes that evicerates a person' right to keep and bear arms.

    I think the scenario I wrote is a better argument against the conflict of the two statutes. Especially because the District III Court of Appeals ruling in Alloy is unpublished. Your friend,s lawyer will understand the significance of an unpublished opinion by the courts.

    The other charges against Alloy were notrelevant to this ruling. This ruling address only the charge of concealment. It is included below.

    -----------------------------------------------------------------------------------------------------------

    State v. Nick AlloyCOURT OF APPEALS
    DECISION
    DATED AND FILED

    April 4, 2000

    Cornelia G. Clark
    Acting Clerk, Court of Appeals
    of Wisconsin



    NOTICE

    This opinion is subject to further editing. If published, the official version
    will appear in the bound volume of the Official Reports.

    A party may file with the Supreme Court a petition to review an adverse decision
    by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.




    No. 99-2258-CR

    STATE OF WISCONSIN IN COURT OF APPEALS
    DISTRICT III


    State of Wisconsin,

    Plaintiff-Respondent,

    v.

    Nick Alloy,

    Defendant-Appellant.


    APPEAL from a judgment of the circuit court for Brown County: peter j. naze,
    Judge. Affirmed.
    Before Cane, C.J., Hoover, P.J., and Peterson, J.
    ¶1 PER CURIAM. Nick Alloy appeals a judgment convicting
    him of carrying a concealed weapon, a handgun contained in a zipper case inside
    a metal box between the bucket seats of his Jeep Wagoneer.[1] He argues that
    the trial court erred and denied him his constitutional right to testify in his
    own defense when it disallowed questions designed to show that the handgun was
    encased because Wis. Stat. § 167.31(2) (1997-98)[2] requires that a firearm be
    encased when it is transported in a vehicle. Because complying with § 167.31
    does not provide a defense to a charge of carrying a concealed weapon, the trial
    court properly disallowed this irrelevant testimony.
    ¶2 Alloy’s trial counsel asked him three questions that
    the trial court disallowed: whether he thought it was “acceptable conduct” to
    carry the pistol as he did in his car; whether he thought he was doing anything
    wrong; and whether he intended to arm himself by having that gun. Counsel
    explained to the court that she was attempting to present evidence that Alloy
    was merely following Wis. Stat. § 167.31 when he encased the handgun. The trial
    court correctly ruled that Alloy’s state of mind was irrelevant. See State v.
    Dundon, 226 Wis. 2d 654, 664, 594 N.W.2d 780 (1999). Wisconsin Stat. § 941.23
    provides “any person except a peace officer who goes armed with a concealed and
    dangerous weapon is guilty of a Class A misdemeanor.” While the State must show
    that the alloy was aware of the presence of the weapon, his motive for carrying
    or concealing it is not relevant.
    ¶3 Much of Alloy’s argument is based on the false
    assertion that he was trapped by a conflict between Wis. Stat. § 167.31 and Wis.
    Stat. § 941.23. A person transporting a firearm is governed by both statutes.
    To comply with § 167.31, the person must encase the weapon. To comply with §
    941.23, he or she must place the enclosed weapon out of reach. See State v.
    Asfoor, 75 Wis. 2d 411, 433-34, 249 N.W.2d 529 (1977). A person complying with
    § 167.31 is not required to violate § 941.23. The encased weapon can be
    lawfully transported out of reach.[3] The trial court properly disallowed
    testimony in support of the invalid defense that § 167.31 compelled Alloy to “go
    armed” with a concealed handgun. See Dundon, 226 Wis. 2d at 674.
    By the Court.—Judgment affirmed.
    This opinion will not be published. See Wis. Stat. Rule
    809.23(1)(b)5.










    [1] The jury acquitted Alloy on charges of attempted first-degree intentional
    homicide and first-degree reckless endangerment, but convicted him of false
    imprisonment, misdemeanor battery and two counts of carrying a concealed weapon.
    This appeal only challenges the conviction for carrying the concealed handgun.

    [2] All references to the Wisconsin Statutes are to the 1997-98 version unless
    otherwise noted.
    [3] While complying with Wis. Stat. § 167.31 might provide a defense to a
    person who possessed a concealed weapon immediately after it was encased for
    purposes of transporting it, those facts are not present here. We do not
    address hypothetical arguments.

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    Interceptor_Knight wrote:
    SprayAndPray wrote:
    His Lawyer is already challanging the search and try to supress the discovery of the firearm , under Gantv arizona (i believe) as they found the gun in the glove box after he was in the cruiser for the DUI, I read the states rebuttal and they make some decent points , but so does his lawyer, it will hinge on what constituties "good faith ", whether or notthe cops have a reasonable expectation they might find further evidence of the DUI by searching the car, and whether a supreme court case decided after the arrest, but before conviction has any bearing ona case in progress...


    Being found "Not Guilty" does not equate to innocent. If they had reasonable suspicion to arrest him, then they may have been able to search the vehicle once he is arrested for whatever related contraband they wish. There is a reasonable expectation that someone driving while impaired may have drugs or open alcohol in the vehicle.

    If they were to impound the vehicle, then they may do an "inventory search"...


    They did not impound the vehicle, And the police can not search for "whatever reasonable contraband they wish" They may only search for "evidence pertinant to the suspectedcrime "

    2 problems come of this, In Wisconsin , your first DUI is not a crime , only a forfieture, They can not search for evidence of a foretiture, only that of a crime.... Big difference...

    Second, open containers of alcohol are not evidence of a DUI, The evidence of a DUI is the persons reactions to standardised testing and the BAL as measured... One can very easily have an open container and not have had a drink out of it in 2 months , or an empty and also not have had a drink from it. Aprosocutor that held up an empty beer can retrieved from a vehicle as proof of a DUI would be laughed out of court. the 2 are not linked and have nothing to do with each other.

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    Nutczak wrote:
    The vehicle was on private property when this took place? Was he followed while he was on the streets. DWI/OWI is not a valid charge when on private property unless the copwitnessed him driving upon public roadways and met himat private property for the stop. But if he never left the property, nothing can be done with the suspected OWI and/or the concealed weapon charges. This can be interpolated from Hamden.
    That should nullify the charge right there, Look at the case-law in Hamden for the answer.
    Can you list the statute numbers that he was charged with? can you add more detail?



    Try and get some more details on this situation,
    I'm not sure private property makes a difference. If that were true we wouldn'thave to worry about transporting a firearm in a case on an ATV. Chances are you'll be riding that ATV on private land anyway, right? Also, cops bust people in there own drive ways all the time...don't think that defense would work. Question is: Was this gun loaded and placed in the glove box or was it unloaded inside a proper gun case which was then placed in the glove box?

    I NEVER, EVER transport a firearm in a vehicle in plain sight. Just like Itry not toleave cash, cell phone, GPS or other valuables in full view for prying eyes and sticky fingers. I was at state park with all my scuba diving gear in the back of my pickup once. I had to run into the ranger station to buy a sticker and when I was walking back I saw a guy with his nose pressed against the window of the topper. I walked up on him and asked, "Can I help you?". He just looked at me, never said a word and casually walked away.Dikheadprobably was eyeing up my $700 Atomic regulator.

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