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Thread: IN Ct. Mere Presence of Pistol does not Justify Terry Stop for "Officer Safety"

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    Indiana Ct. of Appeals just held that the mere presence of a firearm does not justify Police Officer in conducting a Terry Stop/Search in the name of "Officer Safety" absent RAS that person is dangerous.

    Short Synopsis. Person is driving a car with one headlight out. Police Officer pulls over driver and asks if there are any weapons present. Driver truthfully responds there is a pistol under drivers seat and that driver has a CPL.

    Officer removes driver from car and searches under driver's seat with a flashlight and sees the pistol and a small baggie of MJ. Officer cites driver fro MJ possession.

    At trial, driver moves to suppress evidence as fruit of an illegal search. Motion denied. Driver Appeals. Decision follows.

    Officer had no objective, articulable suspicion that driver was dangerous. Driver was courteous and followed all instructions and presented no threat. Accordingly, mere fact that Driver had a firearm did NOT justify the Terry search of the car for the weapon and evidence of MJ was result of an illegal search and was suppressed.

    http://www.state.in.us/judiciary/opi...3041001jsk.pdf

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    So much for "crackhead with a gun" being a guaranteed epic fail in criminal court.

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    N6ATF wrote:
    So much for "crackhead with a gun" being a guaranteed epic fail in criminal court.
    Setting aside the fact the person in question partakes in over-the-corner pharmaceuticals, are you saying this is a bad decision?

    Not everyone needs to be a saint to help us all.

    Sometimes, letting a minor crime off the hook to preserve out rights is a good thing, unless you would suggest you prefer the opposite.
    Why open carry? Because 1911 > 911.

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    This is a very interesting ruling. There are two opinions which reach the same conclusion, that the search results should be suppressed, but use different reasoning to get there.

    The first opinion (which I actually did find a bit troubling as I read it) relied heavily on the defendant's level of cooperation to establish that there was no RAS for the officer to believe he was in danger. The most troubling bit of this opinion says:

    In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety. He had initiated a traffic stop on Washington because one of Washington’s headlights was not working. Officer Reynolds approached the driver’s side of the car to speak with Washington. As a matter of his own practice, the officer inquired as to whether Washington had any weapons or guns in the car, and Washington replied that he had a handgun, which was located underneath the driver’s seat. Washington also informed Officer Reynolds that he had a valid permit for the handgun. Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds. The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer’s questions, and showed no disrespect to the officer. (pp. 6-7 of referenced opinion)
    This troubled me because as far as I know, citizens are still not required to answer any questions during a traffic stop (other than providing a driver's license and registration, etc.) Yet, a portion of the determination that the defendant was not a threat was based on the fact that he did answer questions. In future incidents, I would worry that this ruling may imply that a driver who declines to answer questions might be providing an officer with a court-sanctioned RAS for an illegal search.

    The second, concurring opinion reaches the same conclusion but based on the recent SCOTUS case Arizona v. Gant, which relied on the fact that the defendant was outside the car and handcuffed to show that the officer had no RAS at the time an illegal search was made. The author says it is much safer to rely on concrete rules (handcuffed obviously means there is no risk of the defendant retrieving the gun from the car) rather than warm fuzzies from the defendant, which are subjective in nature.

    One final comment... the officer stated that his standard question during traffic stops concerning weapons is to ask if there are any weapons that he "should be aware of."

    I'm seriously thinking that my answer to that question is a simple "No sir.", even if I do have a concealed weapon at the time. I'm not a criminal, I'm not a threat to the safety of the officer, I believe that would be a truthful answer. Of course, if the officer later became aware of it, he may disagree on what the for "should" might be, but... that's the question he asks, I suppose he needs to be prepared accept the answer.

    TFred


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    AbNo wrote:
    N6ATF wrote:
    So much for "crackhead with a gun" being a guaranteed epic fail in criminal court.
    Setting aside the fact the person in question partakes in over-the-corner pharmaceuticals, are you saying this is a bad decision?

    Not everyone needs to be a saint to help us all.

    Sometimes, letting a minor crime off the hook to preserve out rights is a good thing, unless you would suggest you prefer the opposite.
    I was :quirky at those who think that you should never defend gun rights if the criminal defendant/civil plaintiff had 'color' (other criminal behavior) involved.

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    TFred wrote:
    This is a very interesting ruling. There are two opinions which reach the same conclusion, that the search results should be suppressed, but use different reasoning to get there.

    The first opinion (which I actually did find a bit troubling as I read it) relied heavily on the defendant's level of cooperation to establish that there was no RAS for the officer to believe he was in danger. The most troubling bit of this opinion says:

    In the present case, prior to the search for the handgun, Officer Reynolds did not express any concerns for officer safety. He had initiated a traffic stop on Washington because one of Washington’s headlights was not working. Officer Reynolds approached the driver’s side of the car to speak with Washington. As a matter of his own practice, the officer inquired as to whether Washington had any weapons or guns in the car, and Washington replied that he had a handgun, which was located underneath the driver’s seat. Washington also informed Officer Reynolds that he had a valid permit for the handgun. Although Washington admitted that a handgun was present inside of the car, he was at all times totally cooperative with Officer Reynolds. The testimony at the suppression hearing indicated that, during the traffic stop, Washington made no furtive movements, answered the officer’s questions, and showed no disrespect to the officer. (pp. 6-7 of referenced opinion)
    This troubled me because as far as I know, citizens are still not required to answer any questions during a traffic stop (other than providing a driver's license and registration, etc.) Yet, a portion of the determination that the defendant was not a threat was based on the fact that he did answer questions. In future incidents, I would worry that this ruling may imply that a driver who declines to answer questions might be providing an officer with a court-sanctioned RAS for an illegal search.

    The second, concurring opinion reaches the same conclusion but based on the recent SCOTUS case Arizona v. Gant, which relied on the fact that the defendant was outside the car and handcuffed to show that the officer had no RAS at the time an illegal search was made. The author says it is much safer to rely on concrete rules (handcuffed obviously means there is no risk of the defendant retrieving the gun from the car) rather than warm fuzzies from the defendant, which are subjective in nature.

    One final comment... the officer stated that his standard question during traffic stops concerning weapons is to ask if there are any weapons that he "should be aware of."

    I'm seriously thinking that my answer to that question is a simple "No sir.", even if I do have a concealed weapon at the time. I'm not a criminal, I'm not a threat to the safety of the officer, I believe that would be a truthful answer. Of course, if the officer later became aware of it, he may disagree on what the for "should" might be, but... that's the question he asks, I suppose he needs to be prepared accept the answer.

    TFred
    I'm also troubled by the implicit theme of non-submission as a threat.

    I was recently detained without suspicionfor non-submission, or as they called it, being "uncooperative."

    Why are you even thinking of answering that question at all? You can give a response without an answer, or not even respond.

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