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Thread: SCONev Ruling on Armed and Dangerous

  1. #1
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    SCONev Ruling on Armed and Dangerous

    This case has bad implications for carrying firearms in Nevada.

    http://www.nevadajudiciary.us/index....ortes-v-state-

    A non-existent tool knife indicates the presence of other weapons, which makes the person is armed and dangerous. Even though there's no knife.

    the presence of a knife in plain view in a lawfully stopped car contributes to reasonable suspicion that other weapons may be present, making the person armed and dangerous even if the knife is moved out of reach.
    The knife was not recovered from Cortesís person or in a later inventory search of the car.

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    So being armed automatically equals dangerous? Scary chit....

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    Hmmm....


    Context?

    "contributes to.." does not make a totality of circumstances.

    The knife was in the lap of the passenger, who did not follow commands and appeared nervous. The weapon alone did NOT make "armed and dangerous." The totality of circumstances did, and the knife being visible contributed to that totality.

    In this case, the totality of the circumstances justified frisking Cortes to protect the officers from the threat they reasonably suspected he posed to their safety. When Wadsworth arrived, Cortes had a knife in his lap; the presence of a knife in plain view in a lawfully stopped car contributes to reasonable suspicion that other weapons may be present, making the person armed and dangerous even if the knife is moved out of reach. United States v. Vinton, 594 F.3d 14, 20-21 (D.C. Cir.), cert. denied, 562 U.S. ___, 131 S. Ct. 93 (2010).[3] Despite being repeatedly asked, Cortes refused to keep his hands in plain view. See United States v. Soares, 521 F.3d 117, 121 (1st Cir. 2008) (passenger’s refusal to obey “repeated orders to remain still and keep his hands in [officer’s] view” cited as part of the totality of circumstances justifying a patdown search). After stating he had identification, Cortes contradicted himself and said he didn’t; “evasive responses to police questions can help support reasonable suspicion,” as can “contradictory answers to simple questions.” Tinnie, 629 F.3d at 752. Cortes and the driver appeared unusually nervous and agitated to Arrendale and Wadsworth, both experienced patrol officers. Id. (“Tinnie acted suspiciously by moving around nervously as the officers approached the car”). Finally, when Cortes got out of the car, he did so strangely, trying to conceal his hands and back from Arrendale. See United States v. Burkett, 612 F.3d 1103, 1107 (9th Cir. 2010) (upholding passenger frisk under Johnson based partly on furtive movements and the guarded way the passenger got out of the car). Given all this, common sense tells us that a reasonable officer confronting Cortes at night during a traffic stop could reasonably suspect that Cortes was armed and that a frisk was necessary to protect himself and his partner.
    When that snippet is included as part of "the totality" of the paragraph, it is simply one sentence that "contributed to" the "armed and dangerous" suspicion. By itself, it could have easily been seen as unremarkable.
    Last edited by wrightme; 07-26-2011 at 03:43 PM.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Totality of the Circumstances...


    "You, stop right there."

    "I don't consent to this encounter. Why are you detaining me?

    "Keep your hands away from your gun."

    "I'll keep my hands wherever I please."

    "We need to see some I.D."

    "I won't identify myself unless I'm suspected of a crime. What crime do you suspect me of?"

    "We're gonna take your gun for officer safety."

    "You're not going to take anything. I do not consent to any searches or seizures of my person or my property."

    "That's it, you're under arrest for resisting."

    "Can I see the arrest warrant?"


    APPROX. 2230 HRS. APPROACHED SUBJECT ADULT MALE ARMED WITH HOLSTERED PISTOL IN HIGH CRIME AREA. SUBJ. WAS UNCOOPERATIVE, HOSTILE, AND MADE REPEATED MOTIONS TOWARD HIS SIDEARM WHILE REFUSING TO PROVIDE I.D. DETERMINED SUBJ. WAS A DANGER TO OFFICER SAFETY. ARRESTED FOR RESISTING NRS 199.280.

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    A police state

    We live in a police state we just don't know it yet. Officer safety tramples all of our rights. When did officers become such ****** that they fear everything and then overcompensate by treating gun owners like ****. You tell them you have a gun they get ******, you don't tell them and they find out they get ******. You can't win, they want to be the only ones to have guns. Thank God he didn't make a furtive movement or he would have been dead.

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    Regular Member The Big Guy's Avatar
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    Quote Originally Posted by teammazza View Post
    We live in a police state we just don't know it yet. Officer safety tramples all of our rights. When did officers become such ****** that they fear everything and then overcompensate by treating gun owners like ****. You tell them you have a gun they get ******, you don't tell them and they find out they get ******. You can't win, they want to be the only ones to have guns. Thank God he didn't make a furtive movement or he would have been dead.
    Educating police officers is the key. When you have the chance, talk to them about checking out Oath Keepers. Some will and may be swayed. Others may need to learn the hard way through citizen complaints and legal actions. I have met a few who are very happy, yes happy, to have armed citizens. As a Henderson Officer told a lady who pointed out my firearm to him, that he wished more people did, there would be a lot less mischief and his job would be easier.

    TBG
    Life member GOA and NRA. Member of SAF, NAGR, TXGR and Cast Bullet Assoc.

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    Quote Originally Posted by The Big Guy View Post
    Educating police officers is the key. When you have the chance, talk to them about checking out Oath Keepers. Some will and may be swayed. Others may need to learn the hard way through citizen complaints and legal actions. I have met a few who are very happy, yes happy, to have armed citizens. As a Henderson Officer told a lady who pointed out my firearm to him, that he wished more people did, there would be a lot less mischief and his job would be easier.

    TBG
    I've highlighted the real problems in bold. As many if not all of the threads here about officer complaints, and nearly all of the news stories of officer complaints/inquest/investigations show, generally the officers are found to have "done nothing wrong" or "justified" and are let go. Even of the few news cases where officers were found to have some wrong doing, the punishment rarely if ever fits the "crime". It seems to me that a punishment system in which the worst offences net dismissal, and the next level shy of that nets a mere week unpaid leave (often after months of paid administrative leave/vacation while the investigation is ongoing) is a huge part of the problem. Not to mention the seemingly corrupt complaint system in general. Couple that with the fact that, as you state yourself, there are few that seem interested in "doing the right thing" such as enforcing real, legal laws, while maintaining and respecting citizens natural and constitutional rights, and it should be easy to see this is likely a losing battle.

    Note that they are nearly 100% throughout the country called POLICE officers and no longer PEACE officers as their job was originally intended. Police officers and peace officer have two entirely different jobs. One is expected to serve the people, enforce laws, and maintain an orderly society. The other is designed to serve the government, enforce "laws", and maintain a compliant society. I'll let you decide which is which.

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    I'm a Deputy Sheriff in NNV. Every time I see someone open carrying on the street, I shake their hand and thank them for supporting and defending the US Constitution. Most of my co-workers are very educated when it comes to citizens' rights to bear firearms.

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    Regular Member The Big Guy's Avatar
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    Quote Originally Posted by rickyray9 View Post
    I'm a Deputy Sheriff in NNV. Every time I see someone open carrying on the street, I shake their hand and thank them for supporting and defending the US Constitution. Most of my co-workers are very educated when it comes to citizens' rights to bear firearms.
    Thank you for your imput. Although there are problems with individual officers on the street, my opinion is that most of the problem is a bit higher up the food chain. Welcome to the open carry forum.

    TBG
    Life member GOA and NRA. Member of SAF, NAGR, TXGR and Cast Bullet Assoc.

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    Quote Originally Posted by rickyray9 View Post
    I'm a Deputy Sheriff in NNV. Every time I see someone open carrying on the street, I shake their hand and thank them for supporting and defending the US Constitution. Most of my co-workers are very educated when it comes to citizens' rights to bear firearms.
    Wow! Which county?

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    You're a good man rickyray! Thanks for giving us your opinion from your unique perspective.

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    thanks for all the positive remarks
    I got on with Washoe in October of 2009, then moved to Carson this year. It's been a blast! Northern Nevada in general has a high level of libertarianism rooted in culture, and the way sheriff's offices up here treat citizens really reflects that. I couldn't tell you how RPD and Sparks deal with guns, as they're more urban areas with higher violence, and thus would pull more "officer safety" tactics when dealing with the public.
    I started open carrying before I joined, and I still open carry w/o badge off duty. I take great pride in reminding people on and off duty that yes, they can in fact carry a gun for their and their family's protection, and that the community is a safer place with them in it.
    Last edited by rickyray9; 07-29-2011 at 05:14 PM.

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    I'm glad we've got deputies like you around Ricky!

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    Ricky is a shot of much needed oxygen. Thanks

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    Quote Originally Posted by rickyray9 View Post
    thanks for all the positive remarks
    I got on with Washoe in October of 2009, then moved to Carson this year. It's been a blast! Northern Nevada in general has a high level of libertarianism rooted in culture, and the way sheriff's offices up here treat citizens really reflects that. I couldn't tell you how RPD and Sparks deal with guns, as they're more urban areas with higher violence, and thus would pull more "officer safety" tactics when dealing with the public.
    I started open carrying before I joined, and I still open carry w/o badge off duty. I take great pride in reminding people on and off duty that yes, they can in fact carry a gun for their and their family's protection, and that the community is a safer place with them in it.
    Thanks Rickyray9,
    Helps put more faith in good officers who stand by their oath.
    In California many are corrupted.
    Your comments are like a breath of fresh air !
    Carry on Bro !
    Robin47

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    [QUOTE=Yard Sale;1581669]Totality of the Circumstances...


    "You, stop right there."

    "I don't consent to this encounter. Why are you detaining me?

    "Keep your hands away from your gun."

    "I'll keep my hands wherever I please."


    I don't consent to this encounter...I'll keep my hands wherever i please....?

    I don't mean to to sound abrasive, but I really think that kind of response towards officers raises tension in the situation, and helps to create an issue out of potentially nothing. Maybe he just wanted to say hey...or as the deputy above, thank you for being a responsible member of society. You really do get a lot further with honey...in any encounter in life.

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    Quote Originally Posted by jdholmes View Post


    I don't consent to this encounter...I'll keep my hands wherever i please....?

    I don't mean to to sound abrasive, but I really think that kind of response towards officers raises tension in the situation, and helps to create an issue out of potentially nothing. Maybe he just wanted to say hey...or as the deputy above, thank you for being a responsible member of society. You really do get a lot further with honey...in any encounter in life.
    I don't mean to sound abrasive either, but when was the last time you were in a friendly conversation that started with someone barking an order of "Hey, you! Stop right there!"? Perhaps it is the officer's tone and the officer's attitude that is creating the tension in the first place. Perhaps they (EVERY SINGLE ONE OF THEM) should have to take a class every month on how to effectively address the law-abiding public in a non-confrontational way when they want to initiate an encounter for no reason.
    Last edited by SoLasVegas; 08-06-2011 at 04:34 PM.

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    Quote Originally Posted by jdholmes
    I don't consent to this encounter...
    I'll keep my hands wherever i please...
    ... I really think that kind of response towards officers raises tension in the situation, and helps to create an issue out of potentially nothing.
    Quote Originally Posted by SoLasVegas
    ...when was the last time you were in a friendly conversation that started with someone barking an order of "Hey, you! Stop right there!"?
    Perhaps it is the officer's tone and the officer's attitude that is creating the tension in the first place.
    +100
    If it's intended to be a friendly interaction, they'd better make it very clear that they're just engaging in friendly conversation & you're under no obligation to respond, or stick around.
    If someone wants to chat, s/he can be friendly about it, no matter the clothes or employer.
    Barking orders is NOT friendly.
    So yes, that hypothetical officer caused the problem.

    When you ask why you're being detained, it puts them on notice that you feel you ARE detained (which means that you have been detained), which means that they must either reassure you that you are free to go & NOT being detained or come up with a good reason real fast.

    When you tell them you do not consent to a conversation (or being detained, or whatever), it clearly shows that it's nonconsensual. They can't claim it is. Again, they have to come up with a reason for forcing a nonconsensual encounter.


    I urge the OP to write to the Chief &/or city attorney. Inform them what happened, object to the illegal acts of the officers (including following you!!!), and point out why it's illegal for them to do what they did. Require of them that the department have updated training.

    Some court cases & quotes that might help you (& jdholmes & the officers / department from the OP encounter) understand exactly WHY what happened in that store was illegal:

    "The Claim and exercise of a Constitutional Right cannot be converted into a crime."
    Miller v. US

    "The mere presence of firearms does not create exigent circumstances."
    WI v. Kiekhefer (Ct. App. 1997)

    "Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment."
    Delaware v. Prouse, 1979
    (By extension, stopping someone just to check for a carry license is also a 4A violation.)

    "Police conduct does not need to be egregious or outrageous in order to be coercive. Subtle pressures are considered to be coercive if they exceed the defendantís ability to resist. Pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances."
    WI v. Hoppe, 2003

    St. John v. McColley
    "Mr. St. Johnís lawful possession of a loaded firearm in a crowded place could not, by itself, create a reasonable suspicion sufficient to justify an investigatory detention."

    United States v. Ubiles, (3rd Cir. 2000):
    The Third Circuit found that an individualís lawful possession of a firearm in a crowded place did not justify a search or seizure.

    United States v. King, (10th Cir. 1993)
    The Tenth Circuit found that an investigatory detention initiated by an officer after he discovered that the defendant lawfully possessed a loaded firearm lacked sufficient basis because the firearm alone did not create a reasonable suspicion of criminal activity.
    [HINT: that is EXACTLY what happened to the OP. The officers had no RAS of a crime, yet they detained & investigated him anyway simply because they saw he had a pistol.]

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