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Thread: Appeals court reverses [Demonte Miller 2009] gun carry conviction -no PC stop & frisk

  1. #1
    Herr Heckler Koch
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    Appeals court reverses [Demonte Miller 2009] gun carry conviction -no PC stop & frisk

    http://www.jsonline.com/blogs/news/1...53.html?page=1
    Quote Originally Posted by Vielmetti, MJS
    Dec. 6, 2011 10:44 a.m. |(3) Comments

    Demonte Miller was attending a candlight vigil for his murdered best friend in 2009 when the police drove by.

    They saw Miller, 24, walk away from the group and reach for his right side, which officers interpreted as "a weapon retention" check because the “majority of people on the streets don’t have holsters.”

    They stopped Miller, frisked him and a found a 9mm handgun in his back pocket. Miller was arrested and charged with carrying a concealed weapon. He argued the stop was illegal, and that evidence should be suppressed, but Circuit Judge Clare Fiorenza found police had good reason to stop him. Miller pleaded guilty, but appealed Fiorenza's denial of his motion to dismiss.

    On Tuesday, the state Court of Appeals reversed Miller's conviction, finding that police did not have probable cause to stop and frisk him.

    "All we have here is that Miller was peaceably at a peaceful candlelight vigil near the place where the person whom he testified was his best friend was killed the night before. That the police saw only him leave the group is not, by any stretch of the imagination, “suspicious” activity. That he, as Officer Cline testified, looked at the group of police cars passing the vigil is not, by any stretch of the imagination, “suspicious” activity. That he felt his pants or pants pocket as he walked away from the group also is not, in light of everything else, “suspicious” activity; he could have just as realistically been feeling for his keys, cell phone, or wallet (especially given the officers’ assessment of the locale as a high-crime area)

    "Under the facts here, the officers’ assessment that Miller may have been armed with a gun or other weapon was no more than a 'hunch,' and Terry tells us that a 'hunch' is not enough," the court wrote.
    Case Number 2009CM005918
    Last edited by Herr Heckler Koch; 12-06-2011 at 03:29 PM.

  2. #2
    Founder's Club Member Brass Magnet's Avatar
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    Good stuff! Too bad the original judge was an idiot. Reminds me of the Gonzalez federal civil rights lawsuit with that idiot judge and the DC charges.
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  3. #3
    Herr Heckler Koch
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    With our newly minted Act 35 Concealed Weapons Law, this case may come to bear on a cop's lawful authority to request a hypothetical Concealed Weapons License and one's photo ID.

    Absent issue of a CWL, absent the issue of a DL, Wisconsin Statutes Subsection 968.24 requires RAS for a cop to demand identification and does not require surrender of one's papers.

    Terry v. Ohio requires, in addition to RAS, a reasonable belief that the person "may be armed and presently dangerous." I submit that a licensed gun carrier is not dangerous per se.

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    Quote Originally Posted by Herr Heckler Koch View Post
    With our newly minted Act 35 Concealed Weapons Law, this case may come to bear on a cop's lawful authority to request a hypothetical Concealed Weapons License and one's photo ID.

    Absent issue of a CWL, absent the issue of a DL, Wisconsin Statutes Subsection 968.24 requires RAS for a cop to demand identification and does not require surrender of one's papers.

    Terry v. Ohio requires, in addition to RAS, a reasonable belief that the person "may be armed and presently dangerous." I submit that a licensed gun carrier is not dangerous per se.
    Very good point. Especially your last paragraph. I had forgotten that a search under Terry requires both RAS and a reasonable belief that the person is armed and dangerous.
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  5. #5
    Herr Heckler Koch
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    Be careful. Justia has recently been caught with its thumb on the scales of justice

    http://supreme.justia.com/us/392/1/case.html
    Quote Originally Posted by SCOTUS
    Page 392 U. S. 30

    felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.

    V

    We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
    Emphasis mine.
    Last edited by Herr Heckler Koch; 12-06-2011 at 05:12 PM.

  6. #6
    Campaign Veteran Flipper's Avatar
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    If you have a CWL, are you not, by definition, not dangerous to law enforcement, absent any actions to the contrary?
    When in danger you can dial 911 and hope for the police to arrive a few minutes later armed with guns.
    Why do police carry guns?

    The Joyce Foundation funded firearm control empire:
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    "Everything that we see is a shadow cast by that which we do not see." - Martin Luther King Jr.

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    What Do You Mean?

    Quote Originally Posted by Herr Heckler Koch View Post
    With our newly minted Act 35 Concealed Weapons Law, this case may come to bear on a cop's lawful authority to request a hypothetical Concealed Weapons License and one's photo ID.

    Absent issue of a CWL, absent the issue of a DL, Wisconsin Statutes Subsection 968.24 requires RAS for a cop to demand identification and does not require surrender of one's papers.

    Terry v. Ohio requires, in addition to RAS, a reasonable belief that the person "may be armed and presently dangerous." I submit that a licensed gun carrier is not dangerous per se.
    The issuance of a CWL and/or DL does not alter Wis. Stat. 968.24. Possession of a CWL and/or DL is not RAS of anything.

  8. #8
    Herr Heckler Koch
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    Quote Originally Posted by Herr Heckler Koch View Post
    With our newly minted Act 35 Concealed Weapons Law, this case may come to bear on a cop's lawful authority to request a hypothetical Concealed Weapons License and one's photo ID. Absent issue of a CWL, absent the issue of a DL, Wisconsin Statutes Subsection 968.24 requires RAS for a cop to demand identification and does not require surrender of one's papers. Terry v. Ohio requires, in addition to RAS, a reasonable belief that the person "may be armed and presently dangerous." I submit that a licensed gun carrier is not dangerous per se.
    Quote Originally Posted by apjonas View Post
    The issuance of a CWL and/or DL does not alter Wis. Stat. 968.24. Possession of a CWL and/or DL is not RAS of anything.
    You are correct. That is precisely my point.

    There was a legal standard in Wisconsin protecting one's Fourth and Fifth Amendment Rights from fishing expeditions. A traffic stop may be made on mere "reasonable suspicion." A CCL and ID papers may be "requested" by an officious cop acting with his lawful authority. Both much lower standards than that of §968.24.

    Further, in the case of a traffic stop, that is identified in statute as an unwarranted arrest (§345.22) and the subsequent proper actions are limited by §345.23.
    Quote Originally Posted by Wisc. Stats.
    345.23 Officer’s action after arrest without a warrant.
    If a person is arrested without a warrant for the violation of a traffic regulation, the arresting officer shall issue a citation under s.345.11, and in addition:
    (1) May release the person; or
    (2) Shall release the person when he or she:
    (a) Makes a deposit under s. 345.26; or
    (c) Deposits the person’s valid Wisconsin operator’s license with the officer. If the license is deposited with the officer, the officer shall issue to the licensee a receipt which shall be valid as a driver’s license through the date specified on the receipt, which shall be the same as the court appearance date, and the officer shall, at the earliest possible time prior to the court appearance date, deposit the license with the court.
    (d) Presents a guaranteed arrest bond certificate under s.345.61.
    (3) Shall, if the alleged violator is not released under sub. (1) or (2), bring him or her without unreasonable delay before a judge or, for ordinance violations, before a municipal judge in the county in which the violation was alleged to have been committed.
    (4) Shall, if the alleged violator is released under sub. (1) or (2), specify on the citation a return date which may not be more than 90 days after the issue date.
    History: 1971 c. 278; 1973 c. 218; 1977 c. 305, 418; 1983 a. 189 s. 329 (32); 1989 a. 105, 170, 359.
    The proper subsequent actions do not seem to include violations of the Fourth and Fifth Amendment Rights of privacy of ones person and effects and against self-incrimination.

    Terry v. Ohio seems to require a much higher standard of cause than present in a Wisconsin traffic stop.

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