Open Carry in an Apt Building

[LEO 229]

imported post

stryth wrote:

Ok, precision. You're right on in that a CWP does not allow you to carry a weapon on private property where prohibited by the owner. That being said, 18.2-308 doesn't apply at all to the matter, as the "section shall not apply to any person while in his own place of abode or the curtilage thereof". unfortunately I don't have a good definition of curtilage in the context of apartments as the definitions I've read apply to homes.


"Incorrect, Sir... You are renting a space and not the entire property. You have full rights to the dwelling you have rented and this is why there is a law that allows you to have a gun there."

I have to disagree stronly on this: The law does not grant rights to keep arms to the tenant, only prevents the landlord from infringing those rights.

From a different angle, what would happen if a call was recieved and police were dispatched to an apartment to find the owner telling an individual to remove himself from the property. When questioned, the individual reveals that he is the leasee, is up to date on all payments, and was walking to his rented apartment on his way home from work. The owner states that the individual is trespassing and wants the individual off his property and wants the individual arrested if if he ever sets foot on the property again. For clarity, remember that this is in a common area of an apartment building, like an entryway, and note that this falls into the category described above where "[y]ou are renting a space and not the entire property". What should the officer do in this situation? Does the individual stand risk of being arrested for trespassing for coming/going the next day?

You are reading it to fit your needs...

That is a big problem that many cannot or will refuse to view things objectively. I have to do this for a living. I am not trying to prove either side.. I am only showing that the landlord has the ability to ban firearms on the property.

We can agree that "A CC permit does not mean you to carry a weapon on private property where prohibited by the owner." This was posted to show that the state recognises that the OWNER of a property can prohibit someone from being there armed with a firearm. The code section itself clearly identified that just because you have the CC permit... it does NOT give you permission to carry against the wishes of the PROPERTY OWNER.

This identifies that the owner of property can prevent you from having a firearm on the property.


stryth wrote: "The law does not grant rights to keep arms to the tenant, only prevents the landlord from infringing those rights."

Do not confuse the renting of a dwelling to include the property that surrounds it.

The state wants you, as the renter, to be allowed to have a gun in your dwelling. So the state has identified that the landlord cannot have anything in the contract toprevent you from having a firearm.... but this is limited toyour dwelling only.

Again... you are paying rent for a space to live. The stairwell, sidewalks, grass, swimming pool, gym, and community roomare common areas used by all other renters. You are not renting these areas. If you were renting it,you could kick people off YOUR sidewalk.

The landlord can set rules for the common areas and can rightfullyprohibit firearms out in the open. This is normally already spelled out in the lease.

But I am sure someonewill ask.... "If I can have it in my dwelling and the landlord prohibitsfirearms on the property... how do I takea gun into my dwelling?"

You would have the right to transport it, obviously.But the manner that you transport it would becalled into question. If weapons are prohibited on the property... I would believe OCing is out. I would submit that CC orunloaded in a secure container would be appropriate.

stryth wrote: "section shall not apply to any person while in his own place of abode or the curtilage thereof."

Curtilage is a legal term describing the enclosed area of land around a dwelling. It is distinct from the dwelling by virtue of lacking a roof, but distinct from the area outside the enclosure in that it is enclosed within a wall or barrier of some sort.

This would bea fenced in back yard that is an extension of the dwelling. In this case... it would belong to the renter of that space.


Your last questionis nothing more that a civil dispute. The renter shall always have the ability to get to his dwelling. But if he is violating the landlord rules then the landlord could terminate the lease. He cannot have the tenant charges with trespassing. It is in the best interests of the tenant to abide by the landlords rules.

 

[AbNo]

imported post

LEO 229 wrote:

This would be a fenced in back yard that is an extension of the dwelling. In this case...  it would belong to the renter of that space.

The law simply says "surrounded by a barrier". A curb or property line falls under the definition of barrier...

"4. a limit or boundary of any kind"

LEO 229 wrote:

But if {the renter} is violating the landlord rules then the landlord could terminate the lease. He cannot have the tenant charges with trespassing. It is in the best interests of the tenant to abide by the landlords rules.

Even if they are not legal?

 

[-C4-]

imported post

AbNo wrote:

LEO 229 wrote:

This would bea fenced in back yard that is an extension of the dwelling. In this case... it would belong to the renter of that space.

The law simply says "surrounded by a barrier". A curb or property line falls under the definition of barrier...

"4. a limit or boundary of any kind"

LEO 229 wrote:

But if {the renter} is violating the landlord rules then the landlord could terminate the lease. He cannot have the tenant charges with trespassing. It is in the best interests of the tenant to abide by the landlords rules.

Even if they are not legal?

+1. If they aren't legal or enforcable there is no reason to follow them. The problem is generally the money involved in proving things are wrong.

 

[LEO 229]

imported post

AbNo wrote:

LEO 229 wrote:

This would bea fenced in back yard that is an extension of the dwelling. In this case... it would belong to the renter of that space.

The law simply says "surrounded by a barrier". A curb or property line falls under the definition of barrier...

"4. a limit or boundary of any kind"

LEO 229 wrote:

But if {the renter} is violating the landlord rules then the landlord could terminate the lease. He cannot have the tenant charges with trespassing. It is in the best interests of the tenant to abide by the landlords rules.

Even if they are not legal?

Curtilage is a legal term describing the enclosed area of land around a dwelling. It is distinct from the dwelling by virtue of lacking a roof, but distinct from the area outside the enclosure in that it is enclosed within a wall or barrier of some sort.

A curb or property line is a boundary and not a barrier as is being described.

Barrieris something material that blocks or is intended to block passage

I do not think a property line or curb is going to do that.

Firearms are not illegal but please remember that you are entering the private property of another to get to a space you are renting.

The lease is there to protect the landlord. It is NEVER drafted up to protect the renter. The renter signs it so that the landlord can take action and terminate the lease for any violations. The tenant cannot terminate the lease without penalty... but the landlord sure can.

 

[LEO 229]

imported post

-C4- wrote:

AbNo wrote:

LEO 229 wrote:

This would bea fenced in back yard that is an extension of the dwelling. In this case... it would belong to the renter of that space.

The law simply says "surrounded by a barrier". A curb or property line falls under the definition of barrier...

"4. a limit or boundary of any kind"

LEO 229 wrote:

But if {the renter} is violating the landlord rules then the landlord could terminate the lease. He cannot have the tenant charges with trespassing. It is in the best interests of the tenant to abide by the landlords rules.

Even if they are not legal?

+1. If they aren't legal or enforcable there is no reason to follow them. The problem is generally the money involved in proving things are wrong.

The enforcement comes by way of the landlord kicking you out and you have to find someplace else to live.

That contract is a legal document and will be used in court if you refuse to move and choose to fight the landlord in court.

 

[skidmark]

imported post

DOES ANYBODY BOTHER TO DO LEGAL SEARCHES ANYMORE?:banghead::cuss::banghead:

It's really not necessary to try and think of every possible way to argue against the proposition at hand. Just look to see what the courts have already decided. Then you can spend your time dreaming up loopholes for what little space they have left you.

It seems all this bickering about what you wish something meant has already been decided by a court precedent. As in: (from www.Virginia1774.org)

[align=center]The Curtilage of the Home
Robinson v. Commonwealth, Va. App. En Banc Rehearing (2006) / Robinson v. Commonwealth, Va. App. (2005)[/align]
"Because homeowners possess a reasonable expectation of privacy in the curtilage surrounding their homes, Oliver v. United States, 466 U.S. 170, 180 (1984), "the curtilage . . . warrants the Fourth Amendment protections that attach to the home." Id.; see also Jefferson v. Commonwealth, 27 Va. App. 1, 15, 497 S.E.2d 474, 481 (1998) ("Consistent with the common law understanding of the extent of the 'home,' the Supreme Court has held that the Fourth Amendment protections that apply to the house also apply to the 'curtilage' of the house."). Because the Fourth Amendment protects the curtilage to the same extent as the home, a police officer may not enter the curtilage without a warrant, exigent circumstances, or pursuant to an express or implied invitation from the occupant. See Payton v. New York, 445 U.S. 573, 589-90 (1980) ("To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances . . . ." (internal quotations omitted)).


Generally, the curtilage of a home is the "area around the home to which the activity of home life extends." Oliver, 466 U.S. at 180; see also Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 238 (1984) (defining "curtilage" as the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling"). "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis." Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn, 480 U.S. 294, 301 n.4 (1987)). In determining whether the area in question constitutes curtilage, "particular reference" to the following four factors is helpful:


[1] the proximity of the area claimed to be curtilage to the home,


[2] whether the area is included within an enclosure surrounding the home,

​

[3] the nature of the uses to which the area is put, and


[4] the steps taken by the resident to protect the area from observation by people passing by.


Dunn, 480 U.S. at 301; Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481. "[T]hese factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301."

[align=left]Keyer v. Commonwealth, Va. App. (2005) Entry Into House Under Community Caretaker Doctrine Violated Fourth Amendment[/align]


[align=left]"The initial entry, the court held, fell within the "community caretaker doctrine and/or exigent circumstances" exception to the warrant requirement...The mere discovery of an "open door" of a residence absent some other reason for concern "is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property." State v. Christenson, 45 P.3d 511, 513 (Or. Ct. App. 2002) (emphasis added). "It is simply too common an event to create a concern of harm in the absence of other signs of trouble, such as evidence of a forced entry or a medical emergency; here, there were no such indications." Id. In short, when the "only evidence of an emergency was a door left open late on a summer night," we agree with other courts that "regardless of what the officers may subjectively have thought, a reasonable person would not believe an emergency existed." State v. Swenson, 799 P.2d 1188, 1190 (Wash. Ct. App. 1990); see also State v. Ryon, 108 P.3d 1032, 1047 (N.M. 2005) (noting that, under the emergency assistance doctrine, an "open door ought not be viewed as a general invitation to enter"). The police had no legal right, therefore, to enter the Kyer apartment uninvited. The trial court erred in concluding otherwise."[/align]

Johnny B. Sharpe v. Commonwealth Va. App. (2004)

"earches and seizures inside a home without a warrant are presumptively unreasonable. . . . [T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. 573, 586-90, 100 S. Ct. 1371, 1380-82, 63 L. Ed. 2d 639 (1980). "The [F]ourth [A]mendment rights of a guest in a motel room are equivalent to those of the rightful occupant of a house," the warrantless entry of which is presumed unreasonable. Servis v. Commonwealth, 6 Va. App. 507, 514, 371 S.E.2d 156, 159 (1988). The United States Supreme Court has held that an overnight guest in a house has the same sort of expectation of privacy that the Fourth Amendment protects, Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S. Ct. 1684, 1689-90, 109 L. Ed. 2d 85 (1990), whereas "one who is merely present with the consent of the householder [does] not," Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373 (1998). It has also held that one who is present on residential premises only briefly and for a strictly commercial rather than personal purpose cannot demonstrate a legitimate expectation of privacy in those premises. See id. Whether the privacy interest for personal overnight guests recognized in Olson extends to the overnight guests of motel registrants, especially those guests of whose presence motel staff is unaware, has not been resolved by the United States Supreme Court or any Virginia appellate court. Other courts considering the issue have held that motel registrants and overnight guests of those registrants may have a reasonable expectation of privacy in the motel room. See, e.g., Gordon, 168 F.3d at 1226; Wilson v. State, 98 S.W.3d 265, 269-70 (Tex. Ct. App. 2002). Those courts have uniformly "required a defendant to demonstrate that he was the registered occupant of the room or that he was sharing it with the person to whom the room was registered." Gordon, 168 F.3d at 1226; see also Armour v. State, 762 N.E.2d 208, 213-14 (Ind. Ct. App. 2002); State v. Gonzalez, 85 P.3d 711, 714 (Kan. Ct. App. 2004).




[size=+1]Groh v. Ramirez, et al., 540 U.S. 551 (2004)[/size]


"It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted.6 Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly "unreasonable" under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional....a reasonably competent public official should know the law governing his conduct....Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation. See Wilson v. Layne, 526 U.S. 603, 609 (1999). The answer depends on whether the right that was transgressed was "'clearly established'"--that is, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001)....No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional. See Payton, 445 U.S., at 586-588. Indeed, as we noted nearly 20 years ago in Sheppard: "The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional." 468 U.S., at 988, n.5.8 Because not a word in any of our cases would suggest to a reasonable officer that this case fits within any exception to that fundamental tenet, petitioner is asking us, in effect, to craft a new exception. Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would do so.

Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341 (1986). But as we observed in the companion case to Sheppard, "a warrant may be so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S., at 923. This is such a case."



[align=left]Probable cause based on violation of the concealed weapon statute cannot justify the arrest of appellant, which occurred prior to discovery of the "gun." [/align]
[size=+1]Christopher Hardin v. Commonwealth, Va. App. (2004) [/size]



[size=+1]The Commonwealth conceded at trial that the police arrested appellant prior to the "pat-down" and that the officers needed probable cause to support their discovery of the "gun." As discovery of the "gun" occurred after the conceded arrest of appellant, probable cause based on violation of the concealed weapon statute cannot justify the arrest of appellant, which occurred prior to discovery of the "gun." See Harris v. Commonwealth, 241 Va. 146, 155, 400 S.E.2d 191, 196 (1991) ("'As we have had occasion in the past to observe, "[it] is axiomatic that an incident search may not precede an arrest and serve as part of its justification."'" (quoting Smith v. Ohio, 494 U.S. 541, 543 (1990))). The only justification offered for the arrest was the presence of a "gun," hidden in appellant's pocket. As the officers did not have probable cause to arrest appellant, the trial court erred in denying appellant's motion to suppress. We, therefore, reverse the convictions and remand for a new trial, if the Commonwealth be so inclined.[/size]

[size=+1]Reversed and remanded.[/size]

If you want to know what Virginia case law is about firearms, you will most likely find the answer at www.Virginia1774.org . The guy there has done a bang-up job of making it easy to find.

Case law is how the courts interpret the statutes, and is how precedents are set for other courts to follow. Even though the case cited above involved a house as opposed to an appartment, the concepts are the same. Read my previous posts to try and get a handle on the idea of "use and enjoyment of common areas". Then apply that to curtilage.



stay safe

skidmark

 

[DeadCenter]

imported post

skidmark wrote:

DOES ANYBODY BOTHER TO DO LEGAL SEARCHES ANYMORE?:banghead::cuss::banghead:

It's really not necessary to try and think of every possible way to argue against the proposition at hand. Just look to see what the courts have already decided. Then you can spend your time dreaming up loopholes for what little space they have left you.

It seems all this bickering about what you wish something meant has already been decided by a court precedent. As in: (from http://www.Virginia1774.org)


[align=center]The Curtilage of the Home
Robinson v. Commonwealth, Va. App. En Banc Rehearing (2006) / Robinson v. Commonwealth, Va. App. (2005)[/align]
"Because homeowners possess a reasonable expectation of privacy in the curtilage surrounding their homes, Oliver v. United States, 466 U.S. 170, 180 (1984), "the curtilage . . . warrants the Fourth Amendment protections that attach to the home." Id.; see also Jefferson v. Commonwealth, 27 Va. App. 1, 15, 497 S.E.2d 474, 481 (1998) ("Consistent with the common law understanding of the extent of the 'home,' the Supreme Court has held that the Fourth Amendment protections that apply to the house also apply to the 'curtilage' of the house."). Because the Fourth Amendment protects the curtilage to the same extent as the home, a police officer may not enter the curtilage without a warrant, exigent circumstances, or pursuant to an express or implied invitation from the occupant. See Payton v. New York, 445 U.S. 573, 589-90 (1980) ("To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances . . . ." (internal quotations omitted)).


Generally, the curtilage of a home is the "area around the home to which the activity of home life extends." Oliver, 466 U.S. at 180; see also Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 238 (1984) (defining "curtilage" as the "space necessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, garden or field which is near to and used in connection with the dwelling"). "[W]hether a particular place is within the curtilage of the home is determined on a case-by-case basis." Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481 (citing United States v. Dunn, 480 U.S. 294, 301 n.4 (1987)). In determining whether the area in question constitutes curtilage, "particular reference" to the following four factors is helpful:


[1] the proximity of the area claimed to be curtilage to the home,


[2] whether the area is included within an enclosure surrounding the home,

​

[3] the nature of the uses to which the area is put, and


[4] the steps taken by the resident to protect the area from observation by people passing by.


Dunn, 480 U.S. at 301; Jefferson, 27 Va. App. at 16, 497 S.E.2d at 481. "[T]hese factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn, 480 U.S. at 301."


[align=left]Keyer v. Commonwealth, Va. App. (2005) Entry Into House Under Community Caretaker Doctrine Violated Fourth Amendment[/align]



[align=left]"The initial entry, the court held, fell within the "community caretaker doctrine and/or exigent circumstances" exception to the warrant requirement...The mere discovery of an "open door" of a residence absent some other reason for concern "is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property." State v. Christenson, 45 P.3d 511, 513 (Or. Ct. App. 2002) (emphasis added). "It is simply too common an event to create a concern of harm in the absence of other signs of trouble, such as evidence of a forced entry or a medical emergency; here, there were no such indications." Id. In short, when the "only evidence of an emergency was a door left open late on a summer night," we agree with other courts that "regardless of what the officers may subjectively have thought, a reasonable person would not believe an emergency existed." State v. Swenson, 799 P.2d 1188, 1190 (Wash. Ct. App. 1990); see also State v. Ryon, 108 P.3d 1032, 1047 (N.M. 2005) (noting that, under the emergency assistance doctrine, an "open door ought not be viewed as a general invitation to enter"). The police had no legal right, therefore, to enter the Kyer apartment uninvited. The trial court erred in concluding otherwise."[/align]

Johnny B. Sharpe v. Commonwealth Va. App. (2004)

"earches and seizures inside a home without a warrant are presumptively unreasonable. . . . [T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. 573, 586-90, 100 S. Ct. 1371, 1380-82, 63 L. Ed. 2d 639 (1980). "The [F]ourth [A]mendment rights of a guest in a motel room are equivalent to those of the rightful occupant of a house," the warrantless entry of which is presumed unreasonable. Servis v. Commonwealth, 6 Va. App. 507, 514, 371 S.E.2d 156, 159 (1988). The United States Supreme Court has held that an overnight guest in a house has the same sort of expectation of privacy that the Fourth Amendment protects, Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S. Ct. 1684, 1689-90, 109 L. Ed. 2d 85 (1990), whereas "one who is merely present with the consent of the householder [does] not," Minnesota v. Carter, 525 U.S. 83, 90, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373 (1998). It has also held that one who is present on residential premises only briefly and for a strictly commercial rather than personal purpose cannot demonstrate a legitimate expectation of privacy in those premises. See id. Whether the privacy interest for personal overnight guests recognized in Olson extends to the overnight guests of motel registrants, especially those guests of whose presence motel staff is unaware, has not been resolved by the United States Supreme Court or any Virginia appellate court. Other courts considering the issue have held that motel registrants and overnight guests of those registrants may have a reasonable expectation of privacy in the motel room. See, e.g., Gordon, 168 F.3d at 1226; Wilson v. State, 98 S.W.3d 265, 269-70 (Tex. Ct. App. 2002). Those courts have uniformly "required a defendant to demonstrate that he was the registered occupant of the room or that he was sharing it with the person to whom the room was registered." Gordon, 168 F.3d at 1226; see also Armour v. State, 762 N.E.2d 208, 213-14 (Ind. Ct. App. 2002); State v. Gonzalez, 85 P.3d 711, 714 (Kan. Ct. App. 2004).




[size=+1]Groh v. Ramirez, et al., 540 U.S. 551 (2004)[/size]


"It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted.6 Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly "unreasonable" under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional....a reasonably competent public official should know the law governing his conduct....Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation. See Wilson v. Layne, 526 U.S. 603, 609 (1999). The answer depends on whether the right that was transgressed was "'clearly established'"--that is, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001)....No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional. See Payton, 445 U.S., at 586-588. Indeed, as we noted nearly 20 years ago in Sheppard: "The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional." 468 U.S., at 988, n.5.8 Because not a word in any of our cases would suggest to a reasonable officer that this case fits within any exception to that fundamental tenet, petitioner is asking us, in effect, to craft a new exception. Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would do so.

Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity. See Malley v. Briggs, 475 U.S. 335, 341 (1986). But as we observed in the companion case to Sheppard, "a warrant may be so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S., at 923. This is such a case."




[align=left]Probable cause based on violation of the concealed weapon statute cannot justify the arrest of appellant, which occurred prior to discovery of the "gun." [/align]
[size=+1]Christopher Hardin v. Commonwealth, Va. App. (2004) [/size]



[size=+1]The Commonwealth conceded at trial that the police arrested appellant prior to the "pat-down" and that the officers needed probable cause to support their discovery of the "gun." As discovery of the "gun" occurred after the conceded arrest of appellant, probable cause based on violation of the concealed weapon statute cannot justify the arrest of appellant, which occurred prior to discovery of the "gun." See Harris v. Commonwealth, 241 Va. 146, 155, 400 S.E.2d 191, 196 (1991) ("'As we have had occasion in the past to observe, "[it] is axiomatic that an incident search may not precede an arrest and serve as part of its justification."'" (quoting Smith v. Ohio, 494 U.S. 541, 543 (1990))). The only justification offered for the arrest was the presence of a "gun," hidden in appellant's pocket. As the officers did not have probable cause to arrest appellant, the trial court erred in denying appellant's motion to suppress. We, therefore, reverse the convictions and remand for a new trial, if the Commonwealth be so inclined.[/size]

[size=+1]Reversed and remanded.[/size]

If you want to know what Virginia case law is about firearms, you will most likely find the answer at http://www.Virginia1774.org . The guy there has done a bang-up job of making it easy to find.

Case law is how the courts interpret the statutes, and is how precedents are set for other courts to follow. Even though the case cited above involved a house as opposed to an appartment, the concepts are the same. Read my previous posts to try and get a handle on the idea of "use and enjoyment of common areas". Then apply that to curtilage.



stay safe

skidmark

Nice work

DC

 

[LEO 229]

imported post

skidmark wrote:

DOES ANYBODY BOTHER TO DO LEGAL SEARCHES ANYMORE?

It's really not necessary to try and think of every possible way to argue against the proposition at hand. Just look to see what the courts have already decided. Then you can spend your time dreaming up loopholes for what little space they have left you.

It seems all this bickering about what you wish something meant has already been decided by a court precedent. As in: (from http://www.Virginia1774.org)

[align=left]..... snipped .....
Case law is how the courts interpret the statutes, and is how precedents are set for other courts to follow. Even though the case cited above involved a house as opposed to an appartment, the concepts are the same. Read my previous posts to try and get a handle on the idea of "use and enjoyment of common areas". Then apply that to curtilage.


stay safe

skidmark[/align]

You knowingly providedcase law that has nothing to do with apartments.I do not see how this is supposed to help explain anything.

We are talking about a rented dwelling such as an apartment. The curtilage of that apartment is not going to extend all the way out the the yard or garden. Unless you are rentinga house... you do not automatically get the entire property that your dwelling sits on.

An apartment on the first floor may have a patio that will be the limit of any curtilage for that dwelling. Just like the second floor and above will get nothing more than a balcony.

 

[Doug Huffman]

imported post

DeadCenter wrote:

Nice work. DC

Yup. On point.

 

[stryth]

imported post

LEO 229 wrote:

...
That is a big problem that many cannot or will refuse to view things objectively. I have to do this for a living. I am not trying to prove either side.. I am only showing that the landlord has the ability to ban firearms on the property.

We can agree that "A CC permit does not mean you to carry a weapon on private property where prohibited by the owner." This was posted to show that the state recognises that the OWNER of a property can prohibit someone from being there armed with a firearm. The code section itself clearly identified that just because you have the CC permit... it does NOT give you permission to carry against the wishes of the PROPERTY OWNER.

This identifies that the owner of property can prevent you from having a firearm on the property.


stryth wrote: "The law does not grant rights to keep arms to the tenant, only prevents the landlord from infringing those rights."

Do not confuse the renting of a dwelling to include the property that surrounds it.

No debate whatsoever that a CHP does not allow you to trump personal property rights.

As noted a moment ago, "[t]he renter shall always have the ability to get to his dwelling." I think we can all agree that this is a result of the contractual relationship entered into by the landlord and tenant and this isn't a question of CHPs trumping personal property rights, but a question of the nature of the access the tenant is granted by virtue of the contract. I haven't been able to come up with a definitive argument that the tenant may carry in any means he desires within the bounds of the law, but I also haven't seen a compelling argument that the landlord is able to limit the tenants accesss to the property rented.

.....

On another note, look closely at the section I referenced for the word "public." Perhaps this law was written specifically in response to Richmond Tenants Org. v. Richmond Redevelopment Housing Authority, 751 F. Supp. 1204, (E.D. Va. 1990).

 

[Citizen]

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Doug Huffman wrote:

stryth wrote:

That being said, 18.2-308 doesn't apply at all to the matter, as the "section shall not apply to any person while in his own place of abode or the curtilage thereof". unfortunately I don't have a good definition of curtilage in the context of apartments as the definitions I've read apply to homes.

Your 'curtilage' is the unroofed area under your control. The concept is essential to the Castle Doctrine. Your curtilage may be the unroofed area where you have a legal right to be present armed. Some try to argue 'fenced' but there are plenty of examples of 'yard' as curtilage.

The term is from English common law.

Doug,

Do you have any citations? I'm not saying you're wrong. I just have different info. Some months ago, in Virginia, a thread discussed curtilage as a sub-topic/side topic. The definition was narrower.

 

[Doug Huffman]

imported post

Citizen wrote:

Doug Huffman wrote:

Your 'curtilage' is the unroofed area under your control. The concept is essential to the Castle Doctrine. Your curtilage may be the unroofed area where you have a legal right to be present armed. Some try to argue 'fenced' but there are plenty of examples of 'yard' as curtilage.

The term is from English common law.

Doug,

Do you have any citations? I'm not saying you're wrong. I just have different info. Some months ago, in Virginia, a thread discussed curtilage as a sub-topic/side topic. The definition was narrower.

Contrary to some here, I have no problem being criticised/corrected, that's what communication is all about.

Citations for what?

http://en.wikipedia.org/wiki/Curtilage

http://en.wikipedia.org/wiki/Open_fields_doctrine

http://www.scroogle.org/cgi-bin/nbbw.cgi?Gw=law+curtilage

I lived in a townhouse in SC with common unfenced yards delineated by walkways and private sidewalks (not public easements) on which I openly carried at my convenience. I had an unofficial opinion from my chief LEO that it was OK.

ETA: When I took my CWP training, that was evidently exceptional by current standards, my instructor went to great lengths to introduce the topic of curtilage and the possible lack of physical fences. He may have been speaking from SC - 4th CA case law.

 

[Citizen]

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Doug Huffman wrote:

SNIP Citations for what?

Sorry.

Citations that the legal definition of curtilage is the same in Virginia as you mentioned above.

The previous thread had some case law or something on it.

My understanding from that thread, which expanded a little on the definition I had from a book, Virginia Gun Owners Guide, is that in Virginia, curtilage is the groundimmediately around your home, including your groundwhere you would normally go in the day-to-day activities of life.

For example, right around your farmhouse andthe barns and so forth. But that 60 acres ofwoodedland beyond your fields andthick with brambles that you never go to, would be excluded.

 

[Doug Huffman]

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If the VA definition is exceptional then I have no help. The term itself is from English common law.

FindLaw, one of the Scroogle hits, has a caselaw searcher that can be limited to a particular CA.

 

[Doug Huffman]

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http://www.landrights.com/basics_of_law_series.htm

The Dunn court clearly defined curtilage as being the area surrounding the home into which everyday life overflows. In real simple terms… that’s the yard, folks. The areas where children play, or where the clothes are hung on the line to dry… the area where folks might sit to enjoy a sunset on a summer evening, or a glass of tea on a sunny spring day. Where the bar b q grill is, or the picnic table… Those areas are protected curtilage, and cannot be invaded without a warrant.

 

[Doug Huffman]

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Citizen wrote:

My understanding from that thread, which expanded a little on the definition I had from a book, Virginia Gun Owners Guide, is that in Virginia, curtilage is the groundimmediately around your home, including your groundwhere you would normally go in the day-to-day activities of life.

For example, right around your farmhouse andthe barns and so forth. But that 60 acres ofwoodedland beyond your fields andthick with brambles that you never go to, would be excluded.

I obviously - I hope - agree.

I have six acres of second growth woods. Most is overgrown but the clearing in which the house and out buildings stand is my curtilage. There are no fences except deer-fence around the garden plots. To my West and East are 40 acres of woods, my North is some sort of public property and my South is a neighbor's unfenced private property.

ETA: One of the case law citations in the property rights discussion addresses also trespassing - a notorious topic here and for some.

 

[LEO 229]

imported post

Doug Huffman wrote:

Citizen wrote:

Doug Huffman wrote:

Your 'curtilage' is the unroofed area under your control. The concept is essential to the Castle Doctrine. Your curtilage may be the unroofed area where you have a legal right to be present armed. Some try to argue 'fenced' but there are plenty of examples of 'yard' as curtilage.

The term is from English common law.

Doug,

Do you have any citations? I'm not saying you're wrong. I just have different info. Some months ago, in Virginia, a thread discussed curtilage as a sub-topic/side topic. The definition was narrower.

Contrary to some here, I have no problem being criticised/corrected, that's what communication is all about.

Citations for what?

http://en.wikipedia.org/wiki/Curtilage

http://en.wikipedia.org/wiki/Open_fields_doctrine

http://www.scroogle.org/cgi-bin/nbbw.cgi?Gw=law+curtilage

I lived in a townhouse in SC with common unfenced yards delineated by walkways and private sidewalks (not public easements) on which I openly carried at my convenience. I had an unofficial opinion from my chief LEO that it was OK.

ETA: When I took my CWP training, that was evidently exceptional by current standards, my instructor went to great lengths to introduce the topic of curtilage and the possible lack of physical fences. He may have been speaking from SC - 4th CA case law.

Unofficial opinions do not count. If they do... you can include mine too then.


http://en.wikipedia.org/wiki/Curtilage

Curtilage is a legal term describing the enclosed area of land around a dwelling. It is distinct from the dwelling by virtue of lacking a roof, but distinct from the area outside the enclosure in that it is enclosed within a wall or barrier of some sort.
It is typically treated as being legally coupled with the dwelling it surrounds despite the fact that it might commonly be considered "outdoors"

No matter how you want to try and play it.... it is not the open yard, field, and woods. It is typically going to be a smaller area connected or adjacent to a dwelling such as a patio. In other words... "An extension of the house"


I do not believe the entire back yard is going to be an extension of the house. And the woods.. forget about it!!

And if we get back on track... we are talking about in apartment so the renter has no yard, field, or woods to claim as his property.

To make it easier.. let's say the apartment is on the top floor so there is no patio or balcony.

 

[skidmark]

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Wouod you folks stop pissing in the wind at each other - Please?

As I cited above, the Virginia Court of Appeals defined the term curtilage as being something generally close to the fields about the home where everyday living takes place, BUT THAT there were 4 questions that had to be answered in every si8ngle case. That would apply to an urban home, a rural farm, or an apartment complex.

Go read the :cuss:questions that tyhe Court of Appeals asked, and answer them as it applies to your specific situation - just as the :cuss:Virginia Court of Appeals told you to do.

Leo229 - just to clarify things - unless you can find a decision from a higher Virginia court defining the term curtilage then the case cited is the :cuss:law of the Commonwealth. That's how case law works. now you have to use the space between your ears to try to apply that case law to your specific situation. Even you should be able to do that, instead of trying to convince everyone that although one has rented the dwelling unit they are trespassing on any other part of the apartment complex because it is the private property of the landlord. If we went with your reasoning kids could not play in apartment playgrounds, swim in apartment swimming pools, or anything else outside their dwelling unit because they would be trespassing on the landlord's private property.

IANAL and all that, but this stuff is really nowhere nearas complicated as you want to make it out to be. But everyone else seems to want to complicate the issue, except Leo229 who wants specific case law for every possible perrmutation he can think of. Well follks, none of that is going to happen. The Virginia Court of Appeals said to answer 4 questions, and only those 4 questions, to get the answer to what is curtilage in any specific situation.

[1] the proximity of the area claimed to be curtilage to the home,

The area bounded by the public roads surrounding the apartment complex, including any ammeneties like but not limited to playgrounds, swimming pools, tennis courts, parking lots

[2] whether the area is included within an enclosure surrounding the home,


Nope - just to make things fun

[3] the nature of the uses to which the area is put,

everyday life - grilling, playing, walking to visit other tenants in nearby buildings within the complex, laying on the grass to get a tan, using the swimming pool/tennis court/playground


[4] the steps taken by the resident to protect the area from observation by people passing by

Not muchyou can do there unless the landlord has provided screening/fencing, but see #2 above.

Now if we are talking about people who are non-tenants passing by, it may all depend on what part of the apartment complex you are at. For example, most swimming pools & tennis courts have fences which screen users from the view of others passsing by. If you say you purposely selected an apartment waaay in the back away from the public roads/sidewalks to avoid being seen by everybody who passed by, you might get more traction than the person who asaked to be ight at the entrance to the complex.

Your answers are due by the end of the class period. Points will be deducted for spelling, punctuation, and poor logic or failure to follow established case law. Oh -- use black ink only.

stay safe.

skidmark

 

[Citizen]

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skidmark wrote:

SNIP Wouod you folks stop pissing in the wind at each other - Please?

Teach me to read the whole thread before posting. I encountered Doug's post at the bottom of page 1 and responded to that. Then picked it up later with his response to my query. I wish I had read further first. Of course, you answered the exact question I had.

Thanks for the research. I wish we could save that here on the forum. We'd all be better for it, and it would be a better use of storage media rather than the server saving some of the other stuff that gets written around here.

 

[Grapeshot]

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I am not going to get into a quoting of the law and debating the issues here. It's just not worth it but I will give you an opinion based on my 24 years experience as a real estate management executive who has spent countless hours in court and with real estate attorneys - proud to say haven't lost a case..........yet.

Re: Apartment rentals. You may rent a specific unit but you are entitled to the use of Common Areas i.e. grounds, playgrounds, parking lots, swimming pools et cetera within certain standardized rules of use that normally include quite enjoyment. They are not the "private property" of the landlord, property owner nor management agent. You cannot be punished by the property owner nor agent of the government for normal/lawful use. To attempt to do so would potentially provide a tidy retirement fund for the aggrieved.

I have never known a management company/owner in Virginia that even hinted that lawful firearms were not permitted in any way, shape or form. If there are such, I'd be interested but think that is a subject for another thread and I might want to move there.

Sorry LEO229. you're dead wrong on this one.

Yata hey