How do the police distinguish between lawfully and unlawfully armed citizens?
Interesting case in AZ from FourthAmendment.com. Like most things, officer safety trumps all, even rights.
25 Responses to “How do the police distinguish between lawfully and unlawfully armed citizens?”
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August 5th, 2013 at 12:49 am
Arrest them all and let the judge sort them out?
August 5th, 2013 at 1:53 am
Well, if this were a free country… bearing arms would never be unlawful. There would just be unlawful USE.
August 5th, 2013 at 1:57 am
When I read the story, he was a felon that talked to the police. The gun, or at least bulge, was noticeable.
He was committing a crime and didn’t keep his mouth shut. He admitted to illegally carrying a gun when asked.
August 5th, 2013 at 8:02 am
Officer Safety is not a magic wand. You still need PC or RAS. SCOTUS has ruled that, in a nutshell, knowing somebody has a gun is no different then knowing they have a wallet.
Smart people discussing this very thing can be found here: http://pistol-forum.com/showthread.php?9063-Armed-resident-killed-by-police-at-wrong-house/page8
August 5th, 2013 at 11:17 am
Problem is, the gun wasn’t discovered in a search, nor was he arrested for merely having the gun.
No Fourth Amendment violation in sight.
1. The interaction was determined to be consenual, and he wasn’t in custody when he told the cops he had a gun. This determination wasn’t even in dispute here.
2. The cops ASKED him if he had a gun or illegal drugs. He said, “Yes.”
3. The cops then secured the weapon, as Terry (and other rulings, and Arizona state law) expressly allows cops to do _during_the_interaction_. They did not restrain and frisk him — they had him place his hands on his head, while they removed the gun THE SUSPECT ADMITTED TO HAVING from its holster. (Whether or not you agree that it is, in fact, good policy for offciers to be handling strange firearms under these circumstances, multiple SCOTUS rulings back to at least 1968 and state law in Arizona expressly authorize it.)
4. While securing the weapon, the cops asked if he was a felon. he said, “Yes.”
5. At THAT point, he was arrested for being a prohibited person in possession of a firearm.
It wasn’t even a Terry _stop_, and the gun (nor ANY evidence) wasn’t even discovered during a Terry _frisk_ (which is entirely different from a Terry stop). A gun admitted to be present during the encounter was secured, and the suspect then stated he was, in fact, commiting a crime.
The defendant (and teh dissent) both claim that by telling the suspect to put his hands on his head, they afected an seizure, and therefore seizing teh gun was illegal. But they were ALREADY legally entitled to secure the firearm until the encounter was over. . . they had him put his hands on his head so they could safely retirieve the gun without having to physically restrain him.
“But even if we did agree with the conclusion of the Ilono panel, this case is very different from Ilono. There is an obvious distinction between the officer’s retrieval of the gun volunteered by Serna to be on his person, and the search of Ilono, a minor, which resulted in the discovery and seizure of a beer bottle concealed on his person. While Serna volunteered the information that he had a gun and acceded to its retrieval, Ilono concealed evidence of crime on his person which had to be actively seized from him by officers. There is no evidence in this record that officers even touched Serna’s person in the course of retrieving the weapon.” (Footnote 5, pages 10-11)
“We do not hold, as the dissent posits, that police may frisk a citizen simply because he is armed. We consider the totality of the circumstances in determining the objective reasonableness of police conduct. Nor, contrary to the dissent’s assertion, do we mean to suggest that, absent other circumstances, officers may conduct a Terry stop or a Terry frisk of any individual they happen to encounter in a high-crime area” (Footenote 8, page 15)
August 5th, 2013 at 11:18 am
“effected a seizure”, damnit.
August 5th, 2013 at 12:17 pm
The interaction was determined to be consenual
And that’s the rub, isn’t it? Cops have a very, very different view of consensual interactions than us lowly citizens do.
August 5th, 2013 at 1:22 pm
Wizard — even teh defendant and the dissenting appeals judge agree it was consensual up to the point where the defendant said he had a gun.
The disagreement is, when LAWFULLY retrieving the gun from its holster, did asking the defendant to put his hands on his head change it to an involuntary detention?
Remember — the cops had unquestioned authority (via statute AND SCOTUS rulings for the last 45 years) to secure the weapon during the discussion.
August 5th, 2013 at 2:08 pm
Something I’ve always thought of and that wouldn’t necessarily apply in Arizona with its Vermont-style carry:
If you’re a cop who sees the outline of a gun on an individual’s belt in a state that requires a permit to carry (and where only a small minority of the population has a permit), is that not at the very least reasonable suspicion—if not probable cause—of illegal activity due to the fact that the person probably has no permit?
August 5th, 2013 at 2:13 pm
Ted: Depends on which federal circuit you are in
August 5th, 2013 at 2:19 pm
Anyone thought of what the outcome would have been if the defendant had told the police that it wasn’t a gun and had not consented to the non-search search?
August 5th, 2013 at 4:42 pm
Tigerstripe, in AZ, if the cop has reason to believe the subject is lying and really does have a gun, in spite of their declaration otherwise, he can detain the individual and search him/her. The risk to the cop is that is the person DOESN’T have a gun (the cop is in error) then they might be liable for an improper detention/search. If a gun IS found, not only has the gun been found/seized appropriately/legally, the subject has also committed a crime by lying about possession. I do not know if it’s a felony or a misdemeanor, however.
This event happened a couple miles south of my home in Phoenix – and they’re right, it’s a rough neighborhood at that time of night.
August 5th, 2013 at 8:49 pm
Ted,
Washington v. Indiana says, in effect, that he can ask to see you toter’s permit but, providing you have one, he can’t search or seize without “an articulable basis of concern for officer safety.”
August 5th, 2013 at 8:50 pm
(The above, of course, applies in Indiana. YMverylikelyV.
August 5th, 2013 at 10:39 pm
It would appear they find out from the NSA before they make the arrest. Greenwald release’s more data that people should be highly pissed about, covered by Reuters, but not the Blaze or Redstatist, but the truth is sickening, and our nation is lost if people remain asleep at the wheel. Consent by silence.
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805
August 6th, 2013 at 12:28 am
blounttruth,
The article you linked has nothing to do with the NSA.
August 6th, 2013 at 3:15 am
In Georgia the mere presence of a firearm doesn’t give officers carte blanche to effect a stop and seize a firearm, even temporarily.
State v Jones (Ga)
http://www.georgiapacking.org/caselaw/statevjones.htm
August 6th, 2013 at 3:19 am
Geodkyt, doesn’t the seizure of the firearm before determination of a crime is occurring or is about to occur bootstrap the encounter into a tier II? Once they’ve taken your property, you’re no longer free to go.
August 6th, 2013 at 9:31 am
Contrast with the 4th Circuit’s ruling in Black vs US http://www.ca4.uscourts.gov/opinions/Published/115084.p.pdf
“Mr. Black moved to suppress the firearm on the basis that it was the fruit of the unlawful seizure of his person. Mr. Black argued that he was unlawfully seized when he was told he could not leave, and the seizure was not supported by reasonable articulable suspicion. The Government relied on Supreme Court precedent in the case California v. Hodari D., 499 U.S. 621 (1991), to argue that until Officer Zastrow grabbed Mr. Black’s arm, Mr. Black had not been seized for Fourth Amendment purposes, and his seizure at that point was supported by reasonable suspicion.”
“The pertinent facts remaining in the reasonable suspicion analysis are that the men were in a high crime area at night. These facts, even when coupled with the officers’ irrational assumptions based on innocent facts, fail to support the conclusion that Officer Zastrow had reasonable suspicion that Black was engaging in criminal activity.”
….
For these reasons, Mr. Black’s seizure was not reasonable. Accordingly, the decision to deny Mr. Black’s suppression motion was reversed. Rather than remand for further proceedings, the court of appeals vacated Mr. Black’s sentence.”
This is not the only disagreement between the Circuits. As such I expect to see SCOTUS try to figure this one out in the next few years.
stay safe.
August 6th, 2013 at 9:53 am
Skidmark, that reminds me of US v Ubiles which was in the US Virgin Islands.
August 6th, 2013 at 10:07 am
Monteith —
Depends on jurisdiction. If it is a consensual contact, the suspect can just say he wants to leave, and the cop would have to either return the gun or escalate. Some courts have ruled that is enough to keep it consensual — so long as a “reasonable person” would not feel they were prohibited from leaving.
Remember, though, in the present case, the statute authorizes the cops to hold on to the gun during ANY police contact, and the courts agree for the most part.
Had the cops told Serna he had to stick around, physically restrained him (whether with cuffs, their hands, or even sticking him in the back seat of their car), or had they started to run the gun against the Hot Sheet, that DEFINATELY would have constituted an unreasnable search and seizure.
On the other hand, had they asked Serna if he was a prohibited person and he answered “Yes,” BEFORE they secured the gun, they would have been unquestionably golden.
Now, how all this plays, with Arizona being a Constutional Carry state, I don’t know. As Ted says, I would argue it SHOULD kick in the protections found in other Circuits – since no permission slip is required, absent some compelling RAS that the subject is a prohibited person or an imminent threat, a concealed gun is no more legally unusual than an openly carried pistol in Virginia or Georgia.
But under the statute AND the precedents in play in the 9th Circuit, it was a “good” arrest. (Remember that 9th Circuit is heavily antigun. They are also the Whack-a-Mole of SCOTUS.)
August 6th, 2013 at 11:22 am
@Tam,
That’s what I thought too at first, but then saw this further down:
“In a Florida drug case he was handling, the prosecutor said, a DEA agent told him the investigation of a U.S. citizen began with a tip from an informant. When the prosecutor pressed for more information, he said, a DEA supervisor intervened and revealed that the tip had actually come through the SOD and from an NSA intercept.”
Turns out that NSA is listed as a “partner agency” in SOD, apparently.
August 6th, 2013 at 11:26 am
Geodkyt, can you give one of the citations indicating that temporary seizure of a firearm or other weapon for officer safety at a Tier I encounter is permissible?
I don’t see how, if the act is not a crime, that taking the weapon is permissible under Terry.
If they cannot seize the property, how is they can seize the property legally for safety?
From Ubiles:
“Holding that the search and seizure of Ubiles was unlawful, we will reverse. The “Terry” stop in this case was not supported by reasonable suspicion “that criminal activity [was] afoot․” Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). First, it is not a crime to possess a firearm in the Virgin Islands-even when standing in a crowd. Second, the anonymous tipster who approached the authorities had said nothing that would indicate that Ubiles possessed the gun unlawfully (e.g., without registration); that he was committing or about to commit a crime; or that he posed a threat to the officers or anyone in the crowd. Therefore, the stop and subsequent search were unjustified because the precondition for a “Terry” stop was not present in this case. In reaching this conclusion, we reject the Government’s contention that Ubiles had a lessened expectation of privacy because he was standing in a crowd. We will therefore vacate the conviction and remand for further proceedings.”
August 6th, 2013 at 5:38 pm
I’ll get back to you on teh cites, but temporarily securing something for teh duration of an interaction is NOT considered a seizure.
August 7th, 2013 at 11:57 am
Hey Tam, not sure which link you clicked, but I do not think it was the one I posted from Reuters:
“The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security.”
I’d say it has allot to do with the NSA and directly related to the Snowden/Greenwald revelations, and is being used domestically in direct violation of the 4th amendment, and more directly a violation of the 6th amendment. Were I an accused criminal, I think this would certainly warrant an appeal and a trace back of how and why a warrant was issued. It seems to me that police would want to follow the letter of the law, when violating ones constitutional rights it makes them no better; and in some cases worse, then the criminals they are after (in my opinion). I guess respecting their oath is not as profitable as the alternative.
This will be the new norm as I would assume it is very profitable, and since American’s silence on the issue is equal to consent, the NSA spying will only be the tip of the iceberg in the coming years. If you have no 1st, 3rd, 4th, and so on, then a person that was honest with themselves will realize it is only a matter of time before you will not be allowed to have a 2nd. By then it will be too late to do anything about it.