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Crazed_SS
01-25-2010, 11:09 AM
Having a discussion about this story on another board and I know there are a lot of people here that are all up on rights and what the police can and cant do..
http://www.wpxi.com/news/22311848/detail.html

Can the police legally come up to a person and start investigating them illegally carrying a gun if the cops see a bulge in a jacket? Is a bulge in a jacket sufficient for the cops to believe you're carrying a gun illegally?

If so, what's to stop the cops from shaking down whoever they want and claim that they saw a "bulge"?

dirtykoala
01-25-2010, 11:14 AM
i think they can.
http://www.youtube.com/watch?v=2eZSKen1Vgc&feature=related

Carnivore
01-25-2010, 2:07 PM
Cops can do what even they want. Whether it holds up in court or not is a whole other issue. Not to be vague but that is just the head aches that go with the territory.

Sniper3142
01-25-2010, 2:53 PM
Actually, they can try to do anything they like.

Mess with the bull...

;)

ap3572001
01-25-2010, 3:24 PM
If I am working and see someone who I THINK has a handgun under their shirt, I have a FULL RIGHT , at the VERY least, to begin to pay attention to them. So does any citizen. OK? If than I feel that I need to talk to that person - I will. If It goes further and I search that person and find the gun that was carried illegaly. I will take certain action and will have to write a report on what went down. Then my supervisor will read and sign the report. If the question is ," Can I talk to someone and search them if I think that they are packing ?" the answer is YES.

And if I get a " man with a gun call" , they may end up on the ground , at a gun point and get searched.

Now , do I run around and look to see who MIGHT be packing? The answer is NO.

Crazed_SS
01-25-2010, 3:52 PM
If the question is ," Can I talk to someone and search them if I think that they are packing ?" the answer is YES.


OK.. seems I was wrong on the other board.. thanks for the answer.. I assume your a LEO?

ap3572001
01-25-2010, 3:55 PM
I am . For the last 17 years. 8 more to go!!!!!

Sailormilan2
01-25-2010, 3:57 PM
The officer always has the right to a pat down search for weapons on any person he has contact with. But, that is normally, just a light pat down on the exterior of the clothing. Unless, of course, he finds something.
But, just because he has the right, does not mean he has the need to do it. I didn't always pat down people I came in contact wih. Only those I thought it was necessary to do it to.

GrizzlyGuy
01-25-2010, 4:00 PM
See Terry v. Ohio (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=392&invol=1). Here is a summary from Wikipedia (http://en.wikipedia.org/wiki/Terry_v._Ohio):

Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.

For their own protection, police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a "stop and frisk," or simply a "Terry stop". The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops.


A more intrusive search (other than the pat-down authorized by Terry) cannot be made in CA unless the officer has probable cause for arrest, or has a warrant. See 833 PC (http://law.onecle.com/california/penal/833.html):

A peace officer may search for dangerous weapons any person
whom he has legal cause to arrest, whenever he has reasonable cause
to believe that the person possesses a dangerous weapon. If the
officer finds a dangerous weapon, he may take and keep it until the
completion of the questioning, when he shall either return it or
arrest the person. The arrest may be for the illegal possession of
the weapon.

If the facts in the story you linked to are correct (big if), then the officers erred by not identifying themselves as police officers. Had they done that, they would have been able to do a pat-down search (if the Terry conditions were met), the "weapon" would have been determined to be the bottle of soda, and the drama would have been avoided.

dantodd
01-25-2010, 4:02 PM
OK.. seems I was wrong on the other board.. thanks for the answer.. I assume your a LEO?

Actually while most of the case law that I have seen is from outside of our circuit the correct answer is actually no, the presence of a gun is NOT probable cause for a search. 12031(e) allows a police officer to detain someone to ensure the firearm they are carrying is unloaded but since a concealed firearm has no requirement to be unloaded an officer cannot stop and search someone simply for carrying a concealed firearm.

In most situations if an officer notices someone carrying concealed they will initiate a consensual interaction and use the outcome of that interaction to create reasonable suspicion for further detention. Once the stop turns non-consensual the officer has the right to terry search and secure any firearm uncovered.

Hopefully someone will pop in with the case law references. My law search-fu is not particularly strong these days.

If there is any California PC that permits the search and detention of a citizen for carrying a loaded concealed weapon I would welcome someone posting that as well but I am quite certain there is no such law. Just as you cannot be stopped to prove that you aren't breaking the law with the iPhone in your pocket you cannot be stopped just because you are carrying concealed.

Crazed_SS
01-25-2010, 4:04 PM
See Terry v. Ohio (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=392&invol=1). Here is a summary from Wikipedia (http://en.wikipedia.org/wiki/Terry_v._Ohio):



A more intrusive search (other than the pat-down authorized by Terry) cannot be made in CA unless the officer has probable cause for arrest, or has a warrant. See 833 PC (http://law.onecle.com/california/penal/833.html):



If the facts in the story you linked to are correct (big if), then the officers erred by not identifying themselves as police officers. Had they done that, they would have been able to do a pat-down search (if the Terry conditions were met), the "weapon" would have been determined to be the bottle of soda, and the drama would have been avoided.


Hmmm.. Ok that makes sense.. It was my opinion that the officers didnt not have reasonable suspicion simply because the bulge could be anything...

But I guess the fact that the bulge could be anything (including a weapon), gives them the right to do one of those "Terry Stops"

dantodd
01-25-2010, 4:04 PM
A quick google found an interesting article:

Police Chief Magazine (http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=757&issue_id=122005)Because it is legal in most states to carry a handgun if properly licensed, a report that an individual possesses a handgun, without any additional information suggesting criminal activity, might not create reasonable suspicion that a crime is being or will be committed.1 Where simply carrying a handgun is not in itself illegal and does not constitute probable cause to arrest,2 it follows that carrying a handgun, in and of itself, does not furnish reasonable suspicion justifying a Terry stop. The same applies to persons in motor vehicles. An investigatory stop is only justified when the police have "a reasonable suspicion, based on specific, articulable facts and reasonable inferences there from," that the subject "had committed, was committing, or was about to commit a crime."3

thefurball
01-25-2010, 4:06 PM
..what's to stop the cops from shaking down whoever they want and claim that they saw a "bulge"?

Nothing.

Same way they can pull you over because your tail light "wasn't working", but oddly enough when you walk to the back of your car the light seems magically to have fixed itself in the intervening 30 seconds.

GrizzlyGuy
01-25-2010, 4:16 PM
Hmmm.. Ok that makes sense.. It was my opinion that the officers didnt not have reasonable suspicion simply because the bulge could be anything...

But I guess the fact that the bulge could be anything (including a weapon), gives them the right to do one of those "Terry Stops"

Your opinion was correct. The bulge by itself doesn't give them RAS that "the person has committed, is committing, or is about to commit a crime". If no RAS, no detainment.

That additional RAS may or may not have been present in the article you linked to. If it wasn't, then the officers made two mistakes and not just one (the first being not identifying themselves).

And, even if they had RAS for a stop, the pat-down search still isn't authorized unless they also "have reasonable suspicion that the person stopped is armed".

Josh3239
01-25-2010, 4:23 PM
In Terry v Ohio, the Supreme Court ruled that way because they agreed with Detective McFadden that reasonable suspicion did exist based on the behavior of the suspects (one of whom was Terry). Based on their behavior Detective McFadden believed they were planning on making a robbery and then conducted a search of the men and found handguns. Terry v Ohio sets the precedent for the definition of reasonable suspicion with regard to a stop and frisk.

The Supreme Court stated that an officer must have "specific and arguable facts" to support the decision to make a stop, but added that the facts may be "taken together with rational inferences". Police cannot just conduct a fishing expedition.

If an Officer stops you they can pat you down for weapons and on the outer clothing only. They may not make a "full search" unless an arrest is made.

I don't see how a bulge is reasonable suspicion. If you were standing in front of liquer store with another person for instance, constantly peering into the window and you had a bulge in your pocket that could be reasonable suspicion that you are about to rob the liquer store. Walking down the street with a bulge is hardly reasonable suspicion.

Doheny
01-25-2010, 4:31 PM
The officer always has the right to a pat down search for weapons on any person he has contact with.
Are you sure about that? That's not how the Alameda Co. DA interprets the law. They say that the officer has to have a reasonable suspicion that the subject is armed or dangerous; an officer can't go around patting everyone down that he comes in contact with as a matter of routine.

Not arguing with your experience...just trying to get a dialog going here.

http://le.alcoda.org/publications/files/PATSEARCHES.pdf (http://le.alcoda.org/publications/files/PATSEARCHES.pdf)

.

mej16489
01-25-2010, 4:37 PM
Actually while most of the case law that I have seen is from outside of our circuit the correct answer is actually no, the presence of a gun is NOT probable cause for a search. 12031(e) allows a police officer to detain someone to ensure the firearm they are carrying is unloaded but since a concealed firearm has no requirement to be unloaded an officer cannot stop and search someone simply for carrying a concealed firearm.


According to People vs DeLong 12031(e) is an 'inspection' not a detention...A detention requires RAS/PC

GaryV
01-25-2010, 4:49 PM
Hmmm.. Ok that makes sense.. It was my opinion that the officers didnt not have reasonable suspicion simply because the bulge could be anything...

But I guess the fact that the bulge could be anything (including a weapon), gives them the right to do one of those "Terry Stops"

No, only if they can articulate a specific reason why they believed it was a gun and not something else, and only if some aspect of the way in which the person is carrying it, acting, etc. gives them reasonable articulable suspicion that they are, were, or are about to be involved in a crime. Just believing that the person is carrying a concealed firearm is not in and of itself sufficient grounds for a Terry stop. As the Supreme Court ruled in Florida v. JL, "This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a "firearm exception,". Since citizens in Pennsylvania may legally carry concealed firearms, their suspicion that the lump was a gun, no matter how well-founded, is not sufficient grounds for even the stop, let alone a pat-down or search.

Nose Nuggets
01-25-2010, 4:57 PM
And if I get a " man with a gun call" , they may end up on the ground , at a gun point and get searched.



Yikes. Why is all that necessary?

dantodd
01-25-2010, 5:13 PM
According to People vs DeLong 12031(e) is an 'inspection' not a detention...A detention requires RAS/PC

If you can be inspected without being detained I'd like to see how. The cop's gonna walk along side of you? But I do understand the nuance you are trying to make. Unfortunately if you read the reports of encounters folks have with LEO while UOCing an (e) check is almost universally accompanied by a detention to run serial numbers and ID.

GaryV
01-25-2010, 5:20 PM
Are you sure about that? That's not how the Alameda Co. DA interprets the law. They say that the officer has to have a reasonable suspicion that the subject is armed or dangerous; an officer can't go around patting everyone down that he comes in contact with as a matter of routine.

That's what the Supreme Court says as well: "To proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Arizona v. Johnson. And that's only if there is a legitimate Terry stop being executed, not simply any random interaction.

bodger
01-25-2010, 5:33 PM
I've often wondered if a bulge was enough for an LEO to stop, detain and do the Terry.

I carry a Leatherman in a belt pouch, along with a cell phone. With some of my jackets, it could easily look to an LEO like I am carrying a gun.

Shall Issue. Can't wait. Whether it's CA or whatever free state I may eventually move to.

mej16489
01-26-2010, 1:16 PM
If you can be inspected without being detained I'd like to see how. The cop's gonna walk along side of you? But I do understand the nuance you are trying to make. Unfortunately if you read the reports of encounters folks have with LEO while UOCing an (e) check is almost universally accompanied by a detention to run serial numbers and ID.

I agree completely, I think its a detention...but the courts have ruled otherwise.

I suspect its not a detention in the same sense that neither is a DUI or Smog Checkpoint. Not free to leave = detention in my book...

FWIW its worth, I've had multiple opportunuties to be e-checked over the years and I never have been.

standard disclaimer: I support and comply with the CGF request to standdown on Urban UOC.

dantodd
01-26-2010, 2:23 PM
I agree completely, I think its a detention...but the courts have ruled otherwise.

I suspect its not a detention in the same sense that neither is a DUI or Smog Checkpoint. Not free to leave = detention in my book...

FWIW its worth, I've had multiple opportunuties to be e-checked over the years and I never have been.

standard disclaimer: I support and comply with the CGF request to standdown on Urban UOC.

If you could point to caselaw that says anything beyond an (e) check during a non-consensual stop is not a detention I would very much like to see it.

mej16489
01-26-2010, 2:28 PM
If you could point to caselaw that says anything beyond an (e) check during a non-consensual stop is not a detention I would very much like to see it.

I don't think any such caselaw exists.

I'm a little confused, did I say that there was somewhere? If so, I need to fix it...

dantodd
01-26-2010, 3:12 PM
I don't think any such caselaw exists.

I'm a little confused, did I say that there was somewhere? If so, I need to fix it...

Could well be my misunderstanding. I thought you were suggesting that the entirety of my post was covered by caselaw as a non-detention. I am aware that 12031(e) was challenged and found not to be a detention but I think that most cops think that their practice of running serial numbers and ID are also protected by caselaw which I don't believe is.

Cokebottle
01-26-2010, 3:37 PM
And if I get a " man with a gun call" , they may end up on the ground , at a gun point and get searched.
And if they are legally carrying, unloaded, and unconcealed?

You've just pulled a felony arrest procedure when no crime has been committed.

M1A Rifleman
01-26-2010, 4:01 PM
Like anything else, there are good cops and bad cops. Some are good at what they do, and others should work at 7-11. Some follow the rules and respect non-cops, others do not. Some are on the job to help others, and some are on the job to help themselves.

They do what they want, they write the report up the way they want to support their actions, their suppervisors support them, and the AG backs them, and most of the time, the court will back them as they are "professionals" n their field.

ap3572001
01-27-2010, 9:51 AM
And if they are legally carrying, unloaded, and unconcealed?

You've just pulled a felony arrest procedure when no crime has been committed.

It will depend HOW THE CALL came in. I was at a coffe shop sometime in the 90's and a manager noticed my shoulder holster. He did call the police , when they came ( 2 units) I was have breakfast with my wife and my boys ( 1 and 4 at the time) in a crowded, popular SF peninsula Coffe Shop. The did not make me go on the floor there. They asked me if I had a handgun and I told them "YES" , showed them my badgeand asked one of them if He knew my accademy friend who was working in their agency..... BUT NOTY ALL CALL HAPPEN LIKE THAT.

dantodd
01-27-2010, 11:05 AM
It will depend HOW THE CALL came in. I was at a coffe shop sometime in the 90's and a manager noticed my shoulder holster. He did call the police , when they came ( 2 units) I was have breakfast with my wife and my boys ( 1 and 4 at the time) in a crowded, popular SF peninsula Coffe Shop. The did not make me go on the floor there. They asked me if I had a handgun and I told them "YES" , showed them my badgeand asked one of them if He knew my accademy friend who was working in their agency..... BUT NOTY ALL CALL HAPPEN LIKE THAT.

This is essentially the definition of the "brass pass"

SVT-40
01-27-2010, 3:55 PM
This is essentially the definition of the "brass pass"

No the poster was legally carrying.

The offensive term "brass pass", refers to a LEO being treated different than another person because of his status as a LEO. If the poster had been a "Non LEO" with a CCW he would have been treated just the same.

So there was no "special treatment".