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Liberty1
08-02-2007, 11:49 PM
http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=757&issue_id=122005


Chief's Counsel

Chief’s Counsel: Responding to Gun Possession Reports

By John M. Collins, Esq., General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts

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

State laws vary regarding both open and concealed carrying of firearms, but courts are usually sensitive to officer and public safety concerns over the presence in public of firearms. Mere possession may not be sufficient to authorize police action, but in circumstances where the gun presents an imminent threat because of shots just fired, or likely to be fired, and thereby presents a "suggestion of threats of violence, acts of violence, impending criminal activity, or concern for public safety," a court is likely to find there was reasonable suspicion for a threshold inquiry.4

Anonymous Tip
In a 1990 decision, the U.S. Supreme Court confirmed that, through corroboration of its detail, an anonymous tip can be enough to give rise to the reasonable suspicion required for a stop.5 More recently though, the U.S. Supreme Court in 2000 ruled that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer's stop and frisk of that person, even where descriptive detail regarding the subject has been corroborated. The Court declined to adopt the "firearms exception" to Terry's requirement of reasonable suspicion.6 Similarly, in another 2000 Supreme Court case, an anonymous tip with a physical description and location that a person had a gun was not enough for reasonable suspicion, absent anything else to arouse the officer's suspicion.7 In that case the Court ruled that it was irrelevant that the defendant fled when the officer got out of his car and ordered the defendant to approach him.8 The tipster need not deliver an ironclad case to the police to justify an investigatory stop; it suffices if a prudent law enforcement officer would reasonably conclude that the likelihood existed that criminal activities were afoot and that a particular suspect was probably engaged in them.9

Clearly, not every report of a citizen is worthy of belief or sufficient to justify a response by an officer. A caller could, for example, intend merely to harass someone by making an anonymous call to police and claiming someone had a gun hidden in his or her vehicle or on his or her person.

The ultimate issue on the report's usefulness is whether the contents (and other attendant circumstances) create a reasonable suspicion that a dangerous situation exists, creating authority to detain or frisk or both. It certainly helps if the report contains particular facts that do one or more of the following:


Create a suggestion of threats of violence in this situation

Are themselves acts of violence

Indicate impending criminal activity

Raise a reasonable concern for public safety

Of course, in the many jurisdictions where carrying a concealed weapon is illegal, this analytical step may be obviated and inquiry will proceed to the next issue, the likely veracity of the information source. In the case of an anonymous tip, the question will be whether corroboration of detail goes beyond the mere description of a person already in public.

Examples of Appropriate Police Actions
Examples may be helpful here. Police officers would be acting reasonably in stopping and frisking an individual after receiving information on the street from a known bystander that the person was displaying a handgun on a street corner in a high crime area at 5:30 in the morning, or if it reasonably appears that a suspect is not only armed but also dangerous, as would be the case if the individual appeared to be reaching for his or her weapon. The possession of a firearm by a minor in many states may be viewed as presumptively illegal, and thus sufficient to justify an investigatory stop of the minor by the police, again provided the information source is sufficiently credible. A constitutionally reliable report of the sighting of someone carrying a sawed-off shotgun-especially in states where this is illegal-would likely justify an immediate investigatory stop. Loading a weapon in public, especially where there is no clearly lawful reason for doing so (to begin hunting or target shooting, for instance), and especially in a high crime area at night or during early morning hours, could provide the extra information some courts require in order to allow police officers to conduct an investigatory stop and frisk of a person reportedly in possession of a firearm.

Enforcement Guidelines
Where a police officer receives a report that a person is in possession of a firearm, but the weapon is not visible to the officer, the following options are available:


Engage in a voluntary contact and simply ask the person if he or she has a firearm.

If he or she confirms he or she is in possession of a gun, the officer may ask the person to voluntarily hand it over just while the interview takes place, or insist that they hand it over if there is a reasonable belief that the safety of the officer or public is in jeopardy, or that the person has used it in a crime or is about to do so.

If the person denies having a firearm or refuses to answer, and the officer does not otherwise have (legally sufficient) reasonable suspicion of criminal activity, the officer must allow the person to continue on his or her way.

If the person denies having a firearm or refuses to answer, but the officer has a reasonable suspicion that the person is armed and presents a danger to the officer or public, the officer may conduct a stop and frisk the person. If the officer finds a weapon, the officer may hold it while conducting the field inquiry. As long as the person is properly licensed, and no arrest takes place, the officer must return the gun at the conclusion of the interview.

If the officer has a warrant or has probable cause to arrest the person for a crime, the officer may conduct a thorough search (not merely a frisk) and take possession of any weapon.

Where the person appears to be a minor and therefore too young to have firearm (in most states), the police may have reason to believe that a crime is being committed (unlawful carrying of a firearm) and may therefore conduct a stop rather than a mere encounter.


1 See, for example, Com. v. Couture, 407 Mass. 178, 552 N.E.2d 538 (1990), cert. denied, 498 U.S. 951, 111 S. Ct. 372, 112 L.Ed.2d 334 (1990).
2 Id.
3 See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).
4 Com. v. Alvarado, 423 Mass. 277, 667 N.E.2d 856 (1998).
5 Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L.Ed.2. 301 (1990).
6 Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000).
7 Pennsylvania v. D.M., U.S. 120 S. Ct. 203, 146 L.Ed.2d 953 (2000).
8 Id.
9 Alabama v. White, 496 U.S. 325, 1105 S. Ct. 2412, 110 L.Ed.2d 301 (1990); U.S. v. Diallo, 29 F.3d 23 (1st Cir. 1994); U.S. v. Taylor, 162 F.3d 12 (1st Cir. 1998).

From The Police Chief, vol. 72, no. 12, December 2005.

C.G.
08-03-2007, 1:22 AM
Good to know, thanks.:)

Librarian
08-03-2007, 9:30 AM
I do love citations! Findlaw links ...

Florida v. J.L. (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=98-1993), 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000)

Pennsylvania v. D.M., U.S. 120 S. Ct. 203, 146 L.Ed.2d 953 (2000) - here's the whole SCOTUS record:
PENNSYLVANIA v. D. M.

99-1583

SUPREME COURT OF THE UNITED STATES

529 U.S. 1126; 120 S. Ct. 2003; 146 L. Ed. 2d 953; 2000 U.S. LEXIS 3431; 68 U.S.L.W. 3724; 2000 Cal. Daily Op. Service 3985; 2000 Daily Journal DAR 5332


May 22, 2000, Decided

JUDGES: [*1] Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer.

OPINION


The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Supreme Court of Pennsylvania, Eastern District, for further consideration in light of Illinois v. Wardlow, 528 U.S. (2000).
Illinois v Wardlow (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-1036), key graph In reversing, the State Appellate Court found that Nolan did not have reasonable suspicion to make the stop under Terry v. Ohio, 392 U. S. 1 . The State Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to "go on one's way," see Florida v. Royer, 460 U. S. 491 .

pnkssbtz
08-03-2007, 9:53 AM
So basically that kid who was open carrying a rifle is going to have a field day with the police and that the police can't claim "disturbing the peace" ?

swhatb
08-03-2007, 10:21 PM
thanks for posting Liberity1

Liberty1
07-24-2008, 8:29 AM
bump for a good article

WokMaster1
07-24-2008, 9:04 AM
another page to add to my binder.

Hey, maybe even send our local PDs & SOs a copy or two all neatly laminated.:D

Liberty1
07-24-2008, 9:40 AM
And here is some good advice for police from the Penn. Supreme Court:

http://www.courts.state.pa.us/opposting/supreme/opinions/0497pdf/k00jiz95.pdf


The Commonwealth (prosecution) takes the radical position that police have a duty to
stop and frisk when they receive information from any source that a suspect has
a gun. Since it is not illegal to carry a licensed gun in Pennsylvania,4 it is
difficult to see where this shocking idea originates, notwithstanding the
Commonwealth's fanciful and histrionic references to maniacs who may spray
schoolyards with gunfire and assassins of public figures who may otherwise go
undetected. Even if the Constitution of Pennsylvania would permit such
invasive police activity as the Commonwealth proposes -- which it does not --
such activity seems more likely to endanger than to protect the public.
Unnecessary police intervention, by definition, produces the possibility of
conflict where none need exist.

Contrary to the Commonwealth's view, the public will receive its full
measure of protection by police who act within the restraints imposed on them
by Art. I, § 8 of the Constitution of Pennsylvania and this court's relevant
caselaw. Upon receiving unverified information that a certain person is
engaged in illegal activity, the police may always observe the suspect and
conduct their own investigation. If police surveillance produces a reasonable
suspicion of criminal conduct, the suspect may, of course, be briefly stopped
.

CA_Libertarian
07-24-2008, 12:36 PM
Thanks for bumping this.

I'll definitely be forwarding "Florida v. J.L." along with my complaint(s).

The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

My situation was clearly not a report of illegal activity. In the 911 call, the reporting party clearly and repeatedly asserted that my firearm was exposed.

Liberty1
07-24-2008, 1:23 PM
Thanks for bumping this.

I'll definitely be forwarding "Florida v. J.L." along with my complaint(s).



My situation was clearly not a report of illegal activity. In the 911 call, the reporting party clearly and repeatedly asserted that my firearm was exposed.

Yes, but they can rely on 12031e for authority for the detention. The amount of force used (pointing guns if any) would need to be within dept. policy but not a violation of state law unless 417PC applied to their actions (hard to prove absent video and a DA/Court/Jury is likely to give LE a pass on 417).

And yes, after the 12031e check and the 12025 investigation there would be no reason to keep you detained.

-hanko
07-24-2008, 2:18 PM
So basically that kid who was open carrying a rifle is going to have a field day with the police and that the police can't claim "disturbing the peace" ?
I'd suppose that would depend on what the kid was doing with the rifle, other than carrying it.

Is it loaded or not??

What constitutes "disturing the peace"?

-hanko