Terry Frisk+I.D.

[policemedic]

Originally Posted by GunLawyer001

On the related issue of whether police can remove your weapon, take it to their car, record the serial number and run it against the "stolen" and "transfer" databases, here's a case where police moved a stereo around and ran the serial number just on speculation, "to see if it was stolen". I think it has application here.

1. The policeman's actions come within the purview of the Fourth Amendment. The mere recording of the serial numbers did not constitute a "seizure" since it did not meaningfully interfere with respondent's possessory interest in either the numbers or the stereo equipment. However, the moving of the equipment was a "search" separate and apart from the search that was the lawful objective of entering the apartment. The fact that the search uncovered nothing of great personal value to respondent is irrelevant. Pp. 324-325.

Hicks is an interesting case, for a number of reasons. It may have application to checking serial numbers of guns being held by police while a LTCF is being verified, but it could go either way.

It wouldn't be a stretch for the Court to say that they have always granted wide discretion to police where officer safety was concerned. Disarming someone pending the verification of a LTCF is not unreasonable, though I admit that each individual officer will evaluate their own comfort level and make their own decision. It is unlikely that the Court will attempt to examine the officer's interpretation of the totality of the circumstances as it related to his perception of his own safety with 20/20 hindsight.

What turned the tables in Hicks was the officer physically moving the objects, thereby interfering with the possessory interest of the owner and turning a plain view observation into a search.

There was no safety interest in Hicks justifying the movement of the stereo equipment. The same cannot be said of an investigation of an armed man (until the LTCF is verified).

Since the court is likely to accept the reasonableness of an officer temporarily taking custody of a handgun while he is verifying the owner's LTCF, it seems equally likely that the logic in Hicks would render the plain view reading of the serial number to be equally permissible. Since the logical reason for obtaining the number is to run it (and here I'm talking about stolen status only, not for ownership through the PSP), Hicks could be interpreted to allow that as well. If the serial number can be properly obtained, then the computer check is also arguably proper.

I cannot imagine the Court creating a privacy interest in stolen property that is in temporary police custody for a legitimate reason.

My personal opinion is that a verified LTCF makes it incredibly unlikely the gun is stolen, but then again I don't generally disarm people who can present a LTCF. I will always verify them, however. I think it's easier to counterfeit a Philadelphia county LTCF then it is to make a good counterfeit PA operator's license, and I always run those...must be the cynic in me.

Then again, the Court could rule that my opinion ( good LTCF=very small chance the gun is stolen) should be the law of the land.

[Philadelphia]

Originally Posted by policemedic

Hicks is an interesting case, for a number of reasons. It may have application to checking serial numbers of guns being held by police while a LTCF is being verified, but it could go either way.

It wouldn't be a stretch for the Court to say that they have always granted wide discretion to police where officer safety was concerned. Disarming someone pending the verification of a LTCF is not unreasonable, though I admit that each individual officer will evaluate their own comfort level and make their own decision. It is unlikely that the Court will attempt to examine the officer's interpretation of the totality of the circumstances as it related to his perception of his own safety with 20/20 hindsight.

What turned the tables in Hicks was the officer physically moving the objects, thereby interfering with the possessory interest of the owner and turning a plain view observation into a search.

There was no safety interest in Hicks justifying the movement of the stereo equipment. The same cannot be said of an investigation of an armed man (until the LTCF is verified).

Since the court is likely to accept the reasonableness of an officer temporarily taking custody of a handgun while he is verifying the owner's LTCF, it seems equally likely that the logic in Hicks would render the plain view reading of the serial number to be equally permissible. Since the logical reason for obtaining the number is to run it (and here I'm talking about stolen status only, not for ownership through the PSP), Hicks could be interpreted to allow that as well. If the serial number can be properly obtained, then the computer check is also arguably proper.

I cannot imagine the Court creating a privacy interest in stolen property that is in temporary police custody for a legitimate reason.

My personal opinion is that a verified LTCF makes it incredibly unlikely the gun is stolen, but then again I don't generally disarm people who can present a LTCF. I will always verify them, however. I think it's easier to counterfeit a Philadelphia county LTCF then it is to make a good counterfeit PA operator's license, and I always run those...must be the cynic in me.

Then again, the Court could rule that my opinion ( good LTCF=very small chance the gun is stolen) should be the law of the land.

I read Hicks to say that probable cause is required for seizure of the serial numbers. While Hicks is not law of the land in PA, it is clear that the court in that case wasn't buying the argument of minimal additional intrusion.

In addition (and this does apply in PA) property in police custody is presumed to be not stolen until they have probable cause to believe it is stolen. You can't bootstrap probable cause by running the numbers and finding out that it is. So under Hicks, without probable cause to believe the gun is stolen, you can't seize the numbers and run them. I'd agree it's a little bit of an odd result in my mind, but that's what they said. If I had to guess I'd say underlying the reasoning is the fact that they were in the guy's home where disturbing things with no warrant and no exigency is the supreme no no. As far as I remember, they didn't say that though.

This is the danger of stopping people and seizing guns under Terry when RAS is based solely on see a gun (to check for LTCF). If the motive is officer safety, the additional intrusion of running the numbers is not warranted. If someone has to be detained to check for the LTCF they shouldn't have to wait longer for anything else.

There is definitely a strong tension (in my mind at least) of whether seeing a gun print should provide RAS for a Terry stop to check for LTCF and be detained while its validity is verified. On the one hand, I want police seizing illegally carried guns from criminals. On the other hand, if my gun prints a little I don't want to be stopped and detained for 15 minutes on every other block as each officer in turn has RAS to detain me, disarm me, check LTCF, run numbers, etc. It would make just walking around very inconvenient.

In balancing the two I'd have to come down on a result similar to Hawkins. While it may mean it becomes harder for police to ferret out criminals carrying guns, that may be the price paid for the rights we enjoy.

[angus]

have also heard this from others, but when i read the actual terry decision, the standard seems to be RAS of a crime.

so, if there is RAS of a crime, it seems (from my reading of terry) that there is no requirement that the officer beliieve you to be armed and dangerous.

and, on the other hand, it seems that even if an LEO thinks you are armed and dangerous, if there is no RAS of a crime, he cannot do a terry stop.

is my understanding not correct?

My understanding of Terry is that there are two distinct parts here: the stop and the frisk. The LEO needs RAS to make the initial stop (totality of facts and circumstances that would indicate to a reasonable officer that some type of general criminal activity has been or is about to be committed), and then, in dealing with the guy, some indication that the guy might be armed so that a frisk can be made for officer safety. I do not believe that RAS for the original stop automatically gives the LEO the right to frisk-- they might look at other things like suspect's demeanor, heavy pockets, etc.

My non-lawyer opinion.

[GunLawyer001]

Arizona v. Hicks is a US Supreme Court case, and it applies to every State of the Union until the issue is revisited. I have not Shepardized the case.

It's correct to say that the justification for the stop comes first, then the Terry frisk comes into play. Police may ATTEMPT to stop anyone and ask questions, just like you or I or a poll taker or a Girl Scout selling cookies may, but they may not COMPEL anyone to stop without reasonable suspicion (except at random DUI checkpoints, but don't get me started on that.)

PA courts have held that mere possession of a firearm in public is not enough to justify a detention or search, so just seeing the gun won't support a valid stop. Without that valid initial stop, the rest doesn't happen. No Terry frisk, no taking your gun to unload it or copy the serial numbers, no laying of hands upon your person. Without that justification, the rest of the game never even starts. The cop can try to start a conversation and fish for you to say something incriminating which THEN gives him RAS for a Terry stop, but you don't even have to speak to him.

If he has RAS, then he can disarm for his safety. Once the cops legitimately have the gun in hand, I'd imagine that Hicks would allow them to record the serial number, then run it against any database.

If it's listed as stolen, then keeping it furthers a legitimate police function.

However, keeping the gun and refusing to give it back based solely upon a conflicting or missing "registration" is Constitutionally invalid, since the "registry" has been judicially determined not to be a registry. The fact that the citizen acquired the weapon by bringing it with him from out of state, or by transfer from a parent or child or grandparent, or from anyone by virtue of his possessing a LTCF, does not in any sense create a presumption of contraband.

The new standard police procedure of grabbing every gun they see and running the serial number to see if it's stolen or "unregistered" will never survive court scrutiny, and the habit of keeping any gun that's "unregistered" is a taking of property without compensation. Without the justification for the initial stop, the police are not allowed to run fishing expeditions; they can't stop a car solely to run the VIN and see if it's stolen, although they can run the license plate on a whim. They can't stop every urban teen and photograph their bling just so they can see if it might be stolen. I can't think of any other item that the police believe they can arbitrarily seize and see if it's stolen, other than firearms.

[gf45acp]

Hi GL, perhaps I'm dense, but just to make sure that I understand, the taking of the firearm for officer safety can not occure without RAS for the initial contact, correct?

[GunLawyer001]

Originally Posted by gf45acp

Hi GL, perhaps I'm dense, but just to make sure that I understand, the taking of the firearm for officer safety can not occure without RAS for the initial contact, correct?

Yes.

Police have no general power to disarm people with whom they wish to speak. It requires an articulable suspicion that criminal activity is afoot, and mere possession of a firearm does not constitute evidence of criminal activity. If the citizen looks to be 12 years old, then yes, the cop has reason to interrogate the citizen in a Terry stop.

But personal prejudice doesn't get the cop into the Terry game; just because he doesn't like open carry, or negroes, or effeminate men, or tattoos, or accented English; none of that translates into a REASONABLE suspicion, not even when prefaced by "my years of professional experience led me to suspect that..." It has to be ARTICULABLE, like someone carrying a bloody knife, or someone running away from a blaring car alarm with a car stereo in his hand, dangling wires. I'd say that a couple of guys lurking in the alley behind a pharmacy at 3 AM might reasonably trigger a cop's Spidey sense, too.

But someone wearing a gun while calmly eating dinner? Not even close. Same for someone standing at a car accident scene, someone walking his dog, someone doing any normal thing that would not require a firearm.

[policemedic]

Originally Posted by GunLawyer001

Arizona v. Hicks is a US Supreme Court case, and it applies to every State of the Union until the issue is revisited. I have not Shepardized the case.

PA courts have held that mere possession of a firearm in public is not enough to justify a detention or search, so just seeing the gun won't support a valid stop. Without that valid initial stop, the rest doesn't happen. No Terry frisk, no taking your gun to unload it or copy the serial numbers, no laying of hands upon your person.<SNIP>

If he has RAS, then he can disarm for his safety. Once the cops legitimately have the gun in hand, I'd imagine that Hicks would allow them to record the serial number, then run it against any database.

That's the point I was trying to make regarding the serial numbers.

However, I'm not aware of any case in PA that says that an officer's independent observation of a concealed firearm does not constitute reasonable suspicion of a violation of 18 PA CS sections 6106 and/or 6108. Hawkins certainly addresses open carry, and with good reason. It does take judicial notice that a situation involving a concealed gun, which requires a license, is entirely different from the facts in Hawkins. The Court could have addressed the disparity but chose not to, thus leaving it open.

More recently than Hawkins, there is Commonwealth vs. Hall 2007 PA Super 220. In Hall, the PA Superior Court held that an officer's observation of a bulge in appellant's jacket was sufficient for a frisk and affirmed the lower court's denial of a motion to suppress the gun.

Quoting Hall:
"Prior to trial, Appellant filed a motion to suppress physical evidence,
alleging that the police lacked probable cause to stop and arrest him. The
suppression court denied the motion, concluding that (1) the officers made a
lawful traffic stop of Appellant’s vehicle to investigate the damage to the
vehicle and whether the damage to the vehicle constituted a safety concern;
(2) the officers acted reasonably in investigating the circumstances of the
presence of a firearm on Appellant’s person and acted appropriately in their
attempts to secure the firearm in furtherance of their own safety as well as the
public safety; and (3) the officers had probable cause to arrest Appellant in light of
the fact that Appellant appeared to possess a weapon and was resisting efforts to secure the weapon."
(Emphasis mine)

Admittedly, Hall does not address whether the observation of a bulge shaped like a handgun, by itself, forms the basis of suspicion sufficient to justify a Terry stop. It merely says that once a legal stop is effected, a bulge resembling a weapon is cause for a frisk.

However, there are numerous cases which support the ability of a police officer to initiate an investigative detention and frisk based on the officers observation of a concealed firearm. Two such cases are Commonwealth v. Stevenson 2006 PA Super 38 and Commonwealth v. Robinson 600 A.2d 957, 959 (Pa.Super. 1991).

Quoting Stevenson:
"It was Appellant who drew the attention of the officers because: 1) he was actually carrying a handgun; 2) the officers were able to see the outline of the handgun through Appellant’s coat pocket; and 3) Appellant was carrying it in a manner very different from those individuals who carry weapons on the job or who are used to carrying licensed handguns."

"Moreover, Officer Absten testified that his intention in detaining Appellant was to ascertain whether he had a permit to carry a concealed handgun. (N.T., Suppression Hearing, at 21)."

"...there can be no doubt, under the above precedent, that Officers Absten and Prilla had reasonable justification to stop Appellant and take hold of his weapon. "

Seamus McCaffery, writing for the court in Stevenson, emphasizes in dicta the need for the court to be mindful of officer safety ("Further, the court must be guided by common sense concerns that give preference to the safety of the police officer during an encounter with a suspect where circumstances indicate that the suspect may have, or may be reaching for, a weapon.").

Quoting Robinson at 959-60:
"[P]ossession of a concealed firearm by an individual in public
is sufficient to create a reasonable suspicion that the
individual may be dangerous, such that an officer can
approach the individual and briefly detain him in order to
investigate whether the person is properly licensed. In the
present case, [the police officer] was acting upon a
reasonable suspicion based upon her personal observation of
the weapon in combination with her concern with the
presence of children in the area. The need to conduct an
investigatory detention under the present facts clearly
outweighs any harm which the stop and frisk entails. "

As Robinson deals very narrowly with a concealed firearm observed by police, it is not modified or abrogated by Hawkins.

So, while it would seem fair and accurate to say that there is no justification for a police officer to initiate an investigative detention because a citizen is openly carrying a holstered pistol, the same is not true regarding concealed handguns.

What matters most during these encounters is the manner in which the officer approaches the citizen, as the citizen may or may not be licensed. In my personal practice, I am guided by the totality of the circumstances and act accordingly.

[GunLawyer001]

I believe that it's very dangerous to find that any officer can detain any citizen who happens to be carrying concealed, because the citizen MIGHT not have a license. The example of stopping every motorist because he MIGHT not have a driver's license is apt. Further, it's unlawful to push someone else's baby in a stroller without their permission, so I suppose the police should detain every person pushing a baby buggy, demand ID, run the baby's prints against the prints taken at birth, just to see if the kid was kidnapped.

Narrowly looking at guns, we're left with a situation where anyone carrying openly will be hassled for frightening the horses; while anyone carrying concealed will be detained, have his LTCF scrutinized, and have his property seized until the police can run the serial numbers against the database that we don't have. So much for a constitutional right to bear arms.

The courts won't allow people exercising their right to vote to be hassled anywhere near this level, yet voting determines who runs a country of 300,000,000 people. Meanwhile, anyone packing a pistol seems to have forfeited his 4th and 5th Amendment rights.

[policemedic]

Originally Posted by GunLawyer001

I believe that it's very dangerous to find that any officer can detain any citizen who happens to be carrying concealed, because the citizen MIGHT not have a license. The example of stopping every motorist because he MIGHT not have a driver's license is apt.

Ah, but there is quite a difference between a summary violation of the Vehicle Code and a F3 VUFA. That could be the reason, but I have another hypothesis.

I posit that open carry is perceived by the PA Supreme Court to be the purview of the honest and upstanding citizen. An armed citizen, openly displaying his weapon, is in equal part exercising his Constitutional right and simultaneously sending a message to potential evildoers- don't tread on me. He carries openly because he has nothing to hide from anyone; he is not engaged in illegal, questionable, or nefarious conduct. His actions are done in the light of day, open to public view and scrutiny. As such, he is plainly protected from government intrusion and inconvenience by the Ortiz and Hawkins rulings.

Concealed carry may be perceived differently, both by the legislature and the courts. It may be seen as the province of the criminal. Criminals aren't allowed to have guns, and they certainly aren't allowed to use them in to facilitate the commission of a crime, hence they conceal them. It isn't hard to find historical references, particularly in the West, to illustrate this point.

Now, I'm NOT saying that all people who carry concealed are criminals or that they have evil intentions. FAR FROM IT. But the fact is that criminals do conceal their weapons, so the legislature may have instituted licensing provisions for honest citizens who wish to conceal their weapons as a means of sorting the good from the bad.

The courts, recognizing that criminals conceal weapons, would probably say they attempt to balance the interest of the law abiding LTCF holder against the overriding societal interest in ferreting out armed criminals, and will not hamstring curbside investigation by the police where a concealed weapon is involved.

It's just a theory. Might be totally off-base.

Originally Posted by GunLawyer001

I The courts won't allow people exercising their right to vote to be hassled anywhere near this level, yet voting determines who runs a country of 300,000,000 people. Meanwhile, anyone packing a pistol seems to have forfeited his 4th and 5th Amendment rights.

The courts in PA won't even require a legal ID to vote, so where exactly is the integrity in that process? If I can go say my name is Big Daddy Warbucks and cast their vote and my own (and presently I can), how can we have faith in the electoral system?

[TaePo]

Just to throw an extra wrench into the works...

One of my carry guns has a serial number under the grip. If an officer detained me, acquired my weapon and tried to run it, he would not find a s/n, unless he was aware of it being under the grip.

In this case, I have done nothing wrong. Do I have to inform where the s/n is?

Do I have to let him remove the screws to remove the grips?

Assume he only discovered the weapon and I did nothing wrong criminally speaking or even suspicious.

I think Gunlawyer is right (at least I hope) but I thought Hawkins stated they were not covering the scenario where an officer spotted a weapon on his own.