FYI - Actual open carry incident report.

[wewo]

ROFL Frenchy, but, unfortunately, the joke is on us

[PeteG]

Yes they do in this Country ("Show me your papers!"), its called reasonable suspicion! Terry v. Ohio. And someone OCing may be out of the ordinary, but it is legal and therefore, by definition, not reasonably suspicious activity in and of itself.

You are confused. The issue in Terry v. Ohio was whether an arrest (causing the individual to remain when he would rather leave) and “pat down” search violated the Fourth Amendment’s prohibition upon unreasonable searches and seizures. There was no attempt to construe stopping John W. Terry and asking him what he was up to as a “search” or a “seizure,” and no claim to a constitutional right not to be stopped and asked a question. The constitutional issue arose only when Mr. Terry was held against his will and patted down for weapons. The limitation of the holding in Terry v. Ohio was made express by the Court in its opinion:

“We thus decide nothing today concerning the constitutional propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves ‘seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred. We cannot tell with any certainty upon this record whether any such ‘seizure’ took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred.” [Emphasis mine.]

And later in the opinion:

“The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation.” [Emphasis mine.]

Ultimately, the question was whether the exclusionary rule should be applied to a gun, as evidence of unlawful carry, where police had discovered the gun after a “pat down.” There was no question regarding the constitutional propriety of a policeman coming up and asking what the fellow was up to.

Plainly stated, a policeman asking a question does not involve any kind of coercion or restraint, and falls entirely outside the Fourth Amendment. There is no constitutional issue presented. You do not have a “right” to be free from people asking you questions. To quote the U.S. Court of Appeals for the Eighth Circuit:

"Supreme Court jurisprudence has placed police-citizen encounters into three tiers or categories. First, there are communications between officers and citizens that are consensual and involve no coercion or restraint of liberty. Such encounters are outside the scope of the Fourth Amendment. Second, there are the so-called Terry-type stops. . . . These are brief, minimally intrusive seizures but which are considered significant enough to invoke Fourth Amendment safeguards and thus must be supported by a reasonable suspicion of criminal activity. Third, there are highly intrusive, full-scale arrests, which must be based on probable cause." [Citations omitted.]

The majority opinion of the Supreme Court in Terry v. Ohio went to some lengths to describe the competing interests which must be considered when evaluating police conduct in stopping citizens in the course of an investigation. This portion of the opinion covers the question I see masticated (in far less precise language) on thread after thread concerning open and concealed carry. In the interests of attempting in some small way to stem the tide of complete bull-s—t on these gun fora, I will set forth the discussion by the Court at length:

“Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. Doubtless some police ‘field interrogation’ conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

“Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain,11 will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is over-bearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.

Fn. 11: The President's Commission on Law Enforcement and Administration of Justice found that ‘(i)n many communities, field interrogations are a major source of friction between the police and minority groups.’ President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 183 (1967). It was reported that the friction caused by ‘(m)isuse of field interrogations' increases ‘as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident.' Id., at 184. While the frequency with which ‘frisking’ forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, see Tiffany, McIntyre & Rotenberg, supra, n. 9, at 47-48, it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true in situations where the ‘stop and frisk’ of youths or minority group members is ‘motivated by the officers' perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.’ Ibid.


“Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.

. . . .

But we deal here with an entire rubric of police conduct-necessarily swift action predicated upon the on-the-spot observations of the officer on the beat-which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." [Emphasis mine.]

Those were the considerations. What the Court ultimately held (meaning the rule of law announced) was:

“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”

“We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

THAT, and only that, is the rule of Terry v. Ohio. This is not to be pedantic. People just go way too far in assuming or inventing "rights," with no idea where those "rights" come from. There is nothing at all in this opinion, or in any other holding of which I am aware, that says a policeman has to have "reasonable suspicion" to ask a question. Not in this country, nor in any other country.

The question whether wearing a gun openly would constitute "reasonable suspicion" is simply immaterial to whether a police officer can ask you "why are you wearing a gun?" or "what are you guys up to?" I think the very fact one is armed might form part of "reasonable suspicion" if there were other circumstances to make an officer think some criminal activity was afoot, but that is another matter entirely.

If you wear a gun, you are not above being called upon to explain. Get used to it.

[whoshisface]

You don't have to talk to an officer , period...

They have to mirandize you if they intend on questioning you about suspected criminal activity.

In the United States, the Miranda warning is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked questions relating to the commission of a crime. A custodial situation is where the suspect's freedom of movement is restrained although he is not under arrest. An incriminating statement by a suspect will not constitute admissible evidence unless the suspect was advised of his or her "Miranda rights" and made a knowing, intelligent, and voluntary waiver of those rights. However, police may request biographical information such as name, date of birth, and address, without first reading suspects their Miranda warnings.
The Miranda warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect's Fifth Amendment right to avoid coercive self-incrimination (see right to silence).


You can always inform them that you demand to have an attorney present during any questioning, period, after or during any "field" investigation.

[PeteG]

You don't have to talk to an officer , period...

That is true. One can always step on his dick. (Lawyer jargon.)

They have to mirandize you if they intend on questioning you about suspected criminal activity.

Miranda is inapposite to the discussion, for two reasons.
(1) Open carry is not a crime, so asking about it is not asking about any crime. (2) The entire point of Terry v. Ohio was that the exclusionary rule of Miranda v. Arizona and Escobido v. Illinois DOES NOT APPLY to consensual questioning.

[Thekatar]

Pete is an attorney, BTW.

[whoshisface]

That is true. One can always step on his dick. (Lawyer jargon.)




Miranda is inapposite to the discussion, for two reasons.
(1) Open carry is not a crime, so asking about it is not asking about any crime. (2) The entire point of Terry v. Ohio was that the exclusionary rule of Miranda v. Arizona and Escobido v. Illinois DOES NOT APPLY to consensual questioning.

Great! So if I do anything illegal you'd tell me to open my mouth. I thought the lawyers creed was "you have the right to remain silent, so shut the f@#k up."

I re-read this I'm not telling you to stfu mearly that when you're in dog doo or the officer is looking to put you in dog doo that lawyers want you to STFU..

[whoshisface]

....
Miranda is inapposite to the discussion, for two reasons.
(1) Open carry is not a crime, so asking about it is not asking about any crime. (2) The entire point of Terry v. Ohio was that the exclusionary rule of Miranda v. Arizona and Escobido v. Illinois DOES NOT APPLY to consensual questioning....

I'm not discussing this specific incident... The thread got sort of hijacked but still on a relevant topic...

You just don't have to consent to any questioning or exchange of words with an officer. Legally, rather a good or bad idea, you only have to identify yourself when stopped. If you're stopped in a car you only have to display your divers licence, registration and fiscal responsibility information.

Correct, yea or nay?

Now if the officer is talking to you and starts to probe for criminal activty and actually starts a field investigation he has to miradise you, correct?

Yea or nay.

The original discussion turned into a you have to talk to an officer battle. You simply are not required to by law. It might cause you all sorts of grief but sometimes it's better to keep your damn mouth shut!

[whoshisface]

Oh by the way, I've been pulled over more times than I can count, probably more than I think... I've only recieved six tickets and of those only one of them stuck in full the rest where all PBJ or turned into a nothing ticket, so I've talked plenty!

[whoshisface]

"Any lawyer worth his salt will tell [a] suspect in no uncertain terms to make no statement to police under any circumstances."

So said Supreme Court Justice Robert Jackson fifty years ago