Guns and cars
In New Mexico, carrying a concealed handgun allows the police to frisk you and to check your papers:
In the end, Defendant grasps at straws. He says the question of whether an officer may conduct an investigative detention based “solely” on the presence of a concealed firearm “is analogous to the question of whether an officer can pull over any motor vehicle he chooses in order to determine whether the driver is properly licensed and in lawful possession of the car.” Def’s Op. Br. at 27. We think not.
To be sure, any construction of a motor vehicle statute permitting such random stops, however the statute is worded, would be unconstitutional. In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court held the Fourth Amendment prohibits an officer from stopping a vehicle for the sole purpose of checking the driver’s license and registration, where neither probable cause nor reasonable suspicion exists to believe the motorist is driving the vehicle contrary to the laws governing the operation of motor vehicles. Id. at 650, 663. …
Driving a car, however, is not like carrying a concealed handgun.
And I wondered why. Well, because:
Driving a vehicle is an open activity; concealing a handgun is a clandestine act. Because by definition an officer cannot see a properly concealed handgun, he cannot randomly stop those individuals carrying such weapon.
So, if one were to open carry? That’s some circular logic right there.
January 3rd, 2014 at 2:39 pm
It is unfortunate for the felon defendant in this case that the officers not only knew New Mexico law on concealed versus open carry of handguns, but properly performed what was effectively a Terry frisk of the individual when the gun he had stuffed down the back of his pants was exposed – twice.
It wasn’t the fact the defendant was carrying concealed that got him searched and busted. It was the fact that the defendant, a prior felon with prison tattoos attesting to that fact, did not either openly carry his handgun as he could have done had he not been a felon, or properly conceal it with a permit in his pocket, which he could not have done because, again, felon.
All pertinent facts considered, if I’m with a friend showing off our handguns in my place of employment and an officer arrives to ask about why I’m doing something like that, I think a brief conversation with the officer to establish my bona fides could be expected in almost every state in the US.
I particularly liked that the officer removed the revolver from his pants the 2nd time it was exposed.
January 3rd, 2014 at 4:09 pm
If one were to open carry then that is ALSO seen as an act allowing investigation by a police officer. So says Federal District Court Judge William S. Duffey Jr.
. . . Bell’s statement at a deposition that it would “be fairly standard practice” for him to detain “armed citizen[s]” to “check their ID[s]” in his “[t]hirteen years of being a law enforcement officer in Georgia.” [Cit.] The Court is not convinced that Bell’s “standard practice” violated Plaintiff’s constitutional rights during their encounter at the park.
Proescher v Bell/Dantzler
https://docs.google.com/file/d/0B3DJ7h3BEPHcTmd4dnZiek5jNjA/edit?pli=1
January 3rd, 2014 at 8:03 pm
“Clandestine” act? That’s a spelling of “private” I’ve never seen before.
January 3rd, 2014 at 11:56 pm
New Mexico? Wasn’t that where the guy got forcibly anesthetized and probulated over a burnt-out tail light because the drug dog said it was okay?
January 4th, 2014 at 1:08 am
Mikee –
Something the summaries forgot to mention: While New Mexico does have concealed-carry, and we are an Open Carry state to boot, OC is NOT allowed inside any place that sells alcohol, but licensed concealed-carry is. Almost every convenience store in the state sells beer at a minimum. Places with liquor licenses are about the only places we have to worry about failure to conceal; the gun sticking out of the waistband ANYWHERE else would not have had as much “weight.”
Montieth –
Cops in Albuquerque have been slapped down by the courts more than once for that kind of reasoning. Our judiciary may be stupid sometimes, but not all the time.
Seerak –
Pretty much. I don’t understand why this judge in this case went around Hogan’s barn to figure out something that’s fairly plain in the law. Failure to conceal inside liquor establishment = gun was supposed to be concealed but wasn’t = check into Mr. Concealed-Failure a bit more. Overly circuituous logic seems to have been used.
Rickn8or –
THAT case is still on-going, and frankly, I don’t think it looks good for the cops at all, public-relations-wise or career-wise.
January 4th, 2014 at 10:49 am
I agree with Kermit. The judge went the long way around for too long. Terry v. Ohio. If there is articulable suspicion, not necessarily probable cause, the police officer may detain and question, and conduct a pat down for weapons for his own safety. If that initial Terry detention and questioning reveals that his articulable suspicion was correct and there is probable cause that a crime is being committed, including unlawful carry, that’s the f***ing purpose of a Terry stop in the first place.
January 6th, 2014 at 3:14 pm
I’m going to disagree a bit here, nk. While the officer was within my understanding of what the law is, I don’t think it’s what the law should be. So-called “victimless crimes” just plain shouldn’t be crimes. Violations of the law being prosecuted for the law’s sake don’t make sense to me.
So, I’m attacking while I’m defending, and both are aimed at the same thing. Standard internet soapbox.
January 6th, 2014 at 4:51 pm
But the ownership and proper possession of the car is not an open and obvious act. Who can tell if the driver is in possession of and operating that car legally? If they wanted to, this would be the next step; random and sweeping stops to check on –whatever– would be completely legal.