Flawless MWAG call caught on tape

[GBuck]

Ahh, so we are all guilty until proven innocent... I see your reasoning, and I do not accept it. It is only illegal to carry if you are felon, and/or do not have an LTCH, so if innocent until proven guilty, we should not be harassed unless there is clear and present evidence/suspicion that a crime is being committed. In this case there was no evidence/suspicion, so, the officer still crossed a line!!!!

We are innocent until proven guilty. That is why you are allowed to produce a LTCH and not go straight to jail. Don't get pissy with me because you don't agree with the LAW. It's not my fault. I'm just informing you of something you clearly didn't know.

 

[downzero]

Terry leaves much to be desired when it comes to 2A rights versus officer safety. There are no clear answers. Again, unless any of us were there, we do not know if any activity was taking place that caused the MWG call to the PD. So, we do not know if both elements to justify the search were present or not. If I recall correctly, In Terry, the court provided some latitude for the officer to conduct a search for dangerous weapons for the sake of his own safety. In this case, the "dangerous weapon" was visible and carried by someone who may have been reported to be dangerous or conducting a dangerous activity In Terry, they were just standing around looking suspicious and the Court arrived at this present-day standard from that.

The stop was quick and the search was limited, both standards within the holding of Terry. The officer didn't even pat the guy down or search his companion, which he could have done. He didn't demonstrate the desire to harass anyone, only to do his job.

There are not clear answers, but there is case law, and there are the facts of Terry itself. Terry was casing an establishment and about to commit a robbery when the officer stopped him. It wasn't just that the officer suspected that he was armed, it was that he was armed and that the officer articulated specific facts that suggested that the two perps in that case were about to commit a felony--a robbery. Those were the relevant facts--not the officer's safety. At the time, carrying a firearm concealed in Ohio was a crime by itself, but that wasn't enough to make the stop.

The stop would weigh heavily in favor of the government if there was some allegation of both "armed" AND "dangerous," because as you note, it was brief and relatively non-intrusive. The problem is that without a specific allegation, the stop, which requires reasonable suspicion in the first place, is invalid. And the "search" of the firearm itself (after the seizure), without a warrant, requires a higher showing of probable cause, for which the officer's "training and experience" rationale fails the smell test. Even the automobile doctrine isn't broad enough to allow a search of a 'container' without PC, which would require a specific factual allegation that it was a full auto firearm.

The best part is that the officer acknowledges that open carrying a firearm is legal, so he acknowledges that he's investigating a legal activity. That's where it becomes quite obvious that this is about to go very wrong, and why an officer who actually respects the constitution should have realized that he was about to screw up, even if the violation was relatively minor.

The burden is on the government to defend its behavior, not the other way around. That's what freedom is all about.

 

[japartridge]

We are innocent until proven guilty. That is why you are allowed to produce a LTCH and not go straight to jail. Don't get pissy with me because you don't agree with the LAW. It's not my fault. I'm just informing you of something you clearly didn't know.

First of all I wasn't getting pissy, now on the other hand... Second, by your reasoning it is the other way around.... by how I interpret your posts at least. And yes I know that it is illegal to carry if you are a felon, or do not have an LTCH... I'm assuming you are an LEO, yes?

 

[GBuck]

First of all I wasn't getting pissy, now on the other hand... Second, by your reasoning it is the other way around.... by how I interpret your posts at least. And yes I know that it is illegal to carry if you are a felon, or do not have an LTCH... I'm assuming you are an LEO, yes?

No. I am not a cop.

Read the IC. It is illegal to carry a handgun in Indiana. Period. That is why they can initiate contact and "investigate" the crime. The LTCH is the only defense from charges of carrying a handgun illegally. Once that is shown, or proof that you have one is verified, the interaction should stop. They are fully enabled by the law to stop you, because until it's proven otherwise, you're committing a crime.

According to the law, it would be no different than a cop driving down the street seeing you breaking your car window to get your keys out. It's a REASONABLE assumption a crime is being committed. Once he verifies it is your car, he'll be merrily on his way.

 

[downzero]

I don't think that's the proper analogy. The proper analogy is the requirement for a driver's license or insurance. The police cannot stop you to verify that you are a licensed driver or that you have insurance, even if you are operating a motor vehicle and even though it is illegal to do so without a license and insurance. The Fourth Amendment protects you from that stop. And in a traditional open carry state especially, it should protect you in this one as well.

 

[japartridge]

I don't think that's the proper analogy. The proper analogy is the requirement for a driver's license or insurance. The police cannot stop you to verify that you are a licensed driver or that you have insurance, even if you are operating a motor vehicle and even though it is illegal to do so without a license and insurance. The Fourth Amendment protects you from that stop. And in a traditional open carry state especially, it should protect you in this one as well.

^^^^^^^^^^^^^
This!

Thank you DZ!

 

[japartridge]

No. I am not a cop.

Read the IC. It is illegal to carry a handgun in Indiana. Period. That is why they can initiate contact and "investigate" the crime. The LTCH is the only defense from charges of carrying a handgun illegally. Once that is shown, or proof that you have one is verified, the interaction should stop. They are fully enabled by the law to stop you, because until it's proven otherwise, you're committing a crime.

According to the law, it would be no different than a cop driving down the street seeing you breaking your car window to get your keys out. It's a REASONABLE assumption a crime is being committed. Once he verifies it is your car, he'll be merrily on his way.

No, you are incorrect... if it was "illegal to carry a handgun in Indiana. Period." We would be living in IL. It is not illegal to carry in IN.

 

[Que]

There are not clear answers, but there is case law, and there are the facts of Terry itself. Terry was casing an establishment and about to commit a robbery when the officer stopped him. It wasn't just that the officer suspected that he was armed, it was that he was armed and that the officer articulated specific facts that suggested that the two perps in that case were about to commit a felony--a robbery. Those were the relevant facts--not the officer's safety. At the time, carrying a firearm concealed in Ohio was a crime by itself, but that wasn't enough to make the stop.

The stop would weigh heavily in favor of the government if there was some allegation of both "armed" AND "dangerous," because as you note, it was brief and relatively non-intrusive. The problem is that without a specific allegation, the stop, which requires reasonable suspicion in the first place, is invalid. And the "search" of the firearm itself (after the seizure), without a warrant, requires a higher showing of probable cause, for which the officer's "training and experience" rationale fails the smell test. Even the automobile doctrine isn't broad enough to allow a search of a 'container' without PC, which would require a specific factual allegation that it was a full auto firearm.

The best part is that the officer acknowledges that open carrying a firearm is legal, so he acknowledges that he's investigating a legal activity. That's where it becomes quite obvious that this is about to go very wrong, and why an officer who actually respects the constitution should have realized that he was about to screw up, even if the violation was relatively minor.

The burden is on the government to defend its behavior, not the other way around. That's what freedom is all about.

I am not arguing that the officer was right. I'm simply saying that he used the law to his advantage. The officer acknowledges that open carrying is legal, but NOT carrying a fully automatic weapon without proper documentation. He had reasonable suspicion that it was fully automatic based on his years of experience. That is the path he took in conducting his investigation. As litigious as our society is, I'm sure if those glory hounds had a case, it would have been in the news by now. The officer covered himself very well and I doubt anything will ever come of it.

I'm wondering who posted that video in the first place. I'm sure the OCers wouldn't call themselves "Douchebag Activists" and the angle is not coming from the PO's car.

 

[public servant]

Thanks for the information. Never put the two together. See I learn something every day! Appreciated!

I believe the term you used was...duffess...right?

 

[downzero]

I He had reasonable suspicion that it was fully automatic based on his years of experience.

That means the officer is making the constitutionally relevant decision. And as I stated in other posts, courts severely frown upon the police making those decisions. That decision is for the courts.

 

[Que]

That means the officer is making the constitutionally relevant decision. And as I stated in other posts, courts severely frown upon the police making those decisions. That decision is for the courts.

Isn't that how the officers made the decision to check out Terry? After all, they were stopped because it looked like they were casing the place, but that isn't breaking the law, right? It was only after they were stopped and searched did the police find the gun.

 

[LockStocksAndBarrel]

I believe the term you used was...duffess...right?

I think it's "doofus".

 

[public servant]

I think it's "doofus".

I know. But I didn't want to call that poster out for not spelling it correctly on top of not knowing what they were talking about.

 

[downzero]

Isn't that how the officers made the decision to check out Terry? After all, they were stopped because it looked like they were casing the place, but that isn't breaking the law, right? It was only after they were stopped and searched did the police find the gun.

I didn't say that the police aren't supposed to determine whether to make the stop, that's obviously the case.

The determination of the stop's constitutionality is a separate consideration that happens after the fact.

Judge: Why did you stop him?
Cop: Training and experience told me this was a fully automatic firearm.
Judge: But it wasn't fully automatic?
Cop: No
Judge: so your training and experience was inadequate?
Cop: No, Judge, every time I've seen a firearm of that shape it was...
Judge: But it could have been a toy, right?
Cop: Perhaps, Judge, but my training and experience....

In other words, training and experience doesn't have any independent or constitutionally-relevant meaning. All it means is that the cop had a hunch that something illegal was going on, without any specific evidence. And that is precisely what the constitution forbids: seizures of persons based on hunches rather than on specific evidence.

"Training and experience" isn't evidence. It's just reiterating that you're not braindead.

 

[iChokePeople]

So a cop who sees a baggy of white powder on the passenger seat during a traffic stop should not be able to check it, even though it LOOKS like cocaine, because it might not be? He has to assume that you're innocent.

 

[Ted]

But there was no illegal behavior... it is not illegal to openly carry a long gun in Oregon, or IN for that matter; it is not illegal to own an FA weapon either, so either way, he had no basis for suspicion.

Not illegal behavior, but given the circumstances of a MWAG 911 call, the populated setting, and any number of other factors; there lies a strong indication that the behavior warrants an investigatory contact to determine such.

 

[downzero]

So a cop who sees a baggy of white powder on the passenger seat during a traffic stop should not be able to check it, even though it LOOKS like cocaine, because it might not be? He has to assume that you're innocent.

That's subject to plain view, so there's no fourth amendment issue there.

Once the initial stop is justified, anything in plain view is fair game.

Not illegal behavior, but given the circumstances of a MWAG 911 call, the populated setting, and any number of other factors; there lies a strong indication that the behavior warrants an investigatory contact to determine such.

So I guess being a white guy in a black neighborhood warrants suspicion as well?

I don't see how a report of entirely legal activity can be the basis for a seizure of one's person when the constitution is on the other side of the balance.

There has to be evidence of crime; here there was none and not even a serious allegation otherwise.

 

[MTubbs1]

Couldnt bring myself to read all 10 pages of this, but if the cop in right in thinking the mp5 could be automatic, whats stopping a cop from disarming me of my glock that could possibly be automatic?

Im gonna quote a post earlier today

Don't be a sell out, do what you believe in.

The 2a dosent say you have the right to bear arms unless it shoots real fast.

 

[Ted]

That's subject to plain view, so there's no fourth amendment issue there.

Once the initial stop is justified, anything in plain view is fair game.

To include paraphernalia, a smell, a sound, and any other evidence to support the presence of such.

 

[iChokePeople]

The weapon that appears to be automatic is in plain view, as well. I know, initial stop... S change the baggy to hanging halfway out of someone's jacket pocket walking down the street. The police have to have some authority to investigate what would appear, to a reasonable person, to be against the law.