Indiana Court of Appeals and Handgun Possession

[Fargo]

OK, is there a difference between an affidavit and a accusation by someone who then leaves the scene?

The officer may use an affidavit executed by an individual alleged to have direct knowledge of the incident alleging the elements of the offense of battery to establish probable cause;
(6) probable cause to believe that the person violated IC 35-46-1-15.1 (invasion of privacy);
(7) probable cause to believe that the person violated IC 35-47-2-1 (carrying a handgun without a license) or IC 35-47-2-22 (counterfeit handgun license);
- See more at: Indiana Code Title 35. Criminal Law and Procedure IN CODE § 35-33-1-1 | FindLaw


af·fi·da·vit
/ˌafəˈdāvit/
nounLAW
a written statement confirmed by oath or affirmation, for use as evidence in court.

I read the reference you gave and i don't see the word exception.

The "affidavit" portion you cited only applies to establishing battery with injury or domestic battery as an exception. Lets look at the statute as a whole keeping in mind that (lower case letters) come before (numerals) which come before (uppercase letters):


(bold added to body of statute)

IC 35-33-1-1
Law enforcement officer; federal enforcement officer
Sec. 1. (a) A law enforcement officer may arrest a person when
the officer has:
(1) a warrant commanding that the person be arrested;
(2) probable cause to believe the person has committed or
attempted to commit, or is committing or attempting to commit,
a felony;
(3) probable cause to believe the person has violated the
provisions of IC 9-26-1-1.1 or IC 9-30-5;
(4) probable cause to believe the person is committing or
attempting to commit a misdemeanor in the officer's presence;
(5) probable cause to believe the person has committed a:
(A) battery resulting in bodily injury under IC 35-42-2-1; or
(B) domestic battery under IC 35-42-2-1.3.
The officer may use an affidavit executed by an individual
alleged to have direct knowledge of the incident alleging the
elements of the offense of battery to establish probable cause;
(6) probable cause to believe that the person violated
IC 35-46-1-15.1 (invasion of privacy) or IC 35-46-1-15.3;
(7) probable cause to believe that the person violated
IC 35-47-2-1 (carrying a handgun without a license) or
IC 35-47-2-22 (counterfeit handgun license);
(8) probable cause to believe that the person is violating or has
violated an order issued under IC 35-50-7;
(9) probable cause to believe that the person is violating or has
violated IC 35-47-6-1.1 (undisclosed transport of a dangerous
device);
(10) probable cause to believe that the person is:
(A) violating or has violated IC 35-45-2-5 (interference with
the reporting of a crime); and
(B) interfering with or preventing the reporting of a crime
involving domestic or family violence (as defined in
IC 34-6-2-34.5);
(11) probable cause to believe that the person has committed
theft (IC 35-43-4-2);
(12) a removal order issued for the person by an immigration
Indiana Code 2016
court;
(13) a detainer or notice of action for the person issued by the
United States Department of Homeland Security; or
(14) probable cause to believe that the person has been indicted
for or convicted of one (1) or more aggravated felonies (as
defined in 8 U.S.C. 1101(a)(43)).
(b) A person who:
(1) is employed full time as a federal enforcement officer;
(2) is empowered to effect an arrest with or without warrant for
a violation of the United States Code; and
(3) is authorized to carry firearms in the performance of the
person's duties;
may act as an officer for the arrest of offenders against the laws of
this state where the person reasonably believes that a felony has been
or is about to be committed or attempted in the person's presence.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982,
P.L.204, SEC.6; P.L.320-1983, SEC.2; P.L.311-1985, SEC.1;
P.L.319-1987, SEC.1; P.L.53-1989, SEC.6; P.L.160-1990, SEC.1;
P.L.2-1991, SEC.102; P.L.1-1991, SEC.189; P.L.1-1992, SEC.178;
P.L.242-1993, SEC.1; P.L.140-1994, SEC.3; P.L.216-1996, SEC.10;
P.L.47-2000, SEC.2; P.L.222-2001, SEC.3; P.L.133-2002, SEC.59;
P.L.221-2003, SEC.15; P.L.50-2005, SEC.1; P.L.171-2011, SEC.20;
P.L.226-2014(ts), SEC.3; P.L.226-2014(ts), SEC.4; P.L.65-2016,

Sub (a) gives a list of arrestable offenses. These offenses are broken down by (numeral). (4) is the general misdemeanor arrest authorization requiring presence. However (7) explicitly says that Handgun w/o License is arrestable on probable cause. (4) doesn't control (7) because they are under the same (numeral) heading which means they are part of the same list. Just as (2) doesn't require the warrant that sub (1) does, sub (7) doesn't require the presence that sub (4) does. They are all independent grounds for an arrest per (a).

 

[Fargo]

This being the 12th page, we can launch in all kinds of tangential directions, right?

Wasn't there a situation awhile back where a judge was questioning a law firm's billings in a famous case because it appeared there were lawyers working 30 hour days and such?

Yeah, that "one" case where a big firm billed hours requiring a warp of the space time continuum... There have been quite a few more than one case where impossible hours were billed.

 

[HoughMade]

Yeah, that "one" case where a big firm billed hours requiring a warp of the space time continuum... There have been quite a few more than one case where impossible hours were billed.

I have never heard of such a thing. I'm shocked! SHOCKED I tells ya!

 

[2A_Tom]

So does swatting constitute probable cause? Didn't the judge in Pinner say that the investigatory stop was unwarranted? So, are you now saying that the sight of a gun could cause PC of not having a license, I feel as though you are going around in lawyer circles.

 

[opus1776]

For those who are keeping score, TODAY (Friday the 23rd) is the last day for transfer request not Monday (hint August has 31 days ).









======================================
"Nothing tastes as good as skinny feels" K. Moss
You can NEVER be too rich or too thin.
Life is not a journey, but a series of unplanned detours...
Perfection: is not a goal---it's a demanded expectation.

 

[T.Lex]

For those who are keeping score, TODAY (Friday the 23rd) is the last day for transfer request not Monday (hint August has 31 days ).

hahaha

Oh yeah.

But, it could be rotunda filed as late as 11:59 pm tonight. Plus, it can take a couple days for things to show up as filed in the system.

So, we may not know until Monday or midweek whether the transfer petition was filed.

 

[Fargo]

So does swatting constitute probable cause?

Well, this isn't really a swatting case and the legal standard being discussed is reasonable suspicion, not probable cause, so I'm not certain what you are getting at. As a GENERAL rule, a named 911 caller who alleges criminal activity and gives specific details is sufficient to show reasonable suspicion and justify a Terry-stop.

Didn't the judge in Pinner say that the investigatory stop was unwarranted?

The trial court judge said it was warranted because there was a named complainant who gave details and it was alleged that he had a handgun. That judge said that the possession of a handgun in itself was presumptively illegal so there was reasonable suspicion to Terry-stop.

The Court of Appeals panel said that public possession of a handgun was not presumptively illegal and so the 911 call didn't allege a crime so there could not be reasonable suspicion.

So, are you now saying that the sight of a gun could cause PC of not having a license, I feel as though you are going around in lawyer circles.

No, that isn't what I am saying at all. My point is that for Terry-stop purposes it is legally irrelevant whether the cop sees the gun or it is reported in detail by a named complainant.

In my OPINION, sight of a handgun in public does not establish reasonable suspicion to justify a Terry-stop because I do not believe the statute can constitutionally be read to presumptively ban a constitutionally protected activity and the statute lends itself to a constitutionally sound interpretation. Reasonable suspicion is a lesser standard than probable cause, so I would say that sight of a gun certainly can't be PC.

 

[KG1]

Well, this isn't really a swatting case and the legal standard being discussed is reasonable suspicion, not probable cause, so I'm not certain what you are getting at. As a GENERAL rule, a named 911 caller who alleges criminal activity and gives specific details is sufficient to show reasonable suspicion and justify a Terry-stop.



The trial court judge said it was warranted because there was a named complainant who gave details and it was alleged that he had a handgun. That judge said that the possession of a handgun in itself was presumptively illegal so there was reasonable suspicion to Terry-stop.

The Court of Appeals panel said that public possession of a handgun was not presumptively illegal and so the 911 call didn't allege a crime so there could not be reasonable suspicion.



No, that isn't what I am saying at all. My point is that for Terry-stop purposes it is legally irrelevant whether the cop sees the gun or it is reported in detail by a named complainant.

In my OPINION, sight of a handgun in public does not establish reasonable suspicion to justify a Terry-stop because I do not believe the statute can constitutionally be read to presumptively ban a constitutionally protected activity and the statute lends itself to a constitutionally sound interpretation. Reasonable suspicion is a lesser standard than probable cause, so I would say that sight of a gun certainly can't be PC.

Might as well make constitutional carry official on the grounds that it is a constitutionally protected activity.

 

[Hawkeye]

Yeah, that "one" case where a big firm billed hours requiring a warp of the space time continuum... There have been quite a few more than one case where impossible hours were billed.

I'be "heard" (probably apocryphal ) tales of some lawyers packing their brief cases with a bunch of client files, going to court fr appearances in the cases, and billing them each for a day of court time. That could add up (if true)!

(Added just to keep us on a tangent!)

 

[HoughMade]

I'be "heard" (probably apocryphal ) tales of some lawyers packing their brief cases with a bunch of client files, going to court fr appearances in the cases, and billing them each for a day of court time. That could add up (if true)!

(Added just to keep us on a tangent!)

I don't know where you people come up with this stuff.

 

[2A_Tom]

The link you posted states (7) probable cause to believe that the person violatedIC 35-47-2-1 (carrying a handgun without a license) or

You are the one changing the goal posts.

 

[Fargo]

The link you posted states (7) probable cause to believe that the person violatedIC 35-47-2-1 (carrying a handgun without a license) or

You are the one changing the goal posts.

LOL, the standard for arrest vs. the standard for a terry stop are not the same. I'm questioning if you even know what the goal posts look like.

 

[2A_Tom]

You are a lawyer and you have won this. I am not going to post any more in this thread.

 

[Fargo]

You are a lawyer and you have won this. I am not going to post any more in this thread.

I'm not trying to be a jerk here, I was just trying to explain my position but you somehow thought I was moving the goalposts. I am happy to keep discussing it, I have no animus towards you.

 

[Libertarian01]

Did I miss something? Where do we stand?

Doug

 

[T.Lex]

Did I miss something? Where do we stand?

Doug

Odyssey still shows nothing filed, as in no Petition to Transfer asking the Indiana Supreme Court to take it.

One could have been filed, but not entered into the system yet. Really, I'd give it until tomorrow. If it was filed Friday, it could still take that long to show up. I'll be checking periodically today, though, too.

For those interested, you can go here:
https://public.courts.in.gov/mycase#/vw/Search

Enter "Pinner" in last name, then pick "Appellate" for the type of case. Should be the first search result.

 

[Kirk Freeman]

If the AG blew this deadline, this changes the face of Indiana gun law.

 

[T.Lex]

If the AG blew this deadline, this changes the face of Indiana gun law.

If there's no xfer petition, I'd like to believe it was a conscious decision. I think Tom Fisher is still the "Solicitor General" and would be unlikely to pass up on this opportunity if he thought it would be worthwhile.

 

[Fargo]

If the AG blew this deadline, this changes the face of Indiana gun law.

Im with Tlex in that if there is no petition, I think it may have been a conscious decision, albeit for a different reason. The state's briefs had some serious omissions in them and the opinion seemed to really focus on those. When you have work product on record which has already been ripped by the COA, maybe you don't want to highlight it?

 

[T.Lex]

Im with Tlex in that if there is no petition, I think it may have been a conscious decision, albeit for a different reason. The state's briefs had some serious omissions in them and the opinion seemed to really focus on those. When you have work product on record which has already been ripped by the COA, maybe you don't want to highlight it?

Well, that's somewhat mitigated by the fact that a different attorney would probably handle transfer/OA in the ISC. That is, and this is based on familiarity with how it was done nearly 10 years ago now, Tom Fisher gets dibs on anything going to the ISC. If he wants to take the case, then he can try to fix any of those issues.

Even having said that, though, I think the COA was too harsh on the AG's argument. In at least one place, the COA said an argument was unaddressed when it actually was. That's the kind of thing that can help bolster a transfer petition - that the COA didn't even understand the arguments being made.

That's the kind of thing a Solicitor General can argue that a line DAG probably can't.

If there's no xfer petition, I think it is because they'd rather wait for "better" facts to bring it to the ISC. See if they can get a split among the COAs. That's pure speculation, though.