Timjoebillybob
Grandmaster
- Feb 27, 2009
- 9,563
- 149
Actually the original case may not have anything to do with this discussion. But the MA SC did address this subject.
And this leads me to believe that without any other reason other than carrying a gun, is not cause for a Terry stop and or search and seizure. Which detaining a person and ordering them to present their LTCH would fall under a Terry stop.In the case at hand, the judge's findings and the record make clear that the police had no probable cause to believe that the defendant was or had been engaged in any criminal activity. There is no evidence to suggest, and the Commonwealth does not claim, that the defendant was acting suspiciously when he was seen by the clerk at the convenience store. There is no indication that the gun which was seen was used in any manner to threaten or intimidate the store clerk. There is no suggestion that the defendant lingered for an unusual period of time at the store or that he was "casing the joint" in preparation for a robbery. See Terry v. Ohio, 392 U.S. 1, 6 (1968). Rather, the police only knew that a man had been seen in public with a handgun. Under Toole, this unadorned fact, without any additional information suggesting criminal activity, does not give rise to probable cause. The police in this case had no reason to believe, before conducting the search of the vehicle, that the defendant had no license to carry a firearm. A police officer's knowledge that an individual is carrying a handgun, in and of itself, does not furnish probable cause to believe that the individual is illegally carrying that gun.
So yes this case was about a search and seizure of a vehicle, but the state was claiming it was allowed under a Terry Stop which doesn't just apply to vehicles does it?We briefly add that, while the motion judge did not address this issue, the Commonwealth is incorrect in its claim that the stop and subsequent search of the vehicle was justified under the principles of Terry v. Ohio, 392 U.S. 1 (1968). There is no question that the stop of the pickup truck constituted a seizure within the meaning of the Fourth Amendment to the United States Constitution. See United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. BrignoniPonce, 422 U.S. 873, 878 (1975). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, supra. As we discussed above, there is absolutely no indication that the defendant in this case was engaged in criminal activity. The mere possession of a handgun was not sufficient to give rise to a reasonable suspicion that the defendant was illegally carrying that gun, and the stop was therefore improper under Fourth Amendment principles.
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