Indiana Court of Appeals and Handgun Possession

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  • Roadie

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    Apparently the Indiana Court of Appeals handed down an interesting decision yesterday.

    "Mere possession of a firearm, which is legal, cannot produce reasonable suspicion to justify a Terry stop. See Malone v. State, 882 N.E.2d 784 (Ind. Ct. Court of Appeals of Indiana | Opinion 49A02-1511-CR-2036 | August 24, 2016 Page 7 of 14 App. 2008) (evidence suppressed because possession of a handgun on a porch did not give officers sufficient evidence of criminal activity to justify stop), reh’g denied. The State has not directed us to a reason why the police believed when they stopped Pinner that his possession of the gun was illegal, nor has the State asserted any other criminal activity was 'afoot.' Accordingly, we are constrained to hold the stop of Pinner was not supported by reasonable suspicion."

    http://www.in.gov/judiciary/opinions/pdf/08241602msm.pdf

    It is being discussed on Guy Relford's FB page if you want more info, or to read more about it, etc
     

    Nacelle

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    I may be wrong, but what I take from this is the police can't stop you solely on the grounds that you are carrying a gun. And even if you don't have a licence to carry a handgun, you can't go to jail if there's no evidence that you were committing or about to commit a criminal act. Because the police don't have to right to search you, which means the gun can't be used as evidence to convict you of carrying without a licence. Interesting how the amendments support one-another.
     
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    2A_Tom

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    I have been "falsely" asserting this for years. I'm glad someone else was the test case.
     

    mrjarrell

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    Actually, it looks like the decision states states that it applies to your private property (from the clip). The victim in this case was apparently on his porch, so not sure it would apply to you being on the street or in town somewhere.
     

    mrjarrell

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    You've got to read the whole thing. That section you're referring to is about a different case were the cops arrested a guy on his porch when they saw he had a gun. http://www.in.gov/judiciary/opinions/pdf/03200808jsk.pdf

    OK, I see it now. Not sure the gun is really at issue, or that we gain anything from it. This was just a case of IMPD cops screwing up and a lower court stupidly backing them up. There was no evidence of a crime or of any criminality at all, to justify a Terry stop. Finding the gun happened after the bad stop. The courts mention that it was legal to carry does not seem to be supported by the law, as currently written.
     

    Nacelle

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    So if the Judges don't know what the law is, how are we supposed to know what the hell we're allowed to do?
     

    Fargo

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    OK, I see it now. Not sure the gun is really at issue, or that we gain anything from it. This was just a case of IMPD cops screwing up and a lower court stupidly backing them up. There was no evidence of a crime or of any criminality at all, to justify a Terry stop. Finding the gun happened after the bad stop. The courts mention that it was legal to carry does not seem to be supported by the law, as currently written.
    The bad stop was off a named complainant saying that he had a gun. That would meet the requirements of Terry except that the court found that carrying a gun is a presumptively legal act. This clarifies a huge grey area where many officers were treating handguns as presumptively illegal.
     

    Nacelle

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    If that's the case, this might be a good pdf to keep on the phone for when a cop tries to play 20 questions with you when they see your gun.
     

    GodFearinGunTotin

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    The bad stop was off a named complainant saying that he had a gun. That would meet the requirements of Terry except that the court found that carrying a gun is a presumptively legal act. This clarifies a huge grey area where many officers were treating handguns as presumptively illegal.

    I'm all for this, obviously. But is that sound reasoning, based on the case they cited?
     

    Nacelle

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    They are both similar. No crime was being committed in either case. And the mere fact that a gun was seen by an officer wasn't cause for the officer to escalate the encounter.
     

    2A_Tom

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    The argument against this on INGO has always been that since it is against the law to carry a firearm without a permission slip (misdemeanor, IC 35-47-2) that a Terry stop can be made for no other reason than possessing a gun.

    I have always contended that without some other RS that a person is acting in a suspicious/furtive manner a stop is unjustified.

    I have always been shot down by the INGO experts including police and lawyers.

    The existing legal precedents and IC always favored their view, so, they were correct. I am not saying they were wrong, they were absolutely right.Now we have a new precedent, that could be over turned by the Indiana Supreme Court, on appeal.
     

    Fargo

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    I'm all for this, obviously. But is that sound reasoning, based on the case they cited?
    The case they cited addressed different circumstances than this one, but the holdings in the cases are consistent. In Malone the call was for display of a shotgun on private property, leading to a Terry-frisk seizure of a handgun being possessed illegally under the Serious Violent Felon statute. The two cases are different but not contradictory.

    What matters in this case is that the new caselaw is that possession of a handgun in public is presumptively legal in Indiana, unless the Indiana Supreme Court accepts transfer and reverses.

    With all respect to MrJ, this is a huge clarification as far as what LE can do to people carrying handguns.
     

    mrjarrell

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    The case they cited addressed different circumstances than this one, but the holdings in the cases are consistent. In Malone the call was for display of a shotgun on private property, leading to a Terry-frisk seizure of a handgun being possessed illegally under the Serious Violent Felon statute. The two cases are different but not contradictory.

    What matters in this case is that the new caselaw is that possession of a handgun in public is presumptively legal in Indiana, unless the Indiana Supreme Court accepts transfer and reverses.

    With all respect to MrJ, this is a huge clarification as far as what LE can do to people carrying handguns.
    Well, if it does do what you think it will then great. I'll wait till the Indiana Supreme Court rules on the inevitable appeal. I'd certainly like it to do away with the presumed guilt.
     

    GodFearinGunTotin

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    The case they cited addressed different circumstances than this one, but the holdings in the cases are consistent. In Malone the call was for display of a shotgun on private property, leading to a Terry-frisk seizure of a handgun being possessed illegally under the Serious Violent Felon statute. The two cases are different but not contradictory.

    What matters in this case is that the new caselaw is that possession of a handgun in public is presumptively legal in Indiana, unless the Indiana Supreme Court accepts transfer and reverses.

    With all respect to MrJ, this is a huge clarification as far as what LE can do to people carrying handguns.

    Here's hoping they don't. :thumbsup:
     

    Fargo

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    Well, if it does do what you think it will then great. I'll wait till the Indiana Supreme Court rules on the inevitable appeal. I'd certainly like it to do away with the presumed guilt.
    I'm not sure the AG will seek transfer on this considering that the bulk of the opinion is based on the AG's office doing an incredibly crappy job and failing to even make most of the arguments available.

    Criminal Appeals have not been good at all under Zoeller.
     
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