be carefull. you could be on the verge of being called names and being flamed for stating a fact and asking a question.
Eh, it won't be the first time & I'm SURE it won't be the last.
be carefull. you could be on the verge of being called names and being flamed for stating a fact and asking a question.
Hmm, interesting. Excercising my brain here. I rather enjoy studying USSC decisions. The Maryland case was on a recent Prosecutor Update for us and discussed during an inservice I believe. It is in Maryland however, since it went to the USSC, their ruling is being used as a guide for the rest of us. What it is going to take, is a court ruling clarifying this, absent an Indiana Supreme Court decision narrowing the USSC ruling. We are working with gray areas. There are decisions that skirt this issue so we only operate on what we can infer from decisions that are close to this issue. I welcome a court decision clarifying this.I'd like to expound on my previous post. And again, I want to emphasize that I do so in complete respect, because these issues can get tricky. The issue in the Maryland case was whether both the driver and passengers of a car can be ordered out of the car during a traffic stop for officer safety - or as addressed by the 8th Circuit in the underlying case, whether a passenger could be ordered back into the vehicle after he left it. In recognizing the very legitimate need to protect officer safety, the Supreme Court held that the intrusion upon either the driver or the passengers in being required to exit the vehicle was minimal, since they'd been stopped already. And, by removing the occupants from the vehicle, the officer was putting distance between the occupants and any potential weapons in the car.
But very importantly, having the right to remove the occupants from the vehicle has NOTHING to do with: 1) being able to search the vehicle; or 2) being able to seize the property of the driver - particularly after the driver has produced a valid LTCH that makes the presence of a firearm within the vehicle totally legal.
And to address your very reasonable question - isn't requiring the occupants to exit the vehicle roughly the same as removing the firearm from the vehicle? - the answer is absolutely not. What's the difference? This: a search of the vehicle without probable cause and without meeting the strict requirements of the Terry standard - that the officer have a reasonable belief that the driver is dangerous or engaged in criminal behavior (other than the basis for the traffic stop). That search - and any activity that results from it (seizing the firearm, etc.) - is what is illegal under the 4th Amendment and Section 11 of the Indiana Constitution. And that is the point of the Richardson and Washington cases that I referenced earlier.
And let's put this in context - do you think the OP would have been offended (or had is rights violated) if, upon telling the LEO that he had a LTCH and a loaded weapon in the car, the officer would have said, "Ok, why don't you step outside the vehicle while I write your speeding ticket - to get you away from that firearm for my safety"?? Of course not. And that's the point of the Maryland case. In that regard, Maryland most certainly didn't authorize the officer to order the OP to surrender his legally-owned and legally-possessed firearm at gunpoint. That was illegal, IMO.
Guy
This is why Indiana needs a statute on this. Just sayin'.
i agree, but I suggest that the Washington (Indiana Court of Appeals) and Richardson (Indiana Supreme Court) cases provide exactly that clarification.Hmm, interesting. Excercising my brain here. I rather enjoy studying USSC decisions. The Maryland case was on a recent Prosecutor Update for us and discussed during an inservice I believe. It is in Maryland however, since it went to the USSC, their ruling is being used as a guide for the rest of us. What it is going to take, is a court ruling clarifying this, absent an Indiana Supreme Court decision narrowing the USSC ruling. We are working with gray areas. There are decisions that skirt this issue so we only operate on what we can infer from decisions that are close to this issue. I welcome a court decision clarifying this.
I agree that the OP's situation was uncalled for. However, it was NOT armed robbery. That is your opinion without legal backing. Go to the prosecutor's office, go to the DOJ, FBI, the media...they all love a good "dirty cop". I doubt you will get ANY of them to agree with you.What took place here is an armed robbery, pure and simple.
I will be reading those in more depth. Thanks.i agree, but I suggest that the Washington (Indiana Court of Appeals) and Richardson (Indiana Supreme Court) cases provide exactly that clarification.
To be specific;, based on these decisions: In Indiana, during a traffic stop, if the driver of the stopped vehicle produces a valid LTCH and admits to the presence of a firearm within the vehicle, absent any separate basis for a "reasonable belief" that the driver is dangerous or engaged in other illegal behavior, the officer is not legally authorized to take any further action with respect to that firearm, and any such action, including a search of the vehicle or the forcible seizure of that firearm, is illegal.
IMO, that is exactly what these cases say, thus removing any uncertainty in this area of Indiana law.
Seriously. What do you say?
it was NOT armed robbery
I doubt you will get ANY of them to agree with you.
I will be reading those in more depth. Thanks.
What it is going to take, is a court ruling clarifying this, absent an Indiana Supreme Court decision narrowing the USSC ruling. We are working with gray areas.
OK, read them better. I have read Washington v. Indiana in a prior Prosecutor's Update. They stated that their decision was based only on statute and not Constitutionality. It was a seatbelt stop and those are VERY limited in time/scope. Basically stop for seatbelt, get ID, write ticket, let them go. Nothing more. However, I was not aware of Richardson. No permission was given to enter his vehicle and he was cuffed . Voluntarily giving gun up would remove the warrant requirement. However, refusing to do so, the officer could do something else it they are concerned...ex: if gun is not on person, have them step from vehicle. If gun is on person, have them keep hands on steering wheel or have a second officer stand at car if you want to focus on writing a ticket. Sadly, not being a lawyer, I am forced to rely on Prosecutor's office to provide updates. I do try on my own but obviously I miss some. Thanks for the clarification.Thank you. I can't imagine how tough your job is - to handle all the nuts out there and try to stay informed of the constantly-changing legal landscape at the same time.
And by the way, nothing I said above would prevent the officer from requiring the driver to step outside the vehicle during the stop - to separate the driver from the firearm. IMO, that's the point of the Maryland case. I only wish that would have been how the Fishers LEO had handled the situation in the OP.
OK, read them better. I have read Washington v. Indiana in a prior Prosecutor's Update. They stated that their decision was based only on statute and not Constitutionality. It was a seatbelt stop and those are VERY limited in time/scope. Basically stop for seatbelt, get ID, write ticket, let them go. Nothing more. However, I was not aware of Richardson. No permission was given to enter his vehicle and he was cuffed . Voluntarily giving gun up would remove the warrant requirement. However, refusing to do so, the officer could do something else it they are concerned...ex: if gun is not on person, have them step from vehicle. If gun is on person, have them keep hands on steering wheel or have a second officer stand at car if you want to focus on writing a ticket. Sadly, not being a lawyer, I am forced to rely on Prosecutor's office to provide updates. I do try on my own but obviously I miss some. Thanks for the clarification.
I agree that the OP's situation was uncalled for. However, it was NOT armed robbery. That is your opinion without legal backing. Go to the prosecutor's office, go to the DOJ, FBI, the media...they all love a good "dirty cop". I doubt you will get ANY of them to agree with you.
I do not believe for a minute that anyone in this discussion, or any honest citizen for that matter, does not have a concern for the safety of police officers. I'm also pretty confident that most of us would readily jump in to protect an officer in jeopardy. All this despite the precarious situations some have experienced at the hands of well intentioned officers.
Read the statute...it was an armed robbery. The fact no one in our criminal justice system has the integrity to prosecute it as such is immaterial.
WOW! you're supoposed to say "Rant Over" or something like that, What a great reply! Maybe you can start a blog and help to poor hating officer on how to deal with the stress of being a [strike]keyboard commando[/strike] warrior.If I hated my job to the point I was prick to almost everyone I had to have contact with I would be smart enough to find a new profession! Not deny innocent folks their freedoms and abuse their rights just to make myself feel better,safer or in control.
I only dealt with some of the most highly trained killers our enemies could create with the sole intent on killing me! Yeah I can see where I don't have a clue!
I agree that the OP's situation was uncalled for. However, it was NOT armed robbery. That is your opinion without legal backing. Go to the prosecutor's office, go to the DOJ, FBI, the media...they all love a good "dirty cop". I doubt you will get ANY of them to agree with you.
Read the statute...it was an armed robbery. The fact no one in our criminal justice system has the integrity to prosecute it as such is immaterial.
But then again I never had to deal with the likes of punk kids pulling burglaries or some stupid drunk idiot not wanting to go to jail. Wow, those types must be some real desperate bad *sses! I only dealt with some of the most highly trained killers our enemies could create with the sole intent on killing me! Yeah I can see where I don't have a clue!