Was there a court decision about temporarily seizing gun during a traffic stop?

[Fargo]

Try this one too:

Warrantless searches are presumptively unreasonable, although the Court has recognizeda few limited exceptions to this rule. Brigham City v. Stuart, 547 U.S. 398, 402 (2006).Thus, unless one of several established exceptions applies, law enforcement officers mustobtain a warrant based on probable cause before executing a search or a seizure. State v.Hobbs, 933 N.E.2d 1281, 1284 (Ind. 2010).

https://www.in.gov/judiciary/opinions/pdf/03261301ewn.pdf

Which established exception are you relying on to make your presumptively unreasonable seizure constitutional?

 

[Kutnupe14]

Try this one too:




https://www.in.gov/judiciary/opinions/pdf/03261301ewn.pdf

Which established exception are you relying on to make your presumptively unreasonable seizure constitutional?

Pennsylvania v Mimms

-guy ordered out of car due to expired plate, officers notice bulge and conduct pat down discovering firearm. Guy is then arrested for having a firearm without a license. Sure you don't think that upon the discovery of the firearm after the pat down, and a person having a valid license, would go "ok, we patted him down to find a gun, there it is, he can keep it...just as long as we know it's there"?

 

[gregr]

Pennsylvania v Mimms

-guy ordered out of car due to expired plate, officers notice bulge and conduct pat down discovering firearm. Guy is then arrested for having a firearm without a license. Sure you don't think that upon the discovery of the firearm after the pat down, and a person having a valid license, would go "ok, we patted him down to find a gun, there it is, he can keep it...just as long as we know it's there"?

Humor me...why would a citizen be mandated to exit his vehicle because of an expired plate. He was in violation for the plate, yes...but why ordered out? Is an expired plate sufficient to, in your mind, justify then a search of the individual and his vehicle? And the weapon wouldn`t have been visible unless ordered out of his vehicle for a simple expired plate...

 

[Fargo]

Pennsylvania v Mimms

-guy ordered out of car due to expired plate, officers notice bulge and conduct pat down discovering firearm. Guy is then arrested for having a firearm without a license. Sure you don't think that upon the discovery of the firearm after the pat down, and a person having a valid license, would go "ok, we patted him down to find a gun, there it is, he can keep it...just as long as we know it's there"?

What is the legal standard for a Terry pat down like in Mimms? Oh, that's right specific articulable evidence to believe that he is both armed and dangerous.

The same standard I have been reciting over and over and over.

 

[Fargo]

Humor me...why would a citizen be mandated to exit his vehicle because of an expired plate. He was in violation for the plate, yes...but why ordered out? Is an expired plate sufficient to, in your mind, justify then a search of the individual and his vehicle? And the weapon wouldn`t have been visible unless ordered out of his vehicle for a simple expired plate...

As a general rule, the existing case law says that a person stopped for infraction can always be ordered to exit the vehicle for the duration of the stop. Whether you agree with the reasoning behind it or not, that is the current state of the law.

 

[gregr]

What is the legal standard for a Terry pat down like in Mimms? Oh, that's right specific articulable evidence to believe that he is both armed and dangerous.

The same standard I have been reciting over and over and over.

It`s an emotional issue, because apparently, some police believe they`re in the right to suspend certain rights to help them do a job, and/or, to cause them to feel safer. It`s emotional on our end because we are unwilling to have our rights suspended for any reason, as law-abiding citizens. The police don`t know our hearts, motives, or plans, so in some cases, they presume we are up to no good, and do whatever they must to determine if they were correct. You know: guilty until I find otherwise. Freedoms and individual liberties are sacrificed at the alter of "the greater good", and it`s unacceptable.

 

[Kutnupe14]

What is the legal standard for a Terry pat down like in Mimms? Oh, that's right specific articulable evidence to believe that he is both armed and dangerous.

The same standard I have been reciting over and over and over.

What was the specific, articulable evidence listed in Mimms? I must be missing something.

 

[Fargo]

What was the specific, articulable evidence listed in Mimms? I must be missing something.

To the extent that Mimms held that armed automatically equaled dangerous, that was based off of Pennsylvania's handgun statute from the 1970s and I do not believe is currently good law. That is particularly so in Indiana in light of both Indiana's statute and the caselaw in Washington and Pinner, plus article 1 section 11.. The opinion in Mimms itself explicitly states that there must be evidence of armed AND dangerous.

I don't have access to the Pennsylvania statute from the 1970s, but since one of the charges he was convicted of was carrying a concealed deadly weapon, it would appear that the law in Pennsylvania at that time was such that the concealed carrying of an undisclosed firearm would be presumptively illegal in itself. That is explicitly not the case in Indiana since Pinner.

 

[Kutnupe14]

To the extent that Mimms held that armed automatically equaled dangerous, that was based off of Pennsylvania's handgun statute from the 1970s and I do not believe is currently good law. That is particularly so in Indiana in light of both Indiana's statute and the caselaw in Washington and Pinner, plus article 1 section 11.. The opinion in Mimms itself explicitly states that there must be evidence of armed AND dangerous.

I don't have access to the Pennsylvania statute from the 1970s, but since one of the charges he was convicted of was carrying a concealed deadly weapon, it would appear that the law in Pennsylvania at that time was such that the concealed carrying of an undisclosed firearm would be presumptively illegal in itself. That is explicitly not the case in Indiana since Pinner.

Ok, one more time. What was the articulable suspicion used in the Mimms case, that was used to justify the seizure? And is Mimms considered valid case law today....as in able to be cited in all US states and territories?

 

[Fargo]

Ok, one more time. What was the articulable suspicion used in the Mimms case, that was used to justify the seizure? And is Mimms considered valid case law today....as in able to be cited in all US states and territories?

The articulable suspicion in Mimms was a bulge under a jacket leaving the office or to believe that the person was carrying a concealed deadly weapon in violation of the Pennsylvania statute against such.

If you read the Pennsylvania Supreme Court case upon which Mimms is based, you would see that the terry frisk issue was not even what was ruled upon. The Pennsylvania Supreme Court had decided the case based upon the order to exit the vehicle and never addressed the Terry frisk. As such, the portion of the SCOTUS opinion in regard to armed and dangerous appears to be not the holding of the opinion but rather dicta. As such, it can be cited as persuasive authority but probably not as binding precedent.

Additionally, as the dissenting justices pointed out, it cannot be cited contrary to a state constitutional provision. As such, even something permissible under Mimms and the fourth amendment may be forbidden by article 1 section 11 of the Indiana constitution.

 

[gregr]

The articulable suspicion in Mimms was a bulge under a jacket leaving the office or to believe that the person was carrying a concealed deadly weapon in violation of the Pennsylvania statute against such.

If you read the Pennsylvania Supreme Court case upon which Mimms is based, you would see that the terry frisk issue was not even what was ruled upon. The Pennsylvania Supreme Court had decided the case based upon the order to exit the vehicle and never addressed the Terry frisk. As such, the portion of the SCOTUS opinion in regard to armed and dangerous appears to be not the holding of the opinion but rather dicta. As such, it can be cited as persuasive authority but probably not as binding precedent.

Additionally, as the dissenting justices pointed out, it cannot be cited contrary to a state constitutional provision. As such, even something permissible under Mimms and the fourth amendment may be forbidden by article 1 section 11 of the Indiana constitution.

THANK YOU! Although, the frisk should have been addressed as well, because that "bulge" could have been anything, and not seeing a weapon, it cannot be presumed that it is a weapon!

 

[Kutnupe14]

The articulable suspicion in Mimms was a bulge under a jacket leaving the office or to believe that the person was carrying a concealed deadly weapon in violation of the Pennsylvania statute against such.

If you read the Pennsylvania Supreme Court case upon which Mimms is based, you would see that the terry frisk issue was not even what was ruled upon. The Pennsylvania Supreme Court had decided the case based upon the order to exit the vehicle and never addressed the Terry frisk. As such, the portion of the SCOTUS opinion in regard to armed and dangerous appears to be not the holding of the opinion but rather dicta. As such, it can be cited as persuasive authority but probably not as binding precedent.

Additionally, as the dissenting justices pointed out, it cannot be cited contrary to a state constitutional provision. As such, even something permissible under Mimms and the fourth amendment may be forbidden by article 1 section 11 of the Indiana constitution.

Maybe we're reading different briefs....

"the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate"
-- there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed, and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down."

https://supreme.justia.com/cases/federal/us/434/106/case.html

 

[Fargo]

Maybe we're reading different briefs....

https://supreme.justia.com/cases/federal/us/434/106/case.html

I haven't read any briefs and I haven't seen you quote any so I am unclear what you are getting at. I based my opinion upon the rulings issued by the Pennsylvania Supreme Court and United States Supreme Court.

If you want to base the reasonableness/legality of your actions under the United States and Indiana constitutions upon a 1970s traffic stop, under 1970s Pennsylvania law, based upon the 1970s statistics about traffic stops, and not part of the holding of the case, feel free. Also feel free to continue to ignore the caselaw out of the jurisdiction in which you are a police officer. Also feel free to ignore the constraints imposed by the Indiana constitution.

Let us all know how that works out if and when you end up in court on it.

 

[Kutnupe14]

I haven't read any briefs and I haven't seen you quote any so I am unclear what you are getting at. I based my opinion upon the rulings issued by the Pennsylvania Supreme Court and United States Supreme Court.

If you want to base the reasonableness/legality of your actions under the United States and Indiana constitutions upon a 1970s traffic stop, under 1970s Pennsylvania law, based upon the 1970s statistics about traffic stops, and not part of the holding of the case, feel free. Also feel free to continue to ignore the caselaw out of the jurisdiction in which you are a police officer. Also feel free to ignore the constraints imposed by the Indiana constitution.

Let us all know how that works out if and when you end up in court on it.

I'm sorry, did you NOT want to comment on the words of one of the justices from the Mimm's case that I quoted? Maybe you didn't see it, so I'll post it again.

"the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate"
-- there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that Mimms was armed, and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of "reasonable caution" would likely have conducted the "pat down."

 

[Fargo]

I'm sorry, did you NOT want to comment on the words of one of the justices from the Mimm's case that I quoted? Maybe you didn't see it, so I'll post it again.

I've only commented on them maybe a half a dozen times in this thread so if you want my commentary or opinion on them, I suggest you read what I wrote above.

 

[Kutnupe14]

I've only commented on them maybe a half a dozen times in this thread so if you want my commentary or opinion on them, I suggest you read what I wrote above.

Well, perhaps the words your reading have different means that the ones I'm reading. You can apply your theory all you want, but I can tell you in practice, it works the exact way explained in the words I quoted above. If you have issue with it, you can find countless cases to each and everyday to test your theory. I'm sure some hapless soul would love the pro bono work.

 

[Fargo]

Well, perhaps the words your reading have different means that the ones I'm reading. You can apply your theory all you want, but I can tell you in practice, it works the exact way explained in the words I quoted above. If you have issue with it, you can find countless cases to each and everyday to test your theory. I'm sure some hapless soul would love the pro bono work.

In practice? How many days a week do you spend in criminal court?

 

[Kutnupe14]

In practice? How many days a week do you spend in criminal court?

I think the better question is how many days a week have you spent on the street.

 

[Fargo]

I think the better question is how many days a week have you spent on the street.

LOL, I thought this was a question of law?

 

[Brickmandan]

https://www.youtube.com/watch?v=PaKjRMMU9HI