imported post
NavyLT wrote:
SNIP I had a long argument with a fellow in Florida who used to be LEO here in Washington about whether or not it was lawful to detain a person or persons for any type of questioning, including merely identification, when the LEO receives a man with a gun call - regardless of whether the person making the 911 call expressed fear on their part or not.
The scenario was a person is merely carrying a firearm in a lawful manner and a person calls 911 saying there is a man with a gun and they are afraid of him. LEO shows up at the scenes and sees nothing more than a person or a group of persons LAWFULLY carrying a gun, going about normal activity for that time and location. For instance, an open carry breakfast at a restaurant where there may be 10 guys together eating breakfast at a restaurant, which is a normal activity if the restaurant is open for business.
I understand you are speaking to the example scenario, so I'm not invalidating your point. I would like to broaden the discussion just a bit, to a wider applicability.
There is a US Supreme Court case about a man-with-a-gun call.The case is
Florida vs JL.[suP]1[/suP] This case is, in my mind, only tangentially a gun case. It is a happy case for us because SCOTUS expressly declined to make an exception for guns to the standard
Terry analysis. What the case is really about is the 4th Amendment (search and seizure) issue of reliability inan anonymous phone tip, and how does that reliability, or lack of reliability,influence the "reasonableness" element of "reasonable articulable suspicion."
There have been reams and reams of court opinions about whether any given set of circumstances amounted to RAS. I have read things in cases about time of day (night), whether it is a high crime area, whether it is a neighborhood where there are a lot of drug sales, whether guns and drugs go together from a police and court point of view. The list goes on. Who knows whether the neighborhood he is passing through isthought by the police to be "a high crime area?" Or,a "drug area?" How many crimes makes a high-crime area? How many drug sales makes a drug area? Street corner sales? Or, drug house sales? Does spending a lot of time looking at houses while walking or driving slowly amount to RAS for a possible burglar casing the neighborhood? The point is there are numerous circumstances that
have already been ruled on by the courts as supporting RAS. Lots of circumstances. More than I can keep track of.
Ha, hah! But that isn't the kicker. Oh, no.
The kicker is that the courts reserve to themselves the authority to determine whether RAS
existed. The first clue is in
Terry v Ohio.[suP]2[/suP] This means that unless the OCer's circumstances have already been ruled as
not providing RAS, the door is open for the cop and the court to possibly determine RAS
did exist.The totality of the circumstances will be weighed, I am betting--but only
after thedetention.
And, I am betting the judge will be inclined towards the cop's view, as long as they can articulate something that seems reasonable. Were it not for the comment in
Florida v JL about no exceptions to
Terry for RAS and detentionjust because there is a gun (as opposed to protective search and temporary gun seizure), the courts (judges) could easily find that a gun alone is enough for RAS. Certainly the governmentwasarguing for just that in
Florida v JL.
And,I vaguely recall reading whether case law allows a police officer to draw reasonable inferences from the information he has and to evaluate the information he hasin light of his experienceas a police officer.
So, just to recap. Determining RAS belongs to the courts. Andtheir determination is made after the fact, meaning they might side with the police about the circumstances of your stop, unless there is precedentpreventing it. Courts have written reams of opinions about whichsets of circumstancesdoor don't amount to RAS--they have been at it since 1968 or so, whatever the date of
Terry. Until all the circumstances are known (the totality of the circumstances),one cannot really say whether there was RAS from a legal viewpoint.
Heh, heh, heh. But, once all the circumstances are known, if there wasa detention without RAS, reamthe cop.
1. Florida v JL:
A second major argument advanced by Florida and the United States as amicus is, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. We decline to adopt this position.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0529_0266_ZO.html
2. Terry v Ohio:
"Each case of this sort will, of course, have to be decided on its own facts."
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html
