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Old November 21, 2012, 11:29 AM   #5
jmortimer
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Join Date: January 24, 2010
Location: South West Riverside County California
Posts: 2,763
The Fourth Amendment has been hashed out since the beginning. My take, based on limited information, is that there was no probable cause so it should be case dismissed. All the officer had to do was articulate a need for a "safety search" or just lie and say "I thought it looked like he had a gun."
P.S. I read the facts of the case and it is clear the office did have probable cause as here is the factual summary from the case:

"Officer May saw Petitioner standing alone on one side of a fence by an
apartment complex. (D. 6). As the officer approached, he slowed down, and
observed a solid object inside of Petitioner’s pocket. (D. 5, 7). As he drew closer,
he observed a “piece of the handle sticking out. Not much, but a piece enough for
[him] to identify a firearm.” (D. 5, 7). Based on his training and experience, he
knew that it was a firearm. (D. 8). Officer May exited his vehicle, approached
Petitioner and asked Petitioner if he had anything on him...The
officer proceeded to conduct a pat down search of Petitioner’s pocket, felt the
firearm he had seen earlier, retrieved it, and subsequently asked Petitioner if he had
a concealed weapons permit. (D. 8). After Petitioner said “no,” he was arrested
and placed into custody. (D. 8). Petitioner spontaneously stated that he kept the
firearm for “protection because he’s been shot at before.” (D. 10).
At the conclusion of the hearing, defense counsel first argued that the
firearm was not concealed."

There was probable cause and the defendant's attorney even argued that the gun was not concealed. If your concealed weapon is not concealed then that is probable cause for a search and investigation. Here is one take of those in Florida from the link above:

"Now, under the Mackey decision, any time you exercise your Second Amendment right you are engaged in presumably criminal activity.

Therefore, you can be stopped, searched, and even arrested for carrying a firearm and then be made to present the "affirmative defense" to a judge that you have a valid concealed carry license."

Bad facts make bad case law and the fact that this felon illegally carrying a gun is the basis for the appeal is not good.

Last edited by jmortimer; November 21, 2012 at 12:21 PM.
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