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Old November 23, 2012, 01:11 PM   #22
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 6,325
Quote:
Originally Posted by Frank Ettin
This isn't a question of the presumption of innocence. That is a rule of evidence that applies in court. It means that it is the persecution's burden to prove in court the defendant's guilty.
Well, in the Philadelphia case the court certainly agreed with you that the young man was being subjected to persecution (sic).

I understand that the ruling in Terry does not require probable cause, but it DOES require that the officer have a reasonable suspicion based on clearly articulable facts that a crime is being committed. And the Pennsylvania court determined that, since open carry is legal and that the officer had nothing on which to base a suspicion that the young man did NOT have a LTCF, the court held that the young man had been unlawfully detained and that the City of Brotherly Love owed him monetary damages as well as an apology.

How is the Florida law substantively different? If I have a Florida carry permit (which I do), the law saying that concealed carry is a crime DOES NOT APPLY TO ME. If the law does not apply to me, there is no way I can be guilty of violating it. So if a police officer sees me on the street and catches a glimpse of my pistol under my jacket ... what "clearly articulable facts" can he cite to support a reasonable suspicion that I am violating a law ... which does not apply to me?

"But he doesn't know the law doesn't apply until he investigates," you reply. But that's not good enough. That's no different from stopping every car on the street to determine that the driver has a driver's license. Between resident and non-resident permits, Florida has issued hundreds of thousands of carry permits. Your logic would allow officers to stop, detain and investigate potentially hundreds of thousands of people. I don't think that's quite what the 4th Amendment had in mind. I respectfully submit that the police officer's perceiving that I am carrying does not rise to a satisfactory level of clearly articulable facts that I am carrying illegally. He needs more -- such as some way of knowing that I am a prohibited person and therefore cannot be carrying legally.

There was a case discussed several weeks ago (here, I believe) about a motorcyclist who was arrested in Maryland for carrying a handgun without a Maryland permit. The biker argued (IIRC) that the officer stopped him "because he was a biker." The officer (and the state) countered that the biker was wearing "colors" of a biker gang while riding in the "turf" of a rival gang, and that the officer didn't think any biker would enter enemy territory unarmed. That would be another example of the "totality of the circumstances."

IMHO, merely seeing the gun isn't enough to establish reasonable suspicion for a Terry stop. (In Florida. Chicago is a different story)
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