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Old October 16, 2014, 09:20 PM   #1
steve4102
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Probable Cause

Is open carrying Probable Cause for an LEO to request ID and also request you surrender your weapon?

I under stand the Mall asking him to leave, but surrender your weapon, is that SOP in a situation like this? This was in Ohio.

http://www.youtube.com/watch?v=s7zyRpPrchQ

Last edited by steve4102; October 16, 2014 at 09:30 PM.
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Old October 16, 2014, 11:01 PM   #2
Aguila Blanca
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It depends on the jurisdiction.

"Probable cause" is short for "probably cause to believe that the subject has committed a crime." In a jurisdiction where open carry is not illegal, the simple fact of open carrying doesn't come close to providing probable cause to believe that the subject has committed a crime.

Even in Philadelphia, where open carry IS illegal unless the person has a Pennsylvania carry license or a license/permit from one of the shrinking roster of states PA recognizes, the police are being retrained (extremely grudginly) that open carry -- absent other indications of criminal activity -- does not provide even "reasonable suspicion" of a crime, and reasonable suspician is a lower standard than probable cause.

The only place where open carry would offer probable cause would be a jurisdiction in which open carry under all circumstances and conditions is illegal.
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Old October 17, 2014, 08:59 AM   #3
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Quote:
Originally Posted by Aguila Blanca
It depends on the jurisdiction.
We have a winner. It all depends on the jurisdiction. Different jurisdictions have different statutes, rules of criminal procedures, and (on the federal level) different Circuit Courts of Appeal.
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Old October 17, 2014, 09:32 AM   #4
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Wasn't there a Supreme Court ruling a few years back that said something to the effect of police always being able to ask for ID?
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Old October 17, 2014, 06:53 PM   #5
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Originally Posted by Doyle
Wasn't there a Supreme Court ruling a few years back that said something to the effect of police always being able to ask for ID?
They can always ask. The issue is whether or not they can require you to show ID.

I think the case you have in mind was Hibbel (sp?), and the ruling was that unless the officer has a reasonable suspicion of a crime being committed, he canNOT require you to show ID. The Hibbel case sort of rides on the coattails of Terry v Ohio,which is where the "reasonable suspicion based on clearly articulable facts" concept came from.

Okay -- I don't speel two gud: http://en.wikipedia.org/wiki/Hiibel_...ourt_of_Nevada

The ruling leads to an interesting paradox:

Quote:
Furthermore, the officer’s request that Hiibel identify himself did not implicate Hiibel’s Fifth Amendment privilege against self-incrimination. There was no “articulated real and appreciable fear that [Hiibel’s] name would be used to incriminate him, or that it ‘would furnish a link in the chain of evidence needed to prosecute’ him.” Because Hiibel’s name was not an incriminating piece of evidence, he could not invoke the Fifth Amendment privilege in refusing to disclose it.
If you DON'T have any warrants outstanding for your arrest, the Supremes have decided that providing your name can't incriminate you, so the Fifth Amendment doesn't apply and you have to provide your name.

However -- by extrapolation -- if you DO have warrants outstanding, telling an officer your name may be incriminating, so you don't have to identify yourself. Under this cockamamie logic, then, refusal to identify yourself becomes either reasonable suspicion or probable cause, because only someone with something to hide would refuse to identify himself.

It's a bit like the riddle from when I was in grammar school about how to decide if an Indian you encountered in the forest is a truth-telling Whiteleg or a lying Blackleg.

Last edited by Aguila Blanca; October 17, 2014 at 07:06 PM.
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Old October 18, 2014, 09:27 PM   #6
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The officers were wrong, knew they were wrong, and continued to push the issue.

1. A firearm where legally carried, can not be the sole cause for a stop and certainly does not reach the level of RAS.

2. A private policy against video does not allow cops to demand a stop to recording once an LEO encounter has begun, especially when the subject is attempting to comply by leaving the property.

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Old October 18, 2014, 10:17 PM   #7
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In TX, an officer is allowed, at his or her discretion ("any time the officer reasonably believes it is necessary for the protection of the license holder, officer, or another individual"), to disarm a permit holder for the duration of their interaction. At the end of the interaction, the officer must return the firearm "if the officer determines that the license holder is not a threat to the officer, license holder, or another individual and if the license holder has not violated any provision of this subchapter or committed any other violation that results in the arrest of the license holder".

See Sec. 411.207. of the TX Government Code.

In a state of emergency an officer can disarm any citizen for the duration of their action if the officer "reasonably believes it is immediately necessary for the protection of the officer or another individual." At the end of their interaction the officer must either return the firearm, arrest the citizen or hold the firearm as "evidence in a criminal investigation".

See Sec. 418.184. and Sec. 433.0045. of the TX Government Code.
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Old October 18, 2014, 10:56 PM   #8
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If a cop wants to see your Id, I say show it to them. OK so you don't have to but it will make them suspicious if you don't. Why provoke them.
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Old October 18, 2014, 11:33 PM   #9
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Quote:
Originally Posted by Tackleberry1
The officers were wrong, knew they were wrong, and continued to push the issue....
If you're referring to Hiibel, the Supreme Court decided that the officers were correct (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177 (2004)). If you're referring to the video linked to by the OP, that would be something to be decided in court.

Whether the officers were correct in the video will depend on the applicable case law (which I'm not going to research) and exactly what the evidence shows happened (and the video is only a part of the story).
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Old October 22, 2014, 08:52 PM   #10
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I was referring to DeBury V US

A firearm where legally carried, cannot be the sole cause for RAS.

Officers seeing this man wearing a sidearm while eating in a food court is an example of an officer witnessing a perfectly legal act.

Did security call 911? Perhaps? So responding LEOS are responding to a report of a perfectly legal act.

Where is the RAS in any of that? It does not exist.

Most officers will justify their demand for ID by saying "I was called here" "I have a legal right to talk to you" and "you must provide ID if asked".

While the first two statements are true, the third is a lie, without RAS there is no obligation for the citizen to show ID and no departments policy to the contrary trumps the citizens rights.

If officer Barney has to buy donuts at role call for the next week because he could not intimidate or verbal judo a citizen into sacrificing their 4A right to privacy... So be it.

I understand that most LEO's don't like this, view as attitude/contempt of cop, but it's not meant to be. It's meant to be an example of an armed citizen knowing the law, knowing their rights, and having too much respect for both to allow anyone to violate them... especially the Cops.

Tack
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Old October 23, 2014, 11:27 AM   #11
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51.50 wrote;
Quote:
If a cop wants to see your Id, I say show it to them. OK so you don't have to but it will make them suspicious if you don't. Why provoke them.
It's not about provocation, It's about keeping your rights intact. The more we placate, the more our rights are abused.
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Old October 23, 2014, 11:48 AM   #12
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Originally Posted by OuTcAsT
It's not about provocation, It's about keeping your rights intact. The more we placate, the more our rights are abused.
So, what are my/our rights?

Do we have to show ID when confronted for Legal Open Carry Or Not?
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Old October 23, 2014, 12:04 PM   #13
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Quote:
Do we have to show ID when confronted for Legal Open Carry Or Not?
Depends on how willing you are to challenge them. Even being in the right, you could be in for a painful experience.
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Old October 23, 2014, 06:04 PM   #14
Aguila Blanca
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Quote:
Originally Posted by steve4102
So, what are my/our rights?

Do we have to show ID when confronted for Legal Open Carry Or Not?

Quote:
Originally Posted by Doyle
Depends on how willing you are to challenge them. Even being in the right, you could be in for a painful experience.
No, it does NOT depend on how willing you are to challenge them. The law is the law. Whether you choose to stand up for your rights or cave in to placate a nasty cop is a personal decision, but does not change the law.

The controlling Supreme Court cases are Terry and Hiibel, especially the latter. As I understand it, if you have not broken any law and the officer can't tell you what crime you are suspected of committing ... you do not have to identify yourself. I strogly suggest reading the Hiibel decision for yourself. But much depends on the laws of the jurisdiction in which the encounter takes place.

The question asked about open carry, so let's stick to that. If you are in a jurisdiction in which open carry is legal, the fact that you are open carrying conveys no suggestion that a law is being broken, so you don't have to identify yourself. The officer may say he "suspects" that you are breaking a law by open carrying, but he may or may not have reasonable grounds for that suspicion.

Pennsylvania offers a good example. In all of PA except Philadelphia, open carry is legal without a permit, but concealed carry requires a license. So, if open carry is inherently legal, seeing someone open carrying (absent contributing factors) cannot give rise to a suspicion that the open carry is illegal.

Then there's Philadelphia. In Philadelphia, ALL carry requires a license. But ... if you have a license, open carry is legal. Properly (as has been tested in court -- see the PAFOA forum), since there is nothing to indicate to an observer that you don't have a license, the mere fact of open carry does not give rise to any "reasonable" suspicion that you are committing a crime. So, again, a police officer has no valid basis to stop you, frisk you, or demand identification.

A gray area (IMHO) would be a jurisdiction like Hawaii, New York City, New Jersey, or Washington, DC. Technically, according to the law books permits are available in those jurisdictions. In practice, almost nobody gets a permit, and those who do are "connected" and not likely to be in a place and circumstances that would lead to being confronted by a police officer. So a cop sees you open carrying. By the book, we'll posit for argument that all these jurisdictions allow open carry IF you have a permit. (I don't know if this is true.) But these aren't ordinary jurisdictions. The officer would almost certainly be aware that ordinary citizens can't get permits. Is that additional knowledge sufficient to create a "reasonable" suspicion that a crime is being committed? I don't know -- that's why we have judges and juries.

Obviously (I hope), in a jurisdiction where the only legal mode of carry (irrespective of permit) is concealed, seeing a person open carrying would and should "reasonably" suggest that a crime is being committed.

Long answer to a short question. Sorry.
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Old October 24, 2014, 11:54 AM   #15
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I can't shake the feeling like you have posted this on several police boards where I am also a member.

The answer to your question is... maybe.

In some states, like Ohio, the answer is "No."

In my state, open carry is only legal if you have a CCW permit. At the same time, my state also requires that you present your permit, which must be carried with your driver's license, upon the request of a police officer. There is no requirement that police officers can only ask for your permit for specific reasons.

So an officer in my state could stop and legally demand to see a permit and ID from a lawful open carrier even though doing so is not a crime in my state.

In states where open carry is not conditioned on a permit, generally the answer is no. In states where open carry is illegal, the answer would be yes, sort of, because the officer has probable cause to believe that the open carrier has committed a crime. I say "sort of" because there is no requirement that you carry an ID with you, so if you were stopped for open carry as a pedestrian where open carry was illegal, you would have to identify yourself truthfully, but could not be compelled to show an ID.
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Old October 24, 2014, 06:13 PM   #16
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Quote:
In my state, open carry is only legal if you have a CCW permit. At the same time, my state also requires that you present your permit, which must be carried with your driver's license, upon the request of a police officer. There is no requirement that police officers can only ask for your permit for specific reasons.
In MN you are required to carry your drivers license with you while driving, correct.
Can a LEO in MN stop you and ask you for your drivers license just because you are driving, or does he/she need Probable Cause to make the stop in the first place?

MN Supreme Court has ruled that road side check points for DUI are Unconstitutional, would this be any different, "stop and check".
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Old October 24, 2014, 08:40 PM   #17
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Amazing.
The LEO, who is supposed to know the law, is taking legal advice from an NRA instructor. Who, by the way, is wrong.
Open carry is not enough reason to stop someone. And Ohio has pre-emption so there is no "depends on jurisdiction."
Since open carry is not breaking the law, no reason to have to produce an ID.
LEO is also not allowed to just ask for a person's weapon just to run the serial number.
The Mall was not posted, but when asked to leave, the guy left, so no trespassing can be used as another reason to continue to harass the guy.
Wrong on so many levels.
Me... I would have been in the Police chiefs office the next morning with the video, expecting a public apology, if not more.
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Old October 24, 2014, 11:37 PM   #18
steve4102
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Quote:
Originally Posted by Madcap_Magician
In my state, open carry is only legal if you have a CCW permit. At the same time, my state also requires that you present your permit, which must be carried with your driver's license, upon the request of a police officer. There is no requirement that police officers can only ask for your permit for specific reasons.
According to this there is No Statute in MN requiring you identify yourself if there is no Reasonable Suspicion or Probable Cause by the officer.

http://www.kare11.com/story/news/loc...lice/14825985/

Here is what the actual Statute says.

Subd. 1b.Display of permit; penalty. (a) The holder of a permit to carry must have the permit card and a driver's license, state identification card, or other government-issued photo identification in immediate possession at all times when carrying a pistol and must display the permit card and identification document upon lawful demand by a peace officer, as defined in section 626.84, subdivision 1

https://www.revisor.mn.gov/statutes/?id=624.714

To me, this means that the Officer must have RS or PC to ask for your permit, otherwise his "Demand" is not a lawful demand.

Last edited by steve4102; October 25, 2014 at 01:23 AM.
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Old October 27, 2014, 08:25 AM   #19
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steve4102 wrote;
Quote:
So, what are my/our rights?

Do we have to show ID when confronted for Legal Open Carry Or Not?
It appears you have done some research and, likely learned more than I could convey with a mere post.

Quote:
To me, this means that the Officer must have RS or PC to ask for your permit, otherwise his "Demand" is not a lawful demand.
In that jurisdiction, you seem to be correct. But, as others have stated, it does depend on the laws of your jurisdiction.
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Old October 27, 2014, 10:58 PM   #20
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Quote:
Originally Posted by Steve4102
Here is what the actual Statute says.

Subd. 1b.Display of permit; penalty. (a) The holder of a permit to carry must have the permit card and a driver's license, state identification card, or other government-issued photo identification in immediate possession at all times when carrying a pistol and must display the permit card and identification document upon lawful demand by a peace officer, as defined in section 626.84, subdivision 1
The trick is trying to figure out when the officer's demand is lawful, and when it's not.

That was the catch-22 when I was in the Army, too. Going through Basic training, we were told that we were in general expected to obey every order from a superior officer or NCO ... but that we didn't have to obey an unlawful order. The way it was taught to us, it very much came across as refusing to obey an unlawful order was optional.

Only after having left the service did I discover that (surprise!) they lied to me. Refusing to obey an unlawful order is NOT optional, it's mandatory under the UCMJ. However, refusing to obey a lawful order is a court martial offense. How does a lowly GI know the difference?

Last edited by Aguila Blanca; October 28, 2014 at 07:52 PM. Reason: typo
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Old October 28, 2014, 10:04 AM   #21
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Quote:
Originally Posted by steve4102
In MN you are required to carry your drivers license with you while driving, correct.
Can a LEO in MN stop you and ask you for your drivers license just because you are driving, or does he/she need Probable Cause to make the stop in the first place?

MN Supreme Court has ruled that road side check points for DUI are Unconstitutional, would this be any different, "stop and check".
Respectfully, you need to stop interchanging 'probable cause' and 'reasonable suspicion.' They are not at all the same thing, and you might be shocked as to how low the standard for reasonable suspicion is. Anywhere in the United States, you can be stopped while driving upon reasonable suspicion that you have committed a crime or a traffic violation. No LEO needs probable cause to conduct a traffic stop.

Quote:
Originally Posted by steve4102
According to this there is No Statute in MN requiring you identify yourself if there is no Reasonable Suspicion or Probable Cause by the officer.

http://www.kare11.com/story/news/loc...lice/14825985/

Here is what the actual Statute says.

Subd. 1b.Display of permit; penalty. (a) The holder of a permit to carry must have the permit card and a driver's license, state identification card, or other government-issued photo identification in immediate possession at all times when carrying a pistol and must display the permit card and identification document upon lawful demand by a peace officer, as defined in section 626.84, subdivision 1

https://www.revisor.mn.gov/statutes/?id=624.714

To me, this means that the Officer must have RS or PC to ask for your permit, otherwise his "Demand" is not a lawful demand.
You keep assuming that you know whether or not the officer has reasonable suspicion. You forget that it is against the law to openly carry a firearm in Minnesota without a permit. In other words, the fact that you are openly carrying a firearm would constitute probable cause that you are committing a crime, justifying an investigative stop.

In states where open carry is legal without a requirement for a permit, open carry cannot constitute reasonable suspicion for a stop because there is no objective and articulable reason for anyone to suspect that the person doing so is doing so illegally. In other words, in states like Ohio or Colorado, open carry is lawful for everyone by default, so barring RAS that the person is prohibited from possession of firearms, open carry by itself is not RAS. In states like Minnesota, it is unlawful by default, so open carry would actually be PC for a gross misdemeanor violation of 624.714(1a) unless you have a permit.
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Old October 28, 2014, 10:23 AM   #22
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Quote:
You keep assuming that you know whether or not the officer has reasonable suspicion. You forget that it is against the law to openly carry a firearm in Minnesota without a permit. In other words, the fact that you are openly carrying a firearm would constitute probable cause that you are committing a crime, justifying an investigative stop.
It is also against the Law to drive without a Drivers License, so does the simple act of driving Constitute PC that you are committing a crime?

For the legal team here, correct me if I am wrong, but haven't the courts ruled that the legal act of carrying a firearm is not PC?
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Old October 28, 2014, 10:39 AM   #23
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Quote:
Originally Posted by steve4102
...For the legal team here, correct me if I am wrong, but haven't the courts ruled that the legal act of carrying a firearm is not PC?
It's not nearly that simple. It all depends on where, when, and under what circumstances.

Is carrying a gun where you are legal only if you have a permit? Then an LEO who sees you carrying a gun can't know if it's legal without checking to see if you have a permit.

Were you seen carrying a gun near where there has just been an unlawful shooting?

Courts rule based on the totality of the circumstances as determined from the evidence presented.

And don't forget that, as Madcap_Magician points out, there's a difference between "reasonably articulable suspicion" and "probable cause."
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Old October 28, 2014, 11:53 AM   #24
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So, in the same breath, if you are driving, then an LEO can't know if you are Legal to drive without checking to see if you have a license. Correct? So an LEO can stop anyone driving just to make sure they are licensed?
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Old October 28, 2014, 12:16 PM   #25
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Originally Posted by steve4102
So, in the same breath, if you are driving, then an LEO can't know if you are Legal to drive without checking to see if you have a license. Correct? So an LEO can stop anyone driving just to make sure they are licensed?
We're not talking about driving. There are, no doubt, a large assortment of cases deciding when a traffic stop is, or is not, reasonable for the purposes of the Fourth Amendment. Search and seizure cases involving the carrying of guns might, or might not, make use of principles relied on in deciding driving cases, or they might distinguish driving a car from carrying a gun and thus reach different conclusions.

It's a common layperson mistake to draw broad analogies based on facile comparisons. But "The Law" isn't just the case you're reading. That decision, the outcome of that dispute, is built on a foundation of a lot that came before. That's another thing that can give a lawyer an advantage -- we've tracked the evolution of legal principles and monitor those principles as they evolve further.

And always remember that context matters. Too often a layperson will become overly focused on the stated rule without consideration of the underlying facts and circumstances, and how the rule then applies (or not) to those facts and circumstances. In fact I've seen lawyers fall into that trap and wind up getting humiliated when the opposition points out why the "rule" in the case cited isn't applicable to the matter at hand. The embarrassed lawyer didn't thorough read and understand the case he cited and its context, while the opposing lawyer did.

Whether, or the extent to which, driving cases and gun carrying cases might be similar for Fourth Amendment detention cases might be an interesting law review research project. Understanding the extent of similarities, if any, would start with compiling and reading all the applicable cases.
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