Probable Cause

[Madcap_Magician]

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.

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.

 

[steve4102]

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?

 

[Frank Ettin]

...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."

 

[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?

 

[Frank Ettin]

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.

 

[Tackleberry1]

No he can't... He must witness an infraction.

No different with OC where legal. The act of OC does not provide RAS of a gun crime any more than the having car keys indicates a driving infraction.

We keep comparing OC to driving but it really closer to strolling about with a set of keys clipped to your belt.

"SIR... I'd like to make sure those keys are not stolen"
"SIR... How do I know you won't take those key, start your car and mow down pedestrians?"
"SIR... Another citizen was concerned with the size of your key chain so... I need to check your ID"

Cars kill roughly 6 times the number of people annually as guns and we would not tolerate this nonsense regarding our automobiles... No need to suffer this foolishness regarding our guns.

Know your rights and assert them.

Tack

 

[Madcap_Magician]

No he can't... He must witness an infraction.

Not sure to what or to whom you are responding here, but it's not that simple. Speaking to Minnesota, where both Steve and I live, an officer can cite or arrest for probable cause that a felony has been committed regardless of whether it was committed in his or her presence, and there are multiple exceptions to the in-presence requirement for misdemeanor arrests or petty misdemeanor violations.

Example: Officers can arrest for misdemeanor domestic abuse with probable cause that said crime has been committed within twelve hours. They can also arrest or cite for school bus stop arm violations (misdemeanors or gross misdemeanors) with probable cause within four hours of the incident.

Additionally, what one officer sees, all officers have seen. If Deputy Joe Bob sees you blow a stop light, but he is on his own traffic stop at the time, he can radio your license plate and vehicle description to Trooper Jane Doe and have her stop and cite you, even though Jane never saw the violation.

And of course, if you have paper, no one cares if the arresting officer saw the original offense: warrant=arrest.

No different with OC where legal. The act of OC does not provide RAS of a gun crime any more than the having car keys indicates a driving infraction.

We keep comparing OC to driving but it really closer to strolling about with a set of keys clipped to your belt.

"SIR... I'd like to make sure those keys are not stolen"
"SIR... How do I know you won't take those key, start your car and mow down pedestrians?"
"SIR... Another citizen was concerned with the size of your key chain so... I need to check your ID"

Again, this is only true if open carry is legal by default by any person who is not a prohibited purchaser/possessor. In Ohio, OC cannot be RAS for a stop because it is not against the law to OC in Ohio.

IN MINNESOTA, WHERE STEVE AND I BOTH LIVE, IT IS AGAINST THE LAW TO OPEN CARRY WITHOUT A PERMIT.

I don't know how much clearer I can make that. Not only is OC reasonable suspicion for an investigative stop in Minnesota, it is prima facie probable cause for an arrest... unless you have both your driver's license or state ID card and your permit to carry. If you have those and present them, you will be told "Have a nice day."

Know your rights and assert them.

Tack

You apparently don't know your rights, in Minnesota, at least, so I hope you don't try to assert them.

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?

No. The clearest way to explain it is this: Driving is not illegal, and there is no way to tell if someone who is driving is driving without a license without stopping them. Unless there is RAS or PC to believe that the vehicle is or has been involved in a crime or traffic violation, the driver cannot be stopped.

In Minnesota, open carry is illegal without a permit, so anyone seen open carrying would be plainly committing an illegal act unless he or she has a permit. So obviously the only way to ascertain whether or not it is illegal... is to check the license and permit.

 

[steve4102]

No. The clearest way to explain it is this: Driving is not illegal, and there is no way to tell if someone who is driving is driving without a license without stopping them. Unless there is RAS or PC to believe that the vehicle is or has been involved in a crime or traffic violation, the driver cannot be stopped.

In Minnesota, open carry is illegal without a permit, so anyone seen open carrying would be plainly committing an illegal act unless he or she has a permit. So obviously the only way to ascertain whether or not it is illegal... is to check the license and permit.

Put another way,

Driving is Illegal without a License.

Open carry is Illegal without a License.

..............or.....................

Diving is legal with a License

Open Carry is Legal with a License.

 

[Frank Ettin]

Put another way,

Driving is Illegal without a License.

Open carry is Illegal without a License.

..............or.....................

Diving is legal with a License

Open Carry is Legal with a License.

So what?

Again, it's a facile comparison which might or might not have anything to do with the way the courts have decided Fourth Amendment issues in traffic stop cases, on one hand, and gun stop cases, on the other. A lot goes into deciding the cases beyond what appears on the surface.

DeBury V US (sic) was cited in post 10 for the proposition that a legally carried firearm can not be the bases for a reasonably articulable suspicions supporting a detention of investigation. But in that case, actually United States v. DeBerry (7th Circuit, No. 95-2232, 1996), the detention was found proper and DeBerry's conviction affirmed. The language referenced in post 10 was dicta, and not part of the ruling.

In Embody v. Ward, 695 F.3d 577 (6th Circuit, 2012) the Court of Appeal affirmed the District Court's rejection of Leonard Embody's 42 USC 1983 claim arising in connection his detention while lawfully open carrying a gun. As both the District Court and the Circuit Court the detention for investigation was proper under the circumstances.

Embody is an interesting case. Mr. Embody was merely detained for investigation. Upon completion of the investigation in the field it was decided that his conduct had been lawful. He was not charged with anything and allowed to go on his way. He then claimed damages under 42 USC 1983 for a violation of his rights under color of authority.

Mr. Embody's claim was rejected at both the District and Circuit Court level (the Supreme Court denied certiorari). Essential both at the trial court level and appellate court level it was decided that detaining Mr. Embody to investigate the situation was proper under the totality of the circumstances. Those circumstances included his manner of dress, the ways in which he was comporting himself, the nature of the gun he was carrying and citizen complaints.

In any given case a variety of factors play a part in deciding if a detention is, or is not, proper under the Fourth Amendment. Details and contexts are everything.

 

[Aguila Blanca]

I don't know how much clearer I can make that. Not only is OC reasonable suspicion for an investigative stop in Minnesota, it is prima facie probable cause for an arrest... unless you have both your driver's license or state ID card and your permit to carry. If you have those and present them, you will be told "Have a nice day."

I absolutely disagree with you ... and, by extension, that means I also disagree with Frank (which probably means I'm wrong, but here goes).

Under the rules established by Terry v. Ohio in the U.S. Supreme Court, an officer may stop someone and begin an investigation ONLY when the officer has a "reasonable suspicion based on clearly articulable facts" that a crime has been committed, is being committed, or is about to be committed. The Supreme Court in Terry explicitly stated that a mere hunch is not sufficient to establish reasonable suspicion -- and "reasonable suspicion" has a much lower threshold than probable cause.

The automobile analogy is not irrelevant, it is spot on as a comparable issue. In every state, a license is required to operate a motor vehicle on public streets. Police are allowed to pull over drivers who are observed committing infractions, such as speeding, turning without signaling, failing to drive in an established lane, or driving in a manner that directly suggests to an officer that the driver may be under the influence of ... something. But just seeing a car drive sedately down Main Street, staying in lane, not speeding, stopping for traffic lights -- there is NOTHING to suggest that even an infraction is being committed, and thus no "articulable facts" to justify a traffic stop to inquire as to whether or not the driver has the required license.

The same applies to a person openly carrying a firearm. To maintain the analogy, assume a jurisdiction in which open carry is allowed only with a license or permit. Philadelphia is an example. I walk down Market Street in center city with a firearm openly worn on my belt. A police officer sees me. The police officer doesn't like seeing citizens wearing guns. (Hey, we're in Philadelphia ... that's a gimme.) Does the officer have any possible justification to stop me and ask if I have a license? According to the courts in Pennsylvania, the answer is no -- and a certain young man is now $25,000 richer as a result of just such an incident in the City of Brotherly Love.

Yes, I know that the "totality of the circumstances" rule applies and that there may be additional factors that would justify a reasonable suspicion. But that's not what we're talking about. This is a straight-up question about SOLELY the fact of open carrying -- does it or does it not provide probable cause (or even reasonable suspicion)?

 

[Frank Ettin]

Sorry AB --

...Under the rules established by Terry v. Ohio in the U.S. Supreme Court, an officer may stop someone and begin an investigation ONLY when the officer has a "reasonable suspicion based on clearly articulable facts" that a crime has been committed, is being committed, or is about to be committed. The Supreme Court in Terry explicitly stated that a mere hunch is not sufficient to establish reasonable suspicion -- and "reasonable suspicion" has a much lower threshold than probable cause...

But the question is, "What facts can lead to a "reasonable suspicion based on clearly articulable facts", and do appropriate facts obtain in the case under consideration? You can state the "rule" derived from a particular case, and the result of the application of that rule to the facts of that case; but in a different case, with different facts, there will still be the question of how that "rule" applies to those facts.

Then when we start looking at decisions in many cases dealing with similar issues, but involving different facts, we begin to see how, or if, certain factual changes can affect the result.

...The automobile analogy is not irrelevant, ....

...To maintain the analogy,...

No, the traffic stop cases are not irrelevant, but they are also not necessarily analogous. Driving a car is a fact. Carrying a gun is a fact. These are different facts in the respective cases, and the results, when whatever other material facts obtain, might, or might not, be sensitive to the differences. Again, you can't just stop with the "rule", but you must look at all the facts and at the cases.

As I put it in post 25:

...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. ...

...This is a straight-up question about SOLELY the fact of open carrying...

And that is an essential fallacy of that line of reasoning. Or to put it another way, going down that path is pointless; it tells you nothing about the law or how it applies. There will always be other factors. The court in due course might find the other factors irrelevant. A court might decide that the LEO's perceptions or conclusions were infirm. And a court might conclude that based on the totality of circumstances the stop or detention was improper.

In other words, carrying a gun is one fact; and there will be other facts involved in any real life event. All of those facts would be considered even if only to decide that they are not material and can not, in the aggregate, support the LEO's actions.

This is why, in general, courts do not give advisory opinions. They only consider cases and controversies. Courts need a context, a body of facts, to which to apply the "rule."

...assume a jurisdiction in which open carry is allowed only with a license or permit. Philadelphia is an example. I walk down Market Street in center city with a firearm openly worn on my belt. A police officer sees me. The police officer doesn't like seeing citizens wearing guns. (Hey, we're in Philadelphia ... that's a gimme.) Does the officer have any possible justification to stop me and ask if I have a license? According to the courts in Pennsylvania, the answer is no -- and a certain young man is now $25,000 richer as a result of just such an incident in the City of Brotherly Love...

So however the cop involved tried to justify his conduct was rejected by the court. It would be interesting to read the case, it it's been published. It would be interesting to see exactly how did the cop try to justify his actions, for example. It would be interesting to do the research to look at how the result might vary as the facts began to vary.

And on the other hand, we have Leonard Embody in Tennessee, where openly carrying a gun is legal without a permit. He was stopped, detained, released, and he then sued. He got bupkis.

 

[Aguila Blanca]

But the question is, "What facts can lead to a "reasonable suspicion based on clearly articulable facts", and do appropriate facts obtain in the case under consideration? You can state the "rule" derived from a particular case, and the result of the application of that rule to the facts of that case; but in a different case, with different facts, there will still be the question of how that "rule" applies to those facts.

Then when we start looking at decisions in many cases dealing with similar issues, but involving different facts, we begin to see how, or if, certain factual changes can affect the result.

Understood. And I reiterate that the ONLY fact to be considered under the question posed in the original post of this discussion is open carry of a firearm. Not open carry of a firearm by a person the officer recognizes as a recent parolee. Not open carry by a person the officer just served a restraining order on. What we are discussing here is an unknown (to the officer) person walking down the street at mid-day (no suspicion that he's casing the joint for a break-in) wearing a holstered firearm on his (or her) belt. So the "totality of the circumstances" adds up to nothing other than "I saw a person who had a gun on his belt."

Open carry is legal in the jurisdiction with a permit. There is nothing in the "totality of the circumstances" to suggest in any way that the person does not have a permit. In this scenario, then, where would an officer find any "clearly articulable facts" (not a hunch) to suggest that a crime is being committed, has been committed, or is about the be committed?

And this was precisely the situation for "ViperGTS19801" (his user name on the PAFOA forum) in Philadelphia. Most of PA allows unlicensed open carry; in Philadelphia, a license is required for concealed or open carry. "Viper" has a license. He was walking from his apartment to the auto parts store, wearing an exposed sidearm. He was approached by a Philadelphia cop, proned out, and arrested, even though he had a license. After getting his arrest thrown out in court, he sued the city. The city paid him $25,000. In short, the court agreed that the officer had no basis under existing law for even stopping the "subject." Despite what the written charges were, the arrest apparently boiled down to "Failure to respect my authority."

Part of the settlement in Viper's case was that the city agreed to retrain all officers on the law pertaining to open carry.

 

[Frank Ettin]

...After getting his arrest thrown out in court, he sued the city. The city paid him $25,000. In short, the court agreed that the officer had no basis under existing law for even stopping the "subject." Despite what the written charges were, the arrest apparently boiled down to "Failure to respect my authority."...

...Part of the settlement in Viper's case was...

Wait. Was the case settled, or did it proceed to a judgment? If the former, then the court decided nothing. The matter was never adjudicated, and no decision on the merits was made by a court.

Settlement is a private agreement between the parties to a lawsuit. The plaintiff agrees to dismiss the suit with prejudice (so it can't be resurrected), and the defendant agrees to give the plaintiff something, usually money and/or an agreement to do something. The majority of civil suits are resolved by settlement.

So if the case settled, rather than being pursued to judgement, there was no ruling by a court on the merits of the plaintiff's complaint. No court decided that the officer had no basis for the charges. The city just offered the plaintiff some money (and an undertaking to make some administrative changes) to go away; and the plaintiff took the money and went away.

Settlements really don't mean much. They are at best tell us roughly how important the defendant thought the issue was. And in the world of settlements, $25,000 is a pittance. It basically cost the city far less to throw a few dollars at the plaintiff, if he'd disappear, than to fight the thing, even if they were to win. A $25,000 settlement sounds like a pure "cost-of-doing-business" decision by the city.

Settlements don't really mean anything either. They make no law. They are not precedent. They usually can not be used as evidence in connection with other claims.

 

[Madcap_Magician]

And this was precisely the situation for "ViperGTS19801" (his user name on the PAFOA forum) in Philadelphia. Most of PA allows unlicensed open carry; in Philadelphia, a license is required for concealed or open carry. "Viper" has a license. He was walking from his apartment to the auto parts store, wearing an exposed sidearm. He was approached by a Philadelphia cop, proned out, and arrested, even though he had a license. After getting his arrest thrown out in court, he sued the city. The city paid him $25,000. In short, the court agreed that the officer had no basis under existing law for even stopping the "subject." Despite what the written charges were, the arrest apparently boiled down to "Failure to respect my authority."

I believe you are mistaken as to the facts of the case. The court didn't agree to anything, Philadelphia offered a Rule 68 judgment because they were clearly in the wrong. Totally ignoring the actual judgment, just reading the plaintiff's complaint shows that even in Pennsylvania, my statements were correct.

From the plaintiff's complaint:

"Mr. Fiorino was detained and searched by Sergeant Kulp and Officers Moore, Corbo and Furey not to confirm the validity of his LTCF but, instead, because the officers involved in the Second Incident incorrectly believed that it was illegal to openly carry a firearm in Philadelphia, even if one has an LTCF.

"Assuming, arguendo, that the police had reasonable and articulable suspicion that criminal activity was afoot, any such reasonable suspicion should, and could have been, dispelled in only a few minutes by confirming the validity of Mr. Fiorino’s LTCF as aforesaid.

"...However, The detention of Mr. Fiorino by the officers involved in and present during the First Incident lasted significantly longer than necessary because they incorrectly and unreasonably believed that it was illegal to openly carry a firearm in Philadelphia, even with a valid LTCF, despite clearly established law to the contrary."

Fiorino was not challenging the ability of the police to stop him to check the validity of his LTCF, he was challenging his continued detention beyond the minimum few minutes it would have taken to validate his permit, which the PPD did because they incorrectly thought it was illegal to OC even with a permit.

If you go back to my post, you would see that I stated that a stop for OC in Minnesota is justified but should only last long enough to verify that the person stopped has a PTC and that it is valid.

EDIT: Plaintiff's Complaint, Fiorino v. City of Philadelphia.

 

[Marty8613]

I think I would have just cooperated to get that "have a nice day". The real problem is the person who called. Best thing for them to see is a cordial engagement and still having to see a legal OCer go on his merry way. That way they aren't encouraged to call again.

I mean rights and all are fine, but who is really the one that needs a lesson? Isn't that the real big picture? Being confrontational, even if within your rights, isn't the smartest idea in this case.

 

[OuTcAsT]

Frank Ettin wrote;

And on the other hand, we have Leonard Embody in Tennessee, where openly carrying a gun is legal without a permit.

Sorry Frank, OC is not legal in TN without a permit.

 

[Frank Ettin]

Sorry Frank, OC is not legal in TN without a permit.

I stand corrected.

Re-reading the decision, Embody did produce his permit when requested, and with the permit he would be permitted to openly carry a handgun. He was detained to resolve the question of whether the Draco AK-47 pistol he was carrying was a "handgun" as defined under Tennessee law.

Both the trial court and the appellate court concluded that disarming and detaining Embody while that question was resolved did not violate his Fourth Amendment rights.