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Posted on 12/30/2011 7:27:34 AM PST by marktwain
A recent decision of the District of New Mexico, United States v. Rodriguez, 2011 WL 6739498 (D.N.M. Dec. 8, 2011) (Browning, J.) , addresses an issue of Fourth Amendment law that touches on Second Amendment concerns: In a concealed carry state, does police observation that a person is in possession of a concealed weapon create “reasonable suspicion” justifying a stop and frisk for a potential violation of the state’s concealed carry law? The court concludes that it does, although that conclusion strikes me as incorrect.
The facts of the case are complicated, but here are the basics. A local 911 dispatcher received a call from a woman who reported that she had just seen two employees of a convenience store show their handguns to each other while inside the store. The caller indicated that both of the employees were carrying the guns on their persons. Officer Munoz was dispatched to the convenience store, which was located in a high-crime neighborhood and which Munoz had visited in response to police calls many times before. Munoz entered the store and saw an employee restocking some products. When the employee bent over one of the shelves, the officer could see a handgun tucked in the waistband of the back of his pants. The officer asked the employee to step outside, and he grabbed the gun from the employee’s waistband for officer safety purposes. Once outside, the officer asked the employee if he had a permit to carry the gun. The employee, Rodriguez, said he did not. The gun turned out to be a loaded Smith and Wesson .357 magnum revolver. The officer arrested the employee for violating New Mexico law on carrying a concealed loaded firearm, which states in relevant part:
30–7-2. Unlawful carrying of a deadly weapon.
A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases: . . . by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act [29–19-1 NMSA 1978]. B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm. C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.
It turned out that the employee had a felony record, and he was therefore charged in federal court with being a felon in possession. He has here challenged the “stop and frisk” which lead to the exchange in which Rodriguez acknowledged that he had no permit, thus leading to his arrest. Whether the “stop” was lawful depends on whether the officers had “reasonable suspicion,” based on specific and articulable facts, that the employee was engaged in illegal activity. Whether the frisk that retrieved the gun was lawful depends on whether the officers had specific and articulable facts that the suspect was armed and dangerous.
The District Court, per Judge James O. Browning, concludes that seeing the gun on Rodriguez created reasonable suspicion justifying the stop:
When the officers arrived at the convenience store, through their own observations, they saw the gun concealed under Rodriguez’ shirt and tucked into his waistband. While it is true, as Rodriguez has argued, that he may have been able to possess the handgun under N.M.S.A.1978, § 30–7–2(A)(1), the Tenth Circuit and the Supreme Court have recognized that, even when conduct may have been legal under state law, such possibility does not automatically preclude reasonable suspicion to conduct an investigatory stop. See United States v. King, 990 F.2d at 1556 (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.” (alteration in original)(quoting Reid v. Georgia, 448 U.S. at 442)). More specifically, the Tenth Circuit has recognized this principle in the context of New Mexico laws on carrying concealed weapons. See United States v. King, 990 F.2d at 1556.
The officers could have concluded, based on their observations, that Rodriguez would require a license to lawfully carry a concealed firearm. See N.M.S.A.1978, § 30–7–2(A)(5) (providing as an exception to the law that “carrying of a deadly weapon” is an offense when the person is “in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act”). Additionally, New Mexico law expressly permits officers to inquire of persons carrying a concealed handgun whether they have a license to do so. See N.M.Code R. § 10.8.2.16 (“A licensee carrying a concealed handgun on or about his person in public shall, upon demand by a peace officer, display his license to carry a concealed handgun.”). The officers observed Rodriguez’ concealed firearm before interacting with him or communicating with him. . . . Other facts that support the existence of reasonable suspicion are that Munoz was aware that the convenience store was in a high crime area in town, and he had been to this particular gas station in the past numerous times to investigate reports of criminal conduct. See United States v. Arvizu, 534 U.S. 266 (2002)(recognizing that officers are “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.”); Ornelas v. United States, 517 U.S. 690, 699 (1996)(“[A] police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.”). Under these facts, the most important fact being the officers’ firsthand observation of the firearm, the officers had reasonable suspicion that Rodriguez was carrying a firearm in violation of New Mexico law.
These facts make this case similar to the Fourth Circuit’s United States v. Black decision. The Fourth Circuit in that case found that reasonable suspicion existed to detain a defendant for carrying a concealed firearm in violation of state law based on the following facts: (i) the officer knew that the area was a high crime area in which the officer had made numerous arrests; (ii) while the officers were talking to the defendant, he had his “right hand awkwardly inserted halfway in his right-hand pocket, ‘cupped’ as if ‘grasping an object’ “; (iii) the defendant hesitated to remove his hand from his pocket when requested to do so; (iv) after the defendant removed his hand, the officer observed a bulge in the defendant’s pocket; (v) the defendant lied about what was in his pocket, saying he had nothing in there other than his money and his identification; and (vi) after the defendant realized that the officers thought he was lying, he put his hand back in his pocket. See United States v. Black, 525 F.3d at 361–62. Notably, the officers in United States v. Black had reasonable suspicion even though they never observed the firearm before the investigatory detention began. In this case, the officers observed Rodriguez’ firearm tucked into his waistband. . . .
Rodriguez may object that the practical end result of the Court’s decision is that, in New Mexico, a police officer’s observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances.
According to the Court, the same facts justified taking away the gun for officer safety purposes:
While the gun was tucked into his waistband, it was immediately within Rodriguez’ reach. Munoz testified that he removed the weapon because he was concerned for officer safety. Given that the officers actually observed the firearm and that it was immediately within Rodriguez’ reach, “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. As the Tenth Circuit has likewise explained: “The presence of one firearm ... certainly provides a law enforcement officer with a reasonable belief that the person being briefly detained may be carrying other deadly weapons.” United States v. Henning, 906 F.2d 1392 (citations omitted). Thus, under these circumstances, the officers properly obtained Rodriguez’ weapon from him to protect their safety.
The court’s analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn’t inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it. And the fact that this occurred in a high-crime neighborhood doesn’t make a difference: The suspect was an employee of a convenience store who was working in the store at the time, so it’s not like the nature of the neighborhood suggests he was more likely to be involved in crime himself.
The Fourth Circuit’s decision in Black seems clearly inapposite. In Black, the suspect acted suspiciously, hesitated to comply with officer’s demands, and outright lied to the officers, creating the suspicion that he was hiding something in his pocket. It was the appearance of deceitfulness that created the reasonable suspicion. In this case, by contrast, the employee did not act deceitfully. The officers decided to initiate the stop before the employee was asked a question or even knew the officers were there.
The Court’s frisk analysis also seems suspect. A frisk requires specific and articulable facts that the suspect is armed and dangerous. Obviously Rodriguez was armed. But in a state that allows concealed carry with a permit, it’s not clear that mere possession suggests danger to the officer. It may be argued that taking away the gun wasn’t so much a frisk as it was a seizure of the gun, but then I don’t see the probable cause that the gun was evidence of a crime needed to satisfy the plain view exception.
I would think the best argument for reasonable suspicion would be based on the fact that the gun was just tucked in the waistband of the guy’s pants rather than safely holstered, but the court does not address this possibility; I’ll leave to others whether the argument has any merit. Finally, I should note that even if the court’s analysis is wrong, which I think it is, that doesn’t mean the motion to suppress should have been granted. The court did not reach the government’s argument that the “inevitable discovery” exception to the exclusionary rule applied, and it sounds like it would fit neatly here: If the officers had not conducted a Terry stop, they would have asked the same questions and presumably received the same answers. (Hat tip: FourthAmendment.com)
1. If it's now within reach, why even have a weapon? 2. Why do cops get special laws and protections? If you don't know the job is dangerous, maybe find another line of work.
Yeah? Well read the whole article.
ONE - Woman saw the gun and called 911.
TWO - Cop saw the gun and grabbed it.
So the Article Title is WRONG. It was not a CONCEALED Gun.
If you fail to conceal one like this with a CHL you’ll lose your license.
Here is the problem:
The courts have ruled that police can stop vehicles and check for DUI simply because the road has a high incidence of DUI arrests.
In this case, this is a high-crime area, so posession of a firearm is sufficient cause for a stop....just as driving a car in a DUI area is sufficient cause for a stop.
MADD and the war on drunk driving have deprived us of more rights than anything else. This case is further proof.
The gun grabbers never sleep.
From an Arizona point of view, where license is required, an interesting question has arisen. That is, the police should be able to stop you if you are doing something inherently dangerous (and stupid) with your gun, that could result in injury to yourself or others.
This basically means those who shove a gun into their pants without a holster, using the butt of a gun as a hammer, juggling a gun, leaving it unattended in public, letting small children play with it, or anything else of the innumerable stupid and dangerous things dummies can do with a gun.
Nothing to do with gun control, mind you.
****If you fail to conceal one like this with a CHL you’ll lose your license.***
Just wondering... If I have a CHL, and I place my handgun in a holster on my hip that completely conceals the handgun with a flap, am I in violation even though the holster can be seen, but the handgun can not?
“Just wondering... If I have a CHL, and I place my handgun in a holster on my hip that completely conceals the handgun with a flap, am I in violation even though the holster can be seen, but the handgun can not?”
Taurus makes a small .380 that fits inside a small, square, innocuous holster that looks more like some type of phone or electronic holder. I’ve thought seriously about buying the gun and arranging an old set of earphones to hang out from under the flap. Hiding in plain sight.
Open carry is legal in NM. The argument could be made whether or not police have the right to stop and check everyone who is open carrying to see if they are a ‘felon in possession’.
So far so good, given the officer safety issue.
which lead to the exchange in which Rodriguez acknowledged that he had no permit, thus leading to his arrest.
Rodriguez should have said, he was carrying under the second amendment. In any event Rodriguez was straight-up with the cop. That should count for something.
Once the cop knows that Rodriguez was playing straight, he could have asked if he had any other weapons and forgo the search based on his reply and officer judgement.
Rodriguez could have been issued a citation for a petty misdemeanor at that point, given a bit of a lecture, and told not to do that again.
Except, as a convicted felon, his previous actions complicated that quite a bit.
Now we have a man doing honest work, earning honest wages, working in a known hazardous situation, and not being allowed reasonable and prudent protection from those known and manifest hazards.
No winners, no right thing in this situation.
“If you fail to conceal one like this with a CHL you’ll lose your license.”
That’s not universally true.
Some people are too stupid to live. This idiot woman is one of them. Somebody should revoke her breathing rights.
Depends on the state. If you live in an open-carry state, and your concealed handgun is momentarily visible, you have simply transitioned to open carry and back to concealed.
>>If you fail to conceal one like this with a CHL you’ll lose your license.
>
>Depends on the state. If you live in an open-carry state, and your concealed handgun is momentarily visible, you have simply transitioned to open carry and back to concealed.
New Mexico is indeed an Open Carry state.
I think, however, that while the above must be logically true the courts would not see it that way.
depends upon the state. That's also one of the crappier aspects of the law, as it presents cops with yet another opportunity to lie.
My "freshman" Tea Party Congressman introduced a law legalizing uncovered carry -- but, in the midst of the budget battles, it didn't make it out of commitee... :-(
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