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Thread: Gorsuch - US v Rodriguez 2013

  1. #1

    Default Gorsuch - US v Rodriguez 2013

    Quote Originally Posted by Contumacious View Post
    It is bad, very bad case law for the courts to tell police officers that from a Fourth Amendment standpoint that they may presumed


    1- that an armed individual is armed and dangerous
    2- that an armed individual is engaged in clandestine actions
    3- that the armed individual waived his 4th Amendment rights

    Gorsuch is bad bad news.


    http://caselaw.findlaw.com/us-10th-circuit/1654036.html


    Facts:

    We succinctly state the relevant facts. Around 6:00 p.m. on July 27, 2011, Albuquerque Police Officer Frank Munoz responded to a dispatch informing him that two employees of the “Pit Stop” convenience store and gas station, located at 6102 Central Avenue SW in a reportedly “high crime” area, were showing each other handguns. Tr. vol. 3, at 8, 44. Fellow Officer Steven Miller also responded to the dispatch. Officer Munoz described the store as being “pretty small on the inside.” Id. at 13. Upon entering the store, Officer Munoz, accompanied by Officer Miller, observed Defendant Daniel Rodriguez a “couple feet away” stocking shelves. Id. at 14. As Defendant bent over, Officer Munoz noticed a silver handgun tucked in the back waistband of his pants. Defendant's shirt concealed the handgun when he stood upright. Officer Munoz told Defendant, “Let me see your hands, and let's step outside.” Id. at 51. At the suppression hearing, Officer Munoz testified:
    [Defendant] asked us what for, “What did I do?” And since we were in a pretty cramped area when we walked in, I didn't want myself and Officer Miller or [Defendant], all of us, to be in that cramped area in case anything occurred, so I told him, “Let's step outside,” and that I needed to ask him a question. He was a little upset and wanted to know what he had done. I told him to step outside. He then went past myself and Officer Miller to the door. As he pushed the door open once again his shirt came up, and I saw the gun, and it was at that time I pulled the gun out of the back of his waistband.
    Id. at 16. When asked why he removed the gun from Defendant's waistband, Officer Munoz stated, “Just for officer safety, until we could figure out what was going on and why he had a firearm.” Id .
    Outside the store, Officer Munoz promptly asked Defendant why he was concealing a handgun. Defendant responded that “somebody had shot at him at that same location at the gas station.” Id. at 25. Officer Munoz asked Defendant whether he had a permit to carry the handgun. Defendant said he did not. Officer Munoz instructed Defendant to turn around and place his hands in the frisk position on a nearby truck. Visible tattoos on Defendant's legs prompted Officer Munoz, a former prison guard, to ask Defendant if he had been arrested. Defendant stated he recently had been released from prison. Following an unremarkable “pat search” of Defendant, Officer Munoz permitted him to sit on the curb and smoke a cigarette. Id. at 19. Meanwhile, Officer Miller ran a check of the handgun removed from Defendant's waistband—a Smith and Wesson model 66–4, .357 magnum revolver loaded with five rounds of Winchester brand .357 ammunition. The check reported the handgun was stolen. Officer Munoz handcuffed Defendant and placed him under arrest. Further investigation confirmed Defendant was a convicted felon.
    A federal grand jury charged Defendant with one count of being a felon in possession of a firearm and ammunition in violation of 18 U .S.C. 922(g)(1) and 924(a)(2). Defendant filed a motion to suppress evidence, claiming a number of constitutional violations arising out of the foregoing incident. The district court denied his motion in a lengthy opinion. United States v. Rodriquez, 836 F.Supp.2d 1258 (D.N.M.2011). Defendant subsequently entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). After the court sentenced him to 30–months imprisonment, Defendant appealed only his Fourth Amendment claims that Officer Munoz unreasonably seized him and removed the handgun from his waistband.1 According to Defendant, “[p]ossession of a concealed firearm in the State of New Mexico, standing alone, cannot be the basis for the type of investigative detention and weapons seizure that [he] was subjected to.”
    Decision

    where a police officer in New Mexico has personal knowledge that an individual is carrying a concealed handgun, the officer has reasonable suspicion that a violation of N.M. Stat. Ann. 30–7–2(A) is occurring absent a readily apparent exception to subsection (A)'s prohibition. Accordingly, Officer Munoz's initial seizure of Defendant was “justified at its inception” and therefore passes Fourth Amendment scrutiny. Terry, 392 U.S. at 22.

    Criminal Code:

    http://law.justia.com/codes/new-mexi.../section30-7-2

    2011 New Mexico Statutes
    Chapter 30: Criminal Offenses
    Article 7: Weapons and Explosives, 30-7-1 through 30-7-22
    Section 30-7-2: Unlawful carrying of a deadly weapon.



    Universal Citation: NM Stat 30-7-2 (1996 through 1st Sess 50th Legis)
    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:
    (1) in the person's residence or on real property belonging to him as owner, lessee, tenant or licensee;
    (2) in a private automobile or other private means of conveyance, for lawful protection of the person's or another's person or property;
    (3) by a peace officer in accordance with the policies of his law enforcement agency who is certified pursuant to the Law Enforcement Training Act [29-7-1 NMSA 1978];
    (4) by a peace officer in accordance with the policies of his law enforcement agency who is employed on a temporary basis by that agency and who has successfully completed a course of firearms instruction prescribed by the New Mexico law enforcement academy or provided by a certified firearms instructor who is employed on a permanent basis by a law enforcement agency; or
    (5) 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.

    At the time New Mexico was a "Shall Issue" state:




    https://en.wikipedia.org/wiki/Constitutional_carry


    In Terry, this Court recognized that
    "a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."
    Id. at 392 U. S. 22. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.
    Page 407 U. S. 146
    See id. at 392 U. S. 23. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id. at 392 U. S. 21-22; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 96 (CA8 1970).
    The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect.
    "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,"
    he may conduct a limited protective search for concealed weapons. 392 U.S. at 392 U. S. 24. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, [Footnote 1] and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id. at 392 U. S. 30.
    https://supreme.justia.com/cases/fed.../143/case.html
    Last edited by presence; 02-02-2017 at 08:15 AM.

    'We endorse the idea of voluntarism; self-responsibility: Family, friends, and churches to solve problems, rather than saying that some monolithic government is going to make you take care of yourself and be a better person. It's a preposterous notion: It never worked, it never will. The government can't make you a better person; it can't make you follow good habits.' - Ron Paul 1988

    Awareness is the Root of Liberation Revolution is Action upon Revelation

    'Resistance and Disobedience in Economic Activity is the Most Moral Human Action Possible' - SEK3

    Flectere si nequeo superos, Acheronta movebo.

    ...the familiar ritual of institutional self-absolution...
    ...for protecting them, by mock trial, from punishment...




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  3. #2

    Default

    Yikes.

    Monday, 30 January 2017

    Court Rules That Those Carrying Concealed Are Presumed to Be Dangerous


    The U.S. Court of Appeals for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) ruled last week that an individual carrying concealed gives up essential Fourth Amendment rights under the presumption that since he is armed, he is also dangerous.
    The ruling issued on Monday, January 23, United States v. Robinson, reversed an earlier decision by the court’s three-judge panel, claiming that the Supreme Court, in two relevant decisions, concluded that “armed and dangerous” meant “armed and therefore dangerous” rather than “armed” as a fact and “dangerous” based on reasonable judgments surrounding the case.
    A tip received by Ransom, West Virginia, police on March 24, 2014 that a man was seen in a parking lot in an area well-known for drug-trafficking had just loaded a pistol and then put it into his pants pocket sent two police cruisers to the area. A lawful traffic stop ensued when officers noted that an individual matching the tipster’s description was riding as a passenger without his seatbelt fastened. When asked to step out of the car the passenger, Shaquille Montel Robinson, complied without resistance. When asked if he was armed Robinson didn’t answer but gave what the office described as a “weird look.” The officer took this to mean: “I don’t want to lie to you, but I’m not going to tell you anything [either].”

    The officer then performed a “Terry frisk” and found a firearm in his pants pocket. The other officer on the scene then recognized Robinson as a convicted felon and arrested him for illegal possession of a firearm.
    Robinson moved to have the evidence suppressed, claiming that the frisk violated his Fourth Amendment rights [to wit: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be infringed.”] as the two officers “had no articulable facts demonstrating that he was dangerous since, as far as the officers knew, the state [of Virginia] could have issued him a permit to carry a concealed firearm.”
    The three-judge panel ruled for Robinson, with Judge Panela Harris explaining:
    Reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person is dangerous … [and therefore] we may not make the contrary assumption that those firearms inherently pose a danger justifying their seizure by law enforcement officers without consent….
    Nor will we adopt a rule that would effectively eliminate Fourth Amendment protections for lawfully armed persons.
    The Justice Department under the Obama administration demanded that the court reconsider the three-panel’s decision, and last week the full court reversed. The 58-page ruling is based upon a single, and fatal, assumption, as articulated early in the ruling: “We reject Robinson’s argument [and Harris’ ruling] and affirm, concluding that an officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene.” It added confirmation that the mere existence of a firearm is enough to allow a Terry frisk:
    The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon…. [Emphasis added.]
    The court proceeded to dismantle Robinson’s claim that the mere presence of a firearm poses no danger to the arresting officers, especially since he could, under state law, have a permit to carry a firearm concealed. The court claimed that the “risk inherent in all traffic stops is heightened exponentially when the person who has been stopped is armed with a weapon that could unexpectedly and fatally be used against” the officer in a matter of seconds. Therefore, held the court, “when the officer reasonably suspects that the person he has stopped is armed, the officer is warranted in the belief that his safety … [is] in danger … thus justifying a Terry frisk.”
    The court then leaned on two Supreme Court decisions — Pennsylvania v. Mimms and Terry v. Ohio — to justify its decision to find against Robinson:
    Established Supreme Court law imposes two requirements for conducting a frisk, but no more than two: first, that the officer have conducted a lawful stop … and second, that during the valid but forced encounter, the officer reasonably suspects that the person is armed and therefore dangerous.
    In both Terry and Mimms, the Court deliberately linked “armed” and “dangerous,” recognizing that the frisks in those cases were lawful because the stops were valid and the officer reasonably believed that the person stopped “was armed and thus dangerous.”
    The use of “and thus” recognizes that the risk of danger is created simply because the person … is armed.
    To be clear the circuit court is ruling against the gun and not against any behavior on the part of Robinson. The mere presence of a gun, ruled the court, makes its owner not only “armed” but also “dangerous.”
    Judge James Wynn added his assent to the court’s ruling but complained that it didn’t go far enough:
    This case is not about traffic stops or “weapons” — it is about firearms and the danger they pose to law enforcement officers….
    The majority [sidesteps] discussion of the two key issues in this case: (1) whether individuals who carry firearms — lawfully or unlawfully — pose a categorical risk of danger to others and police officers in particular, and (2) whether individuals who choose to carry firearms forego certain constitutional protections afforded to individuals who elect not to carry firearms….
    [The answer is] “yes” to both questions.
    His diatribe against the mere presence of a firearm continued:
    Confronting the inescapable reality that lawfully-stopped individuals armed with firearms are categorically dangerous reflects the heightened danger posed by firearms….
    In sum, individuals who carry firearms — lawfully or unlawfully — pose a risk of danger to themselves, law enforcement officers, and the public at large.
    Accordingly, law enforcement officers may frisk lawfully stopped individuals who the officers reasonably suspect are carrying a firearm because a detainee’s possession of a firearm poses a categorical “danger” to the officers.
    Judge Wynn then expounds further on the impact this ruling has on those carrying lawfully:
    The majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock-and-announce” before forcibly entering homes….
    It is difficult to escape the conclusion that individuals who choose to carry firearms necessary face greater restriction on the concurrent exercise of other constitutional rights, like those protected by the First Amendment.
    It’s no wonder then that the National Rifle Association (NRA) says this ruling by the Fourth Circuit “may be the most anti-gun ruling from any court in the modern era.”
    So does Judge Harris, who wrote the majority opinion for the original decision by the three-judge panel but strongly dissented from the court’s reversal:
    Today’s decision … undoubtedly will have implications for police use of force.… If a police officer reasonably believes that a suspect poses a “threat of serious physical harm” [merely by lawfully possessing a firearm], he may use deadly force to protect himself.
    The court's decision is abominable because it signals out the possession of a possible deadly tool to lose one's constitutionally protected rights, and that's wrong. First, the Constitution protects both the Second and Fourth Amendments equally, and the Founders didn't put in wording allowing one to preempt the other. It is, in fact, pure sophistry, the rationalizing of breaking of the Constitution. The police in this case did not pull over the man for suspected violence, but for a missing seatbelt, and there was no indication that the man would turn violent — hence no reasonable reason to frisk him. Also, if the mere possession of a potentially deadly weapon is cause to lose one's constitutional rights, any time an American gets within swinging length of a policeman, the officer should then be able to overturn that person's constitutional rights, as hands and feet are used hundreds of times a year to kill people.
    If the Fourth Circuit Court’s decision isn’t challenged and overturned, not only will those carrying concealed become second-class citizens and lose their Second and Fourth Amendment rights, they could also, during a simple traffic stop, lose their lives.




    http://www.thenewamerican.com/usnews...o-be-dangerous
    Last edited by presence; 02-02-2017 at 09:23 AM.

    'We endorse the idea of voluntarism; self-responsibility: Family, friends, and churches to solve problems, rather than saying that some monolithic government is going to make you take care of yourself and be a better person. It's a preposterous notion: It never worked, it never will. The government can't make you a better person; it can't make you follow good habits.' - Ron Paul 1988

    Awareness is the Root of Liberation Revolution is Action upon Revelation

    'Resistance and Disobedience in Economic Activity is the Most Moral Human Action Possible' - SEK3

    Flectere si nequeo superos, Acheronta movebo.

    ...the familiar ritual of institutional self-absolution...
    ...for protecting them, by mock trial, from punishment...


  4. #3

    Default

    It is probably true true as most "conservative" judges side with the police, but I can't find if Gorsuch concurred with that decision. Was the district court judge part of that panel?
    War; everything in the world wrong, evil and immoral combined into one and multiplied by millions.

  5. #4

    Default

    There is a good article about this here:


    http://www.americanthinker.com/artic...r_concern.html
    __________________________________________________ ________________
    "A politician will do almost anything to keep their job, even become a patriot" - Hearst

  6. #5

    Default

    He basically ruled that it is ok for an officer to disarm you before he knows you're legal to carry and agrees that concealed firearms are a public danger
    __________________________________________________ ________________
    "A politician will do almost anything to keep their job, even become a patriot" - Hearst

  7. #6

    Default

    Quote Originally Posted by Matt Collins View Post
    He basically ruled that it is ok for an officer to disarm you before he knows you're legal to carry and agrees that concealed firearms are a public danger
    This is a good summary. I can't believe this passed muster. Plain view doctrine applied here when he saw the pistol tucked in the waistband, and he was dispatched on reports of employees handling pistols. But the officer had ZERO probable cause to believe a crime had been committed and therefore violated the 4th amendment when he 'seized' the firearm before he had established such PC. A simple conversation would have led to the same result without the constitutional violation. Officer could have said, "I saw the pistol under your jacket, please step outside and keep your hands where I can see them" Cop would then run the subject and determine he was a felon in possession of a stolen pistol. Case closed.
    There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights. War for any other reason is simply a racket.
    -Major General Smedley Butler, USMC,
    Two-Time Congressional Medal of Honor Winner
    Author of, War is a Racket!

    It is not that I am mad, it is only that my head is different from yours.
    - Diogenes of Sinope

  8. #7

    Default

    Very bad decision.
    War; everything in the world wrong, evil and immoral combined into one and multiplied by millions.

  9. #8

    Default

    this new case sets horrible precedent:

    http://www.ca4.uscourts.gov/Opinions.../144902A.P.pdf

    from the dissent

    By focusing on the officers’ justification--rather than
    Defendant’s presumptively lawful decision to carry a firearm--
    the majority elides discussion of the two key issues in this
    case: (1) whether individuals who carry firearms--lawfully or
    unlawfully--pose a categorical risk of danger to others and
    police officers, in particular, and (2) whether individuals who
    choose to carry firearms forego certain constitutional
    protections afforded to individuals who elect not to carry
    firearms. As explained in more detail below, the majority
    opinion’s attempt to duck these questions is futile because its
    conclusion necessarily answers “yes” to both questions.
    I.
    First, the majority opinion altogether avoids addressing
    the first issue--whether individuals who carry firearms
    (lawfully or unlawfully) pose a categorical risk of danger to
    23
    others--by reinterpreting the Supreme Court’s long-established
    test for determining whether law enforcement officers lawfully
    performed a protective frisk. Under that test, the question is
    whether the officers had “reasonable suspicion that the person
    subjected to the frisk is armed and dangerous.” Arizona v.
    Johnson, 555 U.S. 323, 327 (1997). Instead of according
    “dangerous” an i
    ndependent meaning, the majority contends that
    “armed and dangerous” is a unitary concept--if law enforcement
    officers reasonably suspect a detainee is “armed,” they
    necessarily reasonably suspect he is “dangerous.” Ante
    at 16
    (“[T]he risk of the danger is
    created simply because the person,
    who was forcibly stopped, is armed.”). I disagree with the
    majority opinion’s contention that “armed and dangerous” is a
    unitary concept.
    To be sure, from the outset, stripping “dangerous” of
    independent meaning violates the long-standing principle that
    elements separated by a conjunctive should be interpreted as
    distinct requirements. See, e.g.,
    Crooks v. Harrelson, 282 U.S.
    55, 58 (1932); Am. Paper Inst. v. U.S. E.P.A., 660 F.2d 954, 961
    (4th Cir. 1981). That is why other Circuits have held that law
    enforcement officers must reasonably suspect a detainee is “both
    armed and a danger to the safety of officers or others” before
    conducting a frisk. United States v. Leo, 792 F.3d 742, 748 (7th
    Cir. 2015) (emphasis added); Northrup v. City of Toledo Police
    24
    Dep’t, 785 F.3d 1128, 1132 (6th Cir. 2015) (“Clearly established
    law required [the officer] to point to evidence that [the
    subject] may have been armed and dangerous. Yet all he ever saw
    was that [the subject] was armed
    --and legally so.” (emphasis in
    original) (citation and internal quotation marks omitted)).
    The view of the other Circuits on according “dangerous” an
    independent meaning makes sense because the majority opinion’s
    unitary meaning interpretation would allow law enforcement
    officers to frisk a wide swath of lawfully stopped individuals
    engaging in harmless activity. Indeed, by definition, an
    individual is “armed” if he is “[e]quipped with a weapon.”
    Armed, Black’s Law Dictionary (9th ed. 2009).
    To illustrate the absurdity of the majority opinion’s
    unitary meaning interpretation, consider, for example, that
    courts have found a bottle to be a “weapon.” See
    United States
    v. Daulton, 488 F.2d 524, 525 (5th Cir. 1973) (“Courts have held
    that a wine bottle can be a dangerous weapon.”). Under the
    majority’s unitary meaning interpretation, officers informed
    that an individual was leaving a convenience store “armed” with
    a bottle of wine could, after a lawful stop, frisk that
    individual because, in the majority’s words, “the risk of the
    danger is created simply because the person, who was forcibly
    stopped, is armed.” Ante at 16.
    o. 14-4902UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SHAQUILLE MONTEL ROBINSON,
    Defendant - Appellant.

    'We endorse the idea of voluntarism; self-responsibility: Family, friends, and churches to solve problems, rather than saying that some monolithic government is going to make you take care of yourself and be a better person. It's a preposterous notion: It never worked, it never will. The government can't make you a better person; it can't make you follow good habits.' - Ron Paul 1988

    Awareness is the Root of Liberation Revolution is Action upon Revelation

    'Resistance and Disobedience in Economic Activity is the Most Moral Human Action Possible' - SEK3

    Flectere si nequeo superos, Acheronta movebo.

    ...the familiar ritual of institutional self-absolution...
    ...for protecting them, by mock trial, from punishment...


  10. #9

    Default

    Isnt the law double binding? So may we presume that officers are a threat if they are carrying?
    Don't drone me, bro!

    Ron Paul
    R[∃vo˩]ution 2017


  11. #10

    Default

    thinking is dangerous
    It was too weird to live, and too rare to die - hunter s. thompson .
    ..this is the darkest timeline..






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