You May Be Stopped for a Concealed Weapon

Discussion in 'GA Laws and Politics' started by Malum Prohibitum, Sep 24, 2007.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    From Edwards v. State, 165 Ga.App. 527, 301 S.E.2d 693 (1983).


    So, what do you think? Stop justified or not? the officer swore on the stand he was not stopping this man for suspicion of robbery, but instead drew is gun on somebody that he thought had a concealed weapon, shirt untucked, covering an automatic pistol.

    "I stopped him strictly because I believed he was carrying a concealed weapon . . ."

    So, "he approached the appellant with his gun drawn . . ."
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Perhaps they agreed with Mike Bowers?
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    What about State v. Grimes, 195 Ga.App. 773, 395 S.E.2d 42 (1990)?


     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Background to State v. Grimes.

    In fairness, I think this background brings this case out of the narrow "gun justifies stop" case.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    This is the way I think it is supposed to be done:

    State v. Louis, 185 Ga.App. 529, 364 S.E.2d 896 (1988)

    BUT, the Fulton County Judge suppressed the evidence on the basis of testimony by the clerk.

     
  8. jgullock

    jgullock Active Member

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    Heaven forbid someone runs around with a full colostomy bag. That would be interesting.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    My suspicion is that these are no longer good law.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    And here is why.

    The state changed the law through a 1996 amendment to say "may be concealed by clothing."
     
  12. Sharky

    Sharky New Member

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    Sorry if I am a bit confused MP- Is this thread showing the differences in the law over time concerning stops by LEO concerning a bulge in a persons clothing?

    I am not sure I got this thread correctly thats why I am asking for clarification.
     
  13. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I am stating why I think these cases may no longer be good law. These cases say you may be stopped merely for having a concealed weapon.
     
  14. Sharky

    Sharky New Member

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    got it now after I read everything once again
     
  15. boom boom

    boom boom Guest

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    Articulable Facts

    A policeman noticing the the apparent concealed weapon would be an articulable fact enough to generate reasonable suspicion because it is a crime under O.C.G.A. § 16-11-126 (2007) unless of course if you have a license (see Terry v. Ohio, 392 U.S. 1 (1968)).

    Under Terry, the major justification why a stop and frisk may be considered "reasonable" given certain facts and does not require a warrant is that officer/public safety interests in a particular case outweigh the privacy interest of the suspect. However, the reasonable suspicion generated by the officer cannot be a "hunch" but must rely upon articulable facts that must be in the court record. Other factors such as officer training, experience, etc. may also come into play here using the totality of circumstances surrounding the search. As a result of Terry, the standard to stop and frisk individuals in public is not probable cause but reasonable suspicion (aka "founded suspicion" or "articulable suspicion" see Brisbane et al. v. State , 211 S.E.2d 294 (1974) .

    Apparently in Georgia, "A defendant charged with carrying a concealed weapon has the burden of proving that defendant had a valid permit authorizing defendant to carry a handgun in a motor vehicle". London v. State, 235 Ga. App. 30, 508 S.E.2d 247 (1998). Thus, using this standard, the stop would be justified even after the legislature changed the law in 1996 because the officer has no way of knowing whether the person is licensed or not. Thus, the moral is to carry your carry license with you when you carry as an officer may stop you for "noticing" your concealed weapon. According to the state of Georgia, YOU have the burden of proving that you can legally carry a concealed weapon. Thus, guilty until you prove your innocence. :(

    There is also extensive case law both federal and in other states indicating that the perceived presence of a concealed weapon articulated by the officer is enough to generate a stop and frisk.

    As usual, your mileage and opinion may vary.
     
  16. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: Articulable Facts

    It is also a crime to drive unless you have a license.

    What can the policeman articulate that is not a hunch but a reasonable suspicion that a man buying groceries with a bulge under his shirt (that the manager identified has a gun) is not licensed?
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: Articulable Facts

    I do not think London v. State answers the question at all, since the person was not stopped for suspicion of carrying a concealed weapon at all, much less as part of a Terry stop.

    The burden at trial is another question (and there is contrary case law stating that this is an element of the offense).


    Patterson is the case relied upon, and it in turn relies upon Jordan (the auto auction case) where, strangely, this was not an issue in that case.

    Oddly, NONE of these cases involve an openly carried weapon for which a license would be required.
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    When you look at the hyperlinked case above, Head v. State, you see that the court (i.e., the Supreme Court), stated in 1975 that this was an element of the offense.

    Notice the court is discussing: armed robbery, carrying a concealed weapon, and carrying a weapon without a license.


    You see, the Court has taken the position that, in 1975, the license permitted openly carried pistols only.

    Maybe Mike Bowers was correct after all.

    Anyway, wouldn't this change after 1996?

    And shouldn't the Court of Appeals be bound by what the Supreme Court had to say on the issue?

    The State must prove one has a license. Now that concealed carry is permitted with a licence (i.e., post 1996) the rule should be the same for a concealed pistol. The cases holding otherwise are citing pre-1996 cases about concealed carry, which was not permitted even with a license.
     
  19. tace

    tace New Member

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    Wasn't there something about a Supreme Court ruling that just carrying a gun by itself in a state/place where it is legal won't constitute RAS for a Terry stop? Or was I dreaming this one up?
     
  20. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The Supreme Court did the same thing (reversed conviction for carrying without a license but upheld conviction for carrying concealed) two years later in Lowe v. State, 239 Ga. 783, 239 S.E.2d 1 (1977).