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Discussion Starter · #1 ·
From Edwards v. State, 165 Ga.App. 527, 301 S.E.2d 693 (1983).

Appellant was stopped by a police officer while walking down a street shortly after the subject armed robbery had been reported. The officer testified, “The reason I stopped the man [appellant] was I thought he was armed, carrying a concealed weapon. That was the reason I stopped him. I come down the lane, I seen the man who matched the description [of the robbery suspect]-a vague description, but the clothes were not the same; however, this man had a bulge under his shirt that I thought to be ... a weapon, and I thought that I had run up on a separate incident altogether from [the armed robbery]. I stopped him strictly because I believed he was carrying a concealed weapon, not because of the look-out.†Appellant's shirt was hanging out rather than tucked in. The officer continued, “It [the bulge] looked like a pistol under his shirt, the butt of a pistol. It was in an area normally carrying a concealed weapon ... [in the] right front, right at the waistband ... [P]art of it was down, you could see it protruding below his waistband and angled back ... It looked like an automatic pistol.†The officer stated that he approached appellant with his gun drawn, kept his eyes and his gun on appellant, reached toward appellant with his left hand, pushed up appellant's shirt, and grabbed the article concealed thereunder.
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 . . ."
 

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Discussion Starter · #2 ·
We note at the outset that the fact that the officer had his weapon drawn at the time he stopped appellant was reasonable under the circumstances in this case and did not, in and of itself, transform the stop and search into an illegal arrest. An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others.
 

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Discussion Starter · #3 ·
The arresting officer testified that the bulge under appellant's shirt at the waist appeared to be an automatic pistol. The carrying of a concealed weapon is a crime in this state. Code Ann. § 26-2901 (now OCGA § 16-11-126). We conclude, therefore, that the officer had a “founded suspicion†justifying his stop of appellant.
 

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Discussion Starter · #4 ·
Perhaps they agreed with Mike Bowers?
 

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Discussion Starter · #5 ·
What about State v. Grimes, 195 Ga.App. 773, 395 S.E.2d 42 (1990)?

There was no "seizure" of appellee's person until the officer who was standing on the landing actually pointed his gun at appellee and ordered him to raise his hands. It is undisputed that this did not occur until after the officer had seen that the shiny silver object that appellee had removed from the waistband of his pants was in fact a pistol. The officers observations established probable cause to believe that appellee had committed the offense of carrying a concealed weapon, and authorized the immediate arrest of appellee for the commission of that offense and the immediate seizure of the pistol as evidence of his guilt.
 

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Discussion Starter · #6 ·
Background to State v. Grimes.

At approximately 6:30 p.m., the officers drove into the parking lot of an apartment complex. They were in a marked police car and were en route to a location in the apartment complex where they were to provide backup for an undercover drug buy. While driving by one of the buildings in the complex, the officers observed appellee walking toward a parked vehicle. When appellee saw the officers in their marked police car, his reaction was to turn away quickly and walk back toward the apartment building. He then tried to gain entry to a downstairs unit, but was unsuccessful. As the police car moved closer, appellee ran up the stairs to the second floor of the apartment building, where he again tried unsuccessfully to gain entry to another unit. Based upon appellee's suspicious actions, the officers parked and left their patrol car to investigate. As they approached the apartment building, they saw appellee remove a shiny silver object from the waistband of his pants and drop that object to the floor. One of the officers drew his gun and walked up the stairway only as far as the landing between the two floors. While he was standing on the landing, this officer saw that there was a pistol on the floor near appellee. The officer then pointed his gun at appellee and ordered him to raise his hands. Meanwhile, the other officer had continued up the stairs and, upon arriving at the second floor, he also drew his gun and pointed it at appellee. The officer who had remained on the landing informed the officer who had continued up the stairs that there was a pistol on the floor. The pistol was then retrieved and appellee was arrested for carrying a concealed weapon.
In fairness, I think this background brings this case out of the narrow "gun justifies stop" case.
 

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Discussion Starter · #7 ·
This is the way I think it is supposed to be done:

. . . the searching/arresting officer testified that he arrived at a Hapeville motel at 2:00 a.m. in response to *530 the report of a burning car in the motel parking lot. While talking to the desk clerk on duty in this "notorious place" that frequently placed calls for police assistance, the officer noticed appellee, who, according to the officer's testimony, did a double take when he saw the officer, turned, and walked back in the direction from which he had come. When requested by the officer to stop and present identification, appellee did so. The officer then noticed bulges in appellee's jogging suit and conducted a patdown search which revealed a wad of dollar bills and a .22 caliber pistol. Appellant was arrested upon admitting he did not have a license to carry the weapon.
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.

They testified that appellee walked down the motel corridor toward the front door without hesitation upon seeing the officer and that he was stopped by the officer, who questioned him about his presence, commented about his jewelry and his suspected profession, and conducted the patdown search. The desk clerk described the officer as "harassing" appellee.
Although the officer's testimony supports a conclusion that the officer was justified in stopping appellee due to appellee's behavior upon seeing the officer, and conducting a frisk to determine the nature of the bulges (see Edwards v. State, 165 Ga.App. 527, 301 S.E.2d 693 (1983)) [Yeah, the first post above], the testimony of the desk clerk and appellee concerning appellee's straightforward behavior upon seeing the officer refutes the officer's testimony of appellee's action that gave rise to the articulable suspicion to stop and frisk appellee. Factual and credibility determinations ... made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous.
 

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Malum Prohibitum said:
The arresting officer testified that the bulge under appellant's shirt at the waist appeared to be an automatic pistol. The carrying of a concealed weapon is a crime in this state. Code Ann. § 26-2901 (now OCGA § 16-11-126). We conclude, therefore, that the officer had a “founded suspicion†justifying his stop of appellant.
Heaven forbid someone runs around with a full colostomy bag. That would be interesting.
 

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Discussion Starter · #10 ·
My suspicion is that these are no longer good law.
 

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Discussion Starter · #11 ·
And here is why.

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

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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.
 

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Discussion Starter · #13 ·
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.
 

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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.
 

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Discussion Starter · #16 ·
Re: Articulable Facts

boom boom said:
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)).
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?
 

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Discussion Starter · #17 ·
Re: Articulable Facts

boom boom said:
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. :(
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.

London was convicted of carrying a concealed pistol. The evidence was sufficient to support this conviction. On the day of London's arrest, a police officer stopped the Cadillac which London was driving for a traffic violation. London began to reach under the driver's seat. With London's consent, the officer searched the car and found a loaded Glock pistol beneath the seat.
The burden at trial is another question (and there is contrary case law stating that this is an element of the offense).

OCGA § 16-11-126(a) makes the carrying of a concealed weapon a criminal offense. OCGA § 16-11-126(d) provides in pertinent part *34 that “[t]his Code section shall not forbid any person who is not among those enumerated as ineligible for a license under Code Section 16-11-129 from transporting a loaded firearm in any private passenger motor vehicle in an open manner and fully exposed to view or in the glove compartment, console, or similar compartment of the vehicle; provided, however, that any person in possession of a valid permit issued pursuant to Code Section 16-11-129 may carry a handgun in any location in a motor vehicle.â€

[9] The record does not establish that London had a valid permit which would have authorized him to carry the handgun anywhere within the motor vehicle. London had the burden of proving that he had such a permit. See Patterson v. State, 196 Ga.App. 754, 755, 397 S.E.2d 38 (1990). The pistol was not “fully exposed to view or in the glove compartment,†within the meaning of OCGA § 16-11-126(d), and was within London's reach under the car seat. Thus, there was evidence showing that he carried a concealed weapon in violation of OCGA § 16-11-126(a). See Parrish v. State, 228 Ga.App. 177, 491 S.E.2d 433 (1997).
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.
 

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Discussion Starter · #18 ·
Malum Prohibitum said:
And here is why.

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

The evidence relating to the offenses of armed robbery and carrying a concealed weapon was sufficient to create issues for the jury's decision and the verdicts of guilty for these two offenses were authorized and will be affirmed. Merino v. State, 230 Ga. 604, 198 S.E.2d 311 (1973). However, the State introduced no evidence which shows appellant did not have a license for the pistol ‘from the ordinary (probate judge) of the county in which he resides.’ Code Ann. s 26-2903. Therefore, the trial court's judgment of conviction and 12-month sentence for this offense must be reversed. See Coats v. State, 234 Ga. 659, 662, 217 S.E.2d 260 (1975); Daniels v. State, 234 Ga. 523, 525, 216 S.E.2d 819 (1975); and Freeman v. State, 233 Ga. 678, 212 S.E.2d 847 (1975). See, also, Johnson v. Wright, 509 F.2d 828, 830(7) (5th Cir. 1975).FN* Those cases, exemplified by Johnson v. State, 230 Ga. 196, 200, 196 S.E.2d 385 (1973), and Ezzard v. State, 229 Ga. 465(3), 192 S.E.2d 374 (1972), which hold that whether an accused has a license to carry a pistol is a matter of defense and is not an element of the offense, are hereby overruled.
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.
 

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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?
 

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Discussion Starter · #20 ·
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).
 
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