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Court Rules That it is Illegal for Police to Stop and Investigate People Just for Carrying Guns

Indiana Court of Appeals rules that "possession of a firearm, which is legal, cannot produce reasonable suspicion to justify a Terry stop"

The Fourth Amendment of the United States Constitution protects citizens against "unreasonable searches and seizures." For this reason, a warrant issued by a judge and supported by "probable cause" is generally required for either an arrest or a search by police officers.  However, an "investigatory stop" (often called a "Terry stop" after the U.S. Supreme Court's decision in Terry v. Ohio), is justified - even without "probable cause" for an arrest - when a police has a "reasonable suspicion" that the person is "engaged in illegal activity or about to engage in illegal activity" - or, in the words of the Supreme Court, that "criminal activity is afoot."   In this situation, a police officer may detain someone against his will in order to ask him questions. The officer may also conduct a brief search of the person's outer clothing in order to determine whether the person is armed and a danger to the officer.   Together, this process is known as a "stop and frisk."  

In this context, there has been a long-standing debate in Indiana as to the legal authority of a law enforcement officer to stop a person carrying a handgun simply to verify whether that person possesses a valid License to Carry Handgun.  That issue has now been resolved - at least for the time being - by a decision handed down Wednesday by the Indiana Court of Appeals, Pinner v. State.

Until the Court of Appeals' decision in Pinner on August 24, it was unsettled in Indiana whether a police officer could detain someone observed carrying a handgun for the sole purpose of determining whether the person's possession of the pistol was lawful.  Historically, most police departments across the state routinely stopped people on the street or in public buildings and made such inquiries either when an officer personally observed someone carrying a handgun in public or when someone made a call to 911 reporting "a man with a gun."  The legal justification for this practice was based on the theory that carrying a handgun in public without a license is generally illegal in Indiana, so an officer has a "reasonable suspicion" that a person carrying a handgun is breaking the law (carrying a handgun without a license) unless and until the officer verifies that the person is either exempt from the licensing requirement (e.g., as a police officer or judge) or has been issued a valid license.  

Many gun owners have maintained that this practice has been illegal, however, unless a police officer has some specific reason to believe that a person does not have a license - or that his possession of a firearm is illegal on some other basis.  In this regard, it is settled that police officers may not randomly pull over drivers simply to verify that they have a driver's license, notwithstanding the fact that driving a car without a license is illegal.

In the Pinner case, a taxi driver called police and reported that a customer had dropped a handgun upon exiting the cab at a movie theater.  Responding officers talked directly to the taxi driver and obtained a description of the person in possession of the gun and the female accompanying him.  Upon entering the theater, the officers noticed a female matching the description they had received walking away from a man sitting on a bench in the lobby.  The man, Pinner, also matched the description given by the taxi driver.  The officers approached Pinner and asked if he had a handgun in his possession.  Pinner denied having a gun while “fidgeting nervously.”  

The officers then asked Pinner to stand and they noticed the grip of a handgun protruding from Pinner’s front pants pocket.   The officers seized the handgun “for officer safety” and determined that Pinner did not have a license to carry the handgun - and Pinner was arrested and convicted.

On appeal, the Court of Appeals held that when officers approached Pinner and began interrogating him regarding his possible possession of a firearm, they were not engaged in a “consensual interaction” (that would not implicate the Fourth Amendment), but rather the officers were engaged in an “investigatory stop” that required a “reasonable suspicion” that Pinner “had engaged in or was about to engage in criminal activity.”  

In holding that the officers did not have “reasonable suspicion” that would authorize an investigatory stop of Pinner, the Court of Appeals stated a rule of law that is likely to significantly influence the manner in which police officers interact with persons carrying firearms in Indiana:  "Mere possession of a firearm, which is legal, cannot produce reasonable suspicion to justify a Terry stop."  

The court's ruling means that an officer who merely observes a person in possession of a firearm - or responds to a "man with a gun" call - cannot legally detain the person against his will based simply on his possession of a gun in order to verify that the person's possession of the gun is legal.  And a person who is confronted by a police officer regarding a firearm in his possession may simply walk away unless the officer has some reason to believe the person is engaged in illegal behavior (based on something more than the person's mere possession of a firearm), which would justify detaining the person.

As a result of the Court of Appeals' decision in Pinner, law enforcement agencies would also be wise to conform their training protocols to advise officers to refrain from detaining people merely to confirm that their possession of a firearm is legal – absent “reasonable suspicion” of some other criminal activity.  Otherwise, any such stop would violate the Fourth Amendment rights of the person detained.

Guy A. Relford is a Second Amendment attorney in Carmel, Indiana.  He is also the owner and chief instructor of Tactical Firearms Training, LLC in Indianapolis and the author of “Gun Safety & Cleaning for Dummies” (Wiley & Sons Publications, 2012).  He hosts “The Gun Guy with Guy Relford” on WIBC radio in Indianapolis, Saturdays 5:00 to 7:00 pm.

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