Wonder if this could be a placeholder for all state 4A cases involving carriage of firearms as the cases are beginning to collect. People v. Horton, Illinois and now Pinner v. State, Indiana.
In Pinner v. State, the Indiana Supreme Court jumped on the "carrying a loaded firearm is a presumptively lawful activity" bandwagon by invalidating a frisk after a cabbie called police after a man dropped a gun in his cab, the cabbie thought he had been robbed (he hadn't), police showed up, frisked the defendant and found a gun.
Court states, in no uncertain terms, that a simple "MWAG" (man with a gun) call is insufficient for reasonable suspicion as the carriage of a loaded firearm is a presumptively lawful activity and the state must have more than a simple "he's got a gun."
"In the case before us, the tip provided by the taxi driver made no 'assertion of illegality,' rather it merely had a 'tendency to identify a determinate person' who was in possession of a handgun. J.L., 529 U.S. at 272 (citation omitted). Even taking his tip as true and assuming that Pinner was the man the taxi driver described, the officers had no reason to suspect that Pinner did not have a valid license to carry the handgun, an illegal act in this jurisdiction. This is not a case where, through independent investigation or personal experience, the officers had reason to believe that Pinner’s possession of a weapon was in violation of Indiana law. In essence, other than the taxi driver’s claims of being fearful because he had a seen an individual matching Pinner’s description 'drop a handgun' there is no evidence in the record from which an inference of criminal activity can be drawn. And a 'bare boned tip about guns' is insufficient."
State of Indiana argues that reasonable suspicion existed because Pinner was "acting nervous." The Court summarily disposes of that argument, citing common sense case law stating nervousness is normal when interacting with law enforcement.
"The State contends that because Pinner 'acted nervous' when being questioned the officers possessed additional facts to support reasonable suspicion. Br. of Appellee at 16. Even assuming that 'rocking back and forth' and 'wringing' one’s hands is indicative of nervous behavior, Tr. at 8, the question is whether this behavior gave rise to reasonable suspicion of criminal activity. There is no crime in rocking back and forth and wringing one’s hands. And Officer Palmer did not find these actions to suggest anything more than 'nervous maybe, in [his] experience just you know uneasy with the question, maybe not you know telling the truth.' Tr. at 9 (emphasis added). As this Court has explained, 'nervousness is of limited significance when determining reasonable suspicion[.]'"
State of Indiana argues that the police had the right to detain Pinner to investigate the legality of the weapon and activity. Court doesn't bite on that either.
"We also disagree with the State that 'the officers were permitted under the Fourth Amendment to briefly detain Defendant to ascertain the legality of the weapon and dispel any suspected criminal activity.' Br. of Appellate at 19. The United States Supreme Court has previously declared that law enforcement may not arbitrarily detain an individual to ensure compliance with licensing and registration laws without particularized facts supporting an inference of illegal conduct. (citing Delaware v. Prouse, citation omitted)."
Court speaks of a "weapons exception" adopted by other courts (*cough*Fourth Circuit*cough*).
"In like fashion, we decline to endorse such behavior to ensure compliance with Indiana’s gun licensing laws. This is precisely the type of 'weapons or firearm exception' that other jurisdictions refuse to employ and the United States Supreme Court expressly disapproved of in J.L."
"[T]he proper exercise of authority does not determine the constitutionality of a suspect's detention or the propriety of the evidence seized. We are mindful, for example, that 'the Fourth Amendment was intended to protect the citizen from the overzealous and unscrupulous officer as well as from those who are conscientious and truthful.' White, 496 U.S. at 333 (Stevens, J., dissenting). At stake here is whether the evidence obtained by the conscientious officers in this case can be used against the Defendant without violating his Fourth Amendment rights. On the facts of this case, we find that it cannot."
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