Monday, January 13, 2014

Tenth Circuit US v. Rodriguez 12-2203

Decision here.

   This case was actually decided a couple weeks ago, but I've been really busy.  Sorry it's late, I've got about another 20 cases to read through after this before I'm caught up (of course, I have no idea whether or not any of them will meet the inclusion guidelines).

   Anyway, Officers in Albuquerque responded to a call that gas station employees were showing each other guns.  When they got there, one of the officers saw an employee bend over while stocking the shelves.  When he bent over, the back of his shirt lifted up and the officer saw a handgun tucked into the back of his waistband.  When the employee (Rodriguez) stood up, the gun was concealed again.

   Given that the cramped space in the store limited tactical options, the officer ordered Rodriguez out of the store to talk to them.  As Rodriguez was walking out of the store, the officer retrieved the gun.

   The gun turned out to be loaded (this is an important distinction under New Mexico law), and Rodriquez immediately admitted that he did not have a CCW permit.  While they were searching him for other weapons, the officers asked if he had been arrested (because he had prison tats).  He admitted to having done time.  He claimed that he carried the gun for protection because he had been shot at in the store.

   The officers checked NCIC and found that the gun was stolen and that Rodriguez was a convicted felon.  Off to the clink!  Rodriguez was eventually convicted of the federal version of POWPO, after the district court denied his motion to suppress.  He appealed, arguing that the fact that he was carrying a concealed weapon did not create reasonable suspicion that he was committing the crime of carrying a concealed weapon.

   In New Mexico, there are a few exceptions to the CCW law, such as carrying a concealed weapon on your own property (or property that you rent), carrying a concealed weapon which is not loaded, or carrying a concealed weapon whilst licensed to do so.  Rodriquez argued that although the police knew he was carrying a concealed weapon, they didn't have reasonable suspicion at the inception of his detention because they didn't eliminate those possibilities first.*  The Tenth Circuit pointed out that these are exceptions to the law rather than actually being elements.  That means that unless one of them had been really obviously applicable, the police don't need to stop and consider them for probable cause purposes, much less for reasonable suspicion (so maybe things would have been different if the police had already known that he DID have a CCW permit, or if all of this had taken place at Rodriguez's house instead of a gas station).  Besides that, the court recognized that in light of common-sense judgments about human behavior, the fact that Rodriguez was carrying a concealed weapon was enough to support reasonable suspicion that it was loaded.

   Rodriguez also brought up a somewhat more creative argument... a stop and frisk justified by Terry consists of two separate Fourth Amendment actions: the stop (or detention), and the frisk (or the actual search).  Each of these is a distinct action that has to be individually justified; just because you can stop someone doesn't mean you can search them.  Searches are permitted when there is reason to believe that the person you have stopped might be armed and dangerous.  All of this is already clearly established, here's where it gets creative: Rodriguez argued that although the police may have known him to be armed, they had no reason to believe that he was dangerous, and therefore the search was unjustified.

   Fortunately, the courts saw that for being exactly as stupid as it is.  The police aren't expected to be mind readers who know whether or not someone with a gun is going to do something with it.  A suspect with a gun is inherently dangerous, even if he doesn't also happen to be committing a crime just by carrying the gun.  So the police had plenty of reason to search and disarm Rodriguez.

   Rodriguez's conviction was upheld.

* This argument may have actually held some water in Colorado, where the CCW law is worded a little differently.  Here, people are allowed to carry concealed weapons on premises which are under their control.  So under identical circumstances, there really would have been no reasonable suspicion of criminal activity at the beginning of the detention.

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