N.D.Ala.: Any possible mistake of law on open carry was reasonable under Heien

In a consensual encounter, the officer saw the butt of a gun sticking out of defendant’s back pocket. The direction to him to “turn around” was custodial. Even assuming that defendant had a right to carry a gun, any mistake of law was reasonable under Heien. United States v. Moore, 2014 U.S. Dist. LEXIS 180138 (N.D. Ala. December 22, 2014):

There are two problems with this assertion. First, assuming that Officer Elmore was mistaken in his belief that Moore was in violation of § 13A-11-73, this mistake was a reasonable one. While not completely concealed, the weapon carried by Moore was partially concealed so that only the butt of the weapon was visible to Officer Elmore and then only after he had Moore turn around so he could see his back side. Because this mistake of law was a reasonable one, it was objectively reasonable for Officer Elmore to believe that Moore was committing a violation of Alabama law. Thus, the Terry stop, based on this reasonable, but mistaken, belief is valid. See Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530; 190 L. Ed. 2d 475, 2014 WL 7919684 (Dec. 15, 2014) (officer’s reasonable, but mistaken, belief that defendant had violated state law was sufficient to establish reasonable suspicion to justify Terry stop).