KY: Seizure of def’s gun from console to run serial number when def doing nothing wrong was unreasonable detention, here leading to arrest for disorderly conduct

Defendant was stopped at a traffic safety checkpoint with his wife and two year old son in the car. His paperwork was in order and the officer handed it back, but then the officer noticed defendant’s handgun on the console. Defendant told him, and the officer reached in and seized it. The officer ran the DL number, registration on the vehicle, and the serial number of the firearm. The detention was unlawful, and defendant’s conviction for disorderly conduct is reversed. An armed person is not presumed “armed and dangerous” nor a felon in possession. Pulley v. Commonwealth, 2016 Ky. App. LEXIS 8 (Jan. 15, 2016):

The Commonwealth’s argument that Trp. Fields was justified in his temporary seizure of Pulley’s firearm for safety purposes is akin to the justification behind a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), stop and frisk. Under Terry, an officer must have reasonable suspicion to believe the suspect is armed and dangerous, and may gain immediate control of a weapon, before conducting a weapons search for a protective purpose. Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998); United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985); Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972). However, a Terry search may not be conducted to discover evidence of crime. Adams, 407 U.S. at 146, 92 S.Ct. at 1923.

In states in which possession of an unconcealed firearm is legal, the mere observation or report of an unconcealed firearm cannot, without more, generate reasonable suspicion for a Terry stop and the temporary seizure of that firearm. Northrup v. City of Toledo Police Dept., 785 F.3d 1128, 1131-33 (6th Cir. 2015); United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013); United States v. Lewis, 672 F.3d 232, 240 (3d Cir. 2012); United States v. Ubiles, 224 F.3d 213, 217-18 (3d Cir. 2000); State v. Williamson, 368 S.W.3d 468, 480-81 (Tenn. 2012); St. John v. McColley, 653 F.Supp.2d 1155, 1161-63 (D. N.M. 2009); United States v. Dudley, 854 F.Supp. 570, 579-80 (S.D. Ind. 1994). A firearm when combined with other innocent circumstances cannot generate reasonable suspicion because “it [is] impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.” United States v. Smith, 263 F.3d 571, 594 (6th Cir. 2001) (quoting Karnes v. Skrutski, 62 F.3d 485, 496 (3d Cir. 1995) (abrogated on other grounds)). See Black, 707 F.3d at 540 (openly bearing a firearm where it is legal to do so, in a high crime area, cannot justify reasonable suspicion).

An individual legally carrying a firearm is only armed, not “armed and dangerous.” Northrup, 785 F.3d at 1132 (citation omitted). Lawful possession of a firearm is insufficient to justify a suspicion that such a person has committed, is committing, or is about to commit a crime. St. John, 653 F.Supp.2d at 1161.

In Black, 707 F.3d at 540, the Government argued officers should be entitled to treat an openly armed man as a potential felon, justifying removal of his firearm to perform a record check because “it would be ‘foolhardy’ for the officers to ‘go about their business while allowing a stranger in their midst to possess a firearm.'” The Fourth Circuit rejected this argument, explaining as follows:

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.

Id. See also Northrup, 785 F.3d at 1132.

. . . .

We are not persuaded by the Commonwealth’s argument that the purpose of the traffic safety stop was not concluded before Trp. Fields contacted dispatch to check Pulley’s license and vehicle registration and, thus, also entering the serial number into a crime database the firearm’s registration check among those other checks did not extend or change the nature of the traffic safety stop. It is undisputed that the course of the traffic safety stop changed once Trp. Fields saw Pulley’s firearm. Trp. Fields testified that Pulley was cooperative, his documents appeared to be in order and he had no reason to be suspicious of him. After Trp. Fields returned Pulley’s driver’s license, vehicle registration and insurance card, the purpose of the traffic safety stop was complete and Pulley should have been allowed to proceed. See Turley, 399 S.W.3d at 424 (determining an officer may not himself create the exigent circumstances that lead to a seizure without a warrant by illegally extending a stop).

Likewise, we are not persuaded that Pulley’s additional detention, even if limited to only a few minutes, was constitutionally permissible where the purpose of the stop was changed into an investigation for general crime control. Unlike a traffic stop in which an officer’s suspicion of an infraction could justify additional investigation (including checking the status of a driver’s license and registration with dispatch) before issuing a traffic citation or a traffic safety stop in which reasonable suspicion emerging during the course of the stop could justify additional investigation, Trp. Fields lacked any justification for further investigation. Trp. Fields acted improperly by seizing Pulley and his firearm after the purpose for the stop concluded.

The Commonwealth argues once Pulley was cleared to leave, his subsequent actions were sufficiently attenuated from any illegality as to not be fruit of any illegal detention, because Pulley decided to stay and argue. We agree that once a stop ceases to be coercive and becomes consensual any evidence obtained afterward is not fruit of the poisonous tree. See id. at 423.

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