IN: Officers lacked RS to take gun off an otherwise law abiding citizen based on a citizen informant tip def had a gun

A cab driver called the police because defendant dropped a gun. The cab driver feared he was to be robbed (but he wasn’t). The police showed up and claimed defendant acted nervous. (Only a little.) The frisk and removal of the weapon was unreasonable on the totality, even granting that the police did the right thing in the first place by inquiring, which they could at least do. There has to be balance between the Second Amendment right to possess a firearm, and the search and seizure to remove the gun from a law abiding citizen. Here, there was no reasonable suspicion, and the gun could not be used as evidence. Pinner v. State, 2017 Ind. LEXIS 354 (May 9, 2017):

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 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.

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[.]” Finger v. State, 799 N.E.2d 528, 534 (Ind. 2003) (quotation omitted). We, like courts in other jurisdictions, have found this to be so because “it is common for most people to exhibit signs of nervousness when confronted by a law enforcement officer whether or not the person is currently engaged in criminal activity.” Id. (quoting United States v. Salzano, 158 F.3d 1107, 1113 (10th Cir. 1998) (internal quotation omitted)); see also State v. Lee, 265 Neb. 663, 658 N.W.2d 669, 678-79 (Neb. 2003) (“[N]ervousness, as a basis for reasonable suspicion, must be treated with caution … [because] it is common knowledge that most citizens whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness.” (internal quotations and alterations omitted)); accord Delaware v. Prouse, 440 U.S. 648, 657, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (reasoning that “the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check … may create substantial anxiety”).

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 Appellee 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. See Prouse, 440 U.S. at 663 (“hold[ing] that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment”). 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. See J.L., 529 U.S. at 272 (“Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions … [b]ut an automatic firearm exception to our established reliability analysis would rove too far.”). “Were the individual subject to unfettered governmental intrusion every time he [exercised his right to bear arms], the security guaranteed by the Fourth Amendment would be seriously circumscribed.” Prouse, 440 U.S. at 662-63. “This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Id. at 661 (citations omitted). Once challenged, the State had the burden to show that under the totality of the circumstances the intrusion by police was reasonable. Bannister v. State, 904 N.E.2d 1254, 1256 (Ind. 2009). Based on this record, we find that it has not.

We hasten to add the officers in this case acted promptly and in the best interests of the community by responding to a tip involving someone who dropped a handgun in route to a public facility. In this regard, the officers properly exercised their authority to address the primary concern of ensuring public safety. We agree that police “ha[ve] a right, if not an obligation, to proceed to the location where [an] informant said they would find a man with a gun, even though this information may not provide the individualized suspicion required for a Terry ‘stop and frisk.'” Goree, 742 A.2d at 1045 (citations omitted). But the 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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