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Discussion Starter #1
Ok here is the scenario

You conduct a motor vehicle stop, during the stop you spot (plain view) on the center console a loaded 22 handgun in a belt-clip holster. The operator is from Vermont and the vehicle is registered in Vermont. The operator has a valid hunting license in Vermont.

Question:

Do you charge him with unlawful possession of a firearm?

The obvious answer is yes you do charge him. But does anyone know of any case law that would suggest different? I was at a motion to suppress today and the defense attorney was stating because the defendant had a valid HUNTING license from Vermont that he was exempt from Massachusetts LTC laws.

The defense attorney made mention of the following (that I have not had the time to read yet)

Ch 141 Sec 131G
Ch 140 Sec 129B & C
Ch 269 Sec 10A & H
 

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Chapter 140: Section 131G. Carrying of firearms by non-residents; conditions.

Section 131G. Any person who is not a resident of the commonwealth may carry a pistol or revolver in or through the commonwealth for the purpose of taking part in a pistol or revolver competition or attending any meeting or exhibition of any organized group of firearm collectors or for the purpose of hunting; provided, that such person is a resident of the United States and has a permit or license to carry firearms issued under the laws of any state, district or territory thereof which has licensing requirements which prohibit the issuance of permits or licenses to persons who have been convicted of a felony or who have been convicted of the unlawful use, possession or sale of narcotic or harmful drugs; provided, further, that in the case of a person traveling in or through the commonwealth for the purpose of hunting, he has on his person a hunting or sporting license issued by the commonwealth or by the state of his destination. Police officers and other peace officers of any state, territory or jurisdiction within the United States duly authorized to possess firearms by the laws thereof shall, for the purposes of this section, be deemed to have a permit or license to carry firearms as described in this section.
 

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Discussion Starter #3
Originally posted by dh18:
that such person is a resident of the United States and has a permit or license to carry firearms issued under the laws of any state, district or territory thereof which has licensing requirements which prohibit the issuance of permits or licenses to persons who have been convicted of a felony or who have been convicted of the unlawful use
Supposedly Vermont does not have such a law and the defense contested that his hunting license serves two purposes (hunting and the carrying of the weapon)

That does not make sense, if you have a license to hunt who says that you are not restricted to using only a bow and arrow?

provided, further, that in the case of a person traveling in or through the commonwealth for the purpose of hunting, he has on his person a hunting or sporting license issued by the commonwealth or by the state of his destination.
That he did not have.
 

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Well,

This is a tough one but........

1. It was stated in the original post that the operator had a valid Hunting Licence from Vermont.

2. Vermont does not feel the need to issue an equivalent LTC, presumably because of the 2nd Amendment and other FEDERAL laws relating to prohibiting Felons, Domestic abusers, mentally ill, etc from Lawfully exercising a basic constitutional freedom.

In other words, this guy is 100% legal in Vermont.
He is foolish enough to drive into Massachusetts like he was living in the 1950's. What was his intent? Should he get burned and have a nice criminal record? I don't know? Sounds like it's in the right hands now though. (The Court)

 

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Yes it is in the right hands now, and in my opinion the guy should take the rap for it. Although his intent is unknown his BOP showed he his not the nicest guy in the world but yet no felony convictions (Vermont will not issue a hunting license if you are a convicted felon)

It was actually 2 motions to suppress and since the judge took the gun issue under advisement the 2nd one came into play and that is the one was I was actually there for.

Motion to suppress and dismiss based on the fact it was a bad stop.

It was an OUI/Gun case, the erratic operation was witnessed by myself and my academy partner on the way back from good ol Plymouth Police Academy way back when (October actually)

Placed the call to *77 reported my observations, who we were, where we were and where we were coming from and what we were driving. At that time MSP requested that we stop the vehicle. Got to play with the lights and siren and the vehicle pulled over, told the driver (from a safe distance) to sit tight that we would be right with him and to shut off the vehicle and toss the keys (complied with no problem)

MSP arrives takes the guy into custody, pulled two guns, Billy club, black jack and a 12in hunting knife from the cab. The trooper advised us that another dept. was in a chase with this guy earlier that day and he was suspected then of OUI.

Defense attorney wanted the case dismissed based on the fact that we had not completed training and that we were out of jurisdiction, ADA's game was that we had a duty to act giving the fact that we were in a marked police cruiser.

The judge also took the second motion under advisement. I have a feeling I will be seeing more court time on this one. ;)
 

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You guys may be overlooking the obvious...it was loaded! To my knowlege even if he meets all of the requirements above it needs to be unloaded and in a locked case or have a trigger lock. Where was this guy coming from when you stopped him in Attleboro? He's a long way from Vermont even by way the crow flies!
 

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Discussion Starter #7
Apparently he was coming from a relatives house here in MA and was cruising back an forth on Rt44 (that's where we spotted the nut trying to pass several cars via the breakdown lane on the opposite side of the road)
 

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Gil, I hate to say it but if you didn't have the guy toss the keys it would not have been deemed an "arrest". I had an OUI once that when I pulled into a rest area to check a car that shouldn't have been there I stopped in front of him making it so he couldn't leave. The court at that point said he was "arrested" because he was no longer free to go. They tossed the case saying it was a bad stop.
You did the right thing as far as Public/Officer Safety. But the defense is going to twist this around to there advantage. Good Luck!
 

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Yeah that is my thought too, I had him toss the keys because we didn't know what we were dealing with and maybe if he felt he could not leave the area quickly he would be less likely to do something stupid.

ADA is not arguing the fact that we made an arrest, he agreed it was a seizure but again we had a duty to act to prevent the vehicle from any further travel based on the observed erratic driving.

To tell ya the truth I could care less if the case goes south, I did what I felt needed to be done and the guy did not take anyone out that day.

With my luck if we didn't stop him he would have killed someone and there would be some witness that saw that Attleboro police car right behind the guy for five miles and did nothing....
 

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Yeah that is my thought too, I had him toss the keys because we didn't know what we were dealing with and maybe if he felt he could not leave the area quickly he would be less likely to do something stupid

A few thoughts:
1) You got the guy off the road - safely. That's the most important part
2) The jurisdiction issues don't fly with me on this one - you were on the phone with MSP and told to stop the car and keep the situation safe until help arrived. I'd say you were an agent of MSP at that point. I'm no lawyer, but it seems pretty clear cut to me.
3) LTC issues: more thoughts to follow when I have a moment.

Good work :cool:

-Eric
 
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You (ADA) may want to look at Commonwealth v. Morrissey for the transfer of authority to make the stop and arrest(if there was one).

Good job either way.
 

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Originally posted by burbcop:
You (ADA) may want to look at Commonwealth v. Morrissey for the transfer of authority to make the stop and arrest(if there was one).

Good job either way.
Thanks

ADA seems to be leaning toward Commonwealth v. Hurd.

An arrest was made when we had the driver toss the keys, even know MSP made the pinch.

Transfer of authority was questioned by the defense because my actual wording to the trooper on the phone was "we are in a marked cruiser and can make the stop if you want us to"

Defense seemed to be hanging the transfer of authority on a technicality because we offered instead of being formally asked.

ADA's point of view:

"presented an emergency situation requiring immediate action for the protection of life and property."

Commonwealth v. Hurd, 29 Mass.App.Ct. 929 (1990)
Appeals Court of Massachusetts,
Middlesex.
No. 89-P-1287.
Argued April 2, 1990.
Decided July 30, 1990.
[29 Mass.App.Ct. 931] Bruce W. Edmands, Amy J. Axelrod, Boston, with him, for defendant.
James W. Sahakian, Asst. Dist. Atty., for Com.
Before ARMSTRONG, CUTTER and DREBEN, JJ.

RESCRIPT.

On June 11, 1988, at about 1:00 P.M., the Waltham Police Department received information from an anonymous caller that
a man who appeared to be drunk was getting into a blue automobile with New Hampshirelicense plates in front of Watch City
Liquors, 475 Winter Street, Waltham. The caller said there were three small children in the automobile.

[29 Mass.App.Ct. 930] Two Waltham police officers responded to the call. As they approached 475 Winter Street, they saw
a car matching the description given by the caller heading east on Winter Street approaching the entrance to route 128. The
officers stopped the automobile which was driven by the defendant and had three children as passengers. After stopping the car,
the officers asked the defendant to step outside. They smelled a strong odor of alcohol on his breath. After Miranda warnings
were given and field sobriety tests taken, the defendant was arrested for driving under the influence of alcohol. The foregoing
facts are taken from the Waltham police report and were stipulated by the parties. The defendant was convicted of driving
under the influence of alcohol based upon the evidence obtained as a result of the stop. The only issue raised by the defendant
is whether the warrantless stop was justified. If not, the defendant's motion to suppress the evidence obtained in the stop should
have been allowed.

The circumstances detailed by the anonymous call--a drunken driver with three small children in a blue car with New
Hampshire license plates at a specific address--combined with the observation by police officers approaching that address of a
blue vehicle with New Hampshire plates approaching the entrance to route 128, a high speed highway, "presented an emergency
situation requiring immediate action for the protection of life and property."
Commonwealth v. Marchione, 384 Mass. 8, 11,
422 N.E.2d 1362 (1981). "The need to protect or preserve life or avoid serious injury is justification for what would be
otherwise illegal absent an exigency or emergency." Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d
290 (1978).

In Commonwealth v. McCauley, 11 Mass.App.Ct. 780, 781-783, 419 N.E.2d 1072 (1981), police were informed by an
anonymous party that a man, described in considerable detail and wearing a red, white and blue sweater, was in a certain cafe
"carrying a firearm which he had dropped on the floor more than once." This court approved a Terry type (FN1) inquiry and,
11 Mass.App.Ct. at 783, 419 N.E.2d 1072 quoted from People v. Taggart, 20 N.Y.2d 335, 337-340, 283 N.Y.S.2d 1, 229
N.E.2d 581 (1967), modified, 21 N.Y.2d 729, 287 N.Y.S.2d 695, 234 N.E.2d 714 appeal dismissed, 392 U.S. 667, 88 S.Ct.
2317, 20 L.Ed.2d 1360 (1968): "There are exigencies affecting life [and] limb, or grave property damage in which the police
receive information of crime, not sufficient to establish probable cause for arrest and incidental search, and yet which, to any
reasonable man, demand the taking of police action to prevent serious harm." See also Commonwealth v. Anderson, 366 Mass.
394, 395, 318 N.E.2d 834 (1974); Commonwealth v. Fitzgibbons, 23 Mass.App.Ct. 301, 302, 502 N.E.2d 142 (1986). Cf.

Commonwealth v. Carey, 407 Mass. 528, 535 n. 4, 554 N.E.2d 1199 (1990). Commonwealth v. Bates, 28 Mass.App.Ct. 217,
219, 548 N.E.2d 889 (1990). The police, having reasonable grounds to believe that an exigency existed, acted appropriately in
stopping the automobile to see if, in fact, the driver was intoxicated. Such action was reasonably necessary[29 Mass.App.Ct.
931] to protect the children and the public from "unnecessary exposure to risk of injury." Commonwealth v. Fitzgibbons, 23
Mass.App.Ct. at 306, 502 N.E.2d 142.

Judgment affirmed.

(FN1.) Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
 

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Now I'm getting confused.

Transfer of authority was questioned by the defense because my actual wording to the trooper on the phone was "we are in a marked cruiser and can make the stop if you want us to"

This was stated AFTER telling MSP that you were two cadets returning from the academy, correct?

presented an emergency
situation requiring immediate action for the protection of life and property
This makes sense to me, clearly an emergency. But by itself, this applies to PO's, which you were not when you arrested (by telling him to toss the keys). I see the relevance, except that when MSP made the final arrest, the emergency no longer existed (you had stopped it) - I'm kind of playing devils advocate here I guess.

I think I understand burbcop's Comm. V. Morrissey argument because of its reference to c.268 s.24 and stating, "private actor...is privileged to rely upon the officer's request and
assist him unless the facts are such that the actor knows ... that the officer is not himself privileged to make the arrest."


Together, these two seem to fit well to me.
1) MSP had reason to believe that an emergency existed requiring immediate action. You called and stated the driver was DWI - which has better credibility than the civilian in Comm v. Hurd because you presumably had the training at this point to determine phase one of DWI detection

This led to:
2) You assisting MSP in the "execution of his office in a criminal case" and MSP arresting for OUI not in his presence - both in Comm. v. Morrissey

Can someone tell me if I am making any sense here? Or am I WAY off


And thanks Gil for letting me use your situation as a chance to learn something
;)

-Eric
 
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